Thanks for highlighting the recent posting of my piece. I, like you, could respond at length to your comments but will note just three, very briefly.

First, even though the larger focus of the piece is a constitional argument, I do address policy issues at the end of my article because my constitutional argument leads there, ineluctably. The policy issues are back on the table for the Delaware judiciary, whether they like it or not. I stated explicitly that they could, as a judiciary, dispense with duties categorically in the noncorporate area but that, of course, is sharply at odds with a customary case by case adjudicative approach in the fiduciary duty area, is at complete odds with corporate law(where the judges are utterly unconstrained to apply fiduciary duties notwithstanding a corporate “contract” exists, thereby making the supposed “contractual” distinction between LLCs and corporations unpersuasive), and most importantly, such judicial decisions on this subject would not and could not be because the General Assembly mandated it(which the GA cannot do, the key point of the piece)and therefore the judges should stop saying so. Second, I don’t say duties run to creditors but that upon insolvency creditors are the residual claimants of duties to the company, yet creditors do not waive duties contractually. Third, you can’t make fiduciary duties disappear by willing them away in your writing, however persuaded you are(naturally)of the correctness of your policy position. They have been around for centuries, still are around in many subject areas and states, and can still be applied in Delaware LLC and partnership law whatever the General Assembly might say. The GA waiver statute is enaabling legislation that is necessary, but not sufficient, to effectuate a waiver.