While the FAA is liberally construed in the context of agreements between private parties, there is a sound argument that it doesn't expressly preempt, and wasn't intended to preempt, state constitutional provisions, implicating the separation of powers, that would be offended by a state's legislative circumscription of state judicial authority in matters where the state is a party. Imagine, for example, a state law requiring arbitration, by a state-appointed arbitrator, of all claims against the state. It's not hard to imagine that it would run afoul of a state's constitutional separation of powers doctrine, and that the FAA would not be deemed to preempt the state constitution in that regard.
John Noble
At 1:56 PM -0400 9/5/03, Marc Poirier wrote:
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] v.ucla.edu>
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
