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

Filing 53

PRECEDENTIAL OPINION Coram: SLOVITER, FUENTES and ROTH, Circuit Judges. Total Pages: 37. Judge: SLOVITER Authoring, Judge: FUENTES Concurring, Judge: ROTH Dissenting. (TYW)

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
No. 12-3859
_________
DELAWARE COALITION FOR OPEN GOVERNMENT,
INC.
v.
THE HONORABLE LEO E. STRINE, JR.;
THE HONORABLE JOHN W. NOBLE;
THE HONORABLE DONALD F. PARSONS, JR.;
THE HONORABLE J. TRAVIS LASTER;
THE HONORABLE SAM GLASSCOCK, III;
THE DELAWARE COURT OF CHANCERY;
THE STATE OF DELAWARE
The Honorable Leo E. Strine, Jr.; The Honorable John W.
Noble; The Honorable Donald Parsons, Jr.; The Honorable J.
Travis Laster; The Honorable Sam Glasscock, III,
Appellants
________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-11-cv-01015)
District Judge: Honorable Mary A. McLaughlin
_______
Argued: May 16, 2013
Before: SLOVITER, FUENTES, and ROTH, Circuit Judges

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(Filed: October 23, 2013)
Andre G. Bouchard
Joel E. Friedlander
Jeffrey M. Gorris
Bouchard, Margules & Friedlander
Wilmington, DE 19801
Lawrence A. Hamermesh
Widener University School of Law
Wilmington, DE 19803
Andrew J. Pincus [Argued]
Mayer Brown
1999 K Street, N.W.
Washington, DC 20006
Attorneys for Appellants
David L. Finger [Argued]
Finger & Slanina
Wilmington, DE 19801-0000
Attorney for Appellee
S. Mark Hurd
Morris, Nichols, Arsht & Tunnell
Wilmington, DE 19899
Attorney for Amicus Curiae
The Corporation Law Section of the Delaware State Bar
Association

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Roy T. Englert, Jr.
Robbins, Russell, Englert, Orseck & Untereiner
Washington, DC 20006
Attorney for Amici Curiae
The Chamber of Commerce of the United States of America
and Business Roundtable
Scott L. Nelson
Public Citizen Litigation Group
Washington, DC 20009
Attorney for Amicus Curiae
Public Citizen, Inc.
Bruce D. Brown
The Reporters Committee for Freedom of the Press
Arlington, VA 22209
Attorney for Amici Curiae
The Reporters Committee for Freedom of the Press and
Twelve New Organizations

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_____________
OPINION
______________

SLOVITER, Circuit Judge.
This appeal requires us to decide whether the public
has a right of access under the First Amendment to
Delaware’s state-sponsored arbitration program. Chancellor
Strine and the judges of the Delaware Chancery Court
(“Appellants”), who oversee the arbitrations, appeal a
judgment on the pleadings entered in favor of the Delaware
Coalition for Open Government (the “Coalition”). The
District Court found that Delaware’s proceedings were
essentially civil trials that must be open to the public.
Appellants dispute the similarities and argue that the First
Amendment does not mandate a right of public access to
Delaware’s proceedings.
I.
In early 2009, in an effort to “preserve Delaware’s preeminence in offering cost-effective options for resolving
disputes, particularly those involving commercial, corporate,
and technology matters,” Delaware amended its code to grant
the Court of Chancery “the power to arbitrate business
disputes.” H.B. 49, 145th Gen. Assemb. (Del. 2009). As a
result, the Court of Chancery created an arbitration process as
an alternative to trial for certain kinds of disputes. As
currently implemented, the proceeding is governed both by

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statute and by the Rules of the Delaware Court of Chancery.
See 10 DEL. CODE ANN. tit. 10, § 349 (2009); Del. Ch. R. 9698.
Delaware’s government-sponsored arbitrations are not
open to all Delaware citizens. To qualify for arbitration, at
least one party must be a “business entity formed or
organized” under Delaware law, tit. 10 § 347(a)(3), and
neither party can be a “consumer,” id. § 347(a)(4). The
statute is limited to monetary disputes that involve an
amount-in-controversy of at least one million dollars. Id. §
347(a)(5).
Once qualified parties have consented “by agreement
or by stipulation” to avail themselves of the proceeding, they
can petition the Register in Chancery to start arbitration. Id. §
347(a)(1); Del. Ch. R. 97(a). The fee for filing is $12,000,
and the arbitration costs $6,000 per day after the first day.
Standing Order of Del. Ch. (Jan. 4, 2010). After receiving a
petition the Chancellor selects a Chancery Court judge to hear
the arbitration. See Del. Ch. R. 97(b); tit. 10, § 347(a).1 The
arbitration begins approximately ninety days after the petition
is filed, and, as the parties agreed in oral argument, is
conducted in a Delaware courthouse during normal business
hours. See Del. Chr. R. 97(e). Regular Court of Chancery
Rules 26-37, governing depositions and discovery, apply to
the proceeding, but the rules can be modified by consensual
agreement of the parties. See id. at 96(c); id. at 26-37.
1

Although the statute governing Delaware’s procedure allows
for the Chancellor to appoint non-Chancery Court judges as
arbitrators, see tit. 10, § 347(a), the Coalition only challenges
arbitration by a member of the court.

