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Statutory Provisions and Higher Court Interpretations

Louis Kaplow

in Competition Policy and Price Fixing

This chapter examines competition law's doctrine on horizontal agreements. It begins by addressing the U.S. statute, Sherman Act Section 1. The chapter then turns to the leading Supreme Court ... More

This chapter examines competition law's doctrine on horizontal agreements. It begins by addressing the U.S. statute, Sherman Act Section 1. The chapter then turns to the leading Supreme Court precedents on Section 1. These are the primary source of U.S. antitrust law in general and specifically in delineating what constitutes a horizontal agreement. Here, there is more conflict than meets the eye. Finally, the corresponding provision in the European Union, Article 101, is examined. Because the underlying questions and the relevant economic theory of oligopolistic coordination are the same, it is natural to expect similar challenges to arise, and they do.Less

1. The Rule of Recognition and the Constitution +

KENT GREENAWALT

in The Rule of Recognition and the U.S. Constitution

This chapter is about ultimate standards of law in the United States. It attempts to discern the jurisprudential implications of widespread practices involving the Constitution and other standards of ... More

This chapter is about ultimate standards of law in the United States. It attempts to discern the jurisprudential implications of widespread practices involving the Constitution and other standards of law. The chapter proceeds at three levels: (1) application to the United States of Hart's concepts regarding the rule of recognition; (2) enrichment of those concepts in light of the United State#x0027;s law and legal institutions; and (3) evaluation of some strengths and weaknesses of this general approach to how ultimate legal standards are discerned, and a sketch of a fuller and more adequate account. The main body of the chapter primarily addresses the first level, though it involves comments of obvious relevance for the second level and lays the groundwork for discussion at the third. The end of the chapter draws together conclusions about how Hart's theory requires amplification, and treats the relevant disagreements between Hart and Dworkin in a systematic way.Less

Insiders/Outsiders: Managing Immigration at the Border

Rachel St. John

in Line in the Sand: A History of the Western U.S.-Mexico Border

This chapter traces the emergence of an immigration-control apparatus on the boundary line and how political and economic conditions influenced how and against whom the nation-states used it. As U.S. ... More

This chapter traces the emergence of an immigration-control apparatus on the boundary line and how political and economic conditions influenced how and against whom the nation-states used it. As U.S. immigration laws increasingly defined Mexicans as outsiders who could not freely cross the boundary line, the divisive power of the border became more apparent. This sense of division between the United States and Mexico and the United States' ongoing attempts to assert its authority over when and how Mexican immigrants cross the border, which reached one peak in the deportations of the Great Depression, continue to define the border today.Less

2. Precedent-Based Constitutional Adjudication, Acceptance, and the Rule of Recognition

RICHARD H. FALLON

in The Rule of Recognition and the U.S. Constitution

This chapter responds to claims that the Supreme Court behaves lawlessly whenever it follows erroneous past decisions, by invoking and applying H. L. A. Hart's famous assertions that the ultimate ... More

This chapter responds to claims that the Supreme Court behaves lawlessly whenever it follows erroneous past decisions, by invoking and applying H. L. A. Hart's famous assertions that the ultimate foundation for all legal claims lies in a “rule of recognition” and that the rule of recognition owes its status to “acceptance.” It is argued that Article VI and other provisions of the written Constitution do not exhaust the pertinent American rule or practice of recognition; accepted rules or practices of recognition accord judicial precedent a sometimes authoritative status. In developing this argument, the chapter explores whether Hart's account requires adaptation to provide an adequate explanation of American constitutional practice—which is famously argumentative and not obviously rule-bound—and, if so, what forms the adjustments ought to take. The ultimate goal is to use Hartian positivist theory to illuminate American constitutional adjudication, and especially the role of precedent within it, while deploying American constitutional practice as a prism through which to examine some of Hart's ideas.Less

The U.S. Legal Response to the Protection of the World Cultural Heritage

Neil Brodie, Morag M. Kersel, and Kathryn Walker Tubb

in Archaeology, Cultural Heritage, and the Antiquities Trade

This chapter provides an historical account of the negotiations that preceded the 1983 implementation of the 1970 United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention ... More

This chapter provides an historical account of the negotiations that preceded the 1983 implementation of the 1970 United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention in the United States as the Convention on Cultural Property Implementation Act (CPIA). It also shows that some art museums lined up with anthropology museums during negotiations over the CPIA—but this does nevertheless have a general relevance. In particular, the chapter describes some of the legal remedies that have been adopted for the protection of the world cultural patrimony, both at the international level and, in greater detail, with regard to the legislation of the United States. The chapter gives an overview of some aspects of current U.S. law regulating international trade in antiquities in the United States. The history of the political struggles and compromises that shaped the U.S. Cultural Property Implementation Act in its present form is recounted. Moreover, the chapter offers some suggestions for possible improvements in the Act. It appears to be that the long-term task for archaeologists must be to sensitize both citizens and politicians to the immense loss to historical patrimony that is being caused by the illicit trade in antiquities.Less

