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The Local Law of Global Antitrust 全球反托拉斯的地方法律
Pub Date : 2001-03-16 DOI: 10.2139/SSRN.263841
E. Swaine
Antitrust is a brief for the uselessness of international law. Notwithstanding the apparent utility of international cooperation in accommodating global economic activity and reconciling the flourishing of national antitrust regimes, there is little by way of binding agreement or customary international law. Indeed, any "reasonableness" constraint on unilateral antitrust jurisdiction has largely been repudiated, in part because of the problematic role it describes for federal courts, and even beforehand was being held out as proof of the incoherence and irrelevance of custom. This article argues that existing doctrine, and its attempted repudiation, are both entirely misconceived. After examining the limits of existing international arrangements, I set out a new, general methodology for identifying what I term "local international law" - a process for evaluating potential custom that begins with the norm's potential application to particular members and subjects-matter within the international community, and its articulation, adaptation, and enforcement in domestic circumstances. Special custom, applicable through the interpretation of federal statutes in a fashion sensitive to local actors, permits us to overcome many of the universalist flaws that afflicted the reasonableness approach. Applying this theory to antitrust, I advocate recognizing antitrust comity, a principle requiring consideration of certain nations' legitimate interests, in particular the prospects for coordinated regulation of international antitrust matters among OECD members. This principle, and the underlying method, permit a fresh look at the diverse means of enforcing U.S. antitrust law. While antitrust comity binds the federal agencies, it does not directly constrain private enforcement; most controversially, it reflects constitutionally-premised limitations on the ability of state government enforcers to conduct the necessary intergovernmental relations, limits best mediated through a federal-state protocol that brings international antitrust comity home.
反托拉斯是国际法无用性的简要说明。尽管国际合作在适应全球经济活动和协调国家反垄断制度的繁荣方面明显有用,但几乎没有具有约束力的协议或习惯国际法。事实上,对单边反垄断管辖权的任何“合理性”约束在很大程度上都被否定了,部分原因是它为联邦法院描述的有问题的角色,甚至在此之前就被认为是惯例不连贯和无关紧要的证据。本文认为,现有的学说,以及它的企图否定,都是完全错误的。在考察了现有国际安排的局限性之后,我提出了一种新的、通用的方法来确定我所说的“当地国际法”——一个评估潜在习俗的过程,从规范对国际社会特定成员和主题的潜在应用开始,以及在国内情况下的表述、适应和执行。特殊的习惯,适用于以一种对地方行为者敏感的方式解释联邦法规,使我们能够克服许多普遍主义的缺陷,这些缺陷折磨着合理性方法。将这一理论应用于反垄断,我主张承认反垄断礼让,这一原则要求考虑某些国家的合法利益,特别是经合组织成员国之间协调监管国际反垄断事务的前景。这一原则及其基本方法,使我们能够对美国反垄断法的各种执行手段有一个全新的认识。虽然反垄断礼让约束着联邦机构,但它并不直接约束私人执法;最具争议的是,它反映了宪法对州政府执法者处理必要的政府间关系的能力的限制,这些限制最好通过联邦-州协议来调解,从而将国际反垄断礼让带回到国内。
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引用次数: 6
Why Political Reliance on Religiously Grounded Morality Does Not Violate the Establishment Clause 为什么政治上对宗教基础道德的依赖并不违反政教分离条款
Pub Date : 2001-03-01 DOI: 10.2139/ssrn.262676
M. Perry
I say, sir, that the purity of the Christian church, the purity of our holy religion, and the preservation of our free institutions, require that Church and State shall be separated; that the preacher on the Sabbath day shall find his text in the Bible; shall preach "Jesus Christ and him crucified;" shall preach from the Holy Scriptures, and not attempt to control the political organizations and political parties of the day. --Senator Stephen A. Douglas(1) Imagine a legislator who must decide whether to vote to outlaw, or otherwise disfavor, particular conduct--abortion, for example, or same-sex unions. She wonders what weight, if any, she should put on her religiously grounded belief that the conduct is immoral; in particular, she worries that it might not be appropriate for her to disfavor the conduct on the basis of her religiously grounded moral belief.(2) In another essay in the series of which this Essay is a part,(3) I argue that the morality of liberal democracy does not counsel her against disfavoring the conduct on the basis of religiously grounded moral belief.