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Judging the Judges
Term Year: 2018

Henry Schein, Inc., Et Al., Petitioners v. Archer And White Sales, Inc.

Summary Analysis

DATE: 2019-01-08
DOCKET: 17-1272
NAME: Henry Schein, Inc., Et Al., Petitioners v. Archer And White Sales, Inc.

   AUTHOR: Kavanaugh
   JOINING: Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch
   GOOD: No

Case Commentary

This is Kavanaugh's first write-up. And I disagree with it. Of course, it's a unanimous decision. So, I am disagreeing with the rest of the Justices, as well.

{So, please note as you read, I am going against the tide. I'm not talking about Law so much as Political Philosophy. Also, it's inevitable that one person stating the opinion of another is bound to get a thing (or two or three) wrong, so I urge you to go to the raw documentation if you want to know The Justices' true opinions.}

I am opposed to the concept of Arbitration. On the surface, it may seem reasonable for two equal parties to decide that instead of going to trial, they would rather have any future disagreement be decided by a third party.

But first, this begs the question as to what is so wrong with the Legal System that when contemplating the possibility (and/or inevitability) of a future legal battle, any party to any agreement would ever prefer settling their differences in a different forum? I mean, if this is generally the case, the system should be fixed.

And second, the two parties are hardly ever equal and Arbitration (by its nature) will favour the more frequent litigant. A Judge may well get sick and tired of seeing the same defendant over and over again and decide to start sticking it to them as a penalty for wasting the Court's time. Whereas, given the same situation, a Professional Arbitrator's has a financial incentive to please the repeat customer so as to get their repeat business. In short, I sincerely doubt Arbitration favours the consumer. But then, it's not like The Courts are the Little Guy's Friend, either.

It is the nature of these write-ups that I guess blind and forge ahead through my ignorance. I do not understand our System of Judicial Oversight; as in, Who controls the courts? Yes, judges are (or can be) appointed for life and (if so) their salaries cannot be reduced. In other words, they cannot be starved out of office. But I am unclear (as in, I haven't the foggiest notion) as to how much structural power the Legislative Branch has over the Judiciary. If it was decided that we needed a new Judiciary Methodology (call it Arbitrage) does the Legislature have the power to construct (and therefore, control) this new system?

It would appear the answer to that question is Yes. But I question whether that provides for a true Separation of Powers.

In the case at hand, there is a contract. The contract includes an Arbitration Clause. And that clause both limits the extent of the Arbitration Agreement (providing for a specific exclusion from Arbitration) and defines what Arbitration means (a standards body is cited).

{It should be noted that the standards body states (or so I presume, I haven't looked at the base document) that Arbitrators may Arbitrate on the Arbitratability of an issue. But it's a may, not a must.}

Meanwhile, the Federal Arbitration Act (1925) promotes the use of Arbitration... because, as we all know, The Judiciary System sucks and is to be avoided at all costs. Further, it is an accepted matter of law (or by The Supreme Court, at least) that according to the Act if a contract contains a 'Clear and Unmistakable' intent to Arbitrate an issue, Arbitration MUST proceed... or at least, be given precedence.

Now, the specific question before The Supreme Court is Who (a Judge or an Arbitrator) gets to decide whether a contract contains a 'Clear and Unmistakable' intent to Arbitrate the issue at hand?

The Court holds that Arbitrators not only may but must decide this issue. Whereas, I would hold that either an Arbitrator or a Judge may.

{Please Note: The choice and emphasis of that may/must dynamic is all mine.}

As with many Supreme Court cases, is is trifling minor point of law, which due to its specificity is rather hard to reason about.

I mean, sure if we accept Arbitration (which I guess, we must) it makes sense to force Arbitration whenever it has been agreed upon and there is a Valid Arbitration Clause.

But that only begs the question of whether any specific contract contain a Valid Arbitration Clause?

Well, if we wish to promote Arbitration (which is the purpose of Federal Arbitration Act of 1925 or so I have been led to believe), it makes sense to have the Arbitrators themselves settle all matters of Arbitration, including whether an issue is Subject to Arbitration.

Unfortunately, this means (as I see it, anyway) The Court has just decided that even when an issue is NOT Subject to Arbitration, an Arbitrator must make that decision... or at least, one party may force the dispute into Arbitration to settle that one issue, if nothing else.
If X:

If Not X:
    Still, Arbitrate
Taken to its ridiculous extreme, even if there was no Arbitration Clause (or as in this case, a clause that obviously excludes the issue at hand) an Arbitrator must still decide whether Arbitration is appropriate or not.
'Your Honor, I object. This is a matter for Arbitration.'
'But there's not even an Arbitration Clause.'
'That's something for an Arbitrator to decide.'

We will (or at least, I expect to) be seeing more litigation concerning this issue in the future, which is what happens whenever there is a decision of questionable merit.

Also, it bears mentioning somewhere that ALL Arbitration Decisions are subject to Judicial Review... for abuse, clear error, and that sort of thing. So, Arbitration Decisions may be Binding, but they are not Final... like I understand the nuanced distinction between the two... or really, what any of these legal terms mean at Rock Bottom.

And finally, although I have said it elsewhere (numerous times), I'll say it again: I'm a bit of an idiot. I mean, this was a unanimous decision. Clearly, what I am talking about (and care about) and what the Supreme Court is doing (and cares about) are two totally separate things... except for, maybe (but it is a maybe, as what do I know about their motives), we all want the World to be a Better Place.

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OK, then.

First, Do No Harm.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial