Delaware Coalition for Open Go v. Leo Strine, Jr., et al

Filing 17

ECF FILER: ELECTRONIC BRIEF with Addendum attached on behalf of Appellants Sam Glasscock, III, J. Travis Laster, John W. Noble, Donald F. Parsons, Jr., Esq. and Leo E. Strine, Jr., filed. Certificate of Service dated 12/11/2012 by 3rd party, ECF. [Text edited to indicate Addendum attached, Appendix Volume I removed due to deficiency and re-filed as of 12/12/12]--[Edited 12/17/2012 by EAF] (AJP)

Case: 12-3859

Document: 003111104483

Page: 1

Date Filed: 12/11/2012

No. 12-3859

UNITED STATES COURT OF APPEALS
FOR THE
THIRD CIRCUIT
_________________________________________________________
DELAWARE COALITION FOR OPEN GOVERNMENT, INC.,
Plaintiff-Appellee,
v.
THE HON. LEO E. STRINE, JR.; THE HON. JOHN W. NOBLE; THE HON.
DONALD F. PARSONS, JR.; THE HON. J. TRAVIS LASTER; AND THE
HON. SAM GLASSCOCK, III; IN THEIR OFFICIAL CAPACITIES,
Defendants-Appellants.
_____________________________________
On Appeal from the United States District Court for the District of Delaware
Honorable Mary A. McLaughlin, U.S. District Judge
Case No. 1:11-cv-01015

BRIEF FOR APPELLANTS
Andre G. Bouchard
Joel Friedlander
BOUCHARD MARGULES &
FRIEDLANDER, P.A.
222 Delaware Ave., Suite 1400
Wilmington, DE 19801
[phone]
Lawrence A. Hamermesh
Widener University School of Law
4601 Concord Pike
Wilmington, DE 19803
[phone]

Andrew J. Pincus
E. Brantley Webb*
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]
* Admitted only in Tennessee,
supervised by principals of the firm

Counsel for Defendants-Appellants

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................................................... iii
PRELIMINARY STATEMENT................................................................1
JURISDICTION .......................................................................................4
ISSUE PRESENTED ...............................................................................4
RELATED CASES AND PROCEEDINGS ..............................................4
STATEMENT OF FACTS ........................................................................4
STATEMENT OF THE CASE ...............................................................14
SUMMARY OF ARGUMENT ................................................................20
STANDARD OF REVIEW......................................................................23
ARGUMENT ..........................................................................................23
I.

THE DISTRICT COURT ERRED BY FAILING TO APPLY
THE “EXPERIENCE AND LOGIC” TEST...................................23
A.

The Supreme Court And This Court Consistently Apply
The Experience And Logic Test To First Amendment
Access Claims. ......................................................................25

B.

The Statutory Commercial Arbitration Proceeding
Differs Fundamentally From A Civil Trial..........................34
1.

2.

Delaware’s
Arbitration
Proceedings
Are
Characterized By Procedural Flexibility Not
Available in Civil Judicial Proceedings. .....................38

3.
C.

Arbitration Proceedings Under The Delaware
Statute Are A Product Of The Parties’ Consent,
While Judicial Proceedings Rest On Coercive
Government Power......................................................35

An Arbitrator’s Award Is Subject To More
Limited Review Than A Trial Court’s Judgment.......40

Delaware’s Decision To Authorize Judges To Act As
Arbitrators Does Not Transform The Arbitrations Into
Civil Judicial Proceedings....................................................43
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Page
II.

APPLICATION OF THE EXPERIENCE AND LOGIC TEST
DEMONSTRATES THAT THERE IS NO FIRST
AMENDMENT RIGHT OF ACCESS TO DELAWARE’S
COMMERCIAL ARBITRATION PROCEEDINGS. .....................52
A.

Delaware Has Provided For Public Access To Judicial
Proceedings Reviewing The Arbitration Award..................52

B.

There Is No First Amendment Right Of Access To The
Arbitration Proceeding Itself. ..............................................55
1.
2.

C.

Arbitration Has A Historical Tradition Of
Confidentiality. ...........................................................55
Public Access Would Undermine The Viability Of
The Delaware Arbitration Proceeding........................59

Recognizing A Public Access Right Would Invalidate
Statutes And Rules In Many Other States, Which
Similarly Permit Judges To Serve As Arbitrators ..............66

CONCLUSION .......................................................................................69
CERTIFICATE OF COMPLIANCE.......................................................71
THIRD CIRCUIT RULE 28.3(d) CERTIFICATION .............................72
CERTIFICATE OF SERVICE................................................................73

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TABLE OF AUTHORITIES

Page(s)
CASES
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974)............................................................................... 36
AT&T Mobility LLC v. Concepcion,
131 S. Ct. 1740 (2011)................................................................... 38, 60
AT&T Techs., Inc. v. Commc’ns Workers,
475 U.S. 643 (1986)............................................................................. 35
Bear Mt. Orchards, Inc. v. Mich-Kim, Inc.,
623 F.3d 163 (3d Cir. 2010) ................................................................ 42
Burford v. Sun Oil Co.,
319 U.S. 315 (1943)............................................................................. 49
Cahill v. Perrine,
49 S.W. 344 (Ky. 1899)........................................................................ 50
Capital Cities Media v. Chester,
797 F.2d 1059 (3d Cir. 1986) ...................................................... passim
Charles Wolff Packing Co. v. Court of Indus. Relations,
267 U.S. 552 (1925)............................................................................. 35
Cincinnati Enquirer v. Cincinnati Bd. of Educ.,
249 F. Supp. 2d 911 (S.D. Ohio 2003) ................................................ 63
Cincinnati Gas & Elec. Co. v. Gen. Elec. Co.,
854 F.2d 900 (6th Cir. 1988)............................................................... 63
Citizens’ Sav. Bank v. Town of Greenburgh,
65 N.E. 978 (N.Y. 1903) ...................................................................... 50
City of Terre Haute v. Evansville & T.H.R. Co.,
46 N.E. 77 (Ind. 1897)......................................................................... 50
DDI Seamless Cylinder Int’l Inc. v. Gen. Fire Extinguisher Corp.,
14 F.3d 1163 (7th Cir. 1994)............................................................... 48

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TABLE OF AUTHORITIES—(cont’d)
Page(s)

Dean Witter Reynolds Inc. v. Byrd,
470 U.S. 213 (1985)............................................................................. 36
Delaware Coal. for Open Govt. v. Strine et al.,
No. 1:11-1015, 2012 U.S. Dist. LEXIS 123980
(Aug. 30, 2012) ............................................................................ passim
Dial Press, Inc. v. Phillips,
193 Misc. 301 (N.Y. Sup. Ct. 1948)..................................................... 45
Dreyer v. Illinois,
187 U.S. 71 (1902)............................................................................... 49
El Vocero de P.R. v. Puerto Rico,
508 U.S. 147 (1993)..................................................................... passim
Elliott v. McCrea,
130 P. 785 (Idaho 1913) ...................................................................... 50
First Amendment Coal. v. Judicial Inquiry & Review Bd.,
784 F.2d 467 (3d Cir. 1986) ........................................................ passim
Fox v. McDonald,
13 So. 416 (Ala. 1893) ......................................................................... 50
Garcia v. Att’y Gen.
665 F.3d 496 (3d Cir. 2011) ................................................................ 23
In re Goulds Pumps, Inc.,
15 Misc. 3d 1132(A) (N.Y. Sup. Ct. 2007)........................................... 45
Harrison v. Nissan Motor Corp.,
111 F.3d 343 (3d Cir. 1997) ................................................................ 36
Highland Farms Dairy v. Agnew,
300 U.S. 608 (1937)............................................................................. 48
Houchins v. KQED, Inc.,
438 U.S. 1 (1978)................................................................................. 65
Leap Sys. v. Moneytrax, Inc.,
638 F.3d 216 (3d Cir. 2011) ................................................................ 54
McDonald v. W. Branch,
466 U.S. 284 (1984)............................................................................. 36
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Page(s)

Minsinger v. Rau,
236 Pa. 327 (1912)............................................................................... 50
Mistretta v. United States,
488 U.S. 361 (1989)....................................................................... 47, 50
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614 (1985)............................................................................. 40
Newton v. Edwards,
155 S.W.2d 591 (Ark. 1941) ................................................................ 50
N. Jersey Media Grp., Inc. v. Ashcroft,
308 F.3d 198 (3d Cir. 2002) ........................................................ passim
In re Opinions of Justices,
96 So. 487 (Ala. 1923) ......................................................................... 49
Ovadiah v. New York Ass’n for New Ams.,
1997 WL 342411 (S.D.N.Y. June 23, 1997) ........................................ 48
People v. Inghram,
514 N.E.2d 977 (Ill. 1987)................................................................... 50
Prentis v. Atl. Coast Line Co.,
211 U.S. 210 (1908)............................................................................. 49
Press-Enter. Co. v. Superior Court,
464 U.S. 501 (1984)................................................................. 25, 26, 27
Press-Enter. Co. v. Superior Court,
478 U.S. 1 (1986)......................................................................... passim
Publicker Indus., Inc. v. Cohen,
733 F.2d 1068 (3d Cir. 1984) ............................................ 16, 18, 23, 27
Richmond Newspapers v. Virginia,
448 U.S. 555 (1980)........................................................... 25, 26, 28, 29
Roudebush v. Hartke,
405 U.S. 15 (1972)............................................................................... 49
Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984)............................................................................... 54
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TABLE OF AUTHORITIES—(cont’d)
Page(s)

Shields v. Thunem,
716 P.2d 217 (Mont. 1986).................................................................. 45
Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp.,
130 S. Ct. 1758 (2010)............................................................. 35, 36, 38
Truitt v. Mackaman,
144 N.W. 22 (Iowa 1913)..................................................................... 45
United States v. Amodeo,
71 F.3d 1044 (2d Cir. 1995) ................................................................ 54
United States v. Criden,
675 F.2d 550 (3d Cir. 1982) ................................................................ 28
United States v. Glens Falls Newspapers,
160 F.3d 853 (2d Cir. 1998) ................................................................ 54
United States v. Simone,
14 F.3d 833 (3d Cir. 1994) ............................................................ 28, 62
United Steelworkers v. Warrior & Gulf Nav. Co.,
363 U.S. 574 (1960)............................................................................. 37
Walker v. City of Cincinnati,
21 Ohio St. 14 (1871) .......................................................................... 50
Whiteland Woods, L.P. V. Twp. of W. Whiteland,
193 F.3d 177 (3d Cir. 1999) ................................................................ 27
Wolsey, Ltd. v. Foodmaker, Inc.,
144 F.3d 1205 (9th Cir. 1998)............................................................. 36
STATUTES, RULES AND REGULATIONS
6 Del. Code Ann. § 2731 .......................................................................... 10
10 Del. Code Ann. § 346 .......................................................................... 10
§ 347(a) .............................................................................................. 11, 37
§ 349 (2012) ........................................................................................... 4, 9
§ 349(a) .............................................................................................. 37, 52
§ 349(b) .................................................................................................... 11
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Page(s)

§ 349(c)............................................................................................... 14, 42
24 Pa. Cons. Stat. § 19-1911-B (2012) .................................................... 49
35 Pa. Cons. Stat. § 3 (2012) ................................................................... 49
29 Pa. Cons. Stat. Ann. § 2 (1958) .......................................................... 50
36 Pa. Cons. Stat. Ann. § 3216 (1961) .................................................... 50
71 Pa. Cons. Stat. Ann. § 1301 (1962) .................................................... 50
9 U.S.C. § 10 ............................................................................................ 41
28 U.S.C. § 651 ........................................................................................ 46
§ 652......................................................................................................... 46
§ 653(b) .................................................................................................... 48
§ 655(a) .................................................................................................... 46
§ 1291......................................................................................................... 4
§ 1331......................................................................................................... 4
§ 1343......................................................................................................... 4
42 U.S.C. § 1983 ...................................................................................... 14
Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, §
2, 112 Stat. 2993 ........................................................................... 46, 48
Ariz. R. Civ. P. 75(d)................................................................................ 44
Az. Rev. Stat. § 12-133 ...................................................................... 66, 67
Cal. Civ. Proc. Code § 1141.18(a) ............................................................ 45
Cal. Civ. Proc. § 1141.21(a) ..................................................................... 67
Cal. Code Civ. P. § 1141.10–28 ............................................................... 66
Cal. Welf. & Inst. Code § 264 (2010)....................................................... 49
Act of Jan. 23, 1798, ch. 8, § 1, 1 Stat. 537 ............................................. 51
Act of Jan. 29, 1795, ch. 20, 1 Stat. 414.................................................. 51
Act of Apr. 14, 1792, ch. 24, § 1, 1 Stat. 254 ........................................... 51
Act of July 20, 1790, ch. 29, § 3, 1 Stat. 132 ........................................... 50
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TABLE OF AUTHORITIES—(cont’d)
Page(s)

ABA Annoted Model Code of Judicial Conduct 393-95 (2d ed.
2011).................................................................................................... 46
Conn. Gen. Stat. § 51-193l–u .................................................................. 45
Conn. Gen. Stat. § 52-549u–aa ............................................................... 66
D.C. Super. Ct. R. of Civ. Arb. Program I(c); Gwinnet State
Judicial Circuit, Georgia, Internal Operating Procedures,
Alternative Dispute Resolution Program, available at
http://www.gwinnettcourts.com/documents/adr/IOPADR2002.p
df.......................................................................................................... 67
D.C. Super. Ct. R. P. for the Small Claims and Conciliation
Branch, R. for Arbitration, R. 1 (Jan 2012)........................................ 44
Del. Const. art. IV, § 17........................................................................... 51
Del. Const. art. VII, § 2 ........................................................................... 51
Del. Ch. R. 96(c)................................................................................. 12, 39
Del. Ch. R. 96(d) .................................................................... 12, 13, 39, 40
Del. Ch. R. 97(a) ................................................................................ 12, 13
Del. Ch. R. 97(b) ...................................................................................... 12
Del. Ch. R. 97(c)................................................................................. 13, 39
Del. Ch. R. 97(d) ...................................................................................... 37
Del. Ch. R. 97(e) ................................................................................ 13, 40
Del. Ch. R. 97(f) ....................................................................................... 39
Del. Ch. R. 98(b) ...................................................................................... 14
Del. Ch. R. 98(f) ....................................................................................... 14
Fla. Stat. § 44.103-108 ............................................................................ 66
Fla. Stat. § 44.104(1) ............................................................................... 67
Ga. Fulton Cnty R. 30 ............................................................................. 66
Haw. Arb. R. 25(A) .................................................................................. 67
Haw. Rev. Stat. § 601-20......................................................................... 66
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TABLE OF AUTHORITIES—(cont’d)
Page(s)

