Say what? Taxpayers must Pay Corporations for Clean Air and Water?

Great Debates
41

The amended claim was part of a similar debate quite a few months ago; had to be April or May. I believe it’s been available since it was filed.

Beyond that I don’t think anything I add would say anything SuaSponte didn’t say already, a lot better than I would, except in these cases where you addressed my points specifically:

It’s also not the choice I’m making. My point is not that all law goes awry so we should throw up our hands and accept it; my point is that NAFTA is not going awry. For all of the panic being raised about it, its effect on democracy is, well, minimal, and in cases where it has been used against government a close examination seems to often reveal that the government’s actions were not entirely honourable; the MMT case in Canada would be a classic example. (Sadly, I am having difficultly finding primary sources, or even detailed secondary sources, about the famed Metalclad case.)

Of course not. But if you’re going to shout fire, the burden of proof is on the shouter to demonstrate there’s some smoke and flames. (I was going to extend this metaphor to “a stampede towards protectionism and trade wars” and “The fire engines of conservative trade barriers and xenophobia” but I do have some mercy for my fellow man.)

I may be guilty of shortsightedness, but I’m a skeptic at heart, and what I see here is a side of an issue - and I don’t think this is a liberal/conservative thing at all - saying NAFTA “is going to” do this, or “will” do that at some point in the future, and when current cases are put up as examples I look into them and find out that the government slimed somebody. The real effects of this part of NAFTA are, so far, miniscule. Future effects may be much worse… but so far the arguments have not convinced me. Forgive my intransigence, but I don’t panic easily.

I have addressed this, and I reject many of your (and Mr. Greider’s) assertions and what are, IMO, a lot of begging-the-question claims. SuaSponte addresses this well, albiet briefly, but NAFTA has created nothing new except the notion of private arbitration, and I agree that it’s a troublesome point.

Don’t get me wrong, I’m not just trying to bang on Greider; we’ve just used him as a touchstone for the discussion. However, I honestly beleive that the same basic misunderstanding/panic effect can be found throughout the media. The MMT case in Canada, a mirror image of the Methanex case, was a fascinating study in that regard; the media and public were widely horrified because the story they were given was essentially the same as the Reader’s Digest Methanex version:

  • Ethyl Corp. says Canada banning their gas additive will cost them money
  • NAFTA says the government costing you money is bad
  • NAFTA will strike down all our environmental laws

But a closer and more honest examination of the facts reveals that the federal government behaved in a stupid and dishonest manner, and really DID discriminate against a foreign corporation, to the point that Ethyl actually had PROVINCIAL governments on their side, and that the MMT ban was found to be illegal under Canada’s own domestic laws on interprovincial trade. It’s not a perfect parallel for the Methanex case in every respect, but it’s close.

But let’s be honest; “Canadian Government Screws U.S. Corporation” is a story that just wouldn’t sell in Canada. “U.S. Corporation Screws Canadian Government, Kills Your Children” sold like hotcakes.

42

True. And, having actually read the case, I am in a position to say that their case relies on the discrimination aspect of it. Not coincidentally, this is also the opinion of every other poster who has actually read the case, a group that does not include yourself. It is puzzling and somewhat annoying that you would continue to argue this issue in light of your ignorance in this matter (this is especially so in light of your constant exhortations to others to read the Greider article). I would suggest that you head over to a library or something - in any event I shall not continue to argue with you about this.

Again you appear to misunderstanding the issue. I’ve mentioned this before and you’ve not responded for some reason.

Consider this analogy: Under the laws of sexual harassment, creating a hostile work environment is grounds for a lawsuit. However, creating such an environment that is not done as part of a sexual harassment is not. IOW, if a boss has a work environment that is hostile to all, they have no legal recourse under sexual harassment laws (or any other laws, AFAIK).

