On August 30, 2012, the US District Court for the District of Delaware held in Delaware Coalition for Open Government v. Honorable Leo E. Strine, Jr. that the new confidential judicial-arbitration procedures established under Delaware law and implemented by the Delaware Court of Chancery are unconstitutional (for more on the Delaware judicial-arbitration procedures, see Legal Updates, Delaware Amends Dispute Resolution Code for Court of Chancery and Delaware Chancery Court Adopts Voluntary Arbitration Rules for Business Disputes). The Delaware law governing the judicial-arbitration procedures required that the proceedings "be considered confidential and not of public record until such time, if any, as the proceedings are the subject of an appeal." This part of the law and the related implementing rules were challenged by the Delaware Coalition for Open Government, a citizen's advocacy group, on the grounds that they violated the First Amendment's qualified right of public access to criminal and civil trials.

The District Court agreed, holding that the judicial-arbitration law and the related rules making the proceedings confidential violated the First Amendment. The District Court reasoned that the judicial-arbitration proceedings functioned essentially as a civil bench trial more than a non-judicial arbitration, in part because a sitting judge presides over the proceeding under state authority and issues a final award enforceable by state power. Therefore, the public benefits of openness of trials, as described in Publicker Indus., Inc. v. Cohen, apply to the Delaware judicial-arbitration proceeding, including:

(733 F.2d 1059 (3rd Cir. 1984).)

The District Court did not give much weight to the defendants' argument that parties to a business dispute will most likely use an alternative non-public forum to resolve the dispute if the confidentiality provision is struck down. While it acknowledged that the new Delaware proceeding may fall into disuse as a result of removing the confidentiality provisions, the benefit to the judiciary as a whole outweighed the defendants' concern. The defendants plan to appeal the ruling.