Contenu du sommaire : Droit et affaires aux Etats-Unis.

This is to serve both as an introduction to the various themes dealt with in this issue and a development of points that can help a better understanding of what follows. The article first emphasizes the problem of access to Justice and the obstacles to equality primarily in financial and psychological terms. Then a few major characteristics of American law, such as the complexity of the Court system (both federal and state) and that of juris dictional rules and rules of procedure (FRCP) as illustrated in the dispute between Pennzoil and Texaco. Finally the role of the popular jury — in the award of damages — and the existence of contigency fees can help explain the dangers of product liability and the crisis of the insurance market in the United States.

Often criticized, the significance of law and lawyers in America is not fortuitous : it is at the heart of a liberal conception of democracy and of the relation ship beyween the civil and political spheres. In a very large number of concrete areas, as well as at a general ideological I vel, law and lawyers play the role that is in France reserved to the State. The U.S. Constitution organizes the legal regulations that govern the operation of public powers, civil society and the interface between the two. It guarantees pluralistic sources of law and their autonomy vis-a-vis any public power whatsoever. The result is a social and political system that may be characterized metaphorically as a « contractual society ».

This short study has been put together in order to show the differences in the American economic policies between the XIXe and XXth centuries, more especially since the New Deal period. In such an evolution, the Supreme Court played an important role, through a new interpretation of the commerce clause. This was done progressively, and sometimes without seeing really where the President and Congress should go, and which method should be used. But the true difference between the old onception and that which resulted from the Roosevelt and Truman administration seems to be the death of the old distrust towards interventionism.

There has been a « state » in the United States, powerful and strong, since Americans built a second constitution in 1787. The judiciary, at all levels, is part and parcel of the state, as much as the other branches of government. Those branches of government are not independent but separate, with mutual checks : they all produce « law », through its making and its interpretation. Citizens, often hard-put to he beard by judges, were long deprived of their rights and a balance has still not been achieved between civil society and a dominant state.

In American law, the « business judgement rule » provides special protection to informed business decisions made by directors of corporations. Provided the decision is made after due deliberation by disinterested directors (i.e directors who have no personal interest in the matter), a court should refuse to review their decision and it should automatically dismiss a shareholder suit against them. The basic policy underpinning the rule is that corporate law should encourage, and afford broad protection to informed business judgements (whether subsequent events from the judgements right or wrong) in order to stimulate or at least not inhibit risk taking, innovation and other creative activities. The rule is wise, but its application may raise difficulties. In the text, when a shareholder in the name and in the interest of the corporation, introduces a derivative action against the directors, if the latter submit the question to an independent committee and the committee, after due deliberation, considers the action without merit, the directors should be able to take a resolution which, under the rule, would bind the judge and oblige him to dismiss the suit. In fact, the courts have decided that the judge was still able to examine the suit on its merit. Similarly, when the corporation is the target of a take-over bid, the directors often take defensive measures after discussion with their legal and financial advisers. If the matter has been duly considered, they should be protected from any suit. In fact, discussion arises very often on the question whether the conditions of application of the business judgement rule were fulfilled in the circumstances. Two examples are considered in the article, and it is not exceptional that a judge can give a judgement of liability.

Large law firms in the United States make up only a small proportion of the bar, but they are considered powerful elites. The theories of professionalism are curiously out of place in regard to these institutions. Acting and functioning like the businesses they serve, they require new forms of theory for us to understand their role in the late twentieth century. The beginnings of such theory are suggested here. Furthermore, the demographic profTe of the elite bar and two case studies of what large law firms actually do are presented.

Since the early 1980's, America's trade policy has been gradually reverting to protectionism for many reasons. The growing trade deficit, pressure from business circles and Congress' will to better protect domestic industries have led to the implementation of various measures whose sole object is to bar foreign imports. The weapons range from customs regulations (apparently simple but often discriminatory) to antidumping litigation and countervailing duties. The legislative branch is primarily responsible for their enactment and American firms are increasingly using them.

The federal antitrust laws of the United States used to enforce competition, to disperse power and benefit consumers have recently achieved a level of prominence in public discussion due to an explosion of antitrust actions and the launching of a campaign on competitiveness by the Reagan administration. The purposes, politics and history of reflect a century of economic growth, oscillating between concentration and fragmentation. As examples of the American policy against monopolies, the IBM and AT & T cases, extraordinary in length, costs and impact, indicate alternative judicial answers enforcing divestiture or accepting internal concentration to emulate international competition.

This article shows how fifty years of the primarily judge - made law of product liability has resulted in the present situation : consumer protection, a heavy burden on manufacturers and an insurance crisis — The emphasis is laid on the different theories of product liability, on the ways to cope with safety breaches. Examples are given of non judicial settlements of disputes.

The approaching entry into force (in France as well as in the United States) of the Convention of Vienna of April 10, 1980 on Contracts for the International Sales of Goods will be an important event in the harmonization of greatly differing concepts in this area of law. The Convention has not adopted certain elements of the anglo-saxon contract such as consideration, but at the same time is comprised of other principles which are unknown to French Law. It is, certainly, much like American Law, at the very least in the way in which it regulates the strictly private relations between contracting parties, more liberal than French Law. However, adoption of the Convention, will cause certain difficulties, as, for example, when a French court interprets the idea of fundamental breach or anticipatory breach. More than ever, the submission of export contracts to American law must be considered.

One of the most recurrent questions with which a lawyer drafting an international commercial agreement is confronted is the choice between arbitration and judicial proceeding as the mode of dispute resolution. It is often said that arbitration should always be preferred particularly when one of the parties to the agreement is an American citizen or is one who possesses interests in the United States. This article delineates the line of reasoning which allows a practitioner to take into consideration one element which is often neglected or taken for granted, i.e. the compared easiness for recognition and enforcement of foreign judgments and arbitral awards. The author reaches the conclusion that although, at present time, it is still easier to enforce an award in the United States, the growing liberalism of American Courts towards foreign judgments should allow the practitioner to consider seriously avoiding arbitration, particularly when the figures of the agreement at stake are not very high.

The intellectual group briefly coalescing around The Seven Arts in 1916-17 discussed many of the central issues if its age, such as America's entry into the war, the state of American culture, the cultural implications of America's immigrant history, cultural renewal through technical inventions like film and photography. This article focusses on the point of intersection of the latter two lines of argument where photography meets the immigrant.