Ill. Super. Ct. R. 86-95............................................................................. 66
Ind. R. of Ct., Rules for ADR................................................................... 66
Ind. Rules of Court, Rules for ADR 3.4(E), 7.3(C) .................................. 68
Ind. Rules of Court, Rules for ADR 3.4(F) .............................................. 67
Kan. Stat. § 5-502(g)................................................................................ 67
Kan. Stat. § 5-509(a) ............................................................................... 66
Kan. Stat. § 5-512(a) ............................................................................... 68
N.D. Cent. Code § 32-29.3 ....................................................................... 66
N.M. R. Arb. Local Rule 2-601 – 603 ...................................................... 66
Loukas Mistelis, International Arbitration – Corporate Attitudes
and Practices – Twelve Perceptinos Tested: Myths, Data and
Analysis Research Report, 15 Am. Rev. Int’l Arb. 525 (2004).............. 5
Mass. Uniform R. on Dispute Resolution 1:18 ....................................... 66
Mass. Uniform Rule on Dispute Resolution 9(h).................................... 68
Mass. Uniform Rules on Dispute Resolution 2....................................... 67
Me. R. Civ. P. 16B(d)(1)........................................................................... 66
Me. R. Civ. P. 16B(k) ............................................................................... 68
Minn. Gen. R. of Pr. for the Dist. Cts. 114.07(a), 114.08........................ 68
Minn. Stat. § 484.73 – 76 ........................................................................ 66
Minn. Stat. § 484.76(2)............................................................................ 67
Mo. Rev. Stat. § 435.014(2) ..................................................................... 68
Mo. Sup. Ct. R. 17.04............................................................................... 66
Mo. Sup. Ct. R. 17.06(a) .......................................................................... 68
N.C. Gen. Stat. § 90-21.62....................................................................... 45
N.C. R. for Court-Ordered Arbitration in N.C........................................ 66
N.H. Super. Ct. R. 170............................................................................. 66
N.H. Super. Ct. R. 170-A(S) .................................................................... 67
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Page(s)

N.H. Super. Ct. R. 170(E)(1) ................................................................... 68
N.J. Stat. 2A:23A-29................................................................................ 67
N.J. Stat. § 39:6A – 24............................................................................. 66
N.Y. Ops. Advisory Comm’n J. Ethics, No. 07-12 (Sept. 6, 2007) .......... 44
N.Y. R. of the Chief Judge 28.................................................................. 66
N.Y. Rule of Chief Judge 28.12(e) ........................................................... 67
N.Y. State Bar Ass’n, Task Force on N.Y. Law in Int’l Matters,
Final Report 4 (June 25, 2011) ............................................................. 7
Nev. R. Govern. ADR 20(B)..................................................................... 67
Nev. Rev. Stat. § 38.250 – 259 ................................................................ 66
Or. Rev. Stat § 36.400 – 36.425............................................................... 66
Or. Rev. Stat. § 36.425(2)(c), (4)(a)-(c) .................................................... 67
Pa. R. Civ. P. 1301-13.............................................................................. 66
R.I. Stat. § 8-6-5 ................................................................................ 66, 67
Rules Enabling Act of 1934 (codified at 28 U.S.C. §§ 2072 et seq.) ........ 50
Rule for Court-Ordered Arbitration in N.C. 7(b).................................... 67
S.C. ADR R. 2(G), 5(d)............................................................................. 68
S.C. ADR rules, available at
http://www.judicial.state.sc.us/courtReg/........................................... 66
Sentencing Reform Act, 18 U.S.C. §§ 3771 et seq. (1976)....................... 50
ULCR Add. A, Arb. Rules........................................................................ 66
Utah Code § 78B-6-202(4) ....................................................................... 68
Utah Code § 78B-6-203(2)(b)................................................................... 68
Utah Code § 78B-6-208 ........................................................................... 68
Utah Rule of Court-Annexed Dispute Resolution 102(l)(5).................... 67
W. Va. Code § 158-13-4 (2005) ................................................................ 45
Wy. Jud. Conduct R. II(A)(2) (2012) ....................................................... 45
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Page(s)

OTHER AUTHORITIES
1 B.J. Roth et al., The Alternative Dispute Resolution Practice
Guide § 7:12, at 7-14 (2011)................................................................ 60
1 L.E. Edmonson, Domke on Commercial Arbitration § 1:1 (3d ed.
2011).................................................................................................... 39
1 L.E. Edmonson, Domke on Commercial Arbitration § 2:3 (3d ed.
2011).................................................................................................... 55
3 Ian MacNeil et al., Federal Arbitration Law: Agreements,
Awards and Remedies Under the Federal Arbitration Act §
32.6.1 (Supp. 1999) ............................................................................. 57
4th Judicial Dist., El Paso Cnty., Colo. available at
http://www.gofourth.org/disp-rez.htm ................................................ 66
AAA & ABA, Code of Ethics for Arbitrators in Commercial
Disputes, Canon VI(B) (2004) ............................................................. 58
AAA, Commercial Arbitration Rules R-23 (2009) .................................. 58
Alan Scott Rau et al., Process of Dispute Resolution: The Role of
Lawyers 601 (3d ed. 2002) .................................................................. 61
Amy Schmitz, Untangling the Privacy Paradox in Arbitration, 54
U. Kan. L. Rev. 1211, 1223 (2006)...................................................... 57
Ariz. Civ. P. R. 72-72, Section IX, available at
http://www.supreme.state.az.us/rules/ramd_pdf/r-06-0021.pdf ........ 67
Bureau of Justice Statics, U.S. Dep’t of Justice, State Court
Caseload Statistics, available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=30................................ 68
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards art. 3, June 10, 1958, 21 U.S.T. 2517, 330
U.N.T.S. 38.......................................................................................... 43
COSCA, State Court Budget Survey Responses (Nov. 30, 2011),
available at http://www.ncsc.org/~/media/files/pdf/
information%20and%20resources/budget%20resource%20cente
r/budget_survey_121811.ashx ............................................................ 69
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TABLE OF AUTHORITIES—(cont’d)
Page(s)

Delaware Division of Corporations, http://corp.delaware.gov/................. 8
E. Bazelon, Public Access to Juvenile and Family Court: Should
the Courtroom Doors Be Open or Closed?, 18 Yale L. & Pol’y
Rev. 155 (1999).................................................................................... 31
Frances Kellor, Arbitration in Action 32 (1941) ..................................... 57
Gary B. Born, Choices of Law in International Arbitration,
International Commercial Arbitration in the United States:
Commentary and Materials 120 (1994).............................................. 41
Gwinnet State Judicial Circuit, Georgia, Internal Operating
Procedures, Alternative Dispute Resolution Program, available
at http://www.gwinnettcourts............................................................. 67
H.R. 49, 145th Gen. Assemb., Reg. Sess. (Del. 2009) ............................... 1
H. Shulman, Reason, Contracts and Law in Labor Relations, 68
Harv. L. Rev. 999, 1016 (1955) ........................................................... 36
Int’l Chamber of Commerce, Rules of Arbitration art. 21(3) (2010) ...... 58
Int’l Chamber of Commerce, Statistics – ICC Arbitration, available
at http://www.iccwbo.org/Products-and-Services/Arbitrationand-ADR/Arbitration/Introduction-to-ICCArbitration/Statistics/ ........................................................................... 5
J. Noble Braden, Sound Rules and Administration in Arbitration,
83 U. Pa. L. Rev. 189, 195 (1934) ....................................................... 60
Joachim G. Frick, Arbitration and Complex International
Contracts 7 (2001) ................................................................................. 6
John T. Morse, Jr., The Law of Arbitration and Award 116 (1872) ...... 45
Judicial Business of the United States Courts – 2011 Annual
Report of the Director (2012), available at
http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesFo
rTheFederalJudiciary/2011/Dec-11/C05Dec11.pdf .............................. 6
K.L. Hall, The Oxford Companion to the Supreme Court of the
United States 314 (2005)..................................................................... 47
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Page(s)

Katherine Stone, Arbitration – National, in 1 Encyclopedia of Law
& Society: American and Global Perspectives 89 (David Clark
ed., 2007) ............................................................................................. 56
London Court of Int’l Arbitration, Directors General’s Report 1
(2001), with London Court of Int’l Arbitration, Directors
General’s Report 1 (2010), and London Court of Int’l
Arbitration, Directors General’s Report 1 (2011), available at
http://www.lcia.org/LCIA/Casework_Report.aspx ............................... 5
M. Domke, Commercial Arbitration 10-11 (1965) .................................. 60
Michael Collins, Privacy and Confidentiality in Arbitration
Proceedings, 30 Tex. Int’l L.J. 121, 122 (1995)................................... 56
Nat’l Arbitration Forum, Business-to-Business Mediation/
Arbitration vs. Litigation: What Courts, Statistics, & Public
Perceptions Show About How Commercial Mediation
and Commercial Arbitration Compare to the Litigation System
1 (Jan. 2005), available at
http://www.adrforum.com/users/naf/resources/GeneralCommerc
ialWP.pdf............................................................................................... 5
Nigel Blackaby & Constantine Partasides, Redfern and Hunter on
International Arbitration 136 (2009).................................................. 58
R. Wissler et al., A Study of Court-Connected Arbitration in the
Superior Court of Arizona, Arbitration Selection and
Compensation, By State V.A-6 (2005)................................................ 44
Roberta Romano, The Genius of American Corporate Law 38-39
(1993)..................................................................................................... 8
Sir Michael Mustill & Stewart Boyd, The Law and Practice of
Commercial Arbitration in England 432-34 (2d ed. 1989) ................ 56
Stefano E. Cirielli, Arbitration, Financial Markets and Banking
Disputes, 14 Am. Rev. Int’l Arb. 243, 271-73 (2003) ............................ 7
Super. Ct. of GA., Order of Oct. 11, 2012, available at
http://www.fultoncourt.org/business/BusinessCourtRulesAmend
edOctober2012.pdf .............................................................................. 46
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Page(s)

T. Cohen & L. Langton, Bureau of Justice Statistics, Special
Report, Civil Bench and Jury Trials in State Courts, at 8 & tbl.
9 (2005), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf ........................... 6
Tenn. Rules, available at
http://www.tsc.state.tn.us/rules/supreme-court/31............................ 66
Thomas Carbonneau, The Law and Practice of Arbitration 1 (2d
ed. 2007) .............................................................................................. 57
UNCITRAL, Arbitration Rules art. 28(3) (2010).................................... 58
William C. Jones, Three Centuries of Commercial Arbitration in
New York: A Brief Survey, 1956 Wash. U.L.Q. 193, 207 (1956) ........ 56

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PRELIMINARY STATEMENT
Recognizing businesses’ increased use of arbitration, and seeking
to maintain “Delaware’s pre-eminence in offering cost-effective options
for resolving disputes,” H.R. 49, 145th Gen. Assemb., Reg. Sess. (Del.
2009) (Synopsis), Delaware in 2009 established a government-sponsored
arbitration program, designating Court of Chancery judges to serve as
arbitrators. Like all commercial arbitration proceedings, the Delaware
program requires consent of the parties; establishes flexible procedures
designed to reduce cost and enable expeditious determinations; provides
for limited judicial review of the arbitrator’s award; and closes to the
public the arbitration hearing, but not judicial review of the arbitration
award.
The district court held unconstitutional the state statute and court
rules establishing the arbitration program, asserting that a First
Amendment right of public access applies to the proceeding before the
arbitrator. An access right may be recognized only when “there has
been a tradition of accessibility” to the particular type of proceeding,
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 10 (1986) (“Press II”), and

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“access plays a significant positive role in the functioning of the
particular process in question,” id. at 8.
No public access right can be justified under this standard,
because there is no historical tradition of public access to commercial
arbitration proceedings; to the contrary, the longstanding tradition is
that such proceedings are confidential. That is dispositive, because a
historical tradition is an essential prerequisite to the First Amendment
right.
The second part of the test points to the same conclusion—far
from playing a positive role, a public access requirement would render
the Delaware procedure a nullity. Because privacy is a critical reason
why businesses choose to arbitrate, they will be forced to select another
arbitral forum in which confidentiality is available.
The district court did not apply the experience and logic test, but
instead concluded that Delaware’s commercial arbitration proceeding is
“sufficiently like a civil trial” and therefore subject to the access right
applicable to civil trials. Del. Coal. for Open Gov’t v. Strine, No. 1:11-cv01015, 2012 U.S. Dist. LEXIS 123980 (D. Del. Aug. 30, 2012); JA8. But
there is no precedent for the district court’s substitution of the
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“sufficiently like” standard for the experience and logic test. And the
single factor relied on by the district court—that “[t]he parties submit
their dispute to a sitting judge,” JA30—does not transform an
arbitration proceeding into a trial.
State and federal judges are authorized to serve as arbitrators,
and have done so. Moreover, States have broad authority to allocate
non-judicial responsibilities to state judges.

Since Delaware could

establish a “Delaware Arbitration Authority” and hire state employees
to act as arbitrators, nothing prevents Delaware from assigning that
responsibility to Court of Chancery judges, and thereby providing
businesses incorporated in Delaware with access to arbitrators expert in
business law.
“[T]he presumption of validity attaching to state legislative and
constitutional provisions weighs heavy. . . . [It] require[s] that the
state’s determination be upheld unless it is found to transgress a clear
constitutional prohibition.” First Amendment Coal. v. Judicial Inquiry
& Review Bd., 784 F.2d 467, 475 (3d Cir. 1986). Delaware’s commercial
arbitration procedure transgresses no such limitation and should be
upheld by this Court.
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JURISDICTION
This is an appeal from the final judgment in favor of appellee
entered by the district court on August 30, 2012, enjoining the operation
of Del. Code Ann. tit. 10, § 349 (2012) and Court of Chancery Rules 96,
97, and 98 on the ground that they violate the First Amendment. The
District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343.
Appellants filed a timely Notice of Appeal on October 1, 2012.

This

Court has jurisdiction pursuant to 28 U.S.C. § 1291.
ISSUE PRESENTED
The issue presented is whether the Delaware statute and Court of
Chancery rules allowing Court of Chancery judges to act as arbitrators
violate the First Amendment because arbitration proceedings conducted
pursuant to the statute and rules are not open to the public.
RELATED CASES AND PROCEEDINGS
There are no related proceedings.
STATEMENT OF FACTS
1. The Global Growth Of Commercial Arbitration And Delaware’s
Response.

