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This chapter explores US anti-trust law experience and its influence on thought, expectations, and interpretations of competition law around the world. US anti-trust law has been at the center of competition law development since the end of World War II, and it continues to play the central role in global competition law development. In particular, the centrality of neo-classical economics in US anti-trust law is a controversial and critically important issue for many. Countries everywhere have looked to US law in shaping their own competition law decisions. Moreover, it is the lens through which US officials, scholars, and practitioners have viewed competition law in other countries and on the global level, and this further enhances the need for others and for the US anti-trust community to understand that lens and its influence.

It is no secret that there is widespread dissatisfaction with the prevailing doctrinal approaches to conflict of laws in the United States. The ‘methodologies’ for resolving conflicts problems that compete for judicial attention in the United States coexist uneasily in the Second Restatement, since none has managed to garner sufficient support, and each has been the subject of extensive scholarly and judicial criticism. This chapter suggests that the general dissatisfaction with conflicts as a field in the United States, and its failure to live up to its larger promise, may stem in part from the fact that doctrines and theories fail to address what our moral intuition tells us that conflict problems are about. It takes as its primary example a case of cultural conflict between Native American legal norms and US state and federal law. The conflict between Native American and settler culture is foundational to the political and legal system of which US conflicts is a part, and is arguably the silent background against which questions of the politics of cultural recognition are entertained, defined, or rejected in US cultural, political, and legal life.

This chapter addresses the difficulties encountered when trying to apply national anti-trust/competition law to the activities of international organizations. It demonstrates the fundamentally different approaches of US law focusing on jurisdictional immunity on the one hand, and EC law on the other that relies on a limitation of the intended scope of application of substantive law. On the procedural level, the challenge of acts of this organization is sometimes impeded by the fact that proper service of process is not accomplished. In the Prewitt case, the assessment of proper service was ruled to depend on the assessment of the OPEC Secretary General, amounting in effect to an absolute immunity protection of OPEC. Legislative measures, such as the US NOPEC legislation (No Oil Producing and Exporting Cartels Act) accordingly attempt to abolish obstacles to the exercise of jurisdiction over OPEC.

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.

This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.

This chapter considers whether partnership law as it developed in the United States has evolved to efficiency as a consequence of regulatory competition. Section 6.2 broadly describes partnerships, contrasting the traditional and new varieties, and partnership with corporation. Section 6.3 discusses the forces that have shaped partnerships in the United States, primarily firms' ability to engage in horizontal choice among jurisdictions and vertical choice among business forms. Section 6.4 discusses the evolution in partnership terms wrought by these competitive forces. Section 6.5 presents some implications of the analysis, particularly for present and future European law, while Section 6.6 presents concluding remarks.

In the United States, ‘diminished capacity’ is a generic term that is usually not technical and is often confusing. It applies to a number of claims based on mental abnormality that a criminal defendant can raise at trial to avoid or to diminish liability for the crime charged. It is also raised at sentencing to reduce a convicted defendant's sentence. To understand diminished capacity in US law, including the relevance of neuroscience and privacy concerns, it is first necessary to understand the structure of criminal liability, which is quite similar to English law. This chapter begins with an overview of US law. It then turns to a legal and moral analysis of the specific claims that are encompassed by the term ‘diminished capacity’. With this background in place, the chapter next considers the relevance of neuroscience to these claims and whether raising and adjudicating them involves serious concerns about privacy. It concludes that neuroscience has little relevance today to most diminished capacity claims and that privacy is not a major problem. In the future, however, neuroscience may be more relevant depending upon what it discovers about the relation between the brain and the criteria for criminal responsibility.

This chapter discusses the internationalization of US policing. It focuses on the distinct traits of international policing with US involvement as well as the dimensions of US law enforcement which involve connections with their counterparts in Europe. It begins by discussing the international issues that occupied the early efforts of US policing, such as slavery, immigration, and the expansion of the US frontier. It also describes the founding of a multitude of international organizations and development of initiatives in the areas of international criminal law and punishment. Finally, it discusses the technological innovations in international policing from the middle of the 19th century onwards.

This chapter describes the different tax treatments of US tax corporations and US tax partnerships, as well as the Internal Revenue Service's (IRS) and the court's original position that unincorporated businesses cannot possess a majority of corporate business characteristics and be taxed as partnerships. It then considers the genesis of the limited liability company (LLC) form and the process by which the IRS abandoned its historic approach and divorced income tax classification from business characteristics. The chapter concludes by addressing normative and theoretical questions that went unanswered during the ensuring period of rapid statutory change, and by posing questions concerning the interplay of independent federal and state regimes in business organization law.

This chapter discusses the regulation of international equity offerings and listings. Topics covered include strategies for developing a regulatory framework for international offerings; the EU regulatory framework for cross-border offers and listings of securities; listing requirements and concessions for foreign issuers; and a comparison of US and EU regulatory frameworks for public offers and listings of securities.

This chapter shows that the general architectural features of partnership law in the US and England involves a basic design choice and are in turn offset by various statutory provisions. There are a number of doctrinal and statutory provisions in the the Uniform Partnership Act (UPA) and Revised Uniform Partnership Act's (RUPA) that serve to mitigate the risk of wrongful dissolution and dissociation. However, these mitigating elements are far from efficient, and most agree that parties should be permitted to create a binding agreement that accurately reflects the benefit of the partnership.

