Jamesian Philosophy Refreshed

The US Supreme Court decided three cases this term that speak to the issue of mandatory arbitration clauses. Two of them arose in the context of employment. The "odd case out" here, a piece of commercial arbitration between two businesses, came down on January 8, when SCOTUS announced its opinion in Henry Schein v. Archer. This was a unanimous opinion saying that there is no "wholly groundless" exception to the general rule that the arbitrator gets to decide the threshold question of arbitrability. Henry Schein arose out of a dispute between a business that distributes dental equipment and one that manufactures such equipment. I mention this -- indeed I mention the case itself, chiefly to encourage reflection over a sort of knee-jerk reaction one encounters to employment arb cases. "Oh, there is such a gross disparity of bargaining power here! The employer needed a job and signed the contract of adhesion they put in front of him to get it!" I...

Another term of the U.S. Supreme Court has come and gone and, as is usually the case, I will say something about it in this blog. This is the first of four posts devoted to that end. I'm not going to have anything to say about the abortion case that came down on the final day of the term. It is politically consequential, but there isn't a lot to be said about it from a legal point of view except that it is a re-affirmation of what has been the law since Casey . And I've just said that. I'm also not going to discuss the public corruption case the Court decided on the last day of its session, effectively granting Robert McDonnell a new trial. It does involve an intellectually interesting issue of statutory interpretation, and it may be said to involve a deserved rebuke to prosecutorial overreach, but I find the blatancy of the cronyism involved there too depressing, wish to avoid slitting my wrists today. What's left? A heck of a lot. I'll start in a way t...