Public Courts and Private Justice: Is It Time To Let A Little Sun Shine In On ADR?

1. Public Courts and Private Justice:Is It Time To Let A Little Sun Shine In On ADR? Laurie KratkyDoré Ellis and Nelle Levitt Distinguished Professor of Law Drake University Law School • 6th Conference on Privacy and Public Access to Court Records • November 7, 2008

2. The Current Dichotomy Between Open Courts and ADR “People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property.” Union Oil v. Leavell, 220 F.3d. 562 (7th Cir. 2000).

3. The Opaque Environment of Arbitration A. Sources and Scope of Arbitration Confidentiality • B. Arbitration Secrecy and the Public Interest • 1. Public Interest in the Underlying Dispute • 2. Isolation of Claimants • 3. No Publicly Accountable Guardian • 4. Inaccessible Results and Reasoning • 5. Confidentiality Impairs Broader Policy Objectives

4. Does ADR Merit Greater Transparency? If So, How Much?