Now suppose there was a legal theory which advocating outlawing hostile work environments in general, and allowing lawsuits on the basis of an unpleasant work environment even absent sexual harassment. And suppose a reporter wrote an article suggesting that this legal theory was gaining traction, pointing to a sexual harassment lawsuit as evidence. Leaving out that the case in question was based on the harassment issue. Would you say that this was valid because “his article is about hostile work environments, and the case still rested on hostile work environments being a cause for the lawsuit”?

So it is here. The point of the Epstein theory is evidently that regulatory taking should be in and of itself a cause for compensation. In the case at hand, the regulatory taking are not being considered in and of themselves cause for compensation. Rather the discrimination is the cause for the compensation. The regulatory taking is merely the damage that was done to the company. To implying otherwise is false.

In a nutshell here’s the distinction that you need to keep clear:

“Regulatory taking is a damage to the company” - part and parcel of the Methanex NAFTA lawsuit

“Regulatory taking is a cause for compensation” - legal theory not connected to the Methanex NAFTA lawsuit

43

Fair enough - I will read the article over lunch and get back to you.
One point I can make now: as a general rule, a foreign corporation (or individual) has the same rights as a domestic corporation before a US court. So, if a US corporation could sue California under the facts of this case, so could a Canadian one. I cannot say right now whether a US corporation could do so - my thinking is “yes”, but I do not know. One issue that the NAFTA provision definitively sets aside is sovereign immunity, but in most cases, US governmental entities have waived sovereign immunity. A second issue is that, by my reading, NAFTA allows the suit to be brought against the federal government, while a suit by a domestic corporation for actions of the state of California would be brought against California. That is definitely of some concern - if California screws up, why should the rest of the taxpayers have to foot the bill?

But anyway, I’ll get back to you.

Sua

44

Rick: "SuaSponte addresses this well, albiet briefly, but NAFTA has created nothing new except the notion of private arbitration, and I agree that it’s a troublesome point."

Rick, the bold part is false as anyone who’s read Greider’s article will know.

Further, Sua doesn’t claim to have read Greider’s article yet; but you say you have. If you really have, and if you’re considering it in good faith and with full understanding of its arguments, then you would know that Sua hasn’t addressed Greider’s claims as yet. Greider makes fully clear on page 2 of his article that the notion of a government “taking”–“just as when government takes private land for a highway or park has to pay its fair value”–is itself nothing new. What he’s arguing is that NAFTA represents the backdoor introduction of a new and extremely radical and controversial redefinition of public regulation as comparable to a “taking.” Your qualms with his brief treatment of Methanex, and his briefer treatment of plain packaging do not constitute a rebuttal of that central cliam. Sua hasn’t as yet touched upon that point; though he has also indicated that he’s none too thrilled with the notion.

I don’t want to insult you Rick: I think much of what you say above is interesting and well-reasoned, though I won’t reply to it just yet. I just want to make clear that I can’t waste my precious leisure time debating this with you if you’re going to pretend to be fully familiar with arguments when your posts suggest that you are not. jshore clearly feels the same.

45

**"*In a nutshell here’s the distinction that you need to keep clear:
“Regulatory taking is a damage to the company” - part and parcel of the Methanex NAFTA lawsuit

“Regulatory taking is a cause for compensation” - legal theory not connected to the Methanex NAFTA lawsuit"*

That distinction is in fact very clear to me, Izzy. The distinction you must make clear is that, by Greider’s account, any connection to regulatory takings is symptomatic of the radical revisionism he believes is at play. That’s the issue I think we’re moving towards debating. (And Rick has already raised some related points that I would like to reply to but I want to wait for some additional post to come in before I do.)

As to my not being able to read that link, by now it really doesn’t matter. In addition to yourself, Rick, Sua, and Jshore are able to read from it. It’s widely known that I’m basing my assumptions about hte link from what I can infer from this thread, to which we all have access. There is, in other words, full transparency on my part, and everyone is in a position to correct me where and when my assumptions are false. To wit, it is I who suffer most from not being able to read the link. My going to a library at this moment to print out an 80 page document is just not possible. Sorry and thanks for your post.

