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Articles 1 - 30 of 44
Full-Text Articles in Law
The Erie Doctrine: A Flowchart, Michael S. Green
The Erie Doctrine: A Flowchart, Michael S. Green
Faculty Publications
No abstract provided.
The Return Of The Unprovided-For Case, Michael S. Green
The Return Of The Unprovided-For Case, Michael S. Green
Faculty Publications
No abstract provided.
Abortion, Moral Law, And The First Amendment: The Conflict Between Fetal Rights & Freedom Of Religion, Barbara Pfeffer Billauer
Abortion, Moral Law, And The First Amendment: The Conflict Between Fetal Rights & Freedom Of Religion, Barbara Pfeffer Billauer
William & Mary Journal of Race, Gender, and Social Justice
The status of abortion as murder, and therefore amenable to governmental intervention and criminalization, has been asserted by those favoring limits on abortion. Opponents claim a superior right of privacy and/or equality exists under the Constitution, vesting in a woman the right to decide activities and actions that affect her physical corpus. The claimed interest of a State to protect the fetus is impliedly based on the concept of “morality” or “natural law,” specifically on the premise that feticide is violative of the basic code of conduct of societal norms. To my knowledge, until now, this is the first investigation …
Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen
Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen
William & Mary Bill of Rights Journal
This Article argues that procedural due process can be understood as a choice of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law—personal notice, oral hearing, neutral judge, and jury trial—and summary procedures employed in administrative agencies.
This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a …
Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen
Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen
William & Mary Law Review
Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.
Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge
Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge
William & Mary Business Law Review
The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …
Property, Exclusivity, And Jurisdiction, James Y. Stern
Property, Exclusivity, And Jurisdiction, James Y. Stern
Faculty Publications
No abstract provided.
Can Erie Survive As Federal Common Law?, Craig Green
Can Erie Survive As Federal Common Law?, Craig Green
William & Mary Law Review
No abstract provided.
Untethered Norms After Erie Railroad Co. V. Tompkins: Positivism, International Law, And The Return Of The "Brooding Omnipresence", Lea Brilmayer
Untethered Norms After Erie Railroad Co. V. Tompkins: Positivism, International Law, And The Return Of The "Brooding Omnipresence", Lea Brilmayer
William & Mary Law Review
No abstract provided.
Law's Dark Matter, Michael S. Green
Choice Of Law As General Common Law: A Reply To Professor Brilmayer, Michael S. Green
Choice Of Law As General Common Law: A Reply To Professor Brilmayer, Michael S. Green
Faculty Publications
No abstract provided.
Developing A Private International Intellectual Property Law: The Demise Of Territoriality?