Government Moralism

Peter de Marneffe

in Liberalism and Prostitution

The paternalistic argument for prostitution laws does not presuppose that it is inherently wrong or immoral to exchange sex for money. Nor does it presuppose that prostitution laws could be justified ... More

The paternalistic argument for prostitution laws does not presuppose that it is inherently wrong or immoral to exchange sex for money. Nor does it presuppose that prostitution laws could be justified on this ground if it were true. Nor does this argument imply that the government is justified in limiting our sexual freedom in other ways. Prostitution laws justified on paternalistic grounds are therefore not objectionably moralistic. Although the paternalistic argument stated in chapter 1 presupposes that prostitution is “degrading,” and although John Rawls and Ronald Dworkin have argued that the fact that a form of sexual conduct is degrading cannot justify the government in prohibiting it, the paternalistic argument for prostitution laws is nonetheless compatible with liberal principles of liberty. It is misleading to characterize U.S. prostitution laws as “morals legislation” because in U.S. history, the paternalistic justification has been more influential than any purely moralistic one.Less

Justice, Community, and Solidarity in the American Battle over Affirmative Action

Vincent D. Rougeau

in Christians in the American Empire: Faith and Citizenship in the New World Order

This chapter suggests that the way U.S. law approaches race and affirmative action is deeply flawed. This “misrepresentation” has made it impossible for the law to deal honestly and effectively with ... More

This chapter suggests that the way U.S. law approaches race and affirmative action is deeply flawed. This “misrepresentation” has made it impossible for the law to deal honestly and effectively with any number of legal and public policy issues rooted in the nation's experience of race. It is argued that the construction of liberalism now dominant in U.S. law inappropriately directs the legal system toward the creation of “neutral” legal principles and arguments ill suited to dealing with a culturally particularized and communal racial problem, one rooted in the system of race-based chattel slavery. It also challenges a basic assumption of Anglo–American liberalism: that human dignity is most effectively advanced through the promotion of individual freedom and autonomy. This view of the human person neglects the role of culture and community in imparting dignity and meaning to human existence and ultimately dehumanizes politics, the legal system, and civic life.Less

Economic Reasoning and Judicial Review *

Stephen Breyer

in Tom Bingham and the Transformation of the Law: A Liber Amicorum

This chapter deals with the use of economics in the law, and in particular, at the U.S. Supreme Court. It illustrates how the partnership between economy and law functions at the Supreme Court of the ... More

This chapter deals with the use of economics in the law, and in particular, at the U.S. Supreme Court. It illustrates how the partnership between economy and law functions at the Supreme Court of the United States, and considers cases arising in legal fields where the law — if it is to work well — must draw upon insights provided by economists.Less

The Expansion of Modern U.S. Tort Law and Its Excesses

George L. Priest

in The American Illness: Essays on the Rule of Law

This chapter discusses the expansion of the U.S. tort law and its excesses. It first presents a brief history of conceptions of tort law and how they are transformed. It then discusses the rise of ... More

This chapter discusses the expansion of the U.S. tort law and its excesses. It first presents a brief history of conceptions of tort law and how they are transformed. It then discusses the rise of class action. The chapter demonstrates that modern tort law has excesses in liability that have transformed it into a significant instrument of redistribution that places the United States at a significant competitive disadvantage compared with other countries.Less

Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech

Eric Heinze

in Extreme Speech and Democracy

All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been ... More

All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.Less

Modern Laws: 1990–Today

in Knowledge as Power: Criminal Registration and Community Notification Laws in America

Interest in criminal registration laws experienced a dramatic resurgence in the 1990s. While in 1990 only a handful of states had registration laws, by the middle part of the decade registration was ... More

Interest in criminal registration laws experienced a dramatic resurgence in the 1990s. While in 1990 only a handful of states had registration laws, by the middle part of the decade registration was in effect nationwide and was the subject of ubiquitous public attention. Modern-day registration was complemented by community notification, a new social control strategy designed to expand the premise of knowledge empowerment beyond law enforcement to communities as a whole. This chapter chronicles the reemergence of registration and the genesis of community notification, as well as the content of the registration and notification laws themselves. It concludes with a comparison of new- and old-generation laws that, while sharing many similarities, nonetheless differ radically in their reach and requirements.Less

Competition Law and Development: Lessons from the U.S. Experience

Thomas C. Arthur

in Competition Law and Development

This chapter first briefly describes the founding and early development of the U.S. antitrust regime, explaining how it came to take the unique form that it did. It also describes how, and how well, ... More