(4) In this Essay, I pursue a different but, for us citizens of the United States, complementary inquiry: Does the United States's constitutional morality of religious freedom--in particular, the requirement that government not "establish" religion--forbid government to disfavor conduct on the basis of a religiously grounded belief that the conduct is immoral? That the morality of liberal democracy does not counsel a legislator or other policymaker against disfavoring conduct on the basis of religiously grounded moral belief does not entail that the nonestablishment norm (as I prefer to call it) permits government to disfavor conduct on the basis of religiously grounded moral belief. As I have explained elsewhere, the nonestablishment norm that is part of American constitutional law is, in some respects, more restrictive than the morality of liberal democracy; in some respects, the limitations placed on government by the nonestablishment norm are greater than, they go beyond, the limitations placed on government by the morality of liberal democracy.(5) The First Amendment to the Constitution of the United States famously insists that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Yet, according to the authoritative case law--law that is constitutional bedrock in the United States(6)--it is not just "Congress" but all three branches of the national government that may not prohibit the free exercise of religion, abridge the freedom of speech, etc. Moreover, it is not just the (whole) national government but the government of every state that may not do what the First Amendment forbids. I have suggested elsewhere that there is a path from the text of the Firs
先生,我说,为了基督教会的纯洁,为了我们神圣宗教的纯洁,为了维护我们的自由制度,我们必须政教分离;讲道的人在安息日要在圣经中找他的经文;宣讲“耶稣基督和他钉十字架”;宣讲圣经,不试图控制当时的政治组织和政党。想象一下,一位立法者必须决定是否投票禁止或反对某些行为,例如堕胎或同性婚姻。她想知道,如果她认为这种行为是不道德的,那么她应该给予多大的重视。(2)在本系列的另一篇文章(本文是该系列文章的一部分)中,(3)我认为,自由民主的道德并没有劝告她反对基于宗教基础的道德信仰而反对这种行为。(4)在这篇文章中,我追求一种不同的、但对我们美国公民来说是互补的探究:美国宪法对宗教自由的道德要求——特别是政府不得“确立”宗教的要求——是否禁止政府以宗教信仰为基础,不赞成不道德的行为?自由民主的道德不建议立法者或其他政策制定者反对基于宗教基础的道德信仰的不利行为,但这并不意味着非建制规范(我更喜欢这样称呼它)允许政府不赞成基于宗教基础的道德信仰的行为。正如我在其他地方所解释的那样,作为美国宪法一部分的非建制规范在某些方面比自由民主的道德更具限制性;在某些方面,非国教规范对政府施加的限制比自由民主道德对政府施加的限制更大,甚至更大。(5)美国宪法第一修正案著名地坚持“国会不得制定有关国教或禁止信教自由的法律;或剥夺言论或出版自由;以及人民和平集会和向政府请愿讨回冤屈的权利。”然而,根据作为美国宪法基石的权威判例法(6),不仅是“国会”,国家政府的所有三个部门都不得禁止宗教自由、限制言论自由等。此外,不仅是(整个)国家政府,而且每个州的政府都不能做第一修正案所禁止的事情。(7)但是,即使没有这样的道路,它仍将是美国宪法的基石,即无论是国家政府还是州政府都不得禁止宗教自由或建立宗教(或限制言论自由或新闻自由);(8)对于21世纪初的美国人来说,严肃的实际问题已不再是"集会自由"和"非建制"准则是否适用于包括州政府在内的整个美国政府。它们确实适用。没有回头路可走。自由行使和非建制规范的主权凌驾于美国政府的每一个部门和层面——特别是他们对州政府和国家政府的主权——正如我所说,现在是美国的宪法基石。…
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引用次数: 6
Definite Articles: Using the Law Review Article Type Indicator® to Make Law Review Publishing Decisions 定冠词:使用法律评论文章类型指标®做出法律评论出版决定
Pub Date : 2000-12-01 DOI: 10.2139/SSRN.1102806
Eric A. Chiappinelli
Each year close to two thousand law review articles are circulated among about two hundred student-edited law journals. As a result, Law reviews around the country spend upwards of three thousand hours a year screening potential articles for publication. This process is exhausting for both authors and editors alike. The core problem in the law review article selection process is the information asymmetry between authors and law reviews. This article presents a tool, the Law Review Article Type Indicator (LRATI) that aims to reduce the information disparity, in turn making the article selection process less time consuming, more fruitful, and generally more pleasant for law review editors and authors. To achieve this end, the LRATI employs four bipolar scales that systematically evaluate both the author and the submission in an effort to ensure that law reviews only publish author's who are "stars" or "keepers", or at the very least "fillers" while eliminating with ease any and all "losers." This article argues that if law reviews implement the LRATI, the selection of law review articles will be quicker, more accurate, and will take place with less rancor and fewer interpersonal conflicts than ever before.
