The U.S. Supreme Court has recently been struggling with a problem not unlike that of Goldilocks in the most popular version of Robert Southey’s famous fairy tale.1 On the table before them the nine justices find disputes galore. But rather than being too hot or too cold, some of those disputes present problems of size. Some are too big to be lawsuits or arbitrations. Some are too small not to be lawsuits (as opposed to arbitrations). And some are "just right."
A concern with "size" in law and policy is hardly new in our country. We have had rabid debates in recent elections over whether government is "too big." Jumping back to 1914, we find future Justice Louis D. Brandeis worried in his book Other People’s Money that corporations are becoming "too big," a theme repeated today in concerns about financial institutions that are "too big to fail."2 So the Supreme Court’s passing attention to what is the right size for a particular case or arbitration is not entirely surprising.
