Business courts: Towards a more efficient judiciary

Business Lawyer

Volumn 52, Issue 3, 1997, Pages 949-963

  Block, Dennis J ^a   Chaitman, Helen D ^a   Clark Jr , William H ^a   DiBlasi, Gandolfo V ^a   Griffin Jr , Campbell A ^a   Haig, Robert L ^a   Hanks Jr , James J ^a   Nutt, Robert L ^a   Woodward, David R ^a   Balotti, R Franklin ^a   Brandel, Roland E ^a  

^a NONE

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EID: 77952447304     PISSN: 00076899     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (39)

1. This report is, in substance, the same as the Report of the Ad Hoc Committee on Business Courts, dated August 1, 1996, which was presented to the Section and approved. It has been amended by the Committee chairs in minor respects to reflect more current information and to improve readability for a more general audience. The Committee members were Dennis J. Block, Helen D. Chaitman, William H. Clark, Jr., Gandolfo V. DiBlasi, Campbell A. Griffin, Jr., Robert L. Haig, James J. Hanks, Jr., Robert L. Nutt, and David R. Woodward. The Committee was chaired by R. Franklin Balotti and Roland E. Brandel.
2. The chancery courts, which are present in a limited number of states, are an exception.
3. Professor Jeffrey Stempel has articulated the components of this efficiency in more detail as follows: Specialist judges may be better, more efficient managers and may offer case processing decisions that intrude less upon litigants' substantive rights. Case management involves setting and enforcing pretrial preparation deadlines, supervising disclosure and discovery', ruling on summary judgment and other dispositive motions, and brokering settlement. A trial judge with specialized expertise would have more of an intrinsic "feel" for performing these tasks correctly, and would need less fresh research and reflection than would a generalist. Consequently, a specialist judge might well preside over case processing that is faster, less costly (in both judicial and attorney time), and more frequently correct. Furthermore, many of a trial judge's decisions are invariably (and perhaps unavoidably) made extemporaneously, with comparatively little time for research, consultation, reflection and written articulation. Trial judges have frequent face-to-face interaction with lawyers, litigants, jurors and the public. Often they must rule orally, largely on the basis of their accumulated knowledge and judgment, rather than after painstaking study of briefs, case law or policy considerations. . .. Perhaps most valuable will be the specialist trial judge's deep familiarity with a range of disputes involving the specialty topic. Although specialist judges possibly will become jaded or close-minded, the fact that the topic is familiar means the specialist trial judge will be able to grasp immediately the legal concept at issue as well as the nature of the factual controversy. The specialist trial judge will be superior to the generalists in her ability to focus more quickly on the important factual issues and to apply the law with sensitivity in light of the court's institutional memory. Finally, the specialist bench will recognize quickly how a single case disposition fits in with the fabric of the substantive area. Jeffrey W. Stempel, Two Cheers For Specialization, 61 BROOK. L. REV. 67, 113-14 (1995).
4. See, e.g., William H. Rehnquist, The Prominence of the Delaware Court of Chancery in the State-Federal Joint Venture of Providing Justice, 48 BUS. LAW. 351 (1992). A scholarly analysis of the Delaware Court of Chancery concluded, with the concurrence of several commentators, that the functioning of that court as a highly specialized forum for corporate law issues deserves high praise.
5. See Rochelle C. Dreyfuss, Forums of the Future: The Role of Specialized Courts in Resolving Business Disputes, 61 BROOK. L. REV. 1, 5-8 (1995).
6. The Virginia State Corporation Commission (Virginia Commission) has three judges who have the authority to issue decisions that are appealable directly to the Virginia Supreme Court. It has jurisdiction over challenges to corporate charters, claims under state insurance regulations, and regulations governing financial institutions. The Virginia Commission does not, however, have jurisdiction over breach of contract claims or shareholder derivative suits.
