Business Court Best Practices: Constructive Thoughts on the Challenging Work of Effective Commercial and Corporate Law Adjudication

A market-based economy governed by the rule of law constitutes part of our traditional freedom as Americans. And that economy’s fair and efficient functioning is important to the economic opportunities and security of all Americans. To aid in that important end, during the last two generations, many American states have attempted, by various means, to create judicial forums, often termed “business courts,” for the efficient and fair resolution of business disputes. Many of these business court initiatives have drawn inspiration from the success of the Delaware Court of Chancery and the Delaware Supreme Court in resolving corporate and commercial disputes with the expertise and speed required by businesses, their stockholders, and other stakeholders. Drawing on his lengthy experience as a judge on these two pre-eminent business courts and as a corporate lawyer, the author addresses his own view of the attributes and practices that are most useful in the operation of an effective business court system charged with the challenging work of adjudicating complex business cases in a timely, expert, and predictable manner. The Remark focuses on a business court system because any effective model must address all stages at which cases are adjudicated. Recognizing that resource constraints, cultural factors, and rationally different perspectives exist that affect the extent to which what practices can or should be adopted, the author advances his own ideas in an entirely positive spirit, with the constructive goal of providing thoughts that may be of some modest utility to (even if they just inspire good-faith discussion among) the talented and hard-working lawyers, judges, and administrators who bear the difficult burden of litigating in, adjudicating cases assigned to, and administering business courts.