Arbitration and the Future of Delaware’s Corporate Law Franchise

An ongoing constitutional challenge to the unique Delaware Arbitration Program is a hot topic in ADR circles lately.  Earlier this month, Disputing highlighted the relatively new program that allows sitting judges to act as arbitrators in a series of blog posts.  In a recent law review article, Brian J. M. Quinn, Assistant Professor of Law at Boston College Law School, discusses the controversial program that is now being challenged in federal courts.  In Arbitration and the Future of Delaware’s Corporate Law Franchise, Cardozo Journal of Conflict Resolution, Vol. 14:829, Professor Quinn argues the Delaware Arbitration Program could threaten the state’s role as a desirable venue for the resolution of corporate disputes.

Here is the abstract:

In response to perceived threats to its position as a venue for adjudication of corporate litigation, in 2010 Delaware added a unique arbitration procedure to its menu of options for parties seeking to resolve their corporate disputes in Delaware. This new procedure relies on sitting judges to act as arbitrators in confidential proceedings. In this paper, I argue that not only is such a procedure in violation of the First Amendment policy to access to the courts, by virtue of the fact that sitting judges, rather than retired judges or professional arbitrators hear the cases, but that it is also bad policy from the perspective of the corporate law. If successful, the procedure threatens to put Delaware’s corporate law franchise at risk over the long term.

This and other scholarly articles authored by Professor Quinn may be accessed through the Social Science Research Network.