Business Courts as Loci of Privilege: The Business Judgment Rule Abroad

Business courts can function as loci of privilege, both institutional and substantive, expressing a clear privileging of business as a sphere of social action. Using an original case study, we show how establishment of a new business court privileged businesspersons in two ways: by providing them with expert judicial services, and by receiving into law a rule that gives them unique protection from liability, the Delaware business judgment rule. We did not find that this reception reflected court capture by businesspersons. It did reflect a conviction that Delaware law is best, inculcated by U.S.-educated academics, and inter-jurisdictional competitive aspirations. Our case study demonstrates how business courts express the structured power of business and businesspersons.