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The Chancery Court judge presiding over the
proceeding “[m]ay grant any remedy or relief that [s/he]
deems just and equitable and within the scope of any
applicable agreement of the parties.” Id. at 98(f)(1). Once a
decision is reached, a final judgment or decree is
automatically entered. Id. at 98(f)(3). Both parties have a
right to appeal the resulting “order of the Court of Chancery”
to the Delaware Supreme Court, but that court reviews the
arbitration using the deferential standard outlined in the
Federal Arbitration Act. Tit. 10, § 349(c). Arbitrations can
therefore only be vacated in relatively rare circumstances,
such as when a party can prove that the “award was procured
by corruption, fraud, or undue means” or that the “arbitrator[]
w[as] guilty of misconduct.” 9 U.S.C. § 10; see also
Metromedia Energy, Inc. v. Enserch Energy Servs., Inc., 409
F.3d 574, 578 (3d Cir. 2005).
Both the statute and rules governing Delaware’s
proceedings bar public access. Arbitration petitions are
“considered confidential” and are not included “as part of the
public docketing system.” Tit. 10, § 349(b); Del. Ch. R.
97(4). Attendance at the proceeding is limited to “parties and
their representatives,” and all “materials and
communications” produced during the arbitration are
protected from disclosure in judicial or administrative
proceedings. Del. Ch. R. 98(b).
If one of the parties appeals to the Supreme Court of
Delaware for enforcement, stay, or vacatur, the record of the
proceedings must be filed “with the Supreme Court in
accordance with its Rules.” Id. at 97(a)(4). “The petition and
any supporting documents are considered confidential and not

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of public record until such time, if any, as the proceedings are
the subject of an appeal.” Id. The Delaware Supreme Court
has yet to adopt rules that would govern the confidentiality of
appeals from Delaware’s arbitration program, and there is no
record of a public appeal from an arbitration award.
In the District Court, the Coalition moved for
judgment on the pleadings, arguing that the confidentiality of
Delaware’s government-sponsored arbitration proceedings
violated the First Amendment. The District Court granted the
Coalition’s motion. The judges of the Delaware Chancery
Court appeal.
II.
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343, and we have jurisdiction pursuant
to 28 U.S.C. § 1291. We exercise de novo review over the
District Court’s grant of a motion for judgment on the
pleadings. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d
Cir. 2008).
“The First Amendment, in conjunction with the
Fourteenth, prohibits governments from ‘abridging the
freedom of speech, or of the press . . . . ’” Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980)
(quoting U.S. CONST. amend. I). This protection of speech
includes a right of public access to trials, a right first
elucidated by the Supreme Court in Richmond Newspapers.
In that case the Court found that a Virginia trial court had
violated the First Amendment by closing a criminal trial to
the public. See id. at 580. Chief Justice Burger’s opinion for
the plurality emphasized the important role public access

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plays in the administration of justice and concluded that
“[t]he explicit, guaranteed rights to speak and publish
concerning what takes place at a trial would lose much
meaning if access to observe the trial could . . . be foreclosed
arbitrarily.” Id. at 576-77.
The Court has since found that the public also has a
right of access to voir dire of jurors in criminal trials, see
Press-Enter. Co. v. Superior Court, 464 U.S. 501, 511 (1984)
(“Press I”), and to certain preliminary criminal hearings. See
El Vocero de P.R. v. Puerto Rico, 508 U.S. 147, 149-50
(1993) (per curiam) (preliminary criminal hearings as
conducted in Puerto Rico); Press-Enter. Co. v. Superior
Court, 478 U.S. 1, 10 (1986) (“Press II”) (preliminary
criminal hearings as conducted in California).
We have found a right of public access to civil trials,
as has every other federal court of appeals to consider the
issue. See Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d
Cir. 1984); see also F.T.C. v. Standard Fin. Mgmt. Corp., 830
F.2d 404, 410 (1st Cir. 1987); Westmoreland v. Columbia
Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984); Rushford v.
New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988); Brown & Williamson Tobacco Corp. v. F.T.C., 710
F.2d 1165, 1179 (6th Cir. 1983); In re Cont’l Ill. Sec. Litig.,
732 F.2d 1302, 1309 (7th Cir. 1984). In addition to finding a
right of public access to civil trials, we have also found a First
Amendment right of the public to attend meetings of
Pennsylvania city planning commissions and post-trial juror
examinations. See Whiteland Woods, L.P. v. Twp. of W.
Whiteland, 193 F.3d 177, 180-81 (3d Cir. 1999) (planning
commissions); United States v. Simone, 14 F.3d 833, 840 (3d
Cir. 1994) (post-trial juror examinations). We have declined,

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however, to extend the right to the proceedings of judicial
disciplinary boards, the records of state environmental
agencies, deportation hearings, or the voting process. See
First Amendment Coal. v. Judicial Inquiry & Review Bd., 784
F.2d 467, 477 (3d Cir. 1986) (en banc) (judicial disciplinary
board); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164,
1175-76 (3d Cir. 1986) (en banc) (records of state
environmental agencies); N. Jersey Media Grp., Inc. v.
Ashcroft, 308 F.3d 198, 209 (3d Cir. 2002) (deportation
hearings); PG Publ’g Co. v. Aichele, 705 F.3d 91, 112 (3d
Cir. 2013) (voting process).
The Experience and Logic Test
A proceeding qualifies for the First Amendment right
of public access when “there has been a tradition of
accessibility” to that kind of proceeding, and when “access
plays a significant positive role in the functioning of the
particular process in question.” Press II, 478 U.S. at 10, 8.
The examination of the history and functioning of a
proceeding has come to be known as the “experience and
logic” test. See, e.g., Simone, 14 F.3d at 838. In order to
qualify for public access, both experience and logic must
counsel in favor of opening the proceeding to the public. See
N. Jersey Media Grp., 308 F.3d at 213-14. Once a
presumption of public access is established it may only be
overridden by a compelling government interest. Press II,
478 U.S. at 9.
The District Court did not apply the experience and
logic test. Instead, it concluded that because Delaware’s
government-sponsored arbitration was “sufficiently like a
trial,” and because a right of public access applies to civil

