Why the U.S. Supreme Court Should Review Whether Arbitrability May Be Incorporated by Reference

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Editor's note: In Part 1 last month, the authors discussed the second trip to the U.S. Supreme Court for Archer and White Sales Inc. v. Henry Schein Inc., No. 19‐1080, on a petition for certiorari regarding whether an arbitration agreement unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place. The legal standard focuses on whether there is “clear and unmistakable” evidence of the parties' intent to have arbitrators decide whether a case goes to arbitration. If not, the decision goes to a court.