NAFTA, GATT, and the Bill of Rights

[Vance R. Koven]

At 12:31 PM -0800 1/6/98, Eugene Volokh wrote:

>    Before answering these questions, I'd like to be satisfied that
>the assumption -- that the Treaty Power abrogates the Takings Clause
>or the 7th Am -- is indeed true.  I confess I have not read the
>cases, but judging from the description they don't seem to actually
>so hold.  Among other things, I'd like to know whether lawsuits
>against foreign sovereign immunities were traditionally seen as
>actions at common law, or were always handled specially (as I imagine
>they might have been).

As I think I indicated, the Court did *not* expressly hold in Sperry that
the treaty power trumps the Takings Clause, and tried to distinguish a case
in which it evidently (I haven't read it either) held that it did not.
However, the net effect of Sperry was quite the opposite of what the Court
said it was, and in the absence of discussion the Seventh Amendment issue
is decidedly undecided.

That said, I think I can say with some confidence that the status of a
defendant as a sovereign has no impact on whether the jury right applies.
An action "at law" is always an action at law, invoking the jury right.
Sperry's claim against Iran was a commercial contract dispute, and since
Congress has adjusted the balance of power in such disputes as against
things like the Act of State Doctrine, it would have been free, absent the
freezing of assets and the imposition of the Tribunal, to bring an ordinary
contract claim at common law (indeed it had done just that when the asset
freeze interposed an obstacle to its pre-judgment attachment against
Iranian assets in the US).

Based on the language of the Sperry case, however, I don't think a Seventh
Amendment argument would have changed the outcome, and that on top of the
rather airy disregard of the Takings claim leads me to think that the Court
does not put the Bill of Rights (or at least some parts of it) on a
pedestal as against the treaty power.



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