unmistakability


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Justice Breyer, although concurring with Justice Souter's plurality opinion, wrote separately to address a different view of the Unmistakability doctrine.
Justice Breyer finds two bases for rejecting application of the unmistakability language.
The second reason for limiting application of the unmistakability language is the nature of the promises in the earlier cases.
In sum, Justice Breyer finds that the unmistakability language found in those earlier decisions might reflect the "unique features of sovereignty" present.
In a brief opinion, Justice Scalia defines the Unmistakability doctrine in a new way and subsequently rejected the Sovereign Acts doctrine as adding nothing to the law.
Additionally, Justice Scalia criticizes the plurality opinion for finding the Unmistakability doctrine was not applicable to the facts presented in the case.
Applying congruence principles, he argues that the Unmistakability doctrine does little beyond "normal principles of contract interpretation.
This summary rejection is less surprising when one realizes that Justice Scalia's explanation of the Unmistakability doctrine is based on the same principles that the plurality and dissent use to describe the Sovereign Acts doctrine.
Rehnquist's Dissent--Saving Unmistakability and Sovereign Acts
In a dissenting opinion, Chief Justice Rehnquist expresses concern that the plurality has announced sweeping and untenable changes to the Unmistakability doctrine and virtually eliminated the Sovereign Acts doctrines.
The dissent argues that the primary opinion effects drastic changes in the Unmistakability doctrine "shrouding the residue with clouds of uncertainty.
The plurality opinion argues that the contracts at issue in Winstar, unlike the earlier precedents, "do not purport to bind Congress from enacting regulatory measures"--and hence, the Unmistakability doctrine should not be applied.