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trials, a right of public access must also apply to Delaware
arbitrations. See Del. Coal. for Open Gov’t v. Strine, 894 F.
Supp. 2d 493, 500 (2012) (quoting El Vocero, 508 U.S. at
149). We find the District Court’s reliance on El Vocero
misplaced and its decision to bypass the experience and logic
test inappropriate. In El Vocero the Supreme Court held in a
per curiam opinion that the First Amendment right of public
access applies to preliminary criminal hearings in Puerto
Rico. The Supreme Court did not engage in an experience
and logic analysis in that case, but that was because it had
already conducted such an inquiry in Press I, a case
concerning nearly identical preliminary hearings in
California. See El Vocero, 508 U.S. at 149 (citing Press I,
478 U.S. at 12).
Although Delaware’s arbitration proceeding shares a
number of features with a civil trial, the two are not so
identical as to fit within the narrow exception articulated by
the Supreme Court in El Vocero. We therefore must examine
Delaware’s proceeding under the experience and logic test.
A. Experience
Under the experience prong of the experience and
logic test, we “consider whether ‘the place and process have
historically been open to the press and general public,’
because such a ‘tradition of accessibility implies the favorable
judgment of experience.’” N. Jersey Media Grp., 308 F.3d at
211 (quoting Press II, 478 U.S. at 8). In order to satisfy the
experience test, the tradition of openness must be strong;
however, “a showing of openness at common law is not
required.” PG Publ’g Co., 705 F.3d at 108 (quoting N. Jersey

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Media Grp., 308 F.3d at 213) (internal quotation marks
omitted).
The litigants in this case disagree over which history is
relevant to Delaware’s proceedings. The Appellants suggest
that we only examine the history of arbitrations, whereas the
Coalition suggests we only examine the history of civil trials.
Neither suggestion is appropriate in isolation. If we were to
only analyze the history of arbitrations as the Appellants
suggest, we would be accepting the state’s designation of its
proceedings as arbitrations at face value. Uncritical
acceptance of state definitions of proceedings would allow
governments to prevent the public from accessing a
proceeding simply by renaming it. A First Amendment right
that mandated access to civil trials, but allowed closure of
identical “sivel trials” would be meaningless. Thus, the
Supreme Court has held that “the First Amendment question
cannot be resolved solely on the label we give the event, i.e.,
‘trial’ or otherwise.” Press II, 478 U.S. at 7. The Coalition’s
suggestion—that we rely solely on the history of civil trials—
is also flawed. Defining Delaware’s proceeding as a civil
trial at the outset would beg the question at issue here, and
elide the differences between Delaware’s arbitration
proceeding and other civil proceedings.
There is no need to engage in so narrow a historical
inquiry as the parties suggest. In determining the bounds of
our historical inquiry, we look “not to the practice of the
specific public institution involved, but rather to whether the
particular type of government proceeding [has] historically
been open in our free society.” PG Publ’g Co., 705 F.3d at
108 (quoting Capital Cities, 797 F.2d at 1175) (internal
quotation marks omitted) (emphasis in PG Publ’g Co.). In

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prior public access cases we have defined the type of
proceeding broadly, and have often found “wide-ranging”
historical inquiries helpful to our analysis of the First
Amendment right of public access. Id. Thus in North Jersey
Media Group, a case involving deportation hearings, we
considered the entire history of access to “political branch
proceedings.” N. Jersey Media Grp., 308 F.3d at 209. We
exercised a similarly broad approach in PG Publishing
Company, a case involving a challenge to a state statute
restricting access to polling places in which we analyzed “not
just the act of voting, but also the act of entering the polling
place and signing in to vote.” See PG Publ’g Co., 705 F.3d at
109.
Following this broad historical approach, we find that
an exploration of both civil trials and arbitrations is
appropriate here. Exploring both histories avoids begging the
question and allows us to fully consider the “judgment of
experience.” Press II, 478 U.S. at 11 (internal quotation
marks omitted).
1. Civil Trials and the Courthouse
As we explained in Publicker, there is a long history of
access to civil trials. See Publicker, 733 F.2d at 1068-70.
The English history of access dates back to the Statute of
Marlborough passed in 1267, which required that “all Causes
. . . to be heard, ordered, and determined before the Judges of
the King’s Courts [were to be heard] openly in the King’s
Courts.” Id. at 1068 (citing 2 EDWARD COKE, INSTITUTES OF
THE LAWS OF ENGLAND 103 (6th ed. 1681)) (emphasis in
Publicker). This tradition of openness continued in English
Courts for centuries, ensuring that evidence was delivered
“‘in the open Court and in the Presence of the Parties, their

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Attorneys, Council, and all By-standers, and before the Judge
and Jury . . . .’” Id. (quoting MATTHEW HALE, HISTORY OF
THE COMMON LAW OF ENGLAND 163 (Charles M. Gray ed.,
U. Chicago Press 1971) (1713)). Thus, “‘one of the most
conspicuous features of English justice, that all judicial trials
are held in open court, to which the public have free access, . .
. appears to have been the rule in England from time
immemorial.’” Id. at 1069 (quoting EDWARD JENKS, THE
BOOK OF ENGLISH LAW 73-74 (6th ed. 1967)).
This tradition of access to trials and the courthouse
was adopted by the American colonies and preserved after the
American Revolution. See id. Courthouses served a central
place in colonial life, encouraging “the active participation of
community members” in shaping the “local practice of
justice.” Norman W. Spaulding, The Enclosure of Justice:
Courthouse Architecture, Due Process, and the Dead
Metaphor of Trial, 24 YALE J.L. & HUMAN. 311, 318-19
(2012). As courthouses grew increasingly elaborate in the
late-eighteenth century, they continued to encourage public
viewing, albeit in more formal surroundings. See id. at 32932. The courtroom also maintained its important public role:
“[w]ith juries, spectators from the community, and press all
present,” the courtroom “became a public state—a familiar,
indeed immediately recognizable enclosure, in which the
process of rights definition was made public . . . .” Id. at 332.
Today, civil trials and the court filings associated with
them are generally open to the public. Id; see, e.g., Del. Ch.
R. 5.1(g)(1). The courthouse, courtroom, and trial remain
essential to the way the public conceives of and interacts with
the judicial system. See David Ray Papke, The Impact of
Popular Culture on American Perceptions of the Courts, 82