每年有近2000篇法律评论文章在大约200份由学生编辑的法律期刊上发表。因此,全国各地的法律评论人士每年要花费3000多个小时来筛选可能发表的文章。这个过程对作者和编辑来说都是累人的。法律评论文章选择过程中的核心问题是作者与法律评论之间的信息不对称。本文介绍了一种工具,法律评论文章类型指标(LRATI),旨在减少信息差异,从而使文章选择过程更少耗时,更富有成效,并且对法律评论编辑和作者来说更愉快。为了达到这一目的,LRATI采用了四种双极量表,系统地评估作者和提交的材料,以确保法律评论只发表“明星”或“守护者”的作者,或者至少是“填充者”,同时轻松消除任何和所有“失败者”。本文认为,如果法律评论实施LRATI,法律评论文章的选择将更快、更准确,并且将比以往更少地发生怨恨和人际冲突。
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引用次数: 0
Rethinking the History of American Freedom 重新思考美国自由的历史
Pub Date : 2000-05-01 DOI: 10.2139/SSRN.223776
M. Klarman
This essay looks at three issues concerning freedom in American history. First, it examines competing conceptions of freedom--positive/negative and individual/political-and considers whether the equal validity of these competing conceptions makes freedom such a malleable concept that it is vacuous. In other words, freedom apparently can be invoked with equal plausibility on either side of any significant political dispute. Second, the essay seeks to identify the circumstances or conditions under which particular freedoms prosper and expand. Third and finally, it considers the complex and sometimes paradoxical role that courts have played in the history of American freedom.
这篇文章着眼于美国历史上有关自由的三个问题。首先,它考察了自由的竞争概念——积极/消极和个人/政治——并考虑这些竞争概念的同等有效性是否使自由成为一个可塑的概念,以至于它是空洞的。换句话说,自由显然可以在任何重大政治争端的任何一方以同样的理由被援引。其次,本文试图确定特定自由繁荣和扩展的环境或条件。第三,也是最后,它考虑了法院在美国自由历史上所扮演的复杂的、有时是矛盾的角色。
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引用次数: 2
Misconceived laws: the irrationality of parental involvement requirements for contraception. 误解的法律:父母参与避孕要求的不合理性。
Pub Date : 2000-03-01
J R Arons
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引用次数: 0
Moral Reasons and the Limitations of Liberty 道德原因与自由的局限性
Pub Date : 1999-03-01 DOI: 10.1093/acprof:osobl/9780199764396.003.0011
J. Murphy
I find myself in substantial agreement with Professor Dworkin, and I find this deeply disturbing - not merely because it will make my role as his commentator more difficult, but also for reasons of a more personal nature. In Bowers, however, this distinction was lost on Justice White; for in Bowers, once he had decided that citizen disapproval of homosexual sodomy was moral disapproval, he concluded that the rational basis test had been satisfied, with no inquiry at all into the question of whether the moral judgment involved is a rational or reasonable moral judgment or perhaps simply a judgment of unexampled stupidity, ignorance, prejudice, and animus. By arguing that disapproval of homosexuality may not be moral disapproval and that moral disapproval of homosexuality may not be rational, I have tried to fill out in some detail my reading of two of Professor Dworkin's claims - the claim that our thinking about issues such as homosexuality requires a plausible account of what is involved in the making of moral judgments, and the claim (made in the final sentence of his essay) that the reason that homosexual conduct ought not to be criminalized is that there is nothing immoral in such activity.