Businesses’ use of arbitration to resolve significant

commercial disputes has increased dramatically. For example, over the
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last decade, the number of requests for arbitration in the International
Chamber of Commerce (ICC) rose by over 40 percent;1 the number in
the London Court of International Arbitration rose by 300 percent.2 In
the United States, the American Arbitration Association’s (AAA)
International Center for Dispute Resolution saw its caseload increase
by almost 330 percent between 1994 and 2004.3 Similar growth has
characterized arbitral institutions around the world.4
A number of factors have driven this trend:
 the increased cost, complexity, and delay associated with
litigation, especially litigation in the United States—factors
In 2011, the ICC received 796 requests for arbitration, representing a
more than 40 percent increase over the 566 requests received in 2001.
See Int’l Chamber of Commerce, Statistics – ICC Arbitration, available
at http://www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/
Arbitration/Introduction-to-ICC-Arbitration/Statistics/.
1

Compare the London Court of International Arbitration’s Director
General’s Report of 2001, with the Director General’s Report for 2010,
and 2011, available at http://www.lcia.org/LCIA/Casework_Report.aspx.
2

Loukas Mistelis, International Arbitration – Corporate Attitudes and
Practices – 12 Perceptions Tested: Myths, Data and Analysis Research
Report, 15 Am. Rev. Int’l Arb. 525, 527 (2004).
3

Id. at 527 & tbl. 1; see also Nat’l Arbitration Forum, Business-toBusiness Mediation/Arbitration vs. Litigation: What Courts, Statistics
& Public Perceptions Show About How Commercial Mediation
and Commercial Arbitration Compare to the Litigation System 1 (2005),
available at http://www.adrforum.com/users/naf/resources/General
CommercialWP.pdf.
4

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that have been compounded recently by the reduction of
government resources allocated to courts as a result of
budget constraints;5
 the growth in cross-border disputes, with at least one party
therefore unfamiliar with—and typically reluctant to become
enmeshed in—the U.S. litigation system because of the
multiple features that differ significantly from judicial
dispute resolution in the rest of the world;6
 the importance of resolving disputes expeditiously in order
to maintain ongoing business relationships and, more
generally, because of the increased pace at which business

The median time from filing to disposition in federal court civil cases
is almost two years. See Judicial Business of the United States Courts –
2011 Annual Report of the Director, at 156 & tbl. C-5 (2012), available
at http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForThe
FederalJudiciary/2011/Dec-11/C05Dec11.pdf. According to the most
recent data collected by the Bureau of Justice Statistics on this subject,
the average disposition time in state court from filing is approximately
27 months in jury trials and 21 months in bench trials. Thomas H.
Cohen & Lynn Langton, Bureau of Justice Statistics, Special Report,
Civil Bench and Jury Trials in State Courts in 2005, at 8 & tbl. 9
(2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf.
5

Joachim G. Frick, Arbitration and Complex International Contracts 7
(2001).
6

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decisions must be made and issues resolved in today’s
interconnected “always on” environment;7
 the desire for decisionmakers with deep expertise in
business

law,

in

particular

contractual

and

other

transactional matters and technology issues;8 and
 the private and more conciliatory atmosphere of arbitration,
which preserves ongoing business relations and keeps joint
projects afloat when disputes arise midstream.9
Other nations have recognized this phenomenon and established
government-sponsored (and government-funded) arbitral fora, providing
companies domiciled within their borders with access to expert
arbitrators, including sitting judges with expertise in business law
issues.10

See Stefano E. Cirielli, Arbitration, Financial Markets and Banking
Disputes, 14 Am. Rev. Int’l Arb. 243, 271-73 (2003).
7

8

Id.

9

Id.

See N.Y. State Bar Ass’n, Task Force on N.Y. Law in Int’l Matters,
Final Report 4 (June 25, 2011) (“[J]jurisdictions around the world, many
with government support, are taking steps to increase their arbitration
case load. New arbitration laws were enacted in 2010 and 2011 in
France, Ireland, Hong Kong, Scotland, Ghana and other nations to
enhance their attractiveness as seats of arbitration. . . . In 2010, at least
10

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Delaware has long sought to provide a legal environment for
businesses that is up-to-date, predictable, and respected throughout the
world.11 As a result, “900,000 business entities have their legal home in
Delaware including more than 50% of all U.S. publicly-traded
companies and 63% of the Fortune 500.”12
In view of the growing importance to Delaware businesses of
easily-accessible, dependable, and expert arbitrators—and the steps
taken by other nations to provide such services—the Delaware General
Assembly in 2009 enacted a law “intended to preserve Delaware’s prethree jurisdictions established specialized courts to handle international
arbitration matters—Australia, India and Ireland. Several other
jurisdictions well-known for international arbitration, including France,
the United Kingdom, Switzerland, Sweden and China, have designated
certain courts or judges to hear cases to challenge or enforce arbitration
awards. Among the cited reasons for this focus on arbitration is the
governments’ recognition of the importance of arbitration to their
economies and to their position in today’s world of global commerce.”);
id. at 38, available at http://www.nysba.org/AM/Template.cfm?Section=
Task_Force_on_the_Future_of_the_Legal_Profession_Home&Template=
/CM/ContentDisplay.cfm&ContentFileID=53613.
See Roberta Romano, The Genius of American Corporate Law 38-39
(1993) (“The most important transaction-specific asset in the chartering
relation is an intangible asset, Delaware’s reputation for responsiveness
to corporate concerns,” and that reputation stems from “a
comprehensive body of case law, judicial expertise in corporation law,
and administrative expertise in the rapid processing of corporate
filings”).
11

12

See Delaware Division of Corporations, http://corp.delaware.gov/.
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eminence in offering cost-effective options for resolving disputes,
particularly those involving commercial, corporate, and technology
matters.” Del. H.R. 49 syn.
2. The Delaware Statute And Court Rules. The statute, which
was adopted unanimously by both houses of the Delaware General
Assembly, grants the Court of Chancery “the power to arbitrate
business disputes when the parties request a member of the Court of
Chancery, or such other person as may be authorized under rules of the
Court, to arbitrate a dispute.” Del. Code Ann. tit. 10, § 349.
This measure provides Delaware entities with a convenient and
expert forum for the arbitration of disputes, ensuring that Delaware
businesses can obtain both the practical benefits of arbitration and
direct access to members of its respected Court of Chancery:
Many federal and international statutes specifically identify
instances when tribunals will stay or defer to the parties’
decision to have their dispute resolved by way of arbitration.
These statutes often deal with issues, such as intellectual
property disputes, that are of importance to Delaware
entities. Thus, this bill, if enacted, will permit Delaware
entities to have disputes of this kind arbitrated by a member
of the Court of Chancery by voluntary agreement.
Del. H.R. 49, syn.

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Consistent with the purpose of providing an arbitration forum for
Delaware businesses, disputes under the statute generally involve
“business-to-business disputes about major contracts, joint ventures, or
technology. Specifically excluded are cases involving consumers.” Id.
To be eligible for arbitration, a dispute must meet the following criteria:
 The parties must consent to the arbitration;
 At least one party must be a “business entity” as defined in Del.
Code Ann. tit. 10, § 346 (a statute authorizing mediation of
technology disputes in the Court of Chancery);
 At least one party must be a business entity formed or organized
under the laws of Delaware or having its principal place of
business in Delaware;
 No party may be a “consumer,” as defined in Del. Code Ann. tit 6,
§ 2731(1);13 and
 For disputes involving solely monetary damages, the amount in
controversy must be at least $1,000,000.

Del. Code Ann. tit. 6, § 2731(1) defines “consumer” as “an individual
who purchases or leases merchandise primarily for personal, family or
household purposes.”
13

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Del. Code Ann. tit. 10, § 347(a). Section 347(b) authorizes the Court of
Chancery to issue rules further defining eligible disputes.
Consistent with the tradition of privacy in arbitration, the
General Assembly provided for confidentiality in the proceedings until a
party seeks judicial review of the arbitrator’s determination:
the bill maintains proceedings in the Court of Chancery as
confidential but makes clear that the record will be filed
with the Supreme Court, in accordance with its Rules and
the Rules of the Court of Chancery in the event of appeal.
Del. H.R. 49, syn. The statute specifies that proceedings before the
arbitrator “shall be considered confidential and not of public record
until such time, if any, as the proceedings are the subject of an appeal,”
in which case “the record shall be filed by the parties with the Supreme
Court in accordance with its rules, and to the extent applicable, the
rules of the Court of Chancery.” Del. Code Ann. tit. 10, § 349(b).
Any award is subject to review by the Delaware Supreme Court,
which may vacate, stay, or enforce the arbitrator’s determination. The
statute provides that the Supreme Court “shall exercise its authority in
conformity with the Federal Arbitration Act (FAA), and such general
principles of law and equity as are not inconsistent with that Act.” §
349(c).
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To implement the statute’s provisions, the Court of Chancery
adopted Rules 96, 97, and 98. These set forth procedures for conducting
arbitrations, but also provide that the “parties with the consent of the
Arbitrator may change any of these arbitration rules by agreement
and/or adopt additional arbitration rules.” Del. Ch. R. 96(c).
Parties initiate an arbitration by submitting to the Register in
Chancery a petition demonstrating that they meet the eligibility
criteria and that they have each consented to arbitrate in the Court of
Chancery. Id. 97(a)(3).
This petition is not included as part of the Register’s public
docketing system, and both “[t]he petition and any supporting
documents are considered confidential and not of public record until
such time, if any, as the proceedings are the subject of an appeal.” Id.
97(a)(4).
If a petition is accepted, the Chancellor will appoint an arbitrator,
either a Court of Chancery judge or a “special master.” Id. 96(d)(2),
97(b).

Within ten days, the arbitrator will convene a telephonic

“preliminary conference” with the parties to obtain information about
the dispute and to “consider . . . whether mediation or other non12

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adjudicative methods of dispute resolution might be appropriate.” Id.
96(d)(3), 97(c).

“[A]s soon as practicable” after this conference, the

arbitrator will convene a telephonic “preliminary hearing” to address,
among other topics, the scope of discovery, whether a record of the
proceedings will be maintained, and, again, the “possibility of mediation
or other non-adjudicative methods of dispute resolution.” Id. 96(d)(4),
97(d).

In the absence of agreement on the prehearing exchange of

information, the arbitrator may “direct such prehearing exchange of
information as he/she deems necessary and appropriate.”14 Id. 97(f).
The arbitration hearing “generally will occur no later than 90 days
following receipt of the petition.” Id. 97(e). At the hearing, each party
presents its position and must “submit to questions from the Arbitrator
and the adverse party, subject to the discretion of the Arbitrator to vary
this procedure so long as parties are treated equally and each party has
the right to be heard and is given a fair opportunity to present its case.”
Id. 96(d)(6). The arbitrator “may grant any remedy or relief that the

Rule 96(c) provides that Court of Chancery Rules 26 through 37 will
apply to the arbitration proceeding unless “modified by the Arbitrator
or the parties,” or inconsistent with Rules 96, 97, and 98. Rules 26
through 37 govern depositions and discovery procedure in the Court of
Chancery.
14

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Arbitrator deems just and equitable and within the scope of any
applicable agreement of the parties,” id. 98(f)(1), and any appeal “to
vacate, stay, or enforce an order” must be taken in the Delaware
Supreme Court. Del. Code Ann. tit 10, § 349(c).
Rule 98 also provides that the arbitration hearings “are private
proceedings such that only parties and their representatives may
attend, unless all parties agree otherwise.” Del. Ch. R. 98(b). Materials
and evidence not prepared specifically for the arbitration are subject to
disclosure, but all other materials and statements are confidential
unless the parties agree otherwise. Id.
STATEMENT OF THE CASE
On October 25, 2012, plaintiff-appellee Delaware Coalition for
Open Government, filed a complaint asserting a cause of action under
42 U.S.C. § 1983 and naming as defendants the State of Delaware; the
Delaware Court of Chancery and the Court’s five members in their
official capacities, Chancellor Leo E. Strine, Jr.; Vice Chancellor John
W. Noble; Vice Chancellor Donald F. Parsons, Jr.; Vice Chancellor J.
Travis Laster; and Vice Chancellor Sam Glasscock, III. JA43-44.

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The complaint alleged that the First Amendment grants the
public a right to access arbitration proceedings conducted under the
statute, and that the confidentiality provisions in the statute and in the
Court Rules therefore violate the Constitution.

JA46-47.

Plaintiff

sought declaratory relief and a permanent injunction barring the
appellants from conducting further closed arbitration proceedings under
the statute. JA47. All parties moved for judgment on the pleadings.
On August 30, 2012, the district court granted judgment in favor
of the Coalition.15

The court held that “the Delaware proceeding

functions essentially as a non-jury trial before a Chancery Court judge.
Because it is a civil trial, there is a qualified right of access and this
proceeding must be open to the public.” JA9.
The district court acknowledged that “the rule in the Third Circuit
is to apply the ‘logic and experience’ test” to determine “if there is a
public right of access to a particular proceeding or record.” JA21. And
the court recognized that arbitration proceedings have traditionally
been confidential: “[a]s the product of private agreement between the

The court dismissed the claims against the State and the Court of
Chancery on Eleventh Amendment grounds.
15

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parties, historically, arbitrations have been conducted outside the
public view.” JA25.
But instead of undertaking the experience and logic inquiries, the
district court addressed what it termed a “threshold question”—“Has
Delaware implemented a form of commercial arbitration to which the
Court must apply the logic and experience test, or has it created a
procedure ‘sufficiently like a trial’ such that Publicker [Indus., Inc. v.
Cohen, 733 F.2d 1059 (3d Cir. 1984)] governs?”

JA22.

(Publicker

applied the experience and logic test to hold that a right of access
extends to civil trials.)
The court described several key distinctions between arbitration
and judicial litigation:
 That “consent is one of arbitration’s defining features. The
parties’ voluntary agreement to resolve their dispute
through a decisionmaker of their own choosing is the
‘essence of arbitration,’” JA23;
 “In litigation, a court can compel an unwilling party.

In

arbitration, the parties agree to participate in a specified
forum,” JA24;
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 “The parties can specify the scope of the arbitrator’s
authority and design the applicable procedural rules.
Litigation follows the court’s procedures and guidelines,” id.;
 “Because they are outside the judicial system, arbitration
decisions are ad hoc, lacking any precedential value,” id.;
 “The chief advantage of arbitration is the ability to resolve
disputes without aspects often associated with the legal
system: procedural delay and cost of discovery, the
adversarial relationship of the parties, and publicity of the
dispute,” JA25.
The court also recognized that “[b]ecause arbitrations offer a
private system of remedies that parallels the courts, a judge and
arbitrator share many of the same attributes”—both preside over
proceedings, hear evidence, and render decisions.

JA25.

Moreover,

“arbitrations may occur in courthouses, and arbitrators . . . may be paid
by the government for their services.” JA25-26.
The court did not dispute that the Delaware proceeding has all of
the characteristics of arbitration:
In the Delaware proceeding, the parties consent to
participate and agree to procedures designed to facilitate
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quicker discovery and faster resolution of the dispute. With
the consent of the judge, the parties can also amend any
discovery procedures. In addition, the process encourages
settlement and non-adversarial resolution at nearly every
stage. By submitting to the Delaware proceeding, the
parties agree to limit their appeal rights. The judge’s final
award can only be challenged if the award is procured by
corruption, fraud, undue means, partiality, misconduct, or
where the arbitrator exceeded his powers. The decision
cannot be reviewed for errors of fact or law.
JA30-31.
The linchpin of the district court’s holding that the Delaware
proceeding is “sufficiently like a civil trial such that Publicker
Industries governs,” JA22, was its view that “judges in this country do
not take on the role of arbitrators,” JA27.

The court drew a sharp

distinction between arbitrators and judges, stating, “an arbitrator and a
judge perform very different functions.”

JA26.

Arbitrators “are

empowered by the parties’ consent and limited by the scope of that
consent. They serve the parties.” Id. “Judges, on the other hand, are
empowered by their appointment to a public office. They act according
to prescribed rules of law and procedure. They serve the public.” Id.
The court noted, “A judge bears a special responsibility to serve the
public interest. . . . . [T]he public role of that job, is undermined when a

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judge acts as an arbitrator bound only by the parties’ agreement.”
JA29.
Thus, in holding the statute unconstitutional, the court pointed
exclusively to the fact that the arbitrator is a sitting judge:
[T]he parties submit their dispute to a sitting judge acting
pursuant to state authority, paid by the state, and using
state personnel and facilities; the judge finds facts, applies
the relevant law, determines the obligations of the parties;
and the judge then issues an enforceable order.
JA30; see also JA29 (“A sitting judge presides over the proceeding. It is
this fact which distinguishes the Delaware proceeding from courtannexed arbitrations where third parties sit as arbitrators.”).
Based on its determination that the service of judges as
arbitrators requires Delaware’s commercial arbitration proceeding to be
treated as the equivalent of a civil trial for purposes of the First
Amendment, the district court found it “not necessary to reiterate the
thorough analysis of the experience and logic test performed by the
Court of Appeals in Publicker Industries.” JA32. It concluded that a
right of access applies to arbitrations conducted under Section 349 and
Rules 96, 97, and 98, and that the confidentiality requirement for those
proceedings violates the First Amendment. JA33.