46

Yipes! Apologies for all that bold. Must run though…

47

He certainly does say it. I’m not sure he argues it, at least not convincingly.

Much of the beginning of his article is devoted to a summary of the Epstein position and Ed Meese’s being Ronald Reagan’s point man on overregulation (Nothing Meese did was anywhere near the extremes Epstein suggests, obviously), but then he (Greider) seques into:

Proof of this assertion? Well, he goes on to argue it based on:

  • Edward Graham says so
  • Dan Price (according to Greider) follows in Epstein’s footsteps and fooled Congress
  • So does Ed Williamson, who also says John Ashcroft is on board
  • So does Howard Mann
  • Chip Roh reacted strongly when Greider read him a letter written at the behest of a bunch of big corporations
  • Barry Appleton likes to sue the Canadian government and say Canadian sports teams can sue the U.S. and “He might be right.”
  • Law firms are lining up to file big NAFTA claims
  • Christopher Dugan said in an interview that NAFTA creates rights American companies don’t have
  • A number of other people think what Greider thinks

Greider has certainly done a good job assembling quotes from people who either support or oppose Chapter 11. I do note, however, that he doesn’t ever actually cite NAFTA or any case that has ever derived ffrom it. Anyway, his argument as I understand it is, to put it simply;

  • Some interests want property rights expanded at the expense of government
  • They couldn’t do this, so
  • They got it into NAFTA
  • NAFTA protects foreign companies but not domestics ones, so
  • This will force a change in domestic law to make up for it, therefore
  • Chapter 11 will force a change in domestic law and thsi is bad for democracy, so
  • We should suspend NAFTA and the FTAA for now

I am NOT convinced; aside from the lack of objective evidence of any of his claims, much of this argument begs the question. The two examples he does use of NAFTA suits, Methanex and Metalclad, do not well support his case; Methanex has been discussed to death, and Metalclad too, to read the appealed decision by Judge Tysoe is a case which on closer examination suggests Metalclad got slimed (Although the facts of the case and the complaint were different, and the award was reduced from what Metalclad asked for.) On its face, NAFTA simply is NOT the Richard Epstein wet dream it’s claimed to be here. The treaty is very carefully written.

Greider’s case is an interesting argument, but as of yet I don’t find it factually convincing. He progresses from

“Richard Epstein and his ilk want to get rid of the minimum wage, OSHA, and every other thing we progressives like”
to
“Lots of people agree with him on some of this stuff”
to
“Some of the things those people believe found their way into NAFTA”
to
“Therefore, NAFTA is attempting to do what Epstein suggested.”

That’s a fallacy of logic (technically, he’s affirming the consequent by claiming the whole is the same as a selected part), which I know you don’t want to hear but it does devalue the argument. Richard Epstein != NAFTA, although in a convoluted way that’s sort of what William Greider is trying to get across. His conclusion reads in part:

This is a massive logical jump from anything he’s provided evidence for. He’s not shown to my satisfaction that a “Reactionary transformation” of American governance or rights is taking place or has even a remote chance of taking place, and the “no one can count on conservative self-restraint” and “right wingers epic triumph” stuff just strikes me as being partisan claptrap, and I can’t look at that stuff without thinking of Jones’s Fifth Law.* It’s just not the case that NAFTA or FTAA are just right-wing pet projects. Heck, here I am defending (more or less) NAFTA, and I’m not a right-winger by any stretch of the imagination.

This doesn’t prove Greider is wrong, although I believe he is. However, he has not, IMHO, done a very good job of proving he’s right; his argument is, to my eyes, essentially just a seven-page assertion that “right-wingers” are using NAFTA to attack democracy through the back door, and he pulls a lot of quotes to add emphasis - but not much evidence - to his own opinions. A well written article, but not a convincing one.

** - Jones’s Fifth Law: “Political partisanship is inversely proporational to honesty and intelligence.”*

48

OK, I’ve read the Greider article, and I’ve come to the conclusion that Greider is that most evil of creatures, an ideologue. I especially detest such creatures when they are on my side of an argument (generally, the liberal side), because they devalue and discredit any fact-based arguments that may be made from my POV.