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Ind. L.J. 1225, 1233-34 (2007); see also Spaulding, 24 YALE
J.L. & HUMAN. at 342.
2. Arbitrations
Arbitrations also have a long history. Written records
of proceedings resembling arbitrations have been found in
England as early as the twelfth century. See 1 MARTIN
DOMKE ET AL., DOMKE ON COMMERCIAL ARBITRATION § 2:5
(3d ed. 2011); 1 IAN R. MACNEIL ET AL., FEDERAL
ARBITRATION LAW: AGREEMENTS, AWARDS, AND REMEDIES
UNDER THE FEDERAL ARBITRATION ACT § 4.2.1 (1999).
Early arbitrations involved community participation, and
evidence suggests that they took place in public venues. See
Edward Powell, Settlement of Disputes by Arbitration in
Fifteenth-Century England, 2 LAW & HIST. REV. 21, 29, 3334 (1984); see generally LETTERS AND PAPERS OF JOHN
SHILLINGFORD, MAYOR OF EXETER 1447-50 at 8 (Stuart A.
Moore ed., 1871) (detailing arbitration proceeding overseen
by chancellor and judges). The use of arbitrations to resolve
private disputes, however, was limited by English precedent,
which prevented the enforcement of binding agreements to
arbitrate. See MACNEIL § 4.2.2.
In the American colonies, arbitrations provided a way
for colonists who harbored “suspicion of law and lawyers” to
resolve disputes in their communities in a “less public and
less adversarial” way. JEROLD S. AUERBACH, JUSTICE
WITHOUT LAW?: RESOLVING DISPUTES WITHOUT LAWYERS
4 (1983); Bruce H. Mann, The Formalization of Informal
Law: Arbitration Before the American Revolution, 59 N.Y.U.
L. Rev. 443, 454 (1984). By the eighteenth century,
however, arbitrations adopted increasingly formal procedures,

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and at least some appear to have taken place in public. See
Mann, The Formalization of Informal Law at 468.
As the American economy grew, disputes over
business transactions led to the further development of
arbitration proceedings. These proceedings were occasionally
supervised by a member of the judiciary “not acting in his
official capacity.” Id. at 475. The popularity of commercial
arbitration, however, was limited by precedent that made
agreements to arbitrate essentially unenforceable. See
MACNEIL § 4.3.2; see also Amalia D. Kessler, Deciding
Against Conciliation: The Nineteenth-Century Rejection of a
European Transplant and the Rise of a Distinctively
American Ideal of Adversarial Adjudication, 10
THEORETICAL INQUIRES L. 423, 445-46 (2009). It was not
until the passage of New York’s Arbitration Act of 1920 and
the Federal Arbitration Act of 1925, that arbitration
agreements began to be treated by the courts like ordinary
contracts. DOMKE § 2:8; see also MACNEIL § 4.1.2. These
arbitration acts allowed private arbitration to take on the
important role it now serves in resolving commercial
disputes. See MACNEIL §§ 5.3, 5.4.
Modern arbitration law has led to the development of
an industry devoted to offering arbitration services. Groups
such as the American Arbitration Association and JAMS, Inc.
facilitate arbitration by appointing arbitrators, organizing
hearings, and setting arbitration standards. See Stephen
Hayford & Ralph Peeples, Commercial Arbitration in
Evolution: An Assessment and Call for Dialogue, 10 OHIO ST.
J. ON DISP. RESOL. 343, 362-68 (1995). These arbitrations,
unlike some of their antecedents, are distinctly private.
Parties engaged in arbitration must pay both for the

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arbitrations and for the space in which the arbitrations occur,
and they usually choose to close their arbitrations to the
public. See Michael Collins, Privacy and Confidentiality in
Arbitration Proceedings, 30 TEX. INT’L L.J. 121, 122 (1995).
But see 3 MACNEIL ET AL., FEDERAL ARBITRATION LAW §
32.6.1 (1999) (noting that parties can elect to allow access to
proceedings).
Although modern arbitration is dominated by private
actors, a number of jurisdictions offer alternative dispute
resolution procedures as a supplement to civil litigation. See
generally Yishai Boyarin, Court-Connected ADR—A Time of
Crisis, A Time of Change, 50 FAM. CT. REV. 377 (2012).
These procedures are sometimes called arbitrations, but
unlike private arbitrations, they are usually non-binding, and
can sometimes be initiated without the parties’ consent. See
Amy J. Schmitz, Nonconsensual + Nonbinding =
Nonsensical? Reconsidering Court-Connected Arbitration
Programs, 10 CARDOZO J. CONFLICT RESOL. 587, 588-89,
618 (2009).
The history of arbitration thus reveals a mixed record
of openness. Although proceedings labeled arbitrations have
sometimes been accessible to the public, they have often been
closed, especially in the twentieth century. This closure,
however, can be explained by the private nature of most
arbitrations. Confidentiality is a natural outgrowth of the
status of arbitrations as private alternatives to governmentsponsored proceedings. Indeed, we would be surprised to
find that private arbitrations—taking place before private
arbitrators in private venues—had historically been accessible
to the public.

