ABA Section of Business Law and Business Courts: A 25 Year Connection

The American Bar Association’s Section of Business Law (the Section) has long supported establishing business court divisions or programs within existing court systems, where appropriate. The Section has also regularly published articles and presented programming on the subject of business courts, included business court judges within its fold, and helped law students of diverse backgrounds serve as business court clerks.

The Ad Hoc Committee on Business Courts and the Business Lawyer

In 1994, the Section created an Ad Hoc Committee on Business Courts. In August 1996, the Committee issued a report (i) identifying “the reasons why some jurisdictions are considering or have adopted business courts of special jurisdiction or specialized business courts of general jurisdiction; (ii) summarized the use of specialized courts in the federal courts and in other counties; and (iii) surveyed each of the fifty states to determine the status of efforts to create any such separate courts or specialized departments.” Subsequently, the “Section determined to recommend that courts which hear a substantial number of corporate and commercial disputes establish specialized court divisions to provide the expertise needed to improve substantially the quality of decision making and the efficiency of the courts with respect to such business cases.”

The 1996 report and the Section’s response are addressed in this Business Lawyer article, written by the Ad Hoc Committee, Business Courts: Toward a More Efficient Judiciary, 52 Business Lawyer 947 (1997), which includes the above-quoted language. Seven years later, the Business Lawyer published another seminal business courts article, A History of the Creation and Jurisdiction of Business Courts in the Last Decade, 60 Business Lawyer 147 (2004), which has been referenced extensively by those looking to study or create business courts.

The Business Courts Subcommittee

The Ad Hoc Committee evolved into the Business Courts Subcommittee (login required) within the Section’s Business and Corporate Litigation Committee. The Subcommittee has been extremely active since its inception, regularly creating business court related programming, posting materials to its website libraries (login required), and working more broadly to assist jurisdictions across the United States with their efforts to study or create business courts. The Subcommittee’s membership has included many business court judges, who have often served in Section leadership positions. In 2008, the Subcommittee drafted the pamphlet, Establishing Business Courts in Your State, which the Section published.

The Judges Initiative Committee

The Business Courts Subcommittee has also worked closely with the Section’s Judges Initiative Committee. This administrative committee “provide[s] a home specifically dedicated to the Section’s judicial members. The Committee provides a forum to interact with other judges and Section members and exchange ideas on topics of mutual interest, opportunities for education, and the ability to participate in Section activities.” The Committee typically has a judge and lawyer as co-chairs, and a number of the judicial co-chairs have been business court judges, e.g., pioneering North Carolina Business Court Judge Ben F. Tennille, and South Carolina Business Court Judge Clifton Newman. Like the Business Courts Subcommittee, the Judges Initiative Committee has sponsored numerous business court related programs at ABA meetings.

Business Court Representatives

The Judges Initiative Committee also provides a de facto home for the Section’s Business Court Representatives (BCRs). The BCRs are judges presiding in business, chancery, or complex litigation courts or programs. The BCR homepage states: “The Business Court Representative Program is designed to provide educational opportunities for judges on cutting edge business law developments. The program is also designed to provide the Section members with exposure to judicial leaders as well as an opportunity to provide their input on those same developments and gain their insights and perspectives on business and commercial litigation. One focus of the Business Court Representatives Program is to provide younger lawyers with exposure to judicial leaders in non-adversarial settings. A separate focus is the creation of better communications between the ABA Judicial Division and the Business Law Section.”

To date, the Section has selected 35 different BCRs from business, chancery, or complex litigation courts and programs in Arizona, California, Delaware, Florida, Georgia, Illinois, Indiana, Maryland, Michigan, Minnesota, Mississippi, Nevada, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, and West Virginia.  A number of these BCRs have taken on leadership positions, especially within the Business and Corporate Litigation Committee and Judges Initiative Committee.

