Useful Articles on the History, Development, and Nature of Business Courts

Delaware’s Chancery Court is the most well known business court in the United States, and has been handling internal corporate disputes for over a century. In the early 1990s, however, new business and commercial dockets and divisions were implemented in state courts outside Delaware.

Their jurisdiction included not only the internal business disputes that would fall within Chancery’s traditional equity jurisdiction, but also commercial disputes for money damages between different businesses.  As of 2019, there are at least 23 states with statewide, regional, or individual city and county business or commercial courts within their borders. This 2017 map prepared by Lee Applebaum reflects their location.

The following articles provide details on the history and development of these modern business courts. (This list does not purport to be exhaustive.)

A History of the Creation and Jurisdiction of Business Courts in the Last Decade (2004). This article provides a detailed overview of business court programs that developed between 1993 and 2003, and explains the still relevant similarities and differences in how these programs operate generally. It also includes a discussion of complex litigation court programs in California and Connecticut, which may encompass complex business and commercial cases, but also include other types of complex cases.

This 2004 article is effectively supplemented annually via the “Business Courts” chapter in the ABA publication Recent Developments in Business and Corporate Litigation. This includes all publications of that book from 2004 to the present. Recent Developments is the work of the ABA Section of Business Law’s Business and Corporate Litigation Committee.

Making a Case for Business Courts: A Survey of and Proposed Framework to Evaluate Business Courts (2007). This article was written by Professor Anne Tucker, whose history includes direct involvement with operating Atlanta’s Business Court.

Some Observations on Modern Business Courts and the Bar’s Role in Their Development (2009)

Getting to Yes in Business Courts: The Unique Role of ADR in Business Court Cases (2011) This article includes a discussion about the history and nature of business courts, the use of court annexed ADR, and comparisons with independent arbitration.  This 2015 article from Michigan also addresses ADR in relation to business court litigation, Business Courts, Arbitration, and Pre-Suit Mediation: A Modest Proposal for the Strategic Resolution of Business Disputes.

The Steady Growth of Business Courts (2011). This article provides a detailed overview of business courts implemented over specific time periods, with a number of charts.

Business Courts’ Take on Complex Corporate Conflicts (2015)

New York Commercial Division (2016). This is a video narrative about the New York Commercial Division, which began in 1993.

In addition, the 2016 (eighth edition) of the ABA book The Improvement of the Administration of Justice, includes a chapter (number 37) entitled “Business Courts in the United States: 20 Years of Innovation,” which has some more recent history.

Posted by Lee applebaum