Originally published by Barry Barnett.
A U.S. appeals court judge once told me that private contracts between businesses should call for settling disputes through bench trials rather than by arbitration.
The judge stressed that parties who opt for judge trials will receive a fair and just ruling on the merits — and that if they don’t, they’ll get the benefit of thorough review on appeal. With arbitration, on the other hand, a wrong outcome will likely stand, the judge said.
The judges points made some sense. But even if we accept the rationale for going to court instead of arbitrating, something else may matter more than the quality and trustworthiness of the decision-making. As a recent 2-1 ruling by the Ninth Circuit just reminded us, federal courts strongly favor public access to case records — even if they include deeply embarrassing documents that a party produced in discovery.
In my next post, on January 19, I will review the Ninth Circuit’s decision. I’ll also discuss what it means for keeping secrets in federal court.
I invite you in the meantime to subscribe to The Contingency.
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