Diversity Clerks

The Section also created a Diversity Clerkship Program.  This program places second year law students of diverse backgrounds in judicial clerkships with business court judges. The Section states: “The Business Law Section Diversity Clerkship Program focus is on judicial clerkships, where diversity among judicial clerks remains disproportionately low. For law students, serving as a judicial law clerk is a mark of distinction and honor that will advance their future career opportunities in law practice, and academia, in government as high-level appointees, and in securing appointments to the bench. Clerkships in business law courts provide another unique and highly important benefit to law students: the ability to see a microcosm of business practice, and allow the student to become familiar with business issues. Such a background will prove invaluable to a career in business law, whether it be litigation or transactional work.”

Since its inception in 2008, through the Summer of 2018, eighty-nine law students have participated in the Diversity Clerks Program.

Business Courts in Section Publications

The Section also publishes Business Law Today (BLT).  Originally a hard copy magazine, now a cyber source of organized topical resources and articles for business lawyers. BLT has published a number of business court articles. BLT’s March/April 2008 edition focused on specialized business and commercial courts of all kinds, both in the United States and internationally, including these articles, among others: The “New” Business Courts, The History of Delaware’s Business Courts, and Beyond the Border: An International Perspective on Business Courts.

In 2014, BLT published the article Recent Developments in Business Commercial Courts in the United States and Abroad.  From 2014 to 2017, BLT published three articles by BCR and New York Commercial Division Judge Timothy S. Driscoll on practice developments in New York’s Commercial Division. There is also a September 2017 interview with South Carolina Business Court Judge Clifton Newman.

The Business and Corporate Litigation Committee annually publishes Recent Developments in Business and Corporate Litigation. This book has included a “Business Courts” chapter since 2004. This chapter in effect provides an annual supplement to the Business Lawyer’s 2004 article on business court creation and history, linked above.

In 2015, the Business Lawyer also published an article, Delaware Courts Continue to Excel in Business Litigation with the Success of the Complex Commercial Litigation Division of the Superior Court. The article describes Delaware’s newest business court program, the Delaware Superior Court’s Complex Commercial Litigation Division (CCLD). The CCLD was created in 2010 to complement Delaware’s Court of Chancery with a specialized forum where business and commercial disputes solely involving remedies at law could be heard. The article was co-authored by Joseph R. Slights, III, who presided in the CCLD from its inception until 2012, and is now a Vice Chancellor.

In addition, informal papers are presented as part of Section programs, including papers on business courts. For example, as part of the 2009 program Business Courts Around the World, the Honorable Mr. Justice David Steel of the British Commercial and Admiralty Courts, now Sir David Steel, presented remarks on the role of commercial courts.  An informal paper, Specialized Business and Commercial Courts Around the Globe: A Summary World View was written by Business Court Subcommittee leaders Lee Applebaum and Cory Manning for the same program. As part of the Section’s Business Bar Leaders conference in May 2009, Applebaum presented another informal business courts  paper, Some Observations on Modern Business Courts and the Bar’s Role in Their Development.

Business Court Panels and Programs

Through the efforts of the Section’s Judges Initiative Committee, Business and Corporate Litigation Committee and/or the Business Courts Subcommittee, from 2006 to 2012, the Section put on five distinct programs about business court history and/or practice: Business Courts – Are they Working and Why (2006), Business Courts and Complex Litigation Courts – What Works Best and Why (2007), Business Courts Around the World (2009), ADR in Business Courts: How Commercial Judges Encourage Settlement (2010), and Business Court Judges Speak: How to Litigate a Case in a Business Court (2012). The Audio and Materials from these programs are available to Section members in various places on its website.

In addition to business court specific programs, these committees have been directly involved in presenting best practices programs with BCR panelists, such as how to get evidence in and use it at trial, and addressing  issues in electronic discovery.

The BCRs also have regularly participated in the Trial Practice Subcommittee’s annual roundtables, where judges and lawyers meet in more informal settings to address best practices. Additionally, BCRs have been regular panelists in other formal programs, not sponsored by the Judges Initiative Committee or Business Courts Subcommittee, demonstrating one more example of business and complex litigation court judges becoming integral to the Section over time.