To summarize my analysis of Greider’s claim:

  1. The American Right, led by Epstein, is pushing for a definition of “regulatory takings” that encompasses any act by a government that lessens the value of private property, either through loss of current value or loss of future profits. my analysis: probably true, although I can’t say for certain - I haven’t read any of Epstein’s writings.

  2. This approach towards the cost of regulation has made some inroads into American jurisprudence, though not as far as Epstein and his ilk would like. My analysis: again probably true - definitely true to the extent that Supreme Court decisions over the past fifteen years has definitely stated that in many instances regulation equals an Takings under the Takings Clause. I cannot speak to whether Epstein is satisfied with the Supreme Court’s jurisprudence.

  3. NAFTA Chapter 11 represents an attempt by the Right to do an end-run around the timidity of the US Supreme Court to expand the concept of full restitution for loss to value or future profits caused by regulatory action to international trade issues governed by NAFTA. ** My analysis - this is absolute bullshit. Chapter 11 only allows for restitution for regulatory takings under certain prescribed standards (including discrimination) - much like American jurisprudence.**

  4. Methanex’s suit and others like them represent an end-run around democratic models and US jurisprudence by seeking resolution by an arbitration panel rather then a US court. My analysis - crap, for two reasons. First, arbitration is a common means these days of resolving disputes. Litigants on both sides like arbitration, primarily because they cut down seriously on costs. As an attorney, I am leery of them, mainly for their restrictions on appeal rights, but that’s me. In any event, the fact that each side gets to pick 1 1/2 of the arbitrators is, IMO, actually more fair than federal court proceedings. Second I really take dispute with Greider’s belief that US courts are the epitome of fair and wise dealing. They are pretty good, but damn they are arrogant. As one example, US courts regularly ride roughshod over the laws and court decisions of foreign courts, even those of foreign democracies. If I were a person in France suing a US governmental entity, I’d be leery of the US courts deciding my case.

Sua

49

Now, compare this to the quotation in the amended Methanex claim (p. 67) which everyone seems to be taking as the gospel around here:

Now, maybe in the long run, SuaSponte’s interpretation will win out (and it is clearly true that Methanex seems to think its discrimination claim makes its case much stronger), but don’t you think we ought to make damn sure it does and that future trade agreements very clearly delineate the terms under which this “regulatory takings” claim can be made?!?

By the way, I did sort of want to comment on this. Now, I don’t know what planet you live on, but on my planet the environment is getting pretty much trashed, often in order to save corporations a few bucks. (I won’t even say that consumers are being saved money too since many of the problems stem from the fact that consumers aren’t good at weighing long term savings…e.g., from better gas mileage against short term costs.) At any rate, I can’t say NAFTA is to blame for this, but it is certainly not making the climate for effective environmental regulation any easier!

50

A quick thought for you:

Environment != environmental legislation

I didn’t say we don’t have pollution problems. I would, however, strongly disagree that they’re getting worse; you may be vastly underestimating how many problems we’ve had for a long, long time. In all likelihood things were just as polluted 50 years ago as they are now. Not that that is a good thing.

I stand by what I said; we still have plenty of environmental and health regulations. However, it’s a sad fact that many environmental and health regulations don’t seem to make the environment any better or make us any healthier. With or without NAFTA.

51

Greetings. I just wanted to let everyone know that I do plan to respond at length to the recent posts but it may not be for a few days–it depends how I get on with work. Until I make some further progress with a tough deadline I am facing both my employers and my family will subject me to something way beyond “takings” (regulatory or otherwise) if I spend too much time on this thread.

