From left: Hon. Shirley Werner Kornreich, Justice of the New York State Supreme Court, Commercial Division; Tracey B. Frisch, Staff Attorney at the American Arbitration Association and Adjunct Professor at Cardozo School of Law; David L. Finger, Partner, Finger & Slanina and lead counsel for the Delaware Open Government Coalition; Katrina Dewey, CEO and Founder of LawDragon.com; Professor Paul F. Kirgis, St. John’s University School of Law; Professor Thomas E. Carbonneau, Penn State University Dickinson School of Law

A panel held at Cardozo on February 7, 2013, sponsored by the Cardozo Journal of Conflict Resolution and the Kukin Program, examined a deceivingly simple question: Can sitting judges confidentially arbitrate disputes? In 2009, Delaware’s legislature amended its laws to permit judges of the Court of Chancery to do just that. And the Court of Chancery isn’t just any court—it is widely considered the nation’s leading forum for corporate law disputes, and a trendsetter for other business courts around the country. According to the scheme, parties could pay a set of fees and go for binding arbitration before some of the country’s most renowned judges. But unlike traditional litigation, the entire proceeding would remain confidential. While some praised this litigation-arbitration hybrid as an innovative use of court-sponsored dispute resolution, others argued that it blurred the line between litigation and arbitration. In August 2012, following a challenge from the Delaware Open Government Coalition, the program was declared unconstitutional under the First Amendment’s right of qualified public access to court proceedings. The case is now on appeal to the Third Circuit.

The panel at Cardozo brought together six of the nation’s leading experts in arbitration, legal journalism, and court innovation: Thomas E. Carbonneau, Penn State; Katrina Dewey, CEO and Founder of LawDragon.com; David L. Finger, lead counsel for the Delaware Open Government Coalition; Tracey B. Frisch, American Arbitration Association; and Hon. Shirley Werner Kornreich, New York State Supreme Court, Commercial Division. Paul Kirgis, director of the Carey Center for Dispute Resolution at St. John’s University School of Law (who has written extensively on the arbitration under the Roberts court) moderated the lively discussion on the Delaware program’s constitutionality.