Re: takings/procedure question

[John Noble]

The issue would would find its way into court when the state
subsequently (in response to newly prevailing "public norms and
values") enacted a law that effectively nullified the arbitration
clause. In that context, I think the constitutional issues are framed
in Contract Clause jurisprudence, which recognizes the canon of
contract construction that surrenders of sovereign authority must
appear in unmistakable terms, Charles River Bridge and Bowen, 477
U.S. 41, 52 (1986); the doctrine that a government may not in any
event contract to surrender certain reserved powers, Stone v.
Mississippi, 101 U.S. 814 (1880);  and the principle that a
Government's sovereign acts do not give rise to a claim for breach of
contract, Horowitz, 267 U.S. 458, 460 (1925)." US v. Winstar, 518
U.S. 839 (1996) provides an overview of the very cloudy landscape .
John Noble

At 12:00 AM -0400 9/5/03, Marc Poirier wrote:
Marty:

I think it is clear that private parties to contracts can select
arbitration in advance as the forum for resolving disputes involving public
policy matters governed by statute -- such as employment discrimination or
securities regulation.  That choice typically involves a loss of judicial
review on the merits.  I suspect, although I am a bit less clear, that a
state could do the same thing by contract.
Thus, in terms of what constitutional angles there are within this
question, I wonder whether the presence of a constitutional issue affects
the ability to choose by contract to resort to arbitration instead of
adjudication.  I suspect not.
What troubles me about the scenario here (as with the international
investment protection version) is a reduction in the use of adjudication,
which may reduce dialogue about public norms and values.  See generally
Owen Fiss, Against Settlement.  Using contract to relocate taking claims to
arbitration would mean loss of public involvement (no right to intervene or
file amicus) no transparency (confidentiality of proceedings) no published
opinion, and no appellate review.  Depending on how the selection of
arbitrators went in each proceeding, it might also result in a different
sensitivity to the contextual nuances of takings law as applied.  See
Palazzolo; Penn Central.
At first blush i see nothing wrong doctrinally with doing this.

Does that help clarify what is puzzling me?

Marc R. Poirier
Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, NJ  07102
973-642-8478


                      "Marty Lederman"
                      <[EMAIL PROTECTED]        To:       "Marc
Poirier" <[EMAIL PROTECTED]>
                      omcast.net>              cc:
                                               Subject:  Re:
takings/procedure question
                      09/04/2003 04:24
                      PM




Marc:  Is your question whether there's something wrong with the *state*
ceding its "right" to judicial review; or, are you asking whether the
company can "waive" its right to a judicial forum, perhaps as a condition
of
receiving some benefit?  Or is there some other constitutional concern that
I'm missing?
Marty Lederman

----- Original Message -----
From: "Marc Poirier" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Thursday, September 04, 2003 10:29 PM
Subject: takings/procedure question

 Question:

 Suppose a state (one of the United States, that is) were wooing a company
 to locate a big new facility in the state.  In addition to other usual
 kinds of concessions, the company required the state to agree by contract
 to the following proposition:  should any disputes involving the Takings
 Clause of the United States Constitution arise between the company and
the
 state, with regard to actions taken by the state or its political
 subdivisions that affect the facility, the dispute will be submitted to
 binding arbitration, conducted under standard principles of commercial
 > arbitration, with no subsequent judicial review on the merits.  Would
such
 an arbitration clause be enforceable?

 The context in which I ask is an article I am writing on provisions
 regarding "indirect expropriation" in NAFTA and other free trade
 agreements, especially after the Trade Act of 2002..  They do submit
 transnational takings claims to arbitration.
 I'm not sure whether this is dead on to the topics of this list serve,
 although it's no more off-center than where some threads have gone.
 Besides, I'm not on the civil procedure list serve.
 Thanks for any thoughts you may have.  If you think an off-list reply is
 best feel free.  If you think it's of interest to the group....
 Warmly,

 Marc R. Poirier
 Professor of Law
 Seton Hall University School of Law
 One Newark Center
 Newark, NJ  07102
 973-642-8478