Monday, March 24, 2014
Today the United States Supreme Court denied review of Strine v. Delaware Coalition, a case in which a Third Circuit panel held that arbitration proceedings cannot be confidential under the First Amendment.
As we previously discussed, the judges in the Third Circuit were quite divided; there were three opinions in the case. But the majority conclusion requiring these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges to not remain secret seems the correct one. Especially if the First Amendment access to "trials" should continue to have substantive meaning.
It's always dangerous to speculate why the Supreme Court declines to enter the fray, but it's worth noting that Delaware's secrecy scheme protecting commercial arbitration is rather unique.