7. Task Force on Business Courts, ABA, Business Courts in the United States (Dec. 9, 1994).
8. American Corporate Counsel Association, Statement on Specialized Business Courts (approved June 13, 1996).
9. Pennsylvania Corporation Bureau Advisory Committee, Report of the Pennsylvania Corporation Bureau Advisory Committee Subcommittee on the Commerce Court (Apr. 29, 1996).
10. Chancery Court Coalition, Explanation of Revised Proposal to Create a Pennsylvania Business Court (Mar. 20, 1995).
11. E. Leo Milonas & Stanley S. Ostrau, Commercial Parts: Project Narrative, Supreme Court, Civil Branch, New York County.
12. Creation of the Complex Litigation Case Management Section, Gen. Admin. Order 96-1, Cook County, Ill. (Apr. 8, 1996).
13. Rochelle C. Dreyfuss, Forums of the Future: The Role of Specialized Courts in Resolving Business Disputes, 61 BROOK. L. REV. 1 (1995).
14. John J. Gibbons, The Quality of the Judges Is What Counts in the End, 61 BROOK. L. REV. 45 (1995).
15. Pauline Newman, The Sixth Abraham L. Pomerantz Lecture: Commentary on the Paper by Professor Dreyfuss, 61 BROOK. L. REV. 53 (1995).
16. Jeffrey W. Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67 (1995).
17. W. H. Rehnquist, The Prominence of the Delaware Court of Chancery in the State-Federal Joint Venture of Providing Justice, 48 BUS. LAW. 351 (1992).
18. David Bailey, 2 More Calendars for Commercial Litigation Set to Open, CHI. DAILY L. BULL., Mar. 29, 1995, at 1.
19. David Bailey, Commercial Litigation Heads to New Calendar in Law Division, CHI. DAILY L. BULL., Aug. 27, 1993, at 1.
20. R. Franklin Balotti & Roland E. Brandel, Business Bench: Are Special Courts the Future?, BUS. L. TODAY, Jan.-Feb. 1995, at 25.
21. Jill Chanen, Judge Sees Justice, Not Speed, as Commercial Calendar Goal, CHI. LAW., Nov. 1993, at 19.
22. John L. W. Garrou, Business Court Not Business as Usual, LEGAL TIMES, Apr. 29, 1996, at 24.
23. Jack Seism, New Judge Gets Down to Business, HERALD-SUN (Durham, N.C.), Mar. 31, 1996, at B11.
24. Stales Move to Establish Specialized Business Courts in Effort to Streamline Cases, Heighten Bench Expertise, B.N.A. CORP. COUNS. DAILY, Mar. 19, 1996, at D4.
25. Complex Business Issues to Be Heard in New North Carolina Business Court, B.N.A. CORP. COUNS. DAILY, Jan. 30, 1996, at D3.
26. Margaret M. Eckenbrecht, A Commercial Venture: Supporters Portray Business Courts as White Knights Rescuing Overburdened Justice System, A.B.A. J., Jan. 1996, at 35.
27. Martin Fox, Bar Report Urges Expansion of Commercial Parts; County Lawyers' Panel Reviews Causes for Delay, N.Y L.J., July 20, 1994, at 1.
28. Robert L. Haig, The New York State Supreme Court Creates a Commercial Division, MANAGING LITIG. COSTS, Nov. 1995, at 11.
29. Linda Himelstein, The Case for a Business Court, BUS. WK., Mar. 13, 1995, at 8.
30. Judith S. Kaye, A Wish Fulfilled for the Chief Judge, METRO. CORP. COUNS., June 1996, at 1.
31. Pete Millard, Taking Care of Business, CORP. REP. WIS., Apr. 1, 1996, at 8.
32. E. Leo Milonas, Commercial Division Experiment Appears Successful, N.Y. St. B. News, May/June 1996, at 13.
33. Stanley S. Ostrau, Letters to the Editor: Praise for Reports on Commercial Parts, N.Y. L.J., Jan. 18, 1995, at 2.
34. Gary Spencer, Cuomo Seeks State Commercial Court; Other Bills Aimed at Improvement of Business Climate, N.Y. L. J., Jan. 6, 1994, at 1.
35. Editorial: Time for a Business Division in the Superior Court, N.J. LAW., Apr. 29, 1996, at 6.
36. Joseph E Troy & Douglas K. deVries, Point/Counterpoint: Lawyers Specialize; Should Judges?, Cal. B.J., July 1994, at 12.
37. Joseph E Troy, Business Courts for California: A Status Report and the Argument for Change, CEB CAL. BUS. L. REP. July 1994, at 24.
38. G. Robert Witmer Jr., Legal System Needs to Be Improved, Not Dismantled, N.Y. L.J., May 1, 1995, at 1.
39. Daniel Wise, Commercial Parts Earn High Marks, N.Y. L.J.Jan. 9, 1995, at 1.