“You are likely to keep repeating the same mistake all over again if you do not agree it’s a mistake.”
The US Supreme Court regularly issues opinions that overturn state court decisions that unfairly refuse to honour agreements to arbitrate. For their part, the state courts unabashedly continue to experiment with theories to invalidate arbitration provisions. The most recent skirmish involved a decision of the state of Kentucky’s High Court that invalidated a nursing home’s arbitration provision based on the elderly clients’ “divine God-given right” to access the courts and to trial by jury. The arguments were new, but not the result. In a seven to one decision, the US Supreme Court forcefully overturned the Kentucky decision. Tellingly, recognising that the Kentucky High Court’s ruling was doomed to fail, lawyers for the parties tried to advance a different legal theory; albeit with no better success.