unmistakability


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779 (2003) (rejecting the claim that "the 1994 amendments come under the unmistakability doctrine because they saved money that, in turn, could be employed for the general welfare," because the unmistakability doctrine "does not apply where instead Congress uses the funds saved from reneging on the government's contractual obligations for other public purposes."); Jon D.
at 880 ("So long as such a contract is reasonably construed to include a risk-shifting component that may be enforced without effectively barring the exercise of [sovereign] power, the enforcement of the risk allocation raises nothing for the unmistakability doctrine to guard against, and there is no reason to apply it."); Gregory C.
(72.) Judge Lynch's opinion in Parella indicates that the unmistakability requirement may apply only "where a public contract allegedly arises out of statutory language." Parella, 173 F.3d at 60.
Melious & Thornton, supra note 257, at 512-13 (analyzing the dissent in Winstar and noting the dissenters' focus on the failure of the agreements at issue to meet the requirements of the unmistakability doctrine).
In addition to the Sovereign Acts doctrine, a restriction known as the Unmistakability doctrine requires surrender of sovereign power to be in unmistakable terms.
By characterizing the contracts as risk-shifting agreements rather than promise not to change the law--Justice Souter avoids application of the Unmistakability doctrine and the Sovereign Acts doctrine.
Justice Souter traces the origins of the Unmistakability doctrine to the English common law concept that "one legislature may not bind the legislative authority of its successors." [263] This concept was limited in this country by the Contract Clause of the United States Constitution that barred states from passing laws that impair the obligations of contracts.
The Unmistakability doctrine was formulated to address problems with the Contracts Clause that prohibit states from passing laws that abrogate their contractual obligations.
Justice Souter then makes a jump in logic to conclude that: "[t]he application of the doctrine thus turns on whether enforcement of the contractual obligation alleged would block the exercise of a sovereign power of the Government." [275] Justice Souter maintains that this is not remedy-based because "the particular remedy sought is not dispositive." According to him, there are cases where a claim for damages could in effect block the exercise of a sovereign power such as taxation--and the Unmistakability doctrine would have to be satisfied.
Using this rationale, the Unmistakability doctrine is inapplicable to the facts in Winstar.
The consistency with which he uses certain methods accounts for the unmistakability of Ligeti's style.