Hint to Sua, that’s actually a point I want to raise with you. Up above, when you first raised the issue, I forgot to remind you to distinguish between the US Constitution’s provisions on “takings” (government must compensate me fairly if it needs to build a road where my house was) and “regulatory takings” which, according to Greider and to Epstein himself, is Epstein’s creation and of recent vintage. Therefore insofar as any claim for damages, whether tied to discrimination or not, is pursued as a “regulatory taking” (and under NAFTA, “tantamount to expropriation”), we’re dealing with something controversial even if the idea of suing for damages because of discrimination is not itself controversial.

But what I’d like to do before I respond further is to read up on Metalclad, Loewen and whatever else I can find about other cases. The full-length version of the Public Citizen Report is probably a good place to start but, of course, it’s in Adobe ;). (Not sure if jshore might like to devote the time to reading it.) I’d also like to see what’s available by those two Georgetown law professors who seem to agree with Greider’s assertion that these aspects of NAFTA represents a backdoor importation of a controversial “regulatory takings” view on property and regulation.

In the meantime, the one point that I do have time to debate with Sua is to do with private tribunals. Yeah, sure, Sua, you and I might prefer private arbitration if, say, you stub your toe while working in my factory, or we are two companies who got into a dispute while selling stuff to each other. And perhaps then it wouldn’t matter if the private arbitration were secret. But the situation differs very much when the defendant is, as it will always be in these instances, the Mexican, Canadian or US public. Since you and I and Greider and jshore are the defendants in Methanex, et.al., the idea that we don’t know what the proceedings are until it’s over and done with is freaking scary and as anti-democratic as the Star Chamber. There–whether the mechanism is international arbitration panels or national courts–the process must be fully transparent. I don’t hear Greider celebrating the US courts; just saying that this alternative to them is bound to cheat the public of, at the very least, its right to transparent and accountable proceedings on its behalf. Can you possibly deny it?

When you combine secret proceedings with ambiguous language (“tantamount to expropriation,”), and, in addition, apply a doctrine that is under contest and still quite fringe in domestic jurisprudence (“regulatory takings”), then I think a thesis like Greider’s can hardly be dismissed as ideology. I can understand a reasonable skepticism like Rick’s, but, frankly, I can’t understand a dismissive trashing of Greider’s putting two and two together–not at any rate without scrutinizing the other cases.

It seems very likely that the Methanex case before it was amended was exactly the kind of case that Greider’s thesis fears. Undoubtedly Methanex amended their case because they wanted to prove their chances of winning; probably what happened is that after California banned their product and began replacing it with ADM’s they came up with the bright idea that they could allege that ADM’s product was no better than theirs and they could come up with a charge of “discrimination.” (Maybe it’s even true though I have no idea why it is that ADM’s product isn’t leaking; I’m sure it’s all quite technical.)

But just because Methanex saw an opportunity to approve their claim, and just b/c a case in which discrimination is foregrounded isn’t as likely to set off alarms as a pure case of regulation being viewed as an actionable form of “takings,” doesn’t mean that we won’t continue to see the former kind of action. That is jshore’s point. Indeed, the language he cited from the Methanex case makes clear that NAFTA tribunals have already ruled in that manner (possibly in the Metalclad decision). As Sua surely knows, there is no shortage of lawyers wanting to make their reputation breaking new ground with this kind of stuff.

I also don’t want to trigger a tangent, but I’ll respond briefly to Rick’s last point: environment doesn’t equal envrionmental legislation. No it doesn’t. Citizens and private businesses can also adopt pro-environmental provisions on their own. But in this country, by and large, they do not. And you can consider the extent to which they do not everytime you see a Ford Explorer, Chevy Suburban or (yuck!) BMW, Mercedes, or Lexus SUV with one driver in it barreling off to the supermarket or office block.

52

"But just because Methanex saw an opportunity to improve their claim, and just b/c a case in which discrimination is foregrounded isn’t as likely to set off alarms as a pure case of regulation being viewed as an actionable form of “takings,” doesn’t mean that we won’t continue to see the latter kind of action.

Thanks.

