This is a guest post from Megan Wischmeier Shaner, the Kenneth E. McAfee Chair in Law and President’s Associates Presidential Professor, at the University of Oklahoma College of Law.

On May 29, 2025, Oklahoma appeared poised to become the thirty-second state with a dedicated business court or commercial/complex litigation docket. SB 632 would create two new business courts in Oklahoma with jurisdiction over “complex cases” which could include claims involving antitrust or trade regulation, intellectual property, securities law issues, professional malpractice, contracts, commercial property, intra-business disputes, insurance coverage, environmental claims, product liability and e-commerce, among others. Modeled, in part, off Delaware’s Court of Chancery, the judges would be appointed by the governor for 8-year terms and must have ten or more years of experience in complex civil business litigation, practicing business transaction law, and/or serving as a judge or clerk of court with civil jurisdiction. Jury trials would only occur upon application by a party to a suit within a specified time period.

Shortly after SB 632 was signed by the governor two attorneys filed a legal challenge with the state supreme court asserting the legislation was unconstitutional. (White & Waddell v. Stitt, 2025 OK 68, C.A. No. 123222 (Okla. Oct. 7, 2025)). The Oklahoma Association for Justice filed an amicus brief in the litigation supporting the petitioners’ arguments as well as raising additional issues regarding the constitutionality of the legislation.

In a 6-2 decision, the Oklahoma supreme court held SB 632 was unconstitutional on several grounds. First, the court found that the creation of a new business court, separate from the Oklahoma district courts, exceeded the boundaries of the legislature’s power to create courts as set forth in the state constitution. Article VII, Section 1 of the Oklahoma constitution enumerates eight courts which have judicial power to adjudicate disputes in the state and a business court is not one of the existing, enumerated courts with judicial power. Second, the court held that even if SB 632 created a business court division within the district court system (one of the eight enumerated courts), such judges must be “elected by the voters of the several respective districts or counties at a non-partisan election in the manner provided by statute.” (Okla. Const. Art. VII, § 9). Because SB 632 mandated a selection process that allowed the governor to appoint the judges from a list of three candidates provided by the Speaker of the House of Representatives (and not the independent Oklahoma Judicial Nominating Commission) it was unconstitutional. Interestingly, both of these constitutional requirements regarding the structure of the Oklahoma judiciary were put in place following a bribery scandal in the 1960’s involving three justices on the state supreme court. The constitutional amendments were intended to limit the legislature’s power and influence over the judiciary and eliminate partisan appointment and election of judges.  In a time where it seems the state and federal judiciary are becoming more politicized; Oklahoma’s 1967 court reforms seem to protect its judiciary from some of those political pressures.

Even if Oklahoma’s business courts had withstood the constitutional challenges, they would not have had an impact on what looks to be a three-horse race among Delaware, Texas, and Nevada for corporate charters. Nevertheless, the issues raised in the Oklahoma litigation are relevant to the discussions taking place in Texas and Nevada regarding the structures of their respective business courts, especially with respect to judicial selection and terms.

Texas

In Texas there is speculation whether the issues raised in White & Waddell could be applicable to the Texas Business Court. Texas HB 19 provides that its Business Court judges are appointed by the governor for two-year terms. Similar to Oklahoma, Article V, Section 7(b) of the Texas Constitution provides that district judges are to “be elected by the qualified voters at a General Election,” thus raising constitutional questions about the judicial appointment process. Unlike Oklahoma, however, the Texas constitution provides that the legislature can “establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof,” and this power was specifically cited in the creation of the Texas Business Court. Whether this broad grant of legislative power to create the Business Court includes structuring the judicial selection process in a different manner than district judges is unclear.  

Nevada

While not directly addressed in its opinion, the Oklahoma supreme court flagged other constitutional problems implicated by its business court structure, including more stringent judge qualifications, different starting and ending term dates, longer terms, high salaries and designated law clerks, and circumvention of the Judicial Nominating Commission’s role in recommending judicial nominees to the governor. Combined with the special appointment process for business court judges, the legislature was in effect creating a new class of judges within the district court system in violation of the constitution. Objections to business court judges receiving “special” treatment is something that has also been raised in the debates surrounding how Nevada should reshape its business court. Following a proposal to amend the Nevada state constitution to establish a dedicated business court with appointed judges (ARJ8), the chief justice of the Nevada Supreme Court announced plans to pursue the creation of a Commission to Study the Adjudication of Business Law. In so doing the chief justice expressed the desire to see more resources going to existing courts as opposed to the creation of new structures. Moreover, the chief justice and state legislators have expressed concerns over the judicial selection process proposed in the constitutional amendment: (i) that the legislature’s involvement in the nominating commission would, at a minimum, create the appearance of political motivation, and (ii) that the retention vote system would create two tiers of judges in Nevada – those appointed to the business court and others that must be elected. These concerns about different “classes” of state court judges are not unique to Nevada but apply to Texas’ structure (where legislators earlier this year unsuccessfully attempted to extend the judicial terms on the business court) and other states like Oklahoma considering how to create their own business court.