Matthew R. Koch
ABSTRACT
During the second half of the twentieth century, arbitration rapidly emerged as a dominant player in the legal industry. Because arbitration is arguably more efficient and less costly, it serves as an attractive alternative to litigation. Accordingly, potential litigants and state courts are increasingly choosing arbitration over traditional litigation to resolve legal disputes.
Consistent with this trend, the Delaware State Legislature in 2009 enacted an arbitral mechanism that authorized the Court of Chancery to conduct secret arbitration proceedings. Following this initiative, however, in Delaware Coalition for Open Government v. Strine, the United States District Court for the District of Delaware found that these proceedings constitute the functional equivalent of civil trials. Reasoning that such secrecy inherently conflicts with the guarantee of open access surrounding traditional litigation, the court definitively struck down Delaware’s experiment as violative of the First Amendment to the United States Constitution.
This Comment provides an explanation of the arbitral process, explores the First Amendment in relation to the right of public access, and analyzes the opinion set forth in Strine. This Comment then proposes a statutory solution, offering a middle ground that would survive First Amendment scrutiny, while permitting Delaware to continue to offer the Chancery alternative.
FULL TEXT
preferred citation: Matthew R. Koch, Comment, Shhh . . . Secret Arbitration in Process: The Unconstitutionality of Delaware’s Chancery Arbitrations, 118 Penn St. L. Rev. 437 (2013).