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...

The listing of powers granted Congress by the Constitution is clearly intended to have a limiting effect. The framers were saying, "this far and no farther." Or else ... why bother?  If they had wanted any of the powers to serve as a blank check, they could have included only that one.  "Congress will do whatever the heck it thinks best." You only need one blank check, not a long list of them. Thus, it is axiomatic that none of the "enumerated" powers (a traditional though odd expression -- they weren't literally numbered in the text!) is supposed to be universal in its scope. I have always felt rather embarrassed on behalf of the Supreme Court as an institution by its decision to turn the commerce clause into the blank check power. Wheat grown on a farm, baked into bread and consumed on that very farm (and thus of course in the same state) was held in Wickard v. Filburn to be a matter of interstate commerce. You can read the decision here i...