我发现自己在很大程度上同意德沃金教授的观点,我发现这一点非常令人不安——不仅因为这将使我作为他的评论员的角色变得更加困难,而且出于更个人的原因。然而,在鲍尔斯案中,这种区别在怀特法官身上消失了;因为在鲍尔斯案中,一旦他决定公民对同性恋鸡奸的反对是道德上的反对,他就得出结论,理性基础测试已经得到满足,而根本没有探究所涉及的道德判断是理性的或合理的道德判断,还是仅仅是一种前所未有的愚蠢、无知、偏见和敌意的判断。通过论证对同性恋的反对可能不是道德上的反对,对同性恋的道德上的反对可能不是理性的,我试图在一些细节上充实我对德沃金教授的两个观点的阅读——一个观点是,我们对同性恋等问题的思考需要一个合理的解释,即在做出道德判断时涉及到什么;他声称(在他文章的最后一句话中)同性恋行为不应该被定为犯罪的原因是,这种行为没有什么不道德的。
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引用次数: 8
The Constitution in Congress: Jefferson and the West, 1801-1809 国会中的宪法:杰斐逊和西部,1801-1809
Pub Date : 1998-05-01 DOI: 10.1163/2468-1733_shafr_sim030170092
David P. Currie
The original understanding of the Constitution, I wrote not so long ago, was forged not in the courts but in Congress and the executive branch.(1) That was true of the Federalist period, the first twelve years under the new Constitution--a time of great constitutional controversies involving such matters as the Bank of the United States, the Jay Treaty, and the Alien and Sedition Acts and of quaint and curious squabbles now largely forgotten: what to call the president, whether he must accept a salary, how the vice president signs a bill. Some of these disputes sound petty, but even they helped to define what kind of country the United States would be. All of them were initially, and many of them finally, fought out in the executive and legislative branches. The same was true of the years that followed, when Thomas Jefferson was president. Jefferson's inauguration was a significant victory for the new system, a peaceful transfer of power from one political party to another, which at the time was not to be taken for granted.(2) "We are all Republicans," he said in his inaugural address, "we are all Federalists."(3) It was a breath of fresh air. Jefferson's brave words, of course, did not put an end to controversy. His presidency was another exciting time: the Burr conspiracy, the embargo, the war against the Barbary pirates--in which Jefferson, following Washington's example, took a refreshingly narrow view of the president's powers as commander in chief.(4) The Twelfth Amendment, designed with the simple goal of avoiding the near disaster of the 1800 election, proved to be a surprising can of worms, a monument to the difficulty of constitutional drafting.(5) In the great Court fight of Jefferson's first term, which rivaled that of the 1930s, judicial independence suffered grave setbacks in the repeal of the Judiciary Act and the removal of Judge Pickering, only to emerge more firmly entrenched than ever after the dramatic acquittal of Justice Samuel Chase.