scholarly journals Interpretation of Consent Decrees and Microsoft v. United States I: Making Law in the Shadow of Negotiation

2001 ◽  
Vol 1 ◽  
Author(s):  
Lloyd C. Anderson
Keyword(s):  
United States ◽  
Federal Courts ◽  
Consent Decree ◽  
Public Forum ◽  
The Public ◽  
Private Ordering ◽  
Negotiated Settlements ◽  
Consent Decrees ◽  
The Law ◽  
Substantive Law

 People negotiate agreements "in the shadow of the law," whether in the private ordering of affairs such as drafting contracts or in the public forum of settling lawsuits.[1] A reverse phenomenon, however, has gone largely unnoticed: judges occasionally declare law in the shadow of negotiated settlements. In interpreting the terms of a consent decree[2] when the parties themselves cannot agree on what obligations such terms impose, the judge may determine that both the words and the parties' own intentions are so ambiguous that the words must be interpreted in light of the substantive law that gave rise to the plaintiffs' claim. This writer has previously contended that the meaning of an ambiguous term should be determined, in part, "by reference to the constitutional or statutory rights sought to be vindicated in the litigation." Even if the law is somewhat uncertain, part of the judge's interpretive effort should be to determine which interpretation "will best serve the policies of the relevant law."[3] It appears that the federal courts, at least, have adopted this position.[4]

Wells Fargo Asia Ltd. v. Citibank, N.A. Trinh v. Citibank, N.A. Edelmann v. Chase Manhattan Bank, N.A.

1989 ◽  
Vol 83 (3) ◽  
pp. 573-580 ◽  
Author(s):  
Robert J. Dilworth
Keyword(s):  
United States ◽  
Federal Courts ◽  
Control Measures ◽  
Breach Of Contract ◽  
Court Of Appeals ◽  
Exclusive Jurisdiction ◽  
Foreign State ◽  
The Law ◽  
Exchange Control ◽  
Governmental Action

In these three breach-of-contract actions, United States federal courts considered the liability of home offices of U.S. banks for obligations of their foreign branches in the event of foreign governmental expropriation or exchange control measures. In each decision the court of appeals did not apply the act of state doctrine and gave no effect to the foreign governmental action, largely on the ground either that the situs of the debt was not within the exclusive jurisdiction of the foreign state carrying out the governmental measure at issue or that the law governing the obligation was not that of the foreign state.

The New Federal Arbitration Law

2021 ◽  
pp. 203-206
Author(s):  
Julius Henry Cohen ◽  
Kenneth Dayton
Keyword(s):  
United States ◽  
Public Policy ◽  
The United States ◽  
Federal Courts ◽  
Commercial Activity ◽  
Business World ◽  
The Law ◽  
Federal Jurisdiction ◽  
And Control ◽  
At Will

This article focuses on the federal arbitration law. On February 12, 1925, President Calvin Coolidge signed the United States Arbitration Law, which became effective on January 1, 1926. This act reversed the hoary doctrine that agreements for arbitration are revocable at will and are unenforceable, and in the language of the statute itself, they are made “valid, enforceable and irrevocable” within the limits of federal jurisdiction. There are three evils which arbitration is intended to correct: (1) the long delay usually incident to a proceeding at law, in equity or in admiralty, especially in recent years in centers of commercial activity, where there has arisen great congestion of the court calendars; (2) the expense of litigation; and (3) the failure, through litigation, to reach a decision regarded as just when measured by the standards of the business world. The article then argues that the proposed law rests upon the constitutional provision by which Congress is authorized to establish and control inferior federal courts. It also contends that sound public policy demands specific enforcement of arbitration agreements by the law.

scholarly journals The Law of the Public School System of the United States

1916 ◽  
Vol 2 (7) ◽  
pp. 559
Author(s):  
Harvey Cortlandt Voorhees
Keyword(s):  
United States ◽  
Public School ◽  
School System ◽  
The United States ◽  
Public School System ◽  
The Public ◽  
The Law

Remedies

2020 ◽  
pp. 562-574
Author(s):  
Samuel L. Bray
Keyword(s):  
United States ◽  
The United States ◽  
Punitive Damages ◽  
Private Law ◽  
Judicial Process ◽  
Specific Performance ◽  
The Law ◽  
Substantive Law

This chapter describes the law of remedies, which has an independent and relatively coherent existence. It is available to be cross-referenced by the substantive law. This characteristic of remedies as a relatively cohesive body of law, which can be accessed by other bodies of law, is not unusual but is rather an aspect of law’s systematicity. The chapter then outlines the remedies available in private law in the United States. It looks at several themes that are developed in the New Private Law, including the systematicity of law, the distinctiveness of private law, the use of internal and external perspectives on the law, the centrality of the judicial process in the award of a remedy, and the continuing significance of the law of equity. The chapter also considers the competing rationales offered for private law remedies, emphasizing as primary that the defendant is restoring the plaintiff to the plaintiff’s rightful position. It also sketches how contract and tort achieve that goal, primarily through the development of measures and limiting principles. Moreover, the chapter introduces the panoply of remedies offered by equity, such as the injunction, specific performance, equitable rescission, accounting, and constructive trust. Finally, it introduces anomalies: statutory damages, punitive damages, and declaratory judgments.