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The court entered an order on August 30, 2012, declaring the
statute and court rules “unconstitutional as being in violation of the
First Amendment” and enjoining all “further proceedings pursuant to
that statute and those rules.” JA4. On September 10, 2012, the court
awarded plaintiff costs and fees. JA6. Appellants appealed both orders.
SUMMARY OF ARGUMENT
This Court and the Supreme Court have held repeatedly that a
First Amendment right of public access to judicial proceedings may be
recognized only if the claimed right is supported by both “experience”—
a tradition of public access to the particular type of proceeding—and
“logic”—that the tradition of public access aids in the functioning of the
particular proceeding.
The district court erred by failing to undertake this inquiry and
instead finding a First Amendment right based on its conclusion that
Delaware’s commercial arbitration proceeding is “sufficiently like a civil
trial.” No decision of this Court or the Supreme Court authorizes this
circumvention of the experience and logic standard.
Moreover, the district court’s assessment is incorrect even under
its own impermissible approach. Arbitration differs significantly from a
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civil trial: the authority of an arbitration proceeding rests on the
consent of the parties, while civil litigation is an extension of
government power; the hallmark of arbitration is procedural flexibility
and efficiency, while litigation is governed by procedures specified in
laws and court rules; and arbitrators’ determinations are subject to
much more limited judicial review than trial court judgments.
The district court acknowledged these distinctions, but concluded
that one factor was sufficient to overcome them—that a sitting judge
serves as arbitrator under the Delaware statute. However, state and
federal judges historically have served as arbitrators, and continue to
do so today. And the district court’s view that designating a judge as
the decisionmaker necessarily makes a proceeding “judicial” is
inconsistent with the settled principle that States may endow judges
with

non-judicial

responsibilities,

as

many

States

have

done.

Delaware’s decision to authorize its judges to serve as arbitrators,
rather than hiring a separate corps of state arbitrators, does not
transform the commercial arbitration proceeding into a judicial trial.
A public access right cannot be justified under either prong of the
experience and logic test. Proceedings before an arbitrator traditionally
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have been confidential—there is no history of public access. Because
“the role of history in the access determination is crucial,” N. Jersey
Media Grp., Inc. v. Ashcroft, 308 F.3d 198, 213 (3d Cir. 2002) (citation
omitted), that fact requires rejection of the Coalition’s claim.
Indeed, arbitration proceedings have no history of openness
because such access is inconsistent with the fundamental rationale of
arbitration; a public arbitration procedure would quickly fall into
disuse. The “logic” inquiry thus also weighs strongly against a public
access requirement.
Of course, when an arbitrator’s award is challenged in court, the
public has historically had access to those proceedings. The Delaware
statute provides for public access at this point.
The district court’s invalidation of Delaware’s statute on First
Amendment grounds will effectively end Delaware’s innovative
arbitration program and will create significant doubt about the
constitutionality of numerous arbitration programs conducted by judges
in state and federal courthouses across the country. This Court should
reject the district court’s erroneous analysis, apply the experience and

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logic test, and hold that Delaware’s statute and rules comply with the
First Amendment.
STANDARD OF REVIEW
This Court “exercise[s] de novo review over constitutional claims
or questions of law and the application of law to facts.” Garcia v. Att’y
Gen., 665 F.3d 496, 502 (3d Cir. 2011).
ARGUMENT
I.

THE DISTRICT COURT ERRED BY FAILING TO APPLY
THE “EXPERIENCE AND LOGIC” TEST.
The First Amendment embodies a right of public access to certain

judicial proceedings. When “there has been a tradition of accessibility”
to the particular type of proceeding, Press II, 478 U.S. at 10, and “access
plays a significant positive role in the functioning of the particular
process in question,” id. at 8, a qualified First Amendment right of
public access attaches that may be overridden only by a compelling
government interest, id. at 9; accord Publicker Indus., 733 F.2d at 1068.
Both parts of this test must be satisfied—in particular, this Court
has held that a historical tradition of public access is an essential
prerequisite to recognition of a First Amendment access right. See N.
Jersey Media Grp., 308 F.3d at 213 (“‘[T]he role of history in the access
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determination’ is ‘crucial.’” (quoting Capital Cities Media, Inc. v.
Chester, 797 F.2d 1164, 1174 (3d Cir. 1986) (en banc))).
The district court did not apply the “experience and logic”
standard in finding a right of public access to the commercial
arbitration proceedings conducted under the Delaware statute.

It

instead rested its holding on what it called a “threshold question”—
“Has Delaware implemented a form of commercial arbitration to which
the Court must apply the logic and experience test, or has it created a
procedure

‘sufficiently

Industries governs?”

like
JA22.

a

[civil]

trial’

such

that Publicker

The district court determined that

arbitration under the Delaware statute constitutes “a civil judicial
proceeding,” and that the First Amendment access right accordingly
applies.
The district court’s holding cannot stand for three separate
reasons.

First, its novel standard has no basis in precedent:

the

Supreme Court and this Court have consistently resolved First
Amendment access claims by applying the experience and logic test to
the particular type of proceeding at issue and have never substituted a
“similarity” analysis for that two-part inquiry.
24

Second, the district

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court’s analysis is wrong even on its own terms: arbitration proceedings
under the Delaware statute differ fundamentally from civil trials.
Third, the district court’s decision rests on the incorrect assumption
that state court judges cannot be vested with the power to arbitrate
disputes.
A. The Supreme Court And This Court Consistently Apply
The Experience And Logic Test To First Amendment
Access Claims.
The Supreme Court first addressed the First Amendment right of
access in the context of a criminal trial. Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980).

It subsequently has found the right

applicable to the pre-trial phases of jury selection, Press-Enter. Co. v.
Superior Court, 464 U.S. 501 (1984) (“Press I”), and to preliminary
hearings, El Vocero de P.R. v. Puerto Rico, 508 U.S. 147 (1993) (per
curiam); Press II, 478 U.S. at 10.
Each time the Supreme Court has addressed a claim that the
First Amendment confers a right of access to a particular type of
proceeding, it has resolved the question by applying the experience and
logic test. Thus, in Richmond Newspapers, the Court began its analysis
with an exhaustive review of the history of open criminal trials, finding
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an “unbroken, uncontradicted history” of public access to criminal trials.
448 U.S. at 573; see id. at 564-69 (reviewing the historical record).
The Court conducted the same analysis in subsequent cases,
finding in Press I, that “since the development of trial by jury, the
process of selection of jurors has presumptively been a public process
with exceptions only for good cause shown.” 464 U.S. at 505; see id. at
505-08 (tracing the history of access from pre-Norman England up to
the present). In Press II, the Court determined that “the near uniform
practice of state and federal courts has been to conduct preliminary
hearings in open court.” 478 U.S. at 10; see id. at 10 n.3 (canvassing
state practices).
The Supreme Court in each case also found that public access to
the particular criminal proceeding was “essential to the proper
functioning of the criminal justice system.” Press II, 478 U.S. at 12; see
also Richmond Newspapers, 448 U.S. at 569 (“[Openness] is no quirk of
history; rather, it has long been recognized as an indispensable
attribute of an Anglo-American trial.”).

In Press I, the Court

determined that public jury selection “vindicate[s] the concerns of the
victims and the community in knowing that offenders are being brought
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to account for their criminal conduct by jurors fairly and openly
selected.” 464 U.S. at 509. In Press II, the Court found that access to
preliminary hearings is just as essential to the functioning of the
criminal justice system as access to the trial itself because preliminary
hearings are “often the final and most important step in the criminal
proceeding” and “‘the sole occasion for public observation of the criminal
justice system.’” 478 U.S. at 12 (citation omitted).
This Court has followed the same approach—in each case
examining the historical record and assessing the effect of access on the
functioning of the proceeding. See, e.g., Publicker Indus., 733 F.2d at
1070 (surveying historical record and benefits of openness in civil trials
to find that “[a] presumption of openness inheres in civil trials as in
criminal trials,” and that “the civil trial, like the criminal trial, ‘plays a
particularly significant role in the functioning of the judicial process
and the government as a whole’”); see also Whiteland Woods L.P. v.
Twp. of W. Whiteland, 193 F.3d 177, 180-81 (3d Cir. 1999) (concluding
there was a history of access to Commission meetings under

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Pennsylvania law and that access played a significant positive role in
the functioning of the meetings).16
And this Court has declined to find an access right where both
prongs of the experience and logic test were not satisfied. See Capital
Cities Media, 797 F.2d at 1175 (“assum[ing] without deciding,” that the
logic component is met, the case must be dismissed, “because [plaintiff]
has failed to allege that a tradition of public access exists” with respect
to state environmental agency records); First Amendment Coal., 784
F.2d at 472 (judicial disciplinary boards “do not have a long history of
openness”); id. at 475 (openness would not play a positive role in
judicial disciplinary proceedings in part because “the effectiveness of
judicial

disciplinary

boards

depends

to

a

large

extent

on

confidentiality”); N. Jersey Media Grp., 308 F.3d at 212 (“We ultimately
In United States v. Criden, 675 F.2d 550, 555 (3d Cir. 1982), this
Court found a right of access to a pretrial criminal hearing without
proof of a historical tradition of public access. But in its subsequent
decision in North Jersey Media Group, this Court held that the
Supreme Court’s 1986 decision in Press II precluded reliance on that
aspect of Criden: “We are now obligated to apply [the Richmond
Newspapers test, adopted by a majority of the Supreme Court in Press
II], and we have recognized that ‘the role of history in the access
determination’ is ‘crucial.’” 308 F.3d at 213 (quoting Capital Cities
Media, 797 F.2d at 1174); see also id. at 214 (limiting United States v.
Simone, 14 F.3d 833 (3d Cir. 1994), “to the criminal context, or at least
to those areas with ‘overwhelming historical support for access’”).
16

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do not believe that deportation hearings boast a tradition of openness
sufficient to satisfy Richmond Newspapers.”); id. at 217 (finding “that
upon factoring [various concerns] into the logic equation,” including the
threat to national security, “it is doubtful that openness promotes the
public good in this context”).
The Supreme Court and this Court have specified that the
experience and logic test must be focused on “the particular proceeding
in question.” Press II, 478 U.S. at 9 (emphasis added); see also El
Vocero, 508 U.S. at 150 (“‘the experience in that type or kind of
hearing’”).
Thus, in determining whether to recognize a First Amendment
right of access to judicial disciplinary proceedings, this Court held that
the access determination should “be guided by the unique history and
function of the Judicial Review Board”—not by some generalized
category of proceedings in which judicial disciplinary proceedings could
be included. First Amend. Coal., 784 F.2d at 472; see also Capital Cities
Media, 797 F.2d at 1175 (“whether the particular type of government
proceeding ha[s] historically been open in our free society”) (emphasis
added).
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The district court’s contrary approach—looking instead to whether
Delaware’s commercial arbitration procedure is “sufficiently like a
trial”—undermines the experience and logic test by substituting a
vague and malleable “sufficiently like” standard.

Because no clear

criteria govern a “sufficiently like” test, it introduces tremendous
subjectivity and uncertainty into the First Amendment inquiry.
Indeed, if the question were simply whether the proceeding at
issue has some similarities to proceedings as to which a First
Amendment access right has been recognized, virtually all adjudicative
proceedings would trigger the right because there are always some
similarities. But the Court’s cases recognize that different proceedings
have different histories, and that those histories matter. The district
court’s approach prevents consideration of those different historical
traditions.
The district court’s own analysis demonstrates the problem. Its
assertion that “the English and American legal systems have
historically presumed that civil proceedings are open to the public” is
incorrect.

Various subcategories of civil trials, such as family law

proceedings, have not been open historically.
30

See generally Emily

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Bazelon, Public Access to Juvenile and Family Court: Should the
Courtroom Doors Be Open or Closed?, 18 Yale L. & Pol’y Rev. 155
(1999). But the district court’s approach would allow categorization of
any of them as “sufficiently like” a civil trial, without consideration of
that history, as long as a judge is presiding.
By short-circuiting the “experience and logic” inquiry—or applying
that inquiry at a high level of generality—the district court’s approach
inevitably will lead to erroneous results, which is precisely what
occurred here.

See infra, at 55-59 (discussing long tradition of

confidential arbitration proceedings). And that error taints the “logic”
analysis as well as the “experience” inquiry, because the analysis
regarding the impact of public access on the proper functioning of the
proceeding is not “independent of, and unrelated to, historical
antecedents.” First Amend. Coal., 784 F.2d at 473.
The district court cited a single case—El Vocero—in support of its
aberrant approach. But in that case the Supreme Court did not rest its
decision on a determination that the proceeding at issue—preliminary
hearings in criminal cases under Puerto Rican law—were “sufficiently
like” a criminal trial. In a per curiam decision, the Court relied on its
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own analysis of preliminary hearings in Press II, holding that the
distinctions drawn by the Puerto Rico court between the California
preliminary hearings at issue in Press II and Puerto Rico’s preliminary
hearings were “insubstantial,” that the Puerto Rico rule’s drafters had
“relied on the California [preliminary hearing] law,” and that “[a]t best”
the Puerto Rico rule was “a subspecies of the [California] provision this
Court found to be infirm seven years ago.” El Vocero, 508 U.S. at 14950.
The “sufficiently like a trial” language cited by the district court
occurs in a separate passage of the opinion observing that the Puerto
Rico rule has each of the characteristics on which the Court in Press II
relied in applying the “logic” test, see El Vocero, 508 U.S. 149-50 (citing
Press II, 478 U.S. at 12-13), thereby making clear that the only
relevance of such comparisons is in determining the effect of public
access on the proper functioning of the proceeding. See also Press II,
478 U.S. at 9, 11-12 (basing “logic” determination for preliminary
hearings on Richmond Newspaper’s analysis regarding criminal trials).
Indeed, notwithstanding its conclusion that the Puerto Rico rule
involved the same type of hearing as the California law, the Supreme
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Court specifically reaffirmed the applicability of its historical analysis
in Press II.