(6) Jefferson's presidency was also a time of significant events in westward expansion: the admission of Ohio, the Louisiana Purchase, and the beginnings of the Cumberland Road. Each of these events raised fundamental constitutional questions. Each was extensively debated in Congress and in the executive branch, not in the courts. And each served as an important precedent when similar issues arose again. I. OHIO The Northwest Ordinance contemplated the creation of three to five new states in the territory ceded by individual states to the Union after the Revolution.(7) As soon as any of the areas defined in the Ordinance had sixty thousand free inhabitants it was to be admitted to statehood, and Congress was directed to admit it earlier if that was "consistent with the general interest of the confederacy."(8) Settlement of the Northwest was retarded, however, by hostile Indians; the first western states admitted were Kentucky and Tennessee.(9) Then Mad Anthony Wayne defeated the Indians at Falle
我不久前曾写道,对宪法的最初理解不是在法庭上形成的,而是在国会和行政部门形成的。(1)在联邦主义时期,在新宪法实施后的头12年里,情况就是如此——这段时间里存在着巨大的宪法争议,涉及美国银行、《杰伊条约》、《外国人法》和《煽动叛乱法》等问题,也发生过离奇古怪的争吵,现在这些争吵基本上被遗忘了。如何称呼总统,他是否必须接受薪水,副总统如何签署法案。其中一些争端听起来微不足道,但即便如此,它们也有助于定义美国将成为什么样的国家。最初,他们中的许多人最终都在行政和立法部门进行了斗争。在托马斯·杰斐逊(Thomas Jefferson)担任总统之后的几年里,情况也是如此。杰斐逊的就职典礼是新体制的一次重大胜利,权力从一个政党和平地转移到另一个政党,这在当时并不是理所当然的。“我们都是共和党人,”他在就职演说中说,“我们都是联邦党人。”当然,杰斐逊的豪言壮语并没有结束争论。他的总统任期是另一个激动人心的时期:伯尔阴谋、禁运、对巴巴里海盗的战争——在这些事件中,杰斐逊以华盛顿为榜样,对总统作为三军统帅的权力持一种令人振奋的狭隘看法。第十二条修正案的设计目的很简单,就是为了避免1800年大选的近乎灾难,但事实证明,它是一个令人惊讶的棘手问题,是宪法起草困难的纪念碑。司法独立在《司法法案》的废除和皮克林法官的免职中遭受了严重的挫折,而在塞缪尔·蔡斯法官戏剧性的无罪释放之后,司法独立比以往任何时候都更加稳固。杰斐逊的总统任期内也发生了重大的西部扩张事件:加入俄亥俄州、购买路易斯安那州和坎伯兰路的开始。这些事件都提出了根本的宪法问题。每一个都在国会和行政部门进行了广泛的辩论,而不是在法院。当类似的问题再次出现时,每一个都成为了重要的先例。i俄亥俄州西北条例考虑创建三到五个新的州各州所放弃的领土后工会革命。(7)一旦条例》中定义的任何地区有六万居民自由承认建国,和国会早些时候针对承认如果这是“邦联的总体利益一致。”(8)解决西北迟钝,然而,充满敌意的印第安人;第一个被接纳的西部州是肯塔基州和田纳西州。(9)然后疯狂的安东尼·韦恩在倒下的木材打败了印第安人,杰伊的条约驱散了他们的英国保护者,托马斯·平克尼的条约打开了密西西比河对西部货物的大门。(10)东部地区的人口突飞猛进地增长,它与其余部分分开,被命名为“印第安纳地区”。(11)到1802年,许多东部地区的居民敲着国会的门,希望加入联邦。(12)尽管1800年的人口普查报告显示东部地区的人口只有45,365人,但一个众议院委员会建议授权东部地区的居民“自行制定宪法和州政府”。(13)国会同意了,(14)但在众议院的辩论中也发生了一些流血事件。问题是,并不是每个人都赞成立即成为一个州。总督阿瑟·圣克莱尔没有;领土立法机构没有;国会的领土代表保罗·费宁也不同意。…
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引用次数: 2
The Rise and Fall of Supreme Court Concern for Racial Minorities 最高法院对少数种族关注的兴衰
Pub Date : 1995-01-01 DOI: 10.4324/9781315053592-12
J. Nowak
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引用次数: 2
Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors 像跑步者一样脱衣还是经验丰富:法官和陪审员的偏见与公正
Pub Date : 1992-01-01 DOI: 10.4324/9781315093727-19
M. Minow
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引用次数: 19
The furor over psychotherapist-patient sexual contact: new solutions to an old problem. 对心理治疗师与患者性接触的愤怒:一个老问题的新解决方案。
Pub Date : 1991-01-01
L Jorgenson, R Randles, L Strasburger
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引用次数: 0
期刊
William and Mary law review
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