The Delaware Court of Chancery is mulling its options to revive the confidential arbitration program after the U.S. Court of Appeals for the Third Circuit declared the program unconstitutional last week. Law professors throughout the country said that the Chancery Court’s best bet is to appeal directly to an arbitration-friendly U.S. Supreme Court, but also to amend the statute governing the program to distinguish it from traditional litigation.
In the Oct. 23 decision, the Third Circuit held in a 2-1 opinion that the Chancery Court’s arbitration program is ultimately a civil trial and, therefore, violates the public’s right to access trials under the First Amendment. Among the similarities highlighted by the majority in the decision is that the program occurs before active judges in public courthouses and results in binding orders issued by the court.
