Partner Hon. David Saxe (Ret.) Co-Authors Article in NYLJ on Adopting Private Judging in NY to Address Judicial System Backlog

Morrison Cohen Partner Hon. David Saxe (Ret.) and Alan R. Feigenbaum, of counsel at Blank Rome, recently co-authored an article in New York Law Journal entitled “Private Judges: How New York Can Unclog the Backlog,” which proposes that New York consider adopting a private judging model akin to the model embraced by the state of California in order to address the backlog in the New York judicial system following the COVID-19 pandemic.

In the December 9, 2022 article, the authors propose many arguments in favor of codifying – or at least considering – private judging in New York and debunk the chief “No, because” reactions that they anticipate. Examples include:

1. “No, because parties to civil litigation in New York can pursue arbitration.”

• Saxe and Feigenbaum argue: “While arbitration is available in New York, the right to appeal following an arbitration award is severely limited. A system that allows for private judging, coupled with the right to appeal is therefore more appealing. Private judging can ensure that fundamental errors that may not be subject to reversal in the arbitration scheme can, in fact, be corrected on an appeal.”

2. “No, because that is not how things are done in New York.”

• The authors argue: “This is not a worthwhile justification for impeding progress. Recall that New York did not institute its version of no-fault divorce until 2010. Ensuring that our judicial system is robust to the extent that it is prepared to efficiently handle the challenges of an ever-growing caseload should be the priority.”

The authors conclude that private judging would help lighten the load for the court system and allow it to gain some ground on the delays, allowing matters to be resolved in days or weeks rather than a year or three.

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