It's a great idea and one I hadn't thought of, demonstrating the general
policies for adjudication. I'll look into it. However, on the application
of "open courts" provisions, my colleague Ed Hartnett has just suggested to
me that they may be preempted in this context, by the Federal Arbitration
Act as currently broadly understood.
Warmly,
Marc R. Poirier
Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478
.
Phillip Sparkes
<[EMAIL PROTECTED] To: [EMAIL PROTECTED]
NKU.EDU> cc:
Sent by: Discussion Subject: Re: takings/procedure
question
list for con law
professors
<[EMAIL PROTECTED]
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09/05/03 12:03 PM
Please respond to
Discussion list for
con law professors
Thirty-nine states have "open courts" provisions in their state
constitutions. I suspect many of those would regard an agreement of the
kind
you have in mind as inconsistent with the state constitution. Open court
clauses are a fertile area for state constitutionalism.
Phillip M. Sparkes
Director and Assistant Professor of Law
Local Government Law Center
Salmon P. Chase College of Law
Nunn Hall 406, Nunn Drive
Highland Heights, KY 41099
859-572-6313 (voice)
859-572-6302 (fax)
-----Original Message-----
From: Marc Poirier [mailto:[EMAIL PROTECTED]
Sent: Thursday, September 04, 2003 10:30 PM
To: [EMAIL PROTECTED]
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