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Taking the private nature of many arbitrations into
account, the history of civil trials and arbitrations
demonstrates a strong tradition of openness for proceedings
like Delaware’s government-sponsored arbitrations.
Proceedings in front of judges in courthouses have been
presumptively open to the public for centuries. History
teaches us not that all arbitrations must be closed, but that
arbitrations with non-state action in private venues tend to be
closed to the public.2 Although Delaware’s governmentsponsored arbitrations share characteristics such as
informality, flexibility, and limited review with private
arbitrations, they differ fundamentally from other arbitrations
because they are conducted before active judges in a
courthouse, because they result in a binding order of the
Chancery Court, and because they allow only a limited right
of appeal.
When we properly account for the type of proceeding
that Delaware has instituted—a binding arbitration before a
judge that takes place in a courtroom—the history of
openness is comparable to the history that this court described
in Publicker and the Supreme Court found in Richmond
2

Understood in this way, the closure of private arbitrations is
only of questionable relevance. Meetings by private
organizations, for example, are usually closed to the public,
yet we did not consider this history of closure when we found
a First Amendment right of public access to city planning
commissions. See Whiteland Woods, L.P. v. Twp. of W.
Whiteland, 193 F.3d 177 (3d Cir. 1999). Nor did we consider
the history of access to votes undertaken by private
organizations, when we examined the history of the voting
process. See PG Publ’g Co., 705 F.3d at 110.

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Newspapers. Thus, unlike the “recent-and rebuttableregulatory (sic) presumption” of openness in deportation
hearings we examined in North Jersey Media Group, 308
F.3d at 213, or the “long-standing trend away from openness”
in the electoral process we found in PG Publishing Co., 705
F.3d at 110, the right of access to government-sponsored
arbitrations is deeply rooted in the way the judiciary functions
in a democratic society. Our experience inquiry therefore
counsels in favor of granting public access to Delaware’s
proceeding because both the “place and process” of
Delaware’s proceeding “have historically been open to the
press and general public.” Press II, 478 U.S. at 8.
B. Logic
Under the logic prong of the experience and logic test
we examine whether “access plays a significant positive role
in the functioning of the particular process in question.” Id.
We consider both the positive role that access plays, and also
“the extent to which openness impairs the public good.” N.
Jersey Media Grp., 308 F.3d at 202.
We have recognized that public access to judicial
proceedings provides many benefits, including
[1] promotion of informed discussion of
governmental affairs by providing the public
with the more complete understanding of the
[proceeding]; [2] promotion of the public
perception of fairness which can be achieved
only by permitting full public view of the
proceedings; [3] providing a significant
community therapeutic value as an outlet for
community concern, hostility and emotion; [4]

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serving as a check on corrupt practices by
exposing the [proceeding] to public scrutiny; [5]
enhancement of the performance of all
involved; and [6] discouragement of [fraud].
PG Publ’g Co., 705 F.3d at 110-11 (quoting Simone, 14 F.3d
at 839). All of these benefits would accrue with the opening
of Delaware’s proceeding. Allowing public access to statesponsored arbitrations would give stockholders and the public
a better understanding of how Delaware resolves major
business disputes. Opening the proceedings would also allay
the public’s concerns about a process only accessible to
litigants in business disputes who are able to afford the
expense of arbitration. In addition, public access would
expose litigants, lawyers, and the Chancery Court judge alike
to scrutiny from peers and the press. Finally, public access
would discourage perjury and ensure that companies could
not misrepresent their activities to competitors and the public.
The benefits of openness weigh strongly in favor of
granting access to Delaware’s arbitration proceedings. In
comparison, the drawbacks of openness that Appellants cite
are relatively slight. First, Appellants contend that
confidentiality is necessary to protect “patented information,
trade secrets, and other closely held information.”
Appellants’ Br. at 60. This information, however, is already
protected under Delaware Chancery Court Rule 5.1, which
provides for the confidential filing of documents, including
“trade secrets; sensitive proprietary information; [and]
sensitive financial, business, or personnel information” when
“the public interest in access to Court proceedings is
outweighed by the harm that public disclosure of sensitive,
non-public information would cause.” Del. Ch. R. 5.1(b)(2).

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These tailored protections are compatible with the First
Amendment right of public access. See Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 33-36 (1984).
Second, Delaware argues that confidentiality is
necessary to prevent the “‘loss of prestige and goodwill’” that
disputants would suffer in open proceedings. Appellants’ Br.
at 60 (quoting J. Noble Braden, Sound Rules and
Administration in Arbitration, 83 U. PA. L. REV. 189, 195
(1934)). Although the loss of prestige and goodwill may be
unpleasant for the parties involved, it would not hinder the
functioning of the proceeding, nor impair the public good. As
we have previously held, the exposure of parties to public
scrutiny is one of the central benefits of public access. See,
e.g., PG Publ’g Co., 705 F.3d at 110-11.
The Appellants’ third argument is that privacy
encourages a “less hostile, more conciliatory approach.” See
Appellants’ Br. at 61 (citing ALAN SCOTT RAU ET AL.,
PROCESSES OF DISPUTE RESOLUTION: THE ROLE OF LAWYERS
601 (3d ed. 2002)). This may sometimes be true, but even
private binding arbitrations can be contentious. See Raymond
G. Bender, Jr., Arbitration—An Ideal Way to Resolve HighTech Industry Disputes, 65 DISP. RESOL. J. 44, 49 (2010)
(“[A]dvocates seeking to achieve the best outcomes for their
clients have interjected litigation-like techniques into
arbitration—contentious advocacy, uncontrolled discovery,
aggressive motion practice, and other adversarial techniques
aimed at achieving a ‘leg-up’ in the contest.”). Moreover,
informality, not privacy, appears to be the primary cause of
the relative collegiality of arbitrations. See ALAN SCOTT RAU
ET AL, PROCESSES OF DISPUTE RESOLUTION, 601 (1989)
(citing “relative informality” of arbitration as reason for

