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. Continue Reading...