53

Well, “regulatory takings,” at least in its modern form, is indeed a relatively recent concept - it was first recognized by the US Supreme Court in the mid-1980’s. Whether it was Epstein’s creation, I really have no idea, but Greider’s own article seems to argue against that; he at least implies that the Lochner decision was some form of regulatory takings doctrine (and no, I’m not going to go read Lochner. ;)) But the concept exists (and existed before NAFTA) in US law - there doesn’t seem to be anything new in Chapter 11.*
One other point, the “tantamount to expropriation” language really means nothing. “Takings” are “expropriations” - the concept is that the government “takes” or “expropriates” for the public good property or value from a private party.

As for private tribunals, we really have no disagreement - I hate them too. And I really hate the secrect part. But again, they are not a new concept to NAFTA - the Federal Arbitration Act, which strongly supports the use of and enforces the decisions of private tribunals - has been around since at least 1925 (I vaguely recall that the 1925 law was a re-codification, and the FAA came into existence well before that). Arbitrations these days often involvement multi-million dollar claims.

Sua

  • I really can’t recall now if the regulatory takings doctrine in the US explicitly covers lost profits. But it effectively does - it already allows for compensation when a regulation lowers the value of real property (e.g., a property owner cannot develop his/her property because it would destroy wetlands). And what the lowering of value of the piece of land is is lost profits - the piece of land will be worth less when sold, or cannot earn money from the planned development.
54

Just thought I’d throw in this somewhat-relevant tidbit from Paul Krugman’s column in the NYT today:

"…On Thursday morning this newspaper reported that London- based Securicor — the biggest of the three companies that provide almost all airport security in the United States — was threatening to sue for damages if baggage screening is taken over by federal employees. This just two weeks after we learned that Securicor’s U.S. subsidiary — which had already been fined for employing convicted felons — continued to hire employees without checking their background after Sept. 11, and then lied about it to regulators.

Under the circumstances, to claim that federalizing the business would represent a “taking” showed remarkable chutzpah. (Chutzpah, according to the classic definition, is when you kill your parents, then plead for mercy because you’re an orphan.)

…The rhetoric behind this position emphasizes the supposed advantages of the private sector — competition, accountability, etc. But there is little real competition in this industry, and — as we’ve just seen — not much accountability for companies with the right connections."

Carry on…

55

Ace_Face, thanks for the sublime definition of “chutzpah” :wink: (and the other stuff too). BTW, was NAFTA invoked?

**SuaSponte **: “Well, “regulatory takings,” at least in its modern form, is indeed a relatively recent concept - it was first recognized by the US Supreme Court in the mid-1980’s. Whether it was Epstein’s creation, I really have no idea, but Greider’s own article seems to argue against that; he at least implies that the Lochner decision was some form of regulatory takings doctrine (and no, I’m not going to go read Lochner. ;))”

No, you’ve misread Greider. He definitely attributes “regulatory takings” to Epstein. Lochner (a major 1903 decision for those of you who haven’t yet read Greider), was simply against regulation of private property for any reason. Epstein, by arguing that regulation represents a “taking,” introduces the notion that you can regulate so long as taxpayers pick up the tab. So you pay to regulate. And that’s the concept that Greider feels is being sneaked in through the backdoor into NAFTA. Because so far it hasn’t really made much headway in US law; though, according to Greider, since Reagan the notion has been used to chill enforcement of existing laws (i.e. government regulators have been asked to be aware of where regulation might constitute a taking and therefore to proceed with caution). Where exactly the line has been drawn in this process–i.e., how much cost to the company is perceived as constituting a “taking”–I’ve no idea. That seems to be what the Georgetown law professor specializes in and as yet I’ve not had time to see if he has a website.

“But the concept exists (and existed before NAFTA) in US law -”

Correct. Greider not only doesn’t deny this, he shows it. But he indicates that the concept has only had a foothold in US law and that it’s very shaky and contested with many politicians and lawyers (including yourself it would seem) quite dubious about the concept, and with popular support quite unlikely.