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reduced contentiousness); Christopher Baum, The Benefits of
Alternative Dispute Resolution in Common Interest
Development Disputes, 84 SAINT JOHN’S L. REV. 907, 925
(2010) (“Arbitration is also less contentious than litigation
because the formal rules of evidence do not apply, unless the
parties agree otherwise.”). We therefore do not find that a
possible reduction in conciliation caused by public access
should weigh heavily in our analysis.
Finally, Appellants argue that opening the proceeding
would effectively end Delaware’s arbitration program. This
argument assumes that confidentiality is the sole advantage of
Delaware’s proceeding over regular Chancery Court
proceedings. But if that were true—if Delaware’s arbitration
were just a secret civil trial—it would clearly contravene the
First Amendment right of access. On the contrary: as the
Appellants point out in the rest of their brief, there are other
differences between Delaware’s government-sponsored
arbitration and regular Chancery Court proceedings.
Arbitrations are entered into with the parties’ consent, the
parties have procedural flexibility, and the arbitrator’s award
is subject to more limited review. Thus, disputants might still
opt for arbitration if they would like access to Chancery Court
judges in a proceeding that can be faster and more flexible
than regular Chancery Court trials.3
3

Even if granting public access to Delaware’s arbitrations
were to limit their appeal, parties would still have two
effective alternatives: private arbitration or public
proceedings before the Chancery Court. Thus, Appellants’
contention that allowing public access to Delaware’s statesponsored arbitration proceedings would lead to a mass
exodus of corporations is overstated.

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I agree with Judge Roth on the virtues of arbitration. I
cannot help but question why the Delaware scheme limits
those virtues to litigants whose disputes involve an amount in
controversy of at least a million dollars, and neither of whom
is a consumer. One wonders why the numerous advantages
set forth in Judge Roth’s dissenting opinion (which
apparently motivated the Delaware legislature) should not
also be available to businesspersons with less than a million
dollars in dispute. I see no explanation in Judge Roth’s
dissent for the limitation to rich businesspersons.
In her dissent, Judge Roth states that she believes that I
do not appreciate the difference between adjudication and
arbitration, i.e., “that a judge in a judicial proceeding derives
her authority from the coercive power of the state, while a
judge serving as an arbitrator derives her authority from the
consent of the parties.” Indeed I do.
Delaware’s proceedings are conducted by Chancery
Court judges, in Chancery Court during ordinary court hours,
and yield judgments that are enforceable in the same way as
judgments resulting from ordinary Chancery Court
proceedings. Delaware’s proceedings derive a great deal of
legitimacy and authority from the state. They would be far
less attractive without their association with the state.
Therefore, the interests of the state and the public in openness
must be given weight, not just the interests of rich
businesspersons in confidentiality.
Like history, logic weighs in favor of granting access
to Delaware’s government-sponsored arbitration proceedings.
The benefits of access are significant. It would ensure

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accountability and allow the public to maintain faith in the
Delaware judicial system. A possible decrease in the appeal
of the proceeding and a reduction in its conciliatory potential
are comparatively less weighty, and they fall far short of the
“profound” security concerns we found compelling in North
Jersey Media Group. See 308 F.3d at 220.
III.
Because there has been a tradition of accessibility to
proceedings like Delaware’s government-sponsored
arbitration, and because access plays an important role in
such proceedings, we find that there is a First Amendment
right of access to Delaware’s government-sponsored
arbitrations. We will therefore affirm the order of the District
Court.

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Delaware Coalition for Open Government v. Strine, No. 123859
FUENTES, J., concurring:
Today we affirm the District Court’s ruling, which
concluded that “the right of access applies to the Delaware
proceeding created by section 349 of the Delaware Code.”
Del. Coal. for Open Gov’t v. Strine, 894 F. Supp. 2d 493, 504
(D. Del. 2012). Specifically, the District Court held that “the
portions of [section 349] and [of] Chancery Court Rules 96,
97, and 98, which make the proceeding confidential, violate
that right.” Id. I agree. I write separately because, given that
not all provisions of § 349 of the Delaware Code or the
Chancery Court Rules relating to Judge-run arbitration
proceedings are unconstitutional, I think it is necessary to be
more specific than the District Court’s order in pointing out
those that are problematic and those that are not.

I begin with § 349(b), which provides for the
confidentiality in arbitration proceedings for business
disputes. This section states that:
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.
Del. Code. Ann., tit. 10, § 349(b).

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I agree with Judge Sloviter that this provision violates
the First Amendment right of public access and cannot stand.
However, I see nothing wrong with the other provisions of
this statute. I do not believe that § 349(a), granting the
Chancery Court the power to arbitrate business disputes, or §
349(c), providing for the filing of “applications to vacate,
stay, or enforce an [arbitral] order” with the Delaware
Supreme Court, violate the public right of access when §
349(b) is removed from the statutory scheme.

Similarly, not all provision of the Court of Chancery
Court Rules implementing § 349 arbitrations raise
constitutional concerns. Chancery Court Rule 97(a)(4)
provides:
“The Register in Chancery will not include the
petition [for arbitration] as part of the public
docketing system.
The petition and any
supporting
documents
are
considered
confidential and not part 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.”
Chancery Court Rule 98(b) likewise provides that:
“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

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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.
Again, I agree with Judge Sloviter that these
provisions violate the First Amendment, but I do not find any
problem with the remainder of the Chancery Court Rules
implementing the § 349 arbitrations. Chancery Court Rule
96, containing certain definitions, is in my view constitutional
in its entirety. Similarly, the remaining portions of Rules 97
and 98, which provide for the scope of arbitration, the proper
procedures for an arbitration, and the logistics of hearings and
dispute resolution, pass constitutional muster when Rules
97(a)(4) and 98(b) are excised from the law.