Addressing the lower court’s “reliance on Puerto Rican

tradition,” the Supreme Court stated that the court had erred by
focusing solely on “the particular practice of any one jurisdiction” rather
than on “‘the experience in that type or kind of hearing throughout the
United States’ . . . . The established and widespread tradition of open
preliminary hearings among the States was canvassed in PressEnterprise and is controlling here.” El Vocero, 508 U.S. at 150-51.
El Vocero thus provides no support for the district court’s broadbrush approach of creating a general category of “civil proceeding” and
concluding that a First Amendment access right should apply to every
type of hearing meeting that vague standard. The differences between
civil trials and commercial arbitrations under the Delaware statute are
not “insubstantial,”17 nor are arbitrations merely a “subspecies” of civil

What the court called “insubstantial” differences in El Vocero
involved minor procedural rules—“the Commonwealth’s burden of
proof, the rules governing the parties’ access to, and presentation of,
certain evidence, the fact that an indictment follows, rather than
precedes, the preliminary hearing, and the ability of the prosecution to
present the matter de novo before a higher court in cases where the
magistrate finds no probable cause.” 508 U.S. 149 & n.2. The crucial
fact was that preliminary hearings under Puerto Rican law paralleled
California’s preliminary hearings in every critical respect. Id. at 14917

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trials; and in any event the Supreme Court in El Vocero specifically
affirmed the applicability of the historical determination in Press II,
which the district court disregarded here.
In sum, the district court’s novel “sufficiently similar proceedings”
test is inconsistent with precedent and will inevitably lead to First
Amendment determinations that are contrary to actual historical
experience, in direct contravention of the holdings of the Supreme Court
and this Court.
B. Statutory Commercial Arbitration in the Court
Chancery Differs Fundamentally From A Civil Trial.

of

The district court’s “threshold” approach fails for the additional
reason that its conclusion that arbitration under the Delaware statute
“is a civil trial” is unsupportable. JA22. First, while a judge presiding
over a civil trial derives his or her authority from the coercive power of
the State, arbitrators—including arbitrators under the Delaware
statute—derive their authority to resolve a particular dispute from the
consent of the parties who have submitted that dispute to arbitration.
Second, the Delaware arbitration has key structural and procedural
50. Here, by contrast, there are significant differences between the
Delaware commercial arbitration procedure and civil trials, as the
district court itself acknowledged. See infra, at 38-40.
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differences from a civil trial. Third, appellate review of the arbitrator’s
award is much more limited than appellate review of a trial court
judgment.
1. Arbitration Proceedings Under The
Delaware Statute Are A Product Of The
Parties’ Consent, While Judicial
Proceedings Rest On Coercive Government
Power.
“[A]n arbitrator derives his or her powers from the parties’
agreement to forgo the legal process and submit their disputes to
private dispute resolution.”

Stolt-Nielsen S.A. v. AnimalFeeds Int‘l

Corp., 130 S. Ct. 1758, 1774 (2010); see also AT&T Techs., Inc. v.
Commc’ns Workers, 475 U.S. 643, 648-49 (1986) (“[A]rbitrators derive
their authority to resolve disputes only because the parties have agreed
in advance to submit such grievances to arbitration.”); Charles Wolff
Packing Co. v. Court of Indus. Relations, 267 U.S. 552, 565 (1925) (“[I]n
its usual acceptation the term [arbitration] indicates a proceeding based
entirely on the consent of the parties.”).
The arbitrator “‘is not a public tribunal imposed upon the parties
by superior authority which the parties are obliged to accept’” but is
rather “‘part of a system of self-government,’” serving the parties at
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“‘their pleasure only, to administer the rule of law established by their
collective agreement.’” Alexander v. Gardner-Denver Co., 415 U.S. 36,
52 n.16 (1974) (quoting Harry Shulman, Reason, Contract, and Law in
Labor Relations, 68 Harv. L. Rev. 999, 1016 (1955)); see also StoltNielsen, 130 S. Ct. at 1773 (noting “‘basic precept that arbitration is a
matter of consent, not coercion’”) (citation omitted).
This critical distinction—that arbitration rests on consent while
judicial processes are imposed through government power—is the
reason why courts in a variety of contexts have expressly distinguished
arbitration from judicial proceedings. Dean Witter Reynolds, Inc. v.
Byrd,

470

U.S.

213,

222

(1985)

(“arbitration

is

not

a judicial proceeding”); McDonald v. City of W. Branch, 466 U.S. 284,
288 (1984) (“Arbitration is not a ‘judicial proceeding.’”); Wolsey, Ltd. v.
Foodmaker, Inc., 144 F.3d 1205, 1208 (9th Cir. 1998) (“Arbitration is a
creature of contract . . . rather than the judicial process.”) (internal
quotation mark omitted); Harrison v. Nissan Motor Corp., 111 F.3d 343,
350 (3d Cir. 1997) (“Arbitration is creature of contract, a device of the
parties rather than the judicial process.”) (internal quotation mark
omitted).
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As the district court itself recognized, “[a]ccess to [Delaware’s]
arbitration procedure requires the parties’ consent.” JA9; see also Del.
Code Ann. tit. 10, §§ 347(a)(1), 349(a) (arbitration available only if “[t]he
parties have consented to the [arbitration] by the Court of Chancery by
agreement or by stipulation”); Del Ch. R. 96(d)(7). The arbitrator has
no power to force an unwilling party to arbitrate a dispute. That is in
sharp contrast to judicial proceedings, where one party may invoke the
coercive power of the State to compel another to answer in court.
The district court was therefore wrong in stating that “[i]n the
Delaware proceeding, the parties submit their dispute to a sitting judge
acting pursuant to state authority.”

JA30.

When conducting an

arbitration, a Court of Chancery judge, like any other arbitrator, is
exercising authority conferred by the parties’ consent. Without that
consent, the arbitration could not take place. See United Steelworkers
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960) (an
arbitrator “has no general charter to administer justice for a community
which transcends the parties” but rather is “part of a system of selfgovernment created by and confined to the parties”) (internal quotation
marks omitted).
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The district court’s decision to lump arbitration proceedings
together with judicial trials elides this critical distinction.
2. Delaware’s Arbitration Proceedings Are
Characterized By Procedural Flexibility Not
Available in Civil Judicial Proceedings.
A second difference between arbitration and judicial proceedings
is that parties to voluntary arbitration are free to design the governing
process and procedures to meet their own specific needs. Stolt-Nielsen,
130 S. Ct. at 1774 (“Underscoring the consensual nature of private
dispute resolution, we have held that parties are generally free to
structure their arbitration agreements as they see fit.”) (internal
quotation marks omitted); AT&T Mobility LLC v. Concepcion, 131 S. Ct.
1740, 1749 (2011) (“The point of affording parties discretion in
designing arbitration processes is to allow for efficient, streamlined
procedures tailored to the type of dispute.

It can be specified, for

example, that the decisionmaker be a specialist in the relevant field, or
that proceedings be kept confidential to protect trade secrets. And the
informality of arbitral proceedings is itself desirable, reducing the cost
and increasing the speed of dispute resolution.”).

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Judicial proceedings, by contrast, are governed by legal precedent
and rules of procedure, evidence, and substantive law.

1 L.E.

Edmonson, Domke on Commercial Arbitration § 1:1 (3d ed. 2011).
The district court agreed: “[t]he parties [to an arbitration] can
specify the scope of the arbitrator’s authority and design the applicable
procedural rules,” but “[l]itigation follows the court’s procedures and
guidelines.”18 JA24.
Commercial arbitration under the Delaware statute provides for
the procedural flexibility associated with arbitration proceedings
generally. With the consent of the arbitrator, moreover, the parties
may agree to “change any of the[] arbitration rules . . . and/or adopt
additional arbitration rules.” Del. Ch. R. 96(c) (emphasis added).
The rules provide that the arbitrator, or the parties with consent
of the arbitrator, may curtail discovery. Id. 96(c), (d)(4), 97(f). The
arbitration hearing is informal: the arbitrator directs the hearing in

Later in its opinion, the district court noted that in litigation “parties
can agree to limit discovery, to a trial on stipulated facts or on summary
judgment rather than oral testimony, and to waive or limit the right to
appeal a judicial determination.” JA31. But a number of judicial
procedures cannot be waived or modified—for example, the standard for
granting summary judgment.
18

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whatever fashion enables him or her to gather sufficient information to
render a decision. Id. 96(d)(6), 97(f).
These flexible procedures allow the arbitration proceeding to
reach resolution more quickly than a case that proceeds through motion
practice, discovery, trial, and post-trial briefing.

The preliminary

conference takes place “within 10 days after the commencement of the
arbitration,” id. 97(c), and the preliminary hearing “as soon as
practicable after the preliminary conference,” id. 97(d). The arbitration
takes place “no later than 90 days following receipt of the petition” to
arbitrate. Id. 97(e) (emphasis added). In comparison, the median time
period from filing to disposition for federal court civil cases is almost
two years; mean times for civil cases in state courts can be even
longer.19
3. An Arbitrator’s Award Is Subject To More
Limited Review Than A Trial Court’s
Judgment.
Arbitrators’ decisions are subject to a narrow standard of judicial
review. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 628 (1985) (“By agreeing to arbitrate . . . , [a party] trades the

19

See note 5, supra.
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procedures and opportunity for review of the courtroom for the
simplicity, informality, and expedition of arbitration.”). This provides
an important element of finality, which is often particularly important
in resolving disputes between businesses engaging in joint, ongoing
activities.20
Under the FAA, for example, a court may set aside an arbitrator’s
award only if “the award was procured by corruption, fraud, or undue
means”; “there was evident partiality or corruption in the arbitrators, or
either of them”; “the arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy”; “any other
misbehavior by which the rights of any party have been prejudiced”; or
“[w]here the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the subject
matter submitted was not made.” 9 U.S.C. § 10.
An appellate court reviewing a trial court judgment, by contrast,
must

decide

legal

issues

de

novo,

and

consider

all

factual

See Gary B. Born, International Commercial Arbitration in the United
States: Commentary and Materials 120 (1994).
20

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determinations, albeit under a more deferential standard. Bear Mt.
Orchards, Inc. v. Mich-Kim, Inc., 623 F.3d 163, 169 (3d Cir. 2010).
The Delaware statute incorporates the deferential standard of
review generally applicable to arbitrators’ determinations: “Any
application to vacate, stay, or enforce an order of the Court of Chancery
issued in an arbitration proceeding under this section shall be filed with
the Supreme Court of this State, which shall exercise its authority in
conformity with the Federal Arbitration Act, and such general
principles of law and equity as are not inconsistent with that Act.” Del.
Code Ann. tit. 10, § 349(c).21

The district court observed that under the Delaware commercial
arbitration rules, the “final [arbitration] award results in a judgment
enforced by state power.” JA29-30. But the statute specifically
provides that a party to the arbitral award wishing to seek judicial
review is automatically entitled to review in the Delaware Supreme
Court.
21

Eliminating the ministerial step of confirming the arbitrator’s
award does not transform the arbitration proceeding into a judicial one.
That is especially true because the overwhelming number of arbitrator’s
awards are registered without objection. Mistelis, supra, at 583-84
(“Statistically, over 90% of arbitration awards are complied with
voluntarily, pursuant to anecdotal evidence from arbitration
institutions and arbitration practitioners.”). Indeed, the New York
Convention, the leading international agreement regarding recognition
of arbitral awards, does not require judicial intervention to make an
award enforceable. Convention on the Recognition and Enforcement of
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In this aspect as well, the Delaware commercial arbitration
proceeding resembles arbitration generally much more than a civil trial.
C. Delaware’s Decision To Authorize Judges To Act As
Arbitrators Does Not Transform The Arbitrations Into
Civil Judicial Proceedings.
The district court’s determination that an arbitration proceeding
under the Delaware statute “is sufficiently like a civil trial” to trigger
the First Amendment access right rests on the fact that a judge acts as
the arbitrator. In the district court’s view, “judges in this country do
not take on the role of arbitrators,” JA27, and the Delaware statute’s
assignment of that responsibility to judges transforms the arbitration
proceeding into a civil trial. That analysis is incorrect.22

Foreign Arbitral Awards art. 3, June 10, 1958, 21 U.S.T. 2517, 330
U.N.T.S. 38.
The district court also noted that the arbitrator under the Delaware
statute is “paid by the state, and using state personnel and facilities.”
JA30. But that fact does not appear to be a basis for the district court’s
determination, because the court observed earlier in its opinion that
“arbitrations may occur in [government] courthouses, and arbitrators . .
. may be paid by the government for their services.” JA25-26.
22

Surely a “Delaware Department of Arbitration” could pay all of
the costs of arbitrations conducted under its auspices without
transforming those arbitrations into judicial proceedings. The fact that
the State is subsidizing this valuable service therefore provides no
grounds for classifying it as a judicial proceeding.
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First, there is nothing unusual about a judge taking on the role of
arbitrator.

Several States empower sitting judges to conduct

arbitrations. In New York, judges may serve as arbitrators in binding
small claims court arbitrations23; the District of Columbia requires
small claims court judges to be “ready to serve as referee or

Indeed, it is well settled that States have broad authority to
subsidize services that benefit their citizens. If state financing were
sufficient to trigger a First Amendment access right, then every
government proceeding would qualify. Many States pay for the cost of
arbitration and other ADR programs, which are also often conducted in
state courthouses.
For example, Arizona, California, District of
Columbia, Georgia, New Mexico, and Ohio all pay arbitrations out of
court funds. See Roselle L. Wissler & Bob Dauber, A Study of CourtConnected Arbitration in the Superior Court of Arizona, Arbitration
Selection and Compensation, By State, at V.A-6 (2005), available at
http://www.law.asu.edu/files/Programs/Clinic/LoadStar/AZ%20Arbitrati
on%20Study%20Executive%20Summary.pdf.
A public access right
based on the presence of state financing would therefore extend that
right to a broad swath of state proceedings.
23

See N.Y. Advisory Comm. J. Ethics, Op. No. 07-12 (Sept. 6, 2007).
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arbitrator”24; and California rules provides that judges may serve as
arbitrators.25
Other States permit part-time judges, administrative law judges,
and magistrates to conduct arbitrations, including Connecticut, Conn.
Gen. Stat. § 51-193l–u; North Carolina, N.C. Gen. Stat. § 90-21.62;
Oregon, Or. Uniform Trial Ct. R. 13.090(1); West Virginia, W. Va. Code
R. § 158-13-4.5.f.1; Wyoming, Code of Judicial Conduct R. II(A)(2)
(2009) (providing that judges who serve “on a part-time basis by
retention election or under a continuing appointment, including a
retired judge who has been given a general or special appointment to
hear cases by the Wyoming Supreme Court” may serve as arbitrators).
Still other states utilize senior judges as arbitrators. In a program
similar to Delaware’s, Georgia’s Fulton County Business Division offers
businesses a variety of alternative dispute resolution options, including

See D.C. Super. Ct. R. P. for the Small Claims and Conciliation
Branch, R. for Arbitration, R. 1 (Jan. 2012) (“The judge sitting in this
Branch shall hold himself ready to serve as referee or arbitrator, either
alone or in conjunction with other persons, as provided by law or rule.
Procedure shall be as provided by [DC law] or upon written stipulation
between
the
parties
or
their
counsel.”),
available
at
http://www.dccourts.gov/internet/documents/SC-Rules-Jan-2012.pdf.
24

25

Cal. Civ. Proc. Code § 1141.18(a).
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binding arbitration conducted by active Senior Judges who are experts
in resolving business disputes.26
Moreover, state court opinions make clear that state court judges
have historically served as arbitrators.27

The American Bar

Association’s Annotated Model Code of Judicial Conduct (2d ed. 2011)
authorizes judges to arbitrate disputes as part of their official duties, id
at 393-95.28

Sup. Ct. of Ga., Order of Oct. 11, 2012 amending R. 1004, available at
http://www.fultoncourt.org/business/BusinessCourtRulesAmendedOctob
er2012.pdf.
26

See. e.g., In re Goulds Pumps, Inc., 841 N.Y.S.2d 218 (table) (N.Y.
Sup. Ct. 2007); Shields v. Thunem, 716 P.2d 217 (Mont. 1986) (noting
that where judge acted as arbitrator for parties, he should recuse
himself from also sitting as a trial judge in the same matter); Dial
Press, Inc. v. Phillips, 81 N.Y.S.2d 324 (N.Y. Sup. Ct. 1948); Truitt v.
Mackaman, 144 N.W. 22 (Iowa 1913) (where parties stipulated to
arbitrate, with judge as “arbitrator” and no appeal, court entered
judgment without a right of appeal); see also John T. Morse, Jr., The
Law of Arbitration and Award 106 (1872) (“If no proceedings are
pending or contemplated in court, there is of course no objection to
selecting a judge to act as an arbitrator under a submission in pais. On
the contrary, it is very common so to do, and no objection has ever been
made to the arrangement before any tribunal of authority.”).
27

The district court recognized that federal law authorizes magistrate
judges to serve as arbitrators but stated that “neither the parties nor
this Court could find evidence of that practice.” JA28. But, as we have
discussed, there is considerable evidence of state and federal judges
serving as arbitrators, and the number of statutes and rules authorizing
judges to serve this role rebuts the court’s conclusion that there is a
28

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Congress has authorized federal magistrate judges to arbitrate
disputes. Alternative Dispute Resolution Act of 1998, Pub. L. No. 105315, 112 Stat. 2993 (1998) (codified at 28 U.S.C. §§ 651 et seq.); see §§
653(b), 654(a)(3) (authorizing magistrate judges to arbitrate monetary
claims of less than $150,000).

