A federal district court judge ruled that a Delaware statute enacted in 2009 allowing sitting judges on the Delaware Court of Chancery to preside over private arbitrations to resolve business disputes involving Delaware entities violated the First Amendment of the United States Constitution. The statute permitted parties to elect to arbitrate, rather than litigate, in accordance with certain procedures. These procedures included privately-conducted arbitration hearings, arbitration filings being inaccessible by the public and final awards not being made a matter of public record. The group that challenged the statute argued that the arbitration proceeding created thereunder was the functional equivalent of a civil bench trial to which the First Amendment affords the public with a qualified right of access. The proponents of the statute unsuccessfully argued that the arbitration proceeding was similar to an administrative proceeding to which public access may be restricted.
Delaware Coalition for Open Government v. Strine, C.A. No. 1:11-1015- MAM (Del. Dist. Ct. Aug. 30, 2012)