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“The unconstitutionality of a part of an Act does not
necessarily defeat or affect the validity of its remaining
provisions.” Champlin Ref. Co. v. Corp. Comm’n of Okla.,
286 U.S. 210, 234 (1932). It is well-settled that we must
“refrain from invalidating more of a statute than is
necessary.” Regan v. Time, Inc., 468 U.S. 641, 652 (1984).
Even when construing state laws “[w]e prefer . . . to enjoin
only the unconstitutional applications of [a] statute while
leaving other applications in force, or to sever its problematic
portions.” Ayotte v. Planned Parenthood of Northern New
England, 546 U.S. 320, 328-29 (2006) (internal citation
omitted).
The crux of today’s holding is that the proceedings set
up by § 349 violate the First Amendment because they are
conducted outside the public view, not because of any
problem otherwise inherent in a Judge-run arbitration scheme.
Thus, Appellants are enjoined only from conducting
arbitrations pursuant to § 349(b) of Title 10 of the Delaware
Code or Rules 97(a)(4) and 98(b) of the Delaware Chancery
Court. Nothing in today’s decision should be construed to
prevent sitting Judges of the Court of Chancery from
engaging in arbitrations without those confidentiality
provisions.
Appellants suggest that Judge-run arbitrations will not
occur under § 349 unless they are conducted in private. This
may be so, but neither Appellants nor the Delaware
Legislature have presented us with an alternative confidential
arbitration scheme sufficiently devoid of the air of official
State-run proceeding that infects the system now before us,
sufficient to pass constitutional muster. Nor have they
otherwise suggested that we attempt to sever offending

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portions of the statute to construct such an alternative. Thus,
we have no occasion to consider if different arbitration
schemes pass constitutional muster, and we are left with no
choice other than to sever the confidentiality provisions. See
generally Alaska Airlines v. Brock, 480 U.S. 678, 685 (1987)
(explaining that a court may not sever a portion of a law
unless it can conclude that “the statute created in its absence
is legislation that [the Legislature] would . . . have enacted”).
Appellants only severability argument is a very limited
one, that invalidating the self-executing aspect of the arbitral
awards, Del. Ch. R. 98(f)(3), is enough to cure any
constitutional infirmity.
But as Appellants themselves
describe it, the procedure contemplated in Rule 98(f)(3) is
merely “a matter of convenience.” Appellants’ Reply Br. at
28. It eliminates the need to file the arbitral award in court, a
step that is only significant if a party refuses to abide by an
arbitrator’s award, a rarely occurring contingency. For
essentially the reasons stated in Judge Sloviter’s opinion, the
mere formality of filing that award in Court, which Rule
98(f)(3) skirts, does not alone alter the First Amendment right
of access calculus one way or another.
But I reiterate that we do not express any view
regarding the constitutionality of a law that may allow sitting
Judges to conduct private arbitrations if the system set up by
such a law varies in certain respects from the scheme before
us today. Indeed, it is likely that the Delaware Legislature
has at its disposal several alternatives should it wish to
continue to pursue a scheme of Judge-run arbitrations.

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With this understanding of the scope of today’s
decision, I join in Judge Sloviter’s opinion and concur in the
judgment.

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ROTH, Circuit Judge, dissenting:
The use of arbitration as a method of resolving
business and commercial disputes has been increasing both
here and abroad. For example, the caseload of the American
Arbitration Association’s International Center for Dispute
Resolution grew by almost 330 per cent between 1994 and
2004.1 The number of requests for arbitration in the London
Court of International Arbitration grew by 300 per cent in the
last decade.2
There are a number of factors that have caused this
growth in arbitration. One is the importance of resolving
disputes expeditiously. Businesses in this country and abroad
need to get commercial conflicts resolved as quickly as
possible so that commercial relations are not disrupted.
Another factor in the growth of arbitration is the increase in
commercial disputes between businesses located in different
countries. In particular, non-U.S. companies, with no
familiarity – or with too much familiarity – with the
American judicial system, may prefer arbitration with the
rules set by the parties to lengthy and expensive court
proceedings. In addition, arbitration permits the proceedings
1

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).
2

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

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to be kept confidential, protecting trade secrets and sensitive
financial information. The Supreme Court has summarized
these advantages as follows:
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..
AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1749
(2011).
The State of Delaware has become interested in
sponsoring arbitration as a part of its efforts to preserve its
position as the leading state for incorporations in the U.S.
One of the reasons that Delaware has maintained this position
is the Delaware Court of Chancery, where the judges are
experienced in corporate and business law and readily
available to resolve this type of dispute. Nevertheless,
judicial proceedings in the Court of Chancery are more
formal, time consuming and expensive than arbitration
proceedings. For that reason, the Court of Chancery, as a
formal adjudicator of disputes, may not be able to compete

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with the new arbitration systems being set up in other states
and countries.3
In order to prevent the diversion elsewhere of complex
business and corporate cases, the Delaware Legislature in
2009 enacted legislation to create an arbitration system. The
Legislature established the arbitral system in the Court of
Chancery where the judges are the most experienced in
corporate and business litigation. The Legislature declared
that the new system was “intended to preserve Delaware’s
preeminence in offering cost-effective options for resolving
disputes, particularly those involving commercial, corporate,
3

See N.Y. State Bar Ass’n, Task Force on N.Y. Law in Int’l
Matters, Final Report 4 (June 25, 2011) (‘[J]urisdictions
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
three 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
toady’s world of global commerce.”); id. at 38, available at
http://www.nysba.org/workarea/DownloadAsset.aspx?id=340
27.

