In the first part of this year’s term preview, I looked at the cases set for October.  This post will take a look at the cases set for November.

As is true in three years out of seven, the November argument session actually begins in the last week of October with arguments on October 29, 30, and 31.   The argument session begins with two cases on one of the favorite business law topics — interpreting the Federal Arbitration Act.  In recent years, the Supreme Court has been real big on enforcing the Arbitration Act to keep cases out of court.  The first case on the 29th (Henry Schein, Inc.,) involves an agreement that allows the arbitrator to decide if a specific claim is within the scope of the arbitration agreement.  The issue presented is when a court can decline to enforce that part of the agreement and find that a claim is clearly outside the scope of the arbitration agreement.  The second case (Lamps Plus, Inc.) involves when a court in compelling arbitration should find that the case can be handled as a class action by the arbiter.

The November docket also includes an “Indian Treaty” case (Cougar Den Inc.) Cases involving treaties with Native American tribes have been a growing part of the Supreme Court docket.  Basically put, the Constitution allows Congress to regulate the relation between tribal governments and the states.  Many of the treaties signed (and only partially honored) in the late 19th Century established exemptions from state law for the tribes and members of the tribe.  In recent years, tribal governments (and individual members, whether as civil plaintiffs, civil defendants, or criminal defendants)  have become more aggressive in asserting the rights granted in those treaties, and the Supreme Court has taken a significant number of these cases.

There area also two cases on the Foreign Sovereign Immunities Act (which basically limits when a foreign government can be sued in the U.S.).  One concerns when an international organization is immune from liability under the act.  The other concerns the proper way to serve a foreign government, specifically whether they can be served by mail sent to the local embassy or consulate.

There is also a potentially interesting case on class actions.  As anybody who has gotten notice of a class action knows, there are a lot of cases in which the individual members have negligible damages (small overcharges by a business that only amount to a large sum when you accumulate every person who did business with that company).  Sometimes when there are unidentified members or members who do not submit a claim, the agreement provides for some donation of the ill-gotten gain to a charitable organization.  The question in Frank vs. Gaos is what standards govern when that type of distribution is an appropriate and reasonable settlement of the class claims.

In short, compared to the big political issues in October, November represents more of the typical docket of the Supreme Court in recent years.  The main them in November is a lot of technical cases that represent additional chances for this pro-business court to make it slightly harder for the little guy to have his day in court against big business.   While the recent developments have made it unlikely that the Supreme Court will have nine justices for October (which may lead to some rearguments or a 4-4 split),  the November docket is less dependent on having a full complement on the bench.  The confirmation of Judge Kavanaugh might result in a slightly more pro-business approach (as it would eliminate the need for Roberts to compromise with Breyer and Kagan), most of these issues have not produced hard breaks in recent years.