As arbitrators, magistrates are

empowered to conduct hearings, administer oaths, and make awards, §
655(a), in confidential arbitration proceedings, id. § 652(d).
Moreover, there are a number of historical examples of Supreme
Court Justices serving as arbitrators.

“[T]he Constitution does not

prohibit Article III judges from undertaking extrajudicial duties.”
Mistretta v. United States, 488 U.S. 361, 398 (1989). Justice Nelson
served on a Geneva Commission that arbitrated U.S. claims against
England for building and equipping naval vessels for the Confederacy.
Kermit Hall, The Oxford Companion to the Supreme Court of the United
States 314 (2d ed. 2005).

Chief Justice Fuller and Justice Brewer

served as arbitrators in a boundary dispute between Venezuela and
British Guiana, Justice John Marshall served as an arbitrator in the

clear standard that bars judges from doing so, or one that transforms
any arbitration over which a judge presides into a civil trial for First
Amendment purposes.
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Fur Seal arbitration proceedings, and Justice Van Devanter was an
arbitrator in the dispute over the seizure of the vessel Im Alone. Id.
Thus, the district court’s blanket assertion that judges “do not
take on the role of arbitrators,” JA27, is wrong as a matter of fact.29
And relying on that fact to transform an arbitration into a judicial
proceeding would improperly extend a First Amendment access right to
all of these proceedings.
Second, the district court’s analysis appears to rest on the view
that any power exercised by a judge is by virtue of the judge’s “judicial”
involvement, and that judges therefore cannot engage in “non-judicial”
activities. But it is well settled that a State is free to assign power
among its own branches of government in ways that suit its needs.
Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937) (“How

The district court also claimed that “several courts have noted the
inherent tension between the role of judge and arbitrator.” JA28. But
both opinions contain general comments regarding the propriety of
federal magistrates acting as arbitrators, and because both were
decided before Congress expressly authorized federal magistrate judges
to serve as arbitrators in the Alternative Dispute Resolution Act of
1998, see 28 U.S.C. § 653(b), those general comments are doubly
inapplicable here. See DDI Seamless Cylinder Int’l Inc. v. Gen. Fire
Extinguisher Corp., 14 F.3d 1163, 1165-66 (7th Cir. 1994); Ovadiah v.
N.Y. Ass’n for New Ams., 1997 WL 342411, at *10 (S.D.N.Y. June 23,
1997).
29

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power shall be distributed by a state among its governmental organs is
commonly, if not always, a question for the state itself.”).
State judges therefore may exercise functions that would be
“legislative”

or

“executive”

under

federal

separation-of-powers

principles. “Whether the legislative, executive, and judicial powers of a
state shall be kept altogether distinct and separate, or whether persons
or collections of persons belonging to one department may, in respect to
some matters, exert powers which, strictly speaking, pertain to another
department of government, is for the determination of the state.”
Dreyer v. Illinois, 187 U.S. 71, 84 (1902).
The functions that States have assigned to judges include
ratemaking, Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908),
permitting, Burford v. Sun Oil Co., 319 U.S. 315, 322 (1943);
supervising election recounts, Roudebush v. Hartke, 405 U.S. 15, 21
(1972); inspecting state facilities, Cal. Welf. & Inst. Code § 264
(requiring judges to physically inspect juvenile jails and halls); serving
as ex officio trustees and visitors to state institutions, 24 Pa. Cons. Stat.
§ 19-1911-B (visitors of public technology college) 35 Pa. Cons. Stat. § 3
(visitors of state hospital); providing advisory opinions to other
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branches of government, In re Opinions of Justices, 96 So. 487 (Ala.
1923) (justices may provide advisory opinions to the Governor and
Legislature in their individual capacities), and exercising diverse
appointment powers.30
Several State constitutions include provisions that authorize the
vesting of nonjudicial or quasi judicial functions in the State’s courts
and judges. See, e.g., People v. Inghram, 514 N.E.2d 977, 980-81 (Ill.
1987) (Illinois courts may perform “certain nonjudicial functions, as
provided by a statute” consistent with the Illinois constitution).31

See 71 Pa. Cons. Stat. § 1301 (1962) (State Park and Harbor
commissioners); 36 Pa. Cons. Stat. § 3216 (1961) (surveyors condemning
Delaware River bridge); 29 Pa. Cons. Stat. Ann. § 2 (1958) (“fence
viewers”); Newton v. Edwards, 155 S.W.2d 591 (Ark. 1941) (tax
collectors); Elliott v. McCrea, 130 P. 785 (Idaho 1913) (drainage
commissioners); Minsinger v. Rau, 84 A. 902 (Pa. 1912) (board of public
education); Citizens’ Sav. Bank v. Town of Greenburgh, 65 N.E. 978
(N.Y. 1903) (road commissioners); Cahill v. Perrine, 49 S.W. 344 (Ky.
1899) (guards); City of Terre Haute v. Evansville & T.H.R. Co., 46 N.E.
77 (Ind. 1897) (city commissioners); Fox v. McDonald, 13 So. 416 (Ala.
1893) (police commissioners); Walker v. City of Cincinnati, 21 Ohio St.
14 (1871) (trustees for railroad).
30

Even federal judges exercising authority under Article III of the
Constitution may take on extrajudicial roles, see Mistretta, 488 U.S. at
398, 400), including—in addition to the role of arbitrator (see supra, at
48-49)—promulgating rules regulating practice and procedure, see, e.g.,
Sentencing Reform Act of 1976 (codified at 18 U.S.C. §§ 3771 et seq.;
Rules Enabling Act of 1934 (codified at 28 U.S.C. §§ 2072 et seq.). Chief
Justice Warren chaired the Warren Commission and Justice Jackson
31

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The Delaware State Constitution does so in Article IV, which
provides that the General Assembly shall have “power to confer upon . .
. the Court of Chancery jurisdiction and powers in addition to those
[judicial powers] hereinbefore mentioned,” Del. Const. art. IV, § 17, and
further empowers members of the Court of Chancery to “exercise all the
powers which any law of this State vests in the Chancellor, besides the
general powers of the Court of Chancery,” id. § 18.32
If Delaware had created a separate “Delaware Department of
Arbitration” to hire State employees to conduct arbitrations, there
would be no basis for declaring the arbitrations “judicial proceedings”
under the district court’s standard. Because Delaware may assign nonjudicial functions to State judges, the fact that a judge presides over the
arbitration does not make it “judicial” any more than a State’s decision
served as a prosecutor at Nuremberg. Mistretta, 488 U.S. at 400.
Justice Roberts served on a commission investigating American
preparedness for Pearl Harbor. Id. Other justices have reviewed ships
for seaworthiness, see Act of July 20, 1790, ch. 29, § 3, 1 Stat. 132,
attended the salvaging of French ships stranded or shipwrecked on
American shores, see Act of Apr. 14, 1792, ch. 24, § 1, 1 Stat. 254,
interviewed witnesses for Congress in contested congressional elections,
see Act of Jan. 23, 1798, ch. 8, § 1, 1 Stat. 537, and naturalized aliens,
see Act of Jan. 29, 1795, ch. 20, 1 Stat. 414.
The Delaware Constitution also provides that the Chancellor serves
on the Board of Pardons. Del. Const. art. VII, § 2.
32

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to assign ratemaking, permitting or appointment responsibilities to
judges makes those functions “judicial” and for that reason subject to a
First Amendment access right.
II.

APPLICATION OF THE EXPERIENCE AND LOGIC TEST
DEMONSTRATES
THAT
THERE
IS
NO
FIRST
AMENDMENT RIGHT OF ACCESS TO DELAWARE’S
COMMERCIAL ARBITRATION PROCEEDINGS.
If the district court had applied the experience and logic test, it

could have reached only one conclusion—there is no First Amendment
access right to the arbitration proceedings themselves.

Delaware’s

arbitration statute provides a right of access at the first point that the
First Amendment right could attach, when a judicial proceeding is
commenced to review the arbitrator’s award.
A. Delaware Has Provided For Public Access To Judicial
Proceedings Reviewing The Arbitration Award.
This Court has held that “[a]ll rights of access are not coextensive, . . . some may be granted at different stages than others. . . . .
A temporally based right is no stranger to the law.” First Amend. Coal.,
784 F.2d at 472-73. The Delaware statute provides for public access
when a party invokes the judicial process, by seeking review of the
arbitrator’s award in the Delaware Supreme Court. Del. Code Ann. tit.
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10, § 349(a). Thus, the issue here is whether Delaware must provide
public access to the entirety of the arbitration process.
This Court faced a similar question in First Amendment Coalition.
There, the Pennsylvania Judicial Inquiry and Review Board closed
early-stage judicial misconduct proceedings and provided for disclosure
only after discipline of a judge had been recommended. The Court held
that the issue was “not whether the First Amendment prohibits the
state

from

barring

public

observation

of

judicial

disciplinary

proceedings at all stages,” but rather it was in determining the stage of
the proceeding to which a constitutional right of access attached. 784
F.2d at 472. It found that the “span” of the right of access should “be
guided by the unique history and function of the Judicial Review
Board,” and that it need not be as “extensive as that in civil and
criminal trials as such.” Id.
Even in the context of judicial adjudication, not every aspect of the
proceeding is open to the public. The Supreme Court has recognized
that “pretrial depositions and interrogatories are not public components
of a civil trial” and therefore, “restraints placed on discovered, but not
yet admitted information are not a restriction on a traditionally public
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source of information.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33
(1984).
Similarly, courts have recognized that the right of access may not
apply to settlement negotiations and agreements. See Leap Sys., Inc. v.
MoneyTrax, Inc., 638 F.3d 216, 222-23 (3d Cir. 2011) (affirming that a
presumption of public access had been rebutted where “[t]he parties are
private entities, their dispute has no impact on the safety and health of
the public, and their settlement agreements demonstrate a clear intent
to maintain confidentiality”); see also United States v. Glens Falls
Newspapers, Inc., 160 F.3d 853, 858 (2d Cir. 1998) (holding that the
interest in public access to settlement negotiations is low); United
States v. Amodeo, 71 F.3d 1044, 1048-49 (2d Cir. 1995) (same).
Here, Delaware has provided for a right of access at the
appropriate stage: when a judicial proceeding is instituted to review the
arbitrator’s award. If there were a public interest in securing a right of
access at an earlier stage, before formal judicial involvement, that
interest may be vindicated through legislation (existing federal
securities laws, for example, may compel disclosure of the pendency of

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an arbitration proceeding regardless of the lack of a constitutional right
of access).
B. There Is No First Amendment Right Of Access To The
Arbitration Proceeding Itself.
Application of the experience and logic test in accordance with the
principles recognized by the Supreme Court and this Court makes clear
that there is no First Amendment right of public access to the
arbitration proceedings conducted under the Delaware statute.
1. Arbitration Has A Historical Tradition Of
Confidentiality.
Arbitration proceedings, unlike criminal and civil judicial trials,
have no history of openness. Rather, parties to arbitration proceedings
have traditionally, and consistently, been entitled to keep the
proceedings confidential.
Arbitration in the United States is the product of the tradition of
private arbitration in England. The first written records of English
arbitration appear in the twelfth century, and the practice had become
well-established by the early seventeenth century. 1 L.E. Edmonson,
Domke on Commercial Arbitration § 2:3 (3d ed. 2011).

From the

seventeenth century onward, merchants relied on arbitration to resolve
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trade and business disputes.

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Katherine V.W. Stone, Arbitration –

National, in 1 Encyclopedia of Law & Society: American and Global
Perspectives 89 (2007).
English law concerning arbitration has long recognized that
arbitrations are not open to the public. See Michael Collins, Privacy
and Confidentiality in Arbitration Proceedings, 30 Tex. Int’l L.J. 121,
122 (1995) (“In English law . . . it has for centuries been recognized that
arbitrations take place in private.” (citing Sir Michael Mustill &
Stewart C. Boyd, The Law and Practice of Commercial Arbitration in
England 432-34 (2d ed. 1989))).
The tradition of confidential arbitration proceedings conducted by
merchant associations carried over into the American colonies. One of
the first official acts of the New York Chamber of Commerce upon its
establishment in 1768 “was to make provision for arbitration by means
of establishing arbitration committees.”

William C. Jones, Three

Centuries of Commercial Arbitration in New York: A Brief Survey, 1956
Wash. U.L.Q. 193, 207.

“[A]rbitration’s privacy and independence

[fostered] efficient resolution of disputes among the American and
British merchants during and after the American Revolutionary War.”
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Amy J. Schmitz, Untangling the Privacy Paradox in Arbitration, 54 U.
Kan. L. Rev. 1211, 1223 (2006) (emphasis added).
When the predecessor of the AAA was founded in the 1920s to
develop rules and regulations for arbitration proceedings, one of those
rules provided for confidential proceedings: “It is the responsibility of
the arbitrator to maintain the privacy of the proceedings, for it is he
who decides who shall be admitted to a hearing . . . . Only with the
mutual consent of the parties, or where the rules provide for public
hearings, may this rule [of privacy] be changed.”

Frances Kellor,

Arbitration in Action 32 (1941).
Confidentiality has remained the norm in arbitration proceedings.
Thomas E. Carbonneau, The Law and Practice of Arbitration 1 (2d ed.
2007) (“Arbitral proceedings are not open to the public and awards
generally are not published.”); 3 Ian R. MacNeil et al., Federal
Arbitration Law: Agreements, Awards and Remedies Under the Federal
Arbitration Act § 32.6.1, at 32:50 (Supp. 1999) (“A much-vaunted
advantage of arbitration is the relative privacy of the proceedings . . . .
[I]f the parties so agree, attendance at hearings may be severely
restricted.”).
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All of the leading national and international arbitral bodies
provide for confidentiality of arbitration proceedings. See, e.g., AAA &
ABA, Code of Ethics for Arbitrators in Commercial Disputes, Canon
VI(B) (2004) (“The arbitrator should keep confidential all matters
relating

to

the

arbitration

proceedings

and

decision.”);

AAA,

Commercial Arbitration Rules R-23 (2009) (requiring arbitrators to
“maintain the privacy of the hearings unless the law provides to the
contrary”); UNCITRAL, Arbitration Rules art. 28(3) (2010) (“Hearings
shall be held in camera unless the parties agree otherwise.”); ICC,
Rules of Arbitration art. 21(3) (2010) (“Save with the approval of the
Arbitral Tribunal and the parties, persons not involved in the
proceedings shall not be admitted.”). The arbitration rules of the AAA
International Centre for Dispute Resolution, International Centre for
Settlement of Investment Disputes, London Court of International
Arbitration, World Intellectual Property Organization and other
international commercial arbitration organizations each contain similar
privacy provisions. See Nigel Blackaby et al., Redfern & Hunter on
International Arbitration 136 (2009).

