Delaware’s Chancery Court Arbitration Procedure Ruled Unconstitutional

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

Delaware’s Chancery Court judges for operating a private arbitration system. Empowered by legislation passed in 2009, the judges were acting as arbitrators in business disputes, which, the Coalition argued, effectively made court proceedings confidential. According to the Coalition, this violated the presumptive right to access to judicial proceedings and documents, as guaranteed by the First Amendment of the Constitution.

Judge Mary McLaughlin from the Eastern District of Pennsylvania agrees. In a 26-page opinion, she rules that the arbitrations are sufficiently like a trial to be covered by the right to access presumption in the First Amendment. In coming to this conclusion, she argues that unlike arbitrators, who are private actors selected by the parties, judges are appointed to public service and therefore must act in the public interest.

For more analysis of the opinion, see Delaware Litigation and Steven Davidoff’s post in The New York Times.

                       

Jennifer Shack

Jennifer Shack is Director of Research at Resolution Systems Institute (RSI), a Chicago-based nonprofit working to improve access to justice through court alternative dispute resolution (ADR). Jennifer, who has been with RSI since 1999, is one of the foremost court ADR researchers in the field. She focuses on conducting complex… MORE >