Oversight as Attention
Nina Sankey Russell
A focal point of corporate law is the set of duties owed by the board of directors to the corporation and its stockholders. When directors harm the corporation in breach of their fiduciary duties, stockholders can sue those directors on behalf of the corporation via derivative litigation. One type of derivative suit is an oversight claim, which existed in Delaware law for more than half a century before reaching trial for the first time in July 2025. The increased viability of oversight claims has brought into sharp relief the stakes, fault lines, and limits of Delaware corporation law. Yet, the future of Delaware oversight doctrine remains unclear.
This Note argues that the concept of attention helps to explain the development of Delaware oversight law and clarify the path forward for this contested doctrinal area. Part I sets the terms of analysis, clarifying that oversight is properly understood as an obligation of corporate fiduciaries, rather than a standalone fiduciary duty on par with loyalty and care. Part II reveals the incumbent paradigm of oversight as action and its shortcomings, locating attention even in cases that were decided under the action theory of oversight. Part III contends that attention is a meaningful but neglected dimension of oversight. Taken together, oversight as action and oversight as attention yield an integrated account of Delaware oversight doctrine and a way to render coherent this unsettled body of law.