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The historical record is clear: there is no tradition of public access
to arbitration proceedings. Indeed, even the district court found that
“[a]s the product of private agreement between the parties, historically,
arbitrations have been conducted outside the public view.”

JA25.

Delaware’s arbitration statute is consistent with this tradition of
private arbitration.
2. Public Access Would Undermine The
Viability Of The Delaware Arbitration
Proceeding.
Without a historical tradition of public access, there can be no
First Amendment access right. N. Jersey Media Grp., 308 F.3d at 213
(“‘[T]he role of history in the access determination’ is ‘crucial.’” (quoting
Capital Cities Media, 797 F.2d at 1174)). In addition, requiring public
access would violate the “logic” inquiry, because it would prevent the
commercial arbitration proceeding from functioning as the Delaware
legislature intended.
Confidentiality

is

essential

to

arbitration.

“Publicity

of

commercial litigation is adverse to the interests of both parties . . . . In
arbitration, such adverse publicity is avoided; attendance at the

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hearings by outsiders is not possible without the parties’ express
permission.” Martin Domke, Commercial Arbitration 10-11 (1965).
Indeed, the private nature of arbitration is a key reason why
businesses choose to resolve disputes in arbitration rather than
litigation. 1 Bette J. Roth et al., The Alternative Dispute Resolution
Practice Guide § 7:12 (2011) (“In many practice areas, the parties
consider the private disposal of their case to be a substantial advantage
over traditional court litigation, and for that reason alone, choose
arbitration as their means of dispute resolution.”).
Confidentiality

enables

businesses

to

protect

patented

information, trade secrets, and other closely held information.

See

Concepcion, 131 S. Ct. at 1749 (“[One] point of affording parties
discretion in designing arbitration processes is . . . [so] that proceedings
be kept confidential to protect trade secrets.”). “The public airing of
private matters, trade secrets, confidential operating costs and the like,
to which may be added the loss of prestige and goodwill, attendant upon
the publicity of a court trial, can be prevented by rules which insure
that only the parties and the arbitrators may be present at the hearing
and that all will respect the confidence of the proceeding.” J. Noble
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Braden, Sound Rules and Administration in Arbitration, 83 U. Pa. L.
Rev. 189, 195 (1934). Businesses can resolve their disputes before the
arbitrator on a full record without withholding proprietary or sensitive
company information (or seeking expansive protective orders)—in a
court proceeding, by contrast, use of such information would make it
available to competitors.
Finally, the absence of public access facilitates arbitration’s less
hostile, more conciliatory approach to dispute resolution, see Alan Scott
Rau et al., Process of Dispute Resolution: The Role of Lawyers 601 (3d
ed. 2002), which helps to preserve ongoing business relations and
relationships.
In view of the critical role of confidentiality in the arbitration
process, an arbitration system that required public access simply would
not work. Deprived of one of the key reasons for utilizing arbitration,
businesses would not use the procedure.
A right of access accordingly would not “play[] a significant
positive role in the functioning of” Delaware’s commercial arbitration
process, Press II, 478 U.S. at 8; rather, it would impair the arbitration
process. That fact is dispositive of the “logic” inquiry.
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The district court accorded little weight to the fact that openness
would likely undermine Delaware’s arbitration process, noting simply
that “[e]ven if the procedure fell into disuse, the judiciary as a whole is
strengthened by the public knowledge that its courthouses are open and
judicial officers are not adjudicating in secret.”

JA32.

But that

statement is simply a reflection of the district court’s erroneous view
that arbitration proceedings presided over by judges are illegitimate
and therefore should be eliminated.
This Court has required that the logic inquiry focus on “whether
public access to a particular proceeding would enhance the functioning
of that proceeding.”

United States v. Simone, 14 F.3d at 838-39

(emphasis added). In First Amendment Coalition, the plaintiff argued
that in conducting judicial misconduct proceedings, the Pennsylvania
Board was “performing a governmental function” and that “[t]he public
has an interest in information about the conduct of its judiciary and
consequently is entitled to assurance that the Board is properly
discharging its duties.” 784 F.2d at 473. This Court noted that such
“structural values have been a consideration in the decisions granting a
right of access,” but that “‘structural’ argument[s] alone cannot carry
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the day” where they are not tethered to the circumstances of the
particular case at issue. Id. Moreover, an inquiry accounting only for
the salutary effects of open government “would lead to an unjustifiably
expansive interpretation” of the right of access. Id.
In First Amendment Coalition, this Court rejected the claim for
unlimited public access to judicial disciplinary proceedings where it
would “would have a stifling effect” on use of those proceedings and
where it was “quite uncertain whether the state would have chosen a
judicial disciplinary program or have been able to implement one” at all
if unlimited public access were imposed. 784 F.2d at 473.
Other courts have similarly recognized that where a right of
access will lead to disuse or discontinuation of a process, it should not
be applied. See, e.g., Cincinnati Gas & Elec. Co. v. Gen. Elec. Co., 854
F.2d 900, 904-05 (6th Cir. 1988) (rejecting right of access to summary
jury trial because providing acess “over the parties’ objections would
have significant adverse effects on the utility of the procedure as a
settlement device.”); Cincinnati Enquirer v. Cincinnati Bd. of Educ.,
249 F. Supp. 2d 911, 917 (S.D. Ohio 2003) (“Allowing public access to

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resumes of candidates could very reasonably cause many candidates to
withhold their applications.”).
Given the complete absence of a tradition of openness in the
arbitration context and the effective elimination of Delaware’s
commercial arbitration procedure that would result from recognition of
a First Amendment access right, there is no basis for holding that
public access is required here.
Delaware has a substantial interest in providing an expert,
government-funded arbitral forum for disputes involving businesses
domiciled in the State. Delaware relies to a considerable degree on
revenues from franchise taxes on domestic corporations and annual
taxes on limited partnerships and limited liability companies that
incorporate or register to do business in the State. Delaware’s ability to
maintain those revenue streams depends on its ability to continue to
provide a cutting-edge, stable, and respected legal environment.
Offering a government-sponsored arbitration forum, with judges of the
Court of Chancery serving as arbitrators enables Delaware to provide
its corporate citizens with an expert, efficient dispute resolution system
competitive with those available in other parts of the country and the
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world. As the Delaware General Assembly explained, the commercial
arbitration system “is intended to preserve Delaware’s pre-eminence in
offering cost-effective options for resolving disputes, particularly those
involving commercial, corporate, and technology matters.” 2009 Del.
H.R. 49, syn.
“[T]he presumption of validity attaching to state legislative and
constitutional provisions weighs heavy. This presumption does not
relieve the courts of their obligation to make an independent inquiry
when First Amendment rights are at stake, but it does require that the
state’s determination be upheld unless it is found to transgress a clear
constitutional prohibition.”

First Amend. Coal., 784 F.2d at 475.

Quoting Chief Justice Burger, this Court has noted that courts should
not “‘confuse what is good, desirable, or expedient with what is
constitutionally commanded by the First Amendment. To do so is to
trivialize constitutional adjudication.’” Id. (quoting Houchins v. KQED,
Inc., 438 U.S. 1, 13 (1978) (Burger, C.J.)). There simply is no basis for
invalidating the innovative arbitration system that Delaware has
created.

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C. Recognizing A Public Access Right Would Invalidate
Statutes And Rules In Many Other States, Which Similarly
Permit Judges To Serve As Arbitrators.
Upholding a First Amendment access right to arbitrations
conducted by judges would have far reaching consequences, including
placing in jeopardy the constitutionality of a federal statute, the
Alternative Dispute Resolution Act of 1998.
Over half of the States and the District of Columbia have adopted
an arbitration option as part of their menu of alternative dispute
resolution options.33

Some of these arbitration programs include

binding outcomes—or permit the parties to the arbitration to stipulate

See, e.g., Ariz. Rev. Stat. § 12-133; Cal. Civ. Proc. Code § 1141.10; 4th
Judicial
Dist.,
El
Paso
Cnty.,
Colo.
available
at
http://www.gofourth.org/disp-rez.htm; Conn. Gen. Stat. § 52-549u – aa;
D.C. Civ. Arb. R. I-XB; Ga. Fulton Cnty. R. 30; Fla. Stat. § 44.103 –
.108; Haw. Rev. Stat. § 601-20; Ill. Sup. Ct. R. 86-95; Ind. R. of Ct.,
Rules for ADR; Kan. Stat. § 5-509(a); UCLR Add. A, Arb. Rules; Me. R.
Civ. P. 16B(d)(1); Mass. Sup. Ct. Jud. Ct. R. 1:18, Uniform R. on
Dispute Resolution; Minn. Stat. § 484.73 – .76; Mo. Sup. Ct. R. 17.04;
Nev. Rev. Stat. § 38.250 – .259; N.H. Super. Ct. R. 170; N.J. Stat. §
39:6A–24; N.M. R. Arb. Local Rule 2-601 – 603; N.Y. Rules of the Chief
Judge art. 28; Rules Court-Ordered Arbitration in N.C.; N.D. Cent.
Code § 32-29.3; Or. Rev. Stat § 36.400 – 36.425; Pa. R. Civ. P. 1301–13;
R.I.
Stat.
§
8-6-5;
S.C.
ADR
rules,
available
at
http://www.judicial.state.sc.us/courtReg/; Tenn. Ct. R. 31, available at
http://www.tsc.state.tn.us/rules/supreme-court/31.
33

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to binding outcomes.34

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Others permit a trial de novo but impose

disincentives for requesting a new trial to apply pressure to parties to
accept the arbitrator’s award. For example, in some jurisdictions, if an
appellant does not receive a better outcome from the trial de novo
(typically defined as a more favorable outcome or a 10-30% gain in
monetary relief), the appellant must pay some or all of the arbitration
panel’s fees, as well as the opposing party’s costs, fees, and attorneys’
fees. Such incentive structures have been incorporated into arbitration
programs in Arizona, California, Hawaii, Kentucky, Minnesota,
Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon,
Rhode Island, and Utah.35

See D.C. Super. Ct. R. of Civ. Arb. Program I(c); Gwinnet State
Judicial Circuit, Georgia, Internal Operating Procedures, Alternative
Dispute Resolution Program, available at http://www.gwinnettcourts.
com/documents/adr/IOPADR2002.pdf; Fla. Stat. § 44.104(1); Ind. Rules
of Court for ADR 3.4; Kan. Stat. § 5-502(g); Mass. Uniform R. on
Dispute Resolution 2; Minn. Stat. § 484.76(2); N.H. Super. Ct. R. 170A(S); see also Ariz. R. Civ. P. 72-72, Section IX, available at
http://www.supreme.state.az.us/rules/ramd_pdf/r-06-0021.pdf.
34

Ariz. Rev. Stat. § 12-133(H); Cal. Civ. Proc. Code § 1141.21(a); Haw.
Arb. R. 25(A); Nev. R. Govern. ADR 20(B); N.J. Stat. 2A:23A-29; N.Y.
Rules of Chief Judge art. 28.12(e); Rule for Court-Ordered Arbitration
in N.C. 7(b); Or. Rev. Stat. § 36.425(2)(c), (4)(a); R.I. Gen. Laws § 8-6-5;
Utah Rules of Court-Annexed Dispute Resolution 102(l)(5).
35

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Many state arbitration programs also include or permit the
parties to include privacy or confidentiality provisions—for example,
those in Indiana, Kansas, Maine, Massachusetts, Minnesota, Missouri,
New Hampshire, South Carolina, and Utah.36
The district court’s First Amendment ruling threatens these other
state programs as well as the ability of state judges—including senior,
part-time, and administrative judges—to make on-the-ground decisions
in cases and work with parties to achieve speedier, less-costly outcomes.
This is troubling because many of these programs were
implemented or are currently being strengthened in response to
extraordinary budget cuts and increasing workloads.37

Affording

See Ind. Rules of Court for ADR 3.4(E), 7.3(C); Kan. Stat. § 5-512(a);
Me. R. Civ. P. 16B(k); Mass. Uniform R. on Dispute Resolution 9(h);
Minn. Gen. Rules of Practice for the Dist. Cts. 114.07(a), 114.08; Mo.
Rev. Stat. § 435.014(2); see also Mo. Sup. Ct. R. 17.06(a); N.H. Super.
Ct. R. 170(E)(1); S.C. ADR R. 2(g), 5(d); Utah Code § 78B-6-202(4), see
also Utah Code §§ 78B-6-203(2)(b), 78B-6-208.
36

State courts across the United States have endured severe funding
cuts, while at the same time, they have watched their total caseloads
reach record highs in the last decade. See Bureau of Justice Statics,
State Court Caseload Statistics, Summary Findings, available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=30. A recent Conference of
State Court Administrators (COSCA) survey found that in virtually
every state, courts have been forced to take drastic measures to reduce
their costs, including cutting hours or days out of their operating
schedules, downgrading facilities, shutting down courtrooms, laying off
37

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parties the option of quicker, informal dispute resolution helps to
alleviate the huge workload burden associated with civil litigation.
The district court’s decision—by preventing States from providing
the confidentiality that is an essential element of these dispute
resolution procedures—will undermine States’ ability to use this tool.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted,
/s/ Andrew J. Pincus

court staff, implementing hiring and salary freezes, delaying filling
vacancies in the clerks’ offices and in judicial support positions, and
reducing the use of senior and retired judges. See COSCA, State Court
Budget Survey Responses (Nov. 30, 2011), available at
http://www.ncsc.org/~/media/files/pdf/information%20and%20resources/
budget%20resource%20center/budget_survey_121811.ashx.
These
reductions have made it even more difficult for state courts to deal with
their overwhelming caseloads.
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Andre G. Bouchard
Joel Friedlander
BOUCHARD MARGULES &
FRIEDLANDER, P.A.
222 Delaware Ave., Suite 1400
Wilmington, DE 19801
[phone]

Andrew J. Pincus
(D.C. Bar No. 370762)
E. Brantley Webb*
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

Lawrence A. Hamermesh
Widener University School of Law
4601 Concord Pike
Wilmington, DE 19803
[phone]

* Admitted only in Tennessee,
supervised by principals of the firm

Counsel for Defendants-Appellants
Dated: December 11, 2012

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and
Third Circuit Rule 31.1(c), the undersigned counsel for DefendantsAppellants certifies that this electronic brief:
(i) complies with the type-volume limitation of Rule 32(a)(7)(B)
because it contains 13,983 words, including footnotes and excluding the
parts of the brief exempted by Rule 32(a)(7)(B)(iii);
(ii) complies with the typeface requirements of Rule 32(a)(5) and
the type style requirements of Rule 32(a)(6) because it was prepared
using Microsoft Office Word 2007 and is set in 14-point sized Century
Schoolbook font;
(iii) is identical to the ten hard copies sent to the Clerk of the
Court on December 11, 2012 via overnight courier service; and
(iv) has been scanned with a virus detection program and no virus
was detected.
/s/ Andrew J. Pincus
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

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THIRD CIRCUIT RULE 28.3(d) CERTIFICATION
Pursuant to Third Circuit Rule 28.3(d), the undersigned counsel
for Defendants-Appellants certifies that Andrew J. Pincus is a member
of the bar of this court.

