Third Circuit Rules Delaware Arbitration Program is Unconstitutional

Today, a panel for the United States Third Circuit Court of Appeals held that business arbitrations conducted behind closed doors by members of Delaware’s Chancery Court are unconstitutional.  The unique and controversial Delaware Arbitration Program was created by statute in 2009 in an effort to make the state’s court system more efficient for the many corporations based there.  As part of the optional program, sitting Chancery Court judges could act as an arbitrator in business disputes.  In 2011, the Delaware Coalition for Open Government challenged the law that created the arbitration program by arguing it violated the public’s First Amendment right to access civil trials.  Last year, a federal judge agreed with the coalition and suspended the program.  In Delaware Coalition for Open Government, Inc. v. The Hon. Leo E. Strine, Jr., et al., No 12-3859 (3rd Cir., Oct. 23, 2013), the appeals court affirmed by a margin of 2-1.