Deceptive advertising harms people in much the same ways as deception in sales and tends to be wrong for the same reasons. Deceptive ads harm consumers by causing them to have false beliefs about the nature of the products being advertised and thereby causing them to make different purchasing decisions than they would have made otherwise (and purchase things unsuitable for their needs). This chapter presents examples of deceptive ads that harm consumers and argue that running such ads is morally wrong. The chapter's arguments appeal to the presumption against harmful deception established in Chapters 6–8. The chapter then examines US laws regarding deceptive advertising. The law prohibits deceptive advertising, but it defines “deceptive advertising” too narrowly. US law frequently permits what is, in fact, deceptive advertising; therefore, following US laws is not an adequate ethical standard for advertisers. The chapter also addresses the objection that deceptive advertising is permissible if one's competitors are putting one at a disadvantage by means of their own deceptive practices.

This chapter examines whether the principle of proportionality should be relevant to investor–State arbitration. It first examines the role of the principle of proportionality in various domestic legal systems, in particular in Germany, Canada, South Africa, Israel, and the USA. It then discusses three main concerns regarding proportionality that arbitrators should assess before applying proportionality in a particular normative setting: firstly, unwarranted judicial law-making; secondly, the rule of law; and, thirdly, the risk of arbitrary outcomes due to the lack of a relevant value system. Next, it considers the role of proportionality in several subsystems of international law and shows that—as a matter of principle—proportionality is transposable to the international level. It sheds light on the typical situations in which international courts and tribunals resort to proportionality, and how these bodies deal with specific issues that arise when applying proportionality.

Eighteenth-century Europeans and eastern Indians of North America shared in how they structured international alliances as being either (1) between nations relatively equal in power, as in peace treaties that ended European wars and in “one dish and one spoon” alliances among Indians, or (2) between a strong and weak nation, transpiring usually when a weak and battered refugee people moved onto a stronger nation's territory and became tributary to them. German Protestants and French Huguenots, for example, settled in Anglo-America in distinct, autonomous communities but were subordinate in international affairs to whichever English colony their settlement was in. Similarly, the Iroquois Confederacy took in the Tuscaroras and many smaller refugee nations, and the Creek Confederacy included in its network the Yuchis, a self-governing people yet subject to the Muskogean-speaking peoples of the Creek Confederacy in their foreign relations. These arrangements are very similar to the concept of “domestic dependent nations,” a concept put into law by Supreme Court Chief Justice John Marshall's decisions in Cherokee Nation vs. Georgia (1831) and Worcester vs. Georgia (1832), suggesting that contemporary US Indian law has roots in the ancient traditions of international relations as practiced by both Indians and Europeans.

Part Three of this book is a reflection of Part Two in the US context. This chapter discusses the way in which transport inequalities have moved to the forefront of the US transport-policy agenda in recent years under the banner of the environmental-justice movement. It describes the origins of environmental justice through the American Civil Rights movement and identifies the mechanisms by which concerns about transport inequity have increasingly influenced this agenda and been taken up by US Federal Law.

This chapter argues that lawfare has provided a valuable check on the some of the worse abuses of the US’s War on Terror, such as its use of torture, extraordinary rendition, and enhanced interrogation techniques. While lawfare was originally understood as akin to warfare by legal maneuvers, more recently advocates have employed it as one of the few ways available to oppose and document abuses by states such as the US. “Lawriors” have successfully sued to extend habeas corpus rights for prisoners at Guantanamo Bay military prison, as well as to suppress confessions extracted from US detainees under torture. While defenders of the Bush administration have criticized the use of lawfare, and lawriors have often failed in their legal maneuvers, this chapter argues that lawfare has improved conditions for some of those the US has tortured or otherwise detained without just cause. It also argues that, in the long run, such judicial battles are valuable for supporting constitutional norms and commitments the US has made to uphold international law, such as its prohibition on torture.

This chapter focuses on the accomplishments of the decade-long reform of unincorporated law. It identifies three essential features involved in the US experience. It argues that norm entrepreneurs proceeded without a coherent, underlying theory to guide their experimentation. They acted because it was in their power to do so and not because of any consensus-based justifications.

This chapter examines the major pitfalls in partnership law reform based on the Revised Uniform Partnership Act's (RUPA) experience. It identifies two major pitfalls: a failure to learn from history and a failure to state clear, concise, and coherent principles. The best way to avoid these pitfalls is by properly harnessing available expertise and political support.

Financial innovation is the engine driving the financial system toward improved performance in the real economy. The conventional view of financial instruments is based upon the categorical distinction between debt and equity, but financial innovations have evolved less as distinct categories than as a range of financial technologies involving characteristics of both, and in the high‐yield market, innovative debt securities have emerged, which have added value by various means. During the US recession and credit crunch of 1974, many companies (especially small and medium‐sized enterprises and emerging firms) learned that capital access was no longer guaranteed on the basis of profits or success. With dramatic changes in the world economy, companies required innovative securities to provide them with the financial freedom necessary to survive and grow, to enhance their flexibility in managing the capital structure of their firms in changing times, and to finance their objectives for accomplishing corporate growth strategies. These issues are addressed in different sections of this chapter as follows: The corporate finance revolution; Financial innovation and growth; Categorizing financial innovations – an elaboration of some of the more recent and innovative financial instruments that have evolved with and from the high‐yield market; The rise of the placement market: Rule 144A – which permits private placements to be freely traded among qualified institutional buyers (QIBs); Efficiency gains from Rule 144A; Implications of the ‘aircraft carrier’ proposal – a proposal to overhaul US securities laws and reduce private placements by encouraging companies to issue stocks and bonds through public offerings; Structured finance: collateralized debt obligations; Collateralized loan obligations; and Collateralized bond obligations.