/s/ Andrew J. Pincus
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

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CERTIFICATE OF SERVICE
I hereby certify that on December 11, 2012, I electronically filed
the foregoing, which includes Volume 1 of the Joint Appendix, and
Volume 2 of the Joint Appendix, with the Clerk of the Court for the
United States Court of Appeals for the Third Circuit by using the
CM/ECF system. Participants in the case who are registered CM/ECF
users will be served by the CM/ECF system. I further certify that I
served the two above documents on the following non-CM/ECF
participant and Plaintiff-Appellee by electronic mail and by overnight
delivery through a third-party commercial carrier:
Lawrence A. Hamermesh
Widener University School of Law
4601 Concord Pike
P.O. Box 7474
Wilmington, DE 19803-0000
[e-mail]

David L. Finger
Finger & Slanina, LLC
1201 N. Orange St., 7th fl.
Wilmington, DE 19801
[phone]
Counsel for Plaintiff-Appellee

Counsel for Defendants-Appellants

/s/ Andrew J. Pincus
MAYER BROWN LLP
1999 K Street, NW
Washington, DC 20006
[phone]

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ADDENDUM

Date Filed: 12/11/2012

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10 Del.C. § 347

Page 1

Effective:[See Text Amendments]
West's Delaware Code Annotated Currentness
Title 10. Courts and Judicial Procedure
Part I. Organization, Powers, Jurisdiction and Operation of Courts
Chapter 3. Court of Chancery
Subchapter III. General Jurisdiction and Powers
§ 347. Mediation proceedings for business disputes
(a) Without limiting the jurisdiction of any court of this State, the Court of Chancery shall have the power to
mediate business disputes when:

(1) The parties have consented to the mediation by the Court of Chancery by agreement or by stipulation;
(2) At least 1 party is a business entity as defined in § 346 of this title;
(3) At least 1 party is a business entity formed or organized under the laws of this State or having its principal
place of business in this State;
(4) No party is a consumer, as that term is defined in § 2731 of Title 6, with respect to the business dispute;
and
(5) In the case of disputes involving solely a claim for monetary damages, the amount in controversy is no less
than $1 million dollars or such greater amount as the Court of Chancery determines by rule.
A mediation pursuant to this section shall involve a request by parties to have a member of the Court of Chancery, or such other person as may be authorized under rules of the Court, act as a mediator to assist the parties in
reaching a mutually satisfactory resolution of their dispute. Mediation proceedings shall be considered confidential and not of public record.
(b) By rule, the Court of Chancery may define those types of cases that are eligible for submission as a business
dispute mediation. This section is intended to encourage the Court of Chancery to include complex corporate
and commercial disputes, including technology disputes, within the ambit of the business dispute mediation
rules. The Court of Chancery should interpret its rule-making authority broadly to effectuate that intention.

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Page

CREDIT(S)
74 Laws 2003, ch. 36, § 2, eff. May 27, 2003.
LIBRARY REFERENCES
Arbitration
23.8.
Equity
15.
Westlaw Key Number Searches: 33k23.8; 150k15.
C.J.S. Arbitration § 67.
C.J.S. Equity §§ 11, 15, 35 to 37, 63, 65.
RESEARCH REFERENCES
Treatises and Practice Aids
Acquisitions and Mergers: Negotiated and Contested Transactions App. F101, Transaction and Separation
Agreements.
BNA Corporate Practice Series No. 38-5 § VI, VI. Litigation Aspects of the Delaware Appraisal Proceeding.
10 Del.C. § 347, DE ST TI 10 § 347
Current through 78 Laws 2012, chs. 204 - 409. Revisions by the Delaware Code Revisors were unavailable at
the time of publication.
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END OF DOCUMENT

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10 Del.C. § 349

Page 1

Effective: April 2, 2009
West's Delaware Code Annotated Currentness
Title 10. Courts and Judicial Procedure
Part I. Organization, Powers, Jurisdiction and Operation of Courts
Chapter 3. Court of Chancery
Subchapter III. General Jurisdiction and Powers
§ 349. Arbitration proceedings for business disputes
(a) The Court of Chancery shall have the power to arbitrate business disputes when the parties request a member
of the Court of Chancery, or such other person as may be authorized under rules of the Court, to arbitrate a dispute. For a dispute to be eligible for arbitration under this section, the eligibility criteria set forth in § 347(a) and
(b) of this title must be satisfied, except that the parties must have consented to arbitration rather than mediation.

(b) Arbitration proceedings shall be considered confidential and not of public record until such time, if any, as
the proceedings are the subject of an appeal. In the case of an appeal, the record shall be filed by the parties with
the Supreme Court in accordance with its rules, and to the extent applicable, the rules of the Court of Chancery.
(c) Any application to vacate, stay, or enforce an order of the Court of Chancery issued in an arbitration proceeding under this section shall be filed with the Supreme Court of this State, which shall exercise its authority
in conformity with the Federal Arbitration Act, and such general principles of law and equity as are not inconsistent with that Act.

CREDIT(S)
Added by 77 Laws 2009, ch. 8, § 1, eff. April 2, 2009.
HISTORICAL AND STATUTORY NOTES
2009 Legislation
77 Laws 2009, ch. 8, § 9, provides:
“Sections 2 - 8 of this bill shall become effective three months after enactment into law; the rest of the bill shall
become effective upon enactment.”

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RESEARCH REFERENCES
Other References
10/31/2011 BNA Corporate Law Daily D9, Group Mounts 1ST Amt. Challenge to Del. Law.
Treatises and Practice Aids
BNA Corporate Practice Series No. 38-5 § VI, VI. Litigation Aspects of the Delaware Appraisal Proceeding.
10 Del.C. § 349, DE ST TI 10 § 349
Current through 78 Laws 2012, chs. 204 - 409. Revisions by the Delaware Code Revisors were unavailable at
the time of publication.
(C) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT

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Chancery Court Rules, Rule 96

Page 1

West's Delaware Code Annotated Currentness
Delaware Rules of Court
Chancery Court Rules
XI. General Provisions
RULE 96. SCOPE OF RULES
(a) These rules shall govern the procedure in arbitration proceedings for business disputes pursuant to 10 Del. C.
§ 349.

(b) In the case of business disputes involving solely a claim for monetary damages, a matter will be eligible for
arbitration only if the amount in controversy exceeds one million dollars.
(c) The parties with the consent of the Arbitrator may change any of these arbitration rules by agreement and/or
adopt additional arbitration rules. Except to the extent inconsistent with these rules, or as modified by the Arbitrator or the parties, Court of Chancery Rules 26 through 37 shall apply to the Arbitration proceeding.
(d)(1) Definitions.“Arbitration” means the voluntary submission of a dispute to an Arbitrator for final and binding determination and includes all contacts between the Arbitrator and any party or parties, until such time as a
final decision is rendered or the parties discharge the Arbitrator.
(2) “Arbitrator” means a judge or master sitting permanently in the Court. Absent agreement of the parties, the
Arbitrator shall not have served as the Mediator in a mediation of the dispute under Court of Chancery Rules.
(3) “Preliminary conference” means a telephonic conference with the parties and/or their attorneys or other representatives (i) to obtain additional information about the nature of the dispute and the anticipated length of
hearing and scheduling, (ii) to obtain conflicts statements from the parties, and (iii) to consider with the parties
whether mediation or other non-adjudicative methods of dispute resolution might be appropriate.
(4) “Preliminary hearing” means a telephonic conference with the parties and/or their attorneys or other representatives to consider, without limitation: (i) service of statements of claims, damages and defenses, a statement
of the issues asserted by each party and positions with respect thereto, and any legal authorities upon which the
parties rely, (ii) stipulations of fact, (iii) the scope of discovery, (iv) exchanging and premarking of exhibits for
the hearing, (v) the identification and availability of witnesses, including experts, and such matters with respect
to witnesses, including their qualifications and expected testimony as may be appropriate, (vi) whether, and to
what extent, any sworn statements and/or depositions may be introduced, (vii) the length of hearing, (viii)
whether a stenographic or other official record of the proceedings shall be maintained, (ix) the possibility of mediation or other non-adjudicative methods of dispute resolution, and (x) the procedure for the issuance of sub-

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poenas.
(5) “Scheduling order” means the order of the Arbitrator setting forth the pre-hearing activities and the hearing
procedures that will govern the arbitration.
(6) “Arbitration hearing” means the proceeding, which may take place over a number of days, pursuant to which
the petitioner presents evidence to support its claim and the respondent presents evidence to support its defense,
and witnesses for each party shall submit to questions from the Arbitrator and the adverse party, subject to the
discretion of the Arbitrator to vary this procedure so long as parties are treated equally and each party has the
right to be heard and is given a fair opportunity to present its case.
(7) “Consent to Arbitrate,” means a written or oral agreement to engage in arbitration in the Court of Chancery
and shall constitute consent to these rules. Provided that the parties and the amount in controversy meet the eligibility requirements in 10 Del. C. § 347, which apply to the arbitration of business disputes under 10 Del. C. §
349, a consent to arbitrate is acceptable if it contains the following language: “The parties agree that any dispute arising under this agreement shall be arbitrated in the Court of Chancery of the State of Delaware, pursuant
to 10 Del. C. § 349.”

CREDIT(S)
[Adopted eff. February 1, 2010.]
Chancery Court Rules, Rule 96, DE R CH CT Rule 96
Current with amendments received through June 1, 2012.
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Chancery Court Rules, Rule 97

Page 1

West's Delaware Code Annotated Currentness
Delaware Rules of Court
Chancery Court Rules
XI. General Provisions
RULE 97. COMMENCE OF ARBITRATION
(a)(1) Petition. Arbitration is commenced by submitting to the Register in Chancery a petition for arbitration
(hereinafter a “petition”) and the filing fee specified by the Register in Chancery. The petition must be signed by
Delaware counsel, as defined in Rule 170(b). Sufficient copies shall be submitted so that one copy is available
for delivery to each party as hereafter provided, unless the Court directs otherwise.

(2) The petition shall be sent by the Register in Chancery, via next business-day delivery, to either a person specified in the applicable agreement between the parties to receive notice of the petition or, absent such specification, to each party's principal place of business or residence. The petitioning party shall provide the Register in
Chancery with addresses of each party.
(3) The petition shall contain a statement setting forth the nature of the dispute, the names and addresses of all
other parties, the claims and the remedy sought. The petition must also contain a statement that all parties have
consented to arbitration by agreement or stipulation, that at least one party is a business entity, that at least one
party is a business entity formed or organized under the laws of Delaware or having its principal place of business in Delaware, and that no party is a consumer with respect to the dispute. In the case of business disputes involving solely a claim for monetary damages, the petition must contain a statement of the amount in controversy.
(4) Confidentiality. The Register in Chancery will not include the petition as part of the public docketing system.
The petition and any supporting documents are considered confidential and not of public record until such time,
if any, as the proceedings are the subject of an appeal. In the case of an appeal, the record shall be filed by the
parties with the Supreme Court in accordance with its Rules, and to the extent applicable, the Rules of this
Court.
(b) Appointment of the Arbitrator. Upon receipt of a petition, the Chancellor will appoint an Arbitrator.
(c) Preliminary Conference. The Arbitrator will contact the parties' counsel to set the date and time of the preliminary conference, which shall occur within 10 days after the commencement of the arbitration, unless the
parties and the Arbitrator agree, pursuant to Rule 96(c), to extend that time.
(d) Preliminary Hearing. The preliminary hearing shall take place as soon as practicable after the preliminary

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conference. The Arbitrator shall issue a scheduling order promptly after the preliminary hearing.
(e) Date, Time, and Place of Arbitration. The Arbitrator will set the date, time, and place of the arbitration hearing at the preliminary hearing. The arbitration hearing generally will occur no later than 90 days following receipt of the petition.
(f) Exchange of Information. There shall be prehearing exchange of information necessary and appropriate for
the parties to prepare for the arbitration hearing and to enable the Arbitrator to understand the dispute, unless the
parties agree, with the approval of the Arbitrator, to forego prehearing exchange of information. The parties
shall, in the first instance, attempt to agree on prehearing exchange of information, which may include depositions, and shall present any agreement to the Arbitrator for approval at the preliminary hearing or as soon thereafter as possible. The Arbitrator may require additional exchange of information between and among the parties,
or additional submission of information to the Arbitrator. If the parties are unable to agree, they shall present the
dispute to the Arbitrator who shall direct such prehearing exchange of information as he/she deems necessary
and appropriate.

CREDIT(S)
[Adopted eff. February 1, 2010.]
Chancery Court Rules, Rule 97, DE R CH CT Rule 97
Current with amendments received through June 1, 2012.
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Chancery Court Rules, Rule 98

Page 1

West's Delaware Code Annotated Currentness
Delaware Rules of Court
Chancery Court Rules
XI. General Provisions
RULE 98. ARBITRATION HEARING
(a) Participation. At least one representative of each party with an interest in the issue or issues to be arbitrated
and with authority to resolve the matter must participate in the arbitration hearing. Delaware counsel, as defined
in Rule 170(b), shall also attend the arbitration hearing on behalf of each party.

(b) Confidentiality. Arbitration hearings are private proceedings such that only parties and their representatives
may attend, unless all parties agree otherwise. An Arbitrator may not be compelled to testify in any judicial or
administrative proceeding concerning any matter relating to service as an Arbitrator. All memoranda and work
product contained in the case files of an Arbitrator are confidential. Any communication made in or in connection with the arbitration that relates to the controversy being arbitrated, whether made to the Arbitrator or a
party, or to any person if made at an arbitration hearing, is confidential. Such confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding with the following exceptions: (1) where all parties to the arbitration agree in writing to waive the confidentiality, or (2) where the confidential materials and communications consist of statements, memoranda, materials, and other tangible evidence otherwise subject to discovery, which were not prepared specifically for use in the arbitration hearing.
(c) Civil Immunity. Arbitrators shall be immune from civil liability for or resulting from any act or omission
done or made in connection with the Arbitration, unless the act or omission was made or done in bad faith, with
malicious intent, or in a manner exhibiting a willful, wanton disregard of the rights, safety, or property of another.
(d) Mediation Option. The parties may agree at any stage of the arbitration process to submit the dispute to the
Court for mediation. The judge or master assigned to mediate the dispute may not be the Arbitrator unless the
parties agree.
(e) Settlement Option. The parties may agree, at any stage of the arbitration process, to seek the assistance of the
Arbitrator in reaching settlement with regard to the issues identified in the petition prior to a final decision from
the Arbitrator. Any settlement agreement shall be reduced to writing and signed by the parties and the Arbitrator. The agreement shall set forth the terms of the resolution of the issues and the future responsibility of each
party.
(f)(1) Award. The Arbitrator may grant any remedy or relief that the Arbitrator deems just and equitable and

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within the scope of any applicable agreement of the parties.
(2) In addition to a final award, the Arbitrator may make other decisions, including interim, interlocutory, or
partial rulings, orders and awards.
(3) Upon the granting of a final award, a final judgment or decree shall be entered in conformity therewith and
be enforced as any other judgment or decree.
(4) The Arbitrator is ineligible to adjudicate any subsequent litigation arising from the issues identified in the
petition.
(g) Costs for Arbitration. Costs for filing and per-day (or partial day) fees shall be assessed in accordance with a
schedule to be maintained by the Register in Chancery.

CREDIT(S)
[Adopted eff. February 1, 2010.]
Chancery Court Rules, Rule 98, DE R CH CT Rule 98
Current with amendments received through June 1, 2012.
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