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Arbitration issues In “Justices hear key contract dispute” [ NLJ, 11-21-05] about the Buckeye Check Cashing case, the lender’s attorney warned that if the borrower were able to litigate the issue of whether the underlying contract was illegal, “[p]eople could essentially avoid arbitration at will.” Why is this bad? The beauty of arbitration-when it works-is that it is voluntary. Yes, arbitration is often a better alternative for the consumer than litigation, but it should be the consumers who have the right to decide whether the company is really doing them any favors. Predispute arbitration clauses in contracts of adhesion should be voidable unless arbitration is nonbinding and free; the consumer/employee has the right to opt out post-dispute; or the consumer/ employee has opted in predispute, after being offered the same substantive terms without the arbitration clause. Robert Alan Wake Augusta, Maine More on the ‘Lucas’ case Richard A. Epstein’s response to my suggestion that the Supreme Court should repudiate Lucas v. South Carolina Coastal Council is mistaken on two counts. [ Letter, NLJ, Jan. 9]. First, he says that, assuming subsidies for coastal development can be eliminated, property owners should be able to make wise land use decisions simply by assessing the benefits and risks of coastal development for themselves personally. But the recent hurricanes showed that ill-advised coastal development produces serious external harms, not only in terms of lives lost but in damage to neighboring owners. So, contrary to the libertarian philosophy, there is a role for government in controlling destructive coastal development beyond eliminating subsidies. Second, Epstein says that courts should impose a broad duty to “compensate” so that government officials will take into account the private costs of their decisions. But, like the subsidies Epstein (and I) deplore, a promise of financial payments to those barred from engaging in destructive coastal development would only encourage more investment in hazardous coastal areas. Furthermore, the economic calculus is flawed because government officials cannot “internalize” the diffuse benefits of regulation in terms of lives, properties and communities protected in the same fashion that a court can force officials to internalize the costs of regulation through takings awards. Thus, takings awards seriously skew government decision-making in favor of property developers and against protection of neighbors and communities. The upshot is that, if Epstein’s view were adopted, government officials frequently wouldn’t regulate at all, even if the strictest cost-benefit analysis showed that they should. John Echeverria Washington Drug-free school zones Re: “Drug-free zones touch off a legal free-for-all” [ NLJ, Jan. 16]: As one of the founders of the grassroots organization Concerned Citizens for Appropriate Justice, formed by community residents in response to Berkshire County, Mass., District Attorney David Capeless’ rigid application of mandatory school-zone charges, I wanted to correct a few facts as reported in your timely article regarding mandatory school-zone statutes. Although 18 people were recently charged, the seven young people we are standing with and advocating more appropriate punishment for (probation and community service) are first-time offenders accused of very small-scale marijuana-only sales. There were no harder drugs involved in these seven cases. If convicted, these teenagers will go to prison for a minimum of two years as well as be branded as lifelong felons. To us, this is a wasteful and ineffective use of the DA’s office resources and does nothing to keep our children or community safer. Capeless’ one-dimensional lock-’em-up approach has not reduced serious drug use in Berkshire County. Published studies indicate serious drug use far above the state or national average. If we need evidence that mandatory school-zone laws should be reformed or eliminated and discretion returned to judges, especially for first-time offenders, we need look no further. Peter Greer Great Barrington, Mass.

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