This chapter first briefly describes the founding and early development of the U.S. antitrust regime, explaining how it came to take the unique form that it did. It also describes how, and how well, the regime works and concludes with lessons for developing countries from the American experience. The primary lessons are (1) a competition law regime should not be established unless a country already has established political and judicial institutions that observe the rule of law, and (2) generalist judges are poorly suited for either the development of competition rules or their enforcement, with the single exception of a per se prohibition of obvious cartels. For everything else, either (1) a single national competition authority with power to both make and enforce policy, reviewed by generalist courts, or (2) a single expert enforcement agency that brings cases to a specialized competition court staffed by experts is far better.Less

Religion as Peoplehood: Indigenous Rights in International Law

Michael D. McNally

in Defend the Sacred: Native American Religious Freedom beyond the First Amendment

This chapter extends the discussion of “Religion as Peoplehood” beyond the very real limits of federal Indian law. It explores the possibilities and drawbacks of increasing appeals to Indigenous ... More

This chapter extends the discussion of “Religion as Peoplehood” beyond the very real limits of federal Indian law. It explores the possibilities and drawbacks of increasing appeals to Indigenous rights under international human rights law. The possibilities of the United Nations Declaration on the Rights of Indigenous Peoples are quite rich, as are its implementation apparatus for protecting Native religions under Indigenous rights. However, without having to define them as such, the approach is slow to grow domestic legal teeth in the United States. Its incremental development as authoritative law can, as this chapter shows, be strengthened by making clearer associations with U.S. religious freedom law.Less

Early Laws: 1930–1990

in Knowledge as Power: Criminal Registration and Community Notification Laws in America

This chapter traces the evolution of American criminal registration laws, starting in the 1930s when cities and counties rushed to enact laws. While motivated by fear of an increasingly mobile and ... More

This chapter traces the evolution of American criminal registration laws, starting in the 1930s when cities and counties rushed to enact laws. While motivated by fear of an increasingly mobile and anonymous breed of professional “gangsters,” the laws in actuality targeted persons with offending histories belying hardened criminal status (a single conviction typically triggered eligibility) and otherwise focused on crimes not typically thought worthy of public safety concern (such as miscegenation). Moreover, the laws swept up newcomer and resident ex-offenders alike, contrary to the ostensible motivating concern over itinerant anonymity. Only later did state governments enact registration laws, with California adopting the nation's first statewide law in 1947; state interest in registration, however, remained limited and sporadic up through the 1980s.Less

Property

Joshua Barkan

in Corporate Sovereignty: Law and Government under Capitalism

This chapter describes the treatment of corporations as a form of private property that occurred within the context of debates over sovereignty, government, and political economy during the late 18th ... More

This chapter describes the treatment of corporations as a form of private property that occurred within the context of debates over sovereignty, government, and political economy during the late 18th and early 19th centuries. It focuses on the reorganization of the corporation as a private institution in U.S. law, and discusses the significance of the 19th-century U.S. legal constructions in establishing a regime of managerial capitalism that anchored U.S. economic growth through the course of the 20th century. The chapter also talks about the U.S. corporate law that has been constituted as an important source for conceptualizing aspects of the global political and economic order.Less

Consider the Source: Evidence and Authority in the Fourth Restatement

Edward T. Swaine

in The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law

This chapter addresses the Fourth Restatement of Foreign Relations Law’s methodology for reckoning U.S. foreign relations law. The Fourth Restatement is a distinctive project: other recent American ... More

This chapter addresses the Fourth Restatement of Foreign Relations Law’s methodology for reckoning U.S. foreign relations law. The Fourth Restatement is a distinctive project: other recent American Law Institute projects touch on international law, U.S. constitutional law, and federal statutes, but none blends these diverse bodies of law so comprehensively. Continuity between the Third Restatement and Fourth Restatement may indeed diminish the odds of any sea changes, but may also show deeper and more sustained tendencies. Most important, discussion of the Fourth Restatement’s methodology may be valuable precisely because it is a work in progress: sufficiently determinate insofar as substantial work is completed, but sufficiently unresolved that criticism, including self-criticism, is constructive. With that in mind, what is the Fourth Restatement exhibiting about how foreign relations law is established and evidenced? As would be expected, it appears to have a conventional sense of how that law is to be reckoned; that is surely easier to accept than had it pursued something untested and unrecognizable to those in the field. At the same time, its methods tend not only to follow a path on which the law is developing but also to reinforce it, and it is worth exploring where discrete choices are being made and might be made differently.Less

An English Lawyer Looks at American Contract Law

Michael Bridge

in The American Illness: Essays on the Rule of Law

This chapter presents a comparative analysis of U.S. and English contract law. It considers the principles and misgiving about unconscionability and good faith, drawing appropriate comparisons with ... More

This chapter presents a comparative analysis of U.S. and English contract law. It considers the principles and misgiving about unconscionability and good faith, drawing appropriate comparisons with English law. The chapter also looks at the main features of Uniform Commercial Code UCC § 2-302 and then assesses its practical impact.Less