Alternative Dispute Resolution

Judicial Arbitration in Delaware Chancery Court Violates First Amendment, Federal Judge Rules

A federal judge in Philadelphia has ruled that closed-door arbitrations by Delaware chancery court judges violate a First Amendment right of access to trials.

U.S. District Judge Mary McLaughlin ruled in a suit filed by the Delaware Coalition for Open Government, report the Wall Street Journal (sub. req.), the News Journal (sub. req.), Bloomberg and the New York Times.

McLaughlin wrote that sitting judges act as arbitrators in proceedings akin to a nonjury trial. “The First Amendment protects a qualified right of access to criminal and civil trials,” she said. “Except in limited circumstances, those proceedings cannot be closed to the public.”

There is no public record for five of the six cases arbitrated using the procedure adopted in 2009, the Times says.

The chancery judges named as defendants in the suit issued a statement saying they would appeal. “In an increasingly competitive global marketplace, the United States cannot afford to be at a competitive disadvantage in providing efficient ways for businesses to resolve their disputes,” said the statement published in the Wall Street Journal. “Otherwise, businesses will tend to move toward other nations that provide that advantage.”

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