Preventing Price Fixing by Israeli Banks: Antitrust Rules in Settlement of a Criminal Case

1986 ◽  
Vol 21 (2) ◽  
pp. 177-200
Author(s):  
Lionel Kestenbaum
Keyword(s):  
United States ◽  
Interest Rates ◽  
General Interest ◽  
Major Event ◽  
Supreme Court Justice ◽  
Plea Bargain ◽  
International Diffusion ◽  
Restrictive Trade ◽  
Consent Decrees ◽  
The Law

Israel's Restrictive Trade Practices Law, 1959, after a period of relative quiescence, appears to have become the subject of significant enforcement efforts. A major event reflecting this development was the filing of criminal charges against the country's four leading banks (and a top executive of each) in mid-1984 for illegally combining to fix interest rates paid on negotiable certificates of deposit. The prosecution was eventually resolved early in 1986 by a plea bargain which included another major event – the first negotiation of remedial rules of conduct to prevent future violations (hereinafter the “Bank Rules” or “Rules”), which were hailed by the chief enforcement official, the Controller of Restrictive Practices, as adding an efficient and highly important tool to enforcement of the Law.The Bank Rules are similar to the consent decrees familiar to United States antitrust law. Indeed, the parties and the Chairman of the Restrictive Trade Practices Board, retired Supreme Court Justice D. Bechor, explicitly recognized and discussed the relevance of United States precedents in the proceedings which produced the Bank Rules. Just as the bank case has heightened awareness of the Law, so adoption of the Rules is probably a harbinger of remedies to come. The Bank Rules are thus of considerable practical relevance to counsel concerned with commercial contracts and practices as well as of general interest to those following the international diffusion of antitrust ideas.

In the [Source] C\ode of the Conquerors

2020 ◽  
pp. 124-137
Author(s):  
Nicholas Ravotti
Keyword(s):  
United States ◽  
Digital Divide ◽  
The United States ◽  
Federal Courts ◽  
Appellate Court ◽  
Research Database ◽  
Culturally Appropriate ◽  
Legal Research ◽  
Trial Court ◽  
The Law

The practice of law requires not only an understanding of the law itself (i.e., what the law “says”), but also the ability to conduct proper legal research to formulate cogent legal arguments in support of one's case. For attorneys practicing before state and federal courts in the United States, this is accomplished through the use of legal research databases that catalog and archive nearly all state and federal trial court and appellate court opinions. For attorneys who practice before the 573 federally-recognized Indian tribal courts, this task is far more complex. This chapter discusses the need for a culturally-appropriate legal research database to bridge the digital divide in tribal courts.

Our Spirit Is Not Narrow Bigotry

2020 ◽  
pp. 103-126
Author(s):  
Linda C. McClain
Keyword(s):  
United States ◽  
Civil Rights ◽  
Racial Discrimination ◽  
The United States ◽  
Court Cases ◽  
Religious Leaders ◽  
The Public ◽  
Civil Rights Act ◽  
The Law ◽  
Natural Difference

This chapter studies how arguments about bigotry, conscience, and legislating morality featured in legislative debate over the Civil Rights Act of 1964, particularly the public accommodations provision (Title II). President Lyndon B. Johnson urged clergy to support the act and help the United States overcome bigotry. Religious leaders testified for and against the law. Lawmakers and witnesses supporting the law insisted that the nation’s conscience demanded that Congress pass a law to end bigotry and racial discrimination. Opponents referred to bigotry in multiple ways: they argued that segregation reflected natural difference and God’s plan, not bigotry; that people had a right to be bigoted; and that the act’s supporters were the real bigots. The chapter concludes with two Supreme Court cases upholding Title II relevant to later constitutional challenges to civil rights laws protecting LGBTQ persons: Heart of Atlanta v. United States and Newman v. Piggie Park Enterprises.

Procedure in Cases Involving Immunity of Foreign States in Courts of the United States

1931 ◽  
Vol 25 (1) ◽  
pp. 83-96
Author(s):  
A. H. Feller
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
The United States ◽  
Federal Courts ◽  
Judicial System ◽  
United States Supreme ◽  
Sovereign Immunity ◽  
Procedural Complications ◽  
The Law

To the ever-increasing confusion of doctrine which makes up the law of sovereign immunity, the courts of the United States have added procedural complications which, though not as weighty, are nevertheless as puzzling as any of the substantive rules. Of recent years the United States Supreme Court and the lower Federal courts have often had occasion to consider the method whereby the question of immunity was raised. The result has been the evolution of a set of rules so vaguely defined in the decisions as to offer little guidance to the bench and bar, and withal of interest to the scholar who finds that these rules exist in no other judicial system.

Judicial Deference in Foreign Relations

1989 ◽  
Vol 83 (4) ◽  
pp. 805-813 ◽  
Author(s):  
Jonathan I. Charney
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Rule Of Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Policy Implications ◽  
The Political ◽  
The Rule Of Law ◽  
The Law

Disputes with foreign policy implications have often been brought to the federal courts. These cases call attention to the tension between the authority of the political branches to conduct the foreign relations of the United States and the authority of the courts to render judgments according to the law. How this tension is resolved, in turn, bears directly on the commitment of the United States to the rule of law.

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