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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.
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).
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.
The Unmistakability doctrine was formulated to address problems with the Contracts Clause that prohibit states from passing laws that abrogate their contractual obligations.
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.
285] Further, he fails to explain any interaction between the Sovereign Acts and Unmistakability doctrines.
Concurrence of Justice Breyer: Unmistakability, Who Needs It?
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.
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- unmistakably bad
- unmoved by entreaties
- unmoved by pity
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- Unmineralized Native Turkey Leg Tendon
- unmistakably bad
- unmitigated gall
- Unmitigated-Accident Frequency