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and technology matters.” H.B. 49, 145th Gen. Assem. (Del.
2009).
This Delaware arbitration system is offered to business
entities (at least one of which must have been formed or
organized under Delaware law; no party can be a consumer)
to resolve expensive and complex disputes (for disputes
involving solely monetary damages, the amount in
controversy must be at least $1,000,000) with the consent of
the parties. The arbitrators are judges of the Court of
Chancery or others authorized under the Rules of the Court of
Chancery. The proceedings are confidential. In my view,
such a set-up creates a perfect model for commercial
arbitration.
Judge Sloviter urges, however, that the Delaware
system violates the First Amendment of the U.S. Constitution.
Maj. at 23. In arriving at this conclusion, she does not rely
solely on either the history of arbitration or the history of civil
trials. She looks “‘not to the practice of the specific public
institution involved, but rather to whether the particular type
of government proceeding [has] historically been open in our
free society’.” Maj. at 11 (quoting PG Publ’g Co. v. Aichele,
705 F.3d 91, 108 (3d Cir. 2013) (quoting Capital Cities
Media, Inc. v. Chester, 797 F.2d 1164, 1175 (3d Cir. 1986)
(en banc)) (alterations in original).4 She classifies that
4

I believe that Judge Sloviter does not appreciate the
difference between adjudication and arbitration, i.e., that a
judge in a judicial proceeding derives her authority from the
coercive power of the state while a judge serving as an
arbitrator derives her authority from the consent of the
parties.

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“particular type of government proceeding,” which would
occur in the Delaware arbitration system, as one that has
traditionally been open to the public. Maj. at 11. In my view,
her analysis begs the question.
On the other hand, Judge Fuentes, while concurring
with Judge Sloviter, is less broad in his conclusion. His
concern is with the confidentiality of the proceedings. He
concludes that the confidentiality provisions of 10 Del. C. §
349(b) violate the First Amendment right of public access and
cannot stand. He also concludes that the confidentiality
provisions for docketing and holding hearings found in
Chancery Court Rules 97(a)(4) and 98(b) violate the First
Amendment. However, Judge Fuentes finds most of the
statute and rules to be acceptable. He has no problem with a
sitting judge arbitrating business disputes. He has no problem
with the self-executing aspect of the arbitral awards.
I do not agree with Judge Fuentes’s contention that the
Delaware Court of Chancery’s arbitration proceedings cannot
be confidential. Confidentiality is one of the primary reasons
why litigants choose arbitration to resolve disputes –
particularly commercial disputes, involving corporate
earnings and business secrets. See 1 Bette J. Roth et al., The
Alternative Dispute Resolution Practice Guide 7:12 (2013).
In this dissent, I will focus on the issue of
confidentiality because that is the only area in which Judge
Fuentes and I differ. I will not discuss the other issues raised
by Judge Sloviter although I could, if necessary, respond to
those also. I will limit my discussion to the difference
between Judge Fuentes’s views and my own.

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An examination of confidentiality in arbitration should
begin in colonial times.
The tradition of arbitration in
England and the American colonies reveals a focus on
privacy. 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.”); Amy J. Schmitz,
Untangling the Privacy Paradox in Arbitration, 545 U. Kan.
L. Rev. 1211, 1223 (2006) (“The New York Chamber of
Commerce . . . established an arbitral regime at the
Chamber’s inception in 1765. . . . [and] relied on arbitration’s
privacy and independence to foster efficient resolution of
disputes among the American and British merchants during
and after the American Revolutionary War.”).5 In the
twentieth century, the modern arbitration bodies began to
develop rules for arbitration proceedings that emphasize
privacy and confidentiality.
See Richard C. Reuben,
Confidentiality in Arbitration: Beyond the Myth, 54 U. Kan.
L. Rev. 1255, 1271-72 (2006).
Today, the major national and international arbitral
bodies continue to emphasize confidentiality. Their rules
provide that arbitration proceedings are not open to the public
unless the parties agree they will be. See, e.g., AAA & ABA,
Code of Ethics for Arbitrators in Commercial Disputes,
Canon VI(B) (2004); AAA Commercial Arbitration Rules R23 (2009); UNCITRAL, Arbitration Rules art. 21(3) (2010).
5

The majority asserts that some early arbitrations took place
in public. While this may be true, arbitrations even during
this period were overwhelmingly private. See, e.g., Michael
Collins, Privacy and Confidentiality in Arbitration
Proceedings, 30 Tex. Int’l L.J. 121, 122 (1995).

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Thus, as a rule, arbitration has not “historically been open to
the press and the general public.” Press II, 478 U.S. at 8.6
With this history of arbitration in mind, looking at
experience and logic, see Press-Enterprise Co. v. Superior
Court of Calif. for the Cnty. of Riverside, 478 U.S. 1, 8
(1986), I conclude that, historically, arbitration has been
private and confidential. Logically, the resolution of complex
business disputes, involving sensitive financial information,
trade secrets, and technological developments, needs to be
confidential so that the parties do not suffer the ill effects of
this information being set out for the public – and especially
competitors -- to misappropriate. For these reasons, there is
here no First Amendment right of public access.
In conclusion, then, it appears to me to be very clear
that, when the State of Delaware decided to create its
arbitration system, it was looking at traditional arbitration, in
a confidential setting, before arbitrators experienced in
business and corporate litigation. Delaware did not intend the
arbitration system to supplant civil trials. Delaware did not
intend to preclude the public from attending proceedings that
historically have been open to the public. The new system
was created to provide arbitration in Delaware to businesses
that consented to arbitration – and that would go elsewhere if

6

Judge Sloviter states that the “closure of private arbitrations
is only of questionable relevance.” Maj. at 16 n.2. I disagree.
The development of private arbitration is key to
understanding the functions of arbitration as a dispute
resolution process and its tradition concerning public access
and confidentiality.

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Delaware did not offer arbitration before experienced
arbitrators in a confidential setting.
For the above reasons, I respectfully dissent. I would
reverse the judgment of the District Court and uphold the
statute and rules which establish the Delaware arbitration
system.

8