" there doesn’t seem to be anything new in Chapter 11."*

What is new, quite clearly, is that the concept seems to enjoy greater statutory foundation than in any existing US legislation. I would imagine that if some US corp. tried to use existing legislation to make an argument for “regulatory takings” they would face an uphill battle, and there would probably be many opportunities for appeal, in addition to lots of press coverage and public debate over the matter. For example, let’s say this British security company were American and trying to find some basis in US law for their suit: I would imagine (based on Greider’s article and the Public Citizen Report) that they’d not find it, or find it only in a highly contestable form.

“One other point, the “tantamount to expropriation” language really means nothing. “Takings” are “expropriations” - the concept is that the government “takes” or “expropriates” for the public good property or value from a private party.”

Yes, but that’s precisely the point made by the Kent law analysis. Takings does equal expropriation. Which is why when you introduce ambiguous language into NAFTA–“tantamount to expropriation”–you may well be trying to open the door for a more expansive concept of “takings.” The language in NAFTA has both direct and indirect “takings” (which quite clearly covers the sort of the thing they had claimed to fear–foreign governments expropriating corporate capital, or using excessive taxation to do the same thing indirectly). “Tantamount,” while highly ambiguous creates the potential field day for the “regulatory takings” philosophy. That is, anyone can see that to regulate is not to “expropriate,” but you might be able to argue that to regulate is “tantamount to” expropriating.

“As for private tribunals, we really have no disagreement - I hate them too. And I really hate the secrect part. But again, they are not a new concept to NAFTA…”

And again, I think you misread Greider’s article. He isn’t saying that NAFTA invented the private and secret tribunal. But this is the first time they were used for transnational litigation in a way that circumvents national courts. This even while national publics are the defendants! And with “regulatory takings” sneaked in through the expropriation articles–even though regulatory takings is much less likely to cut ice at home–it all adds up to a new package.
The components aren’t new (as Greider makes clear), but the package is. And the package sucks. In addition, I don’t hear you saying that the package doesn’t suck. I still haven’t gotten back to Rick with his comments as to skepticism. He, at any rate, seems to just feel it won’t amount to very much (hence skepticism). But you, by contrast, seem to be splitting hairs with Greider about what is or isn’t “new” all while disliking every single aspect of what is involved. Have I read you wrong here?

56

Ace_Face, I checked out Krugman’s column myself and I see you’ve posted all that concerns the matter of takings. And it’s not made clear whether the threatened suit would be pursued under NAFTA or not.

I sure would like to know! Not least b/c Krugman is a strong supporter of (so-called) “free trade,” and there is no love lost whatever between him and Greider. So if Krugman were to agree with Greider’s take on the matter that would be pretty objective confirmation.

That said, these are fighting words coming from old Paul K. Worth a peek.

57

I don’t know if NAFTA was invoked – since Securicor is a UK-based company, I don’t think they can invoke it.

I disagree with Krugman’s stance on free trade, but his analysis of the nuttiness going on in D.C. – especially the tax cut – the past 10 months has been informative (and scary). And recently, he does seem to be coming to similar conclusions as Grieder about corporate power.

58

Ace_Face:…“since Securicor is a UK-based company, I don’t think they can invoke it.”

Of course, you’re right about that. They can only invoke it if they’re Mexican or Canadian. Sorry, I wasn’t thinking straight!

I should repeat that it’s not very clear to me from Greider’s article just how far “regulatory takings” has gone in US courts/law. Greider doesn’t go into many specifics; however he does say that that a series of cases have gone to the Supreme Court, but that so far the Court’s “pro-takings decisions have dealt only with subsidiary questions.” To go to the Supreme Court they have to begin with something so it’s clearly the case that without NAFTA you can still make this kind of argument (successfully or not) which is basically what Sua has been saying if I understand him right.

Tangent: As to Krugman, I agree with you on both counts. On subjects such as socio-economic equality, Krugman has struck me as totally right-on. I’ve never fully understood his position on the “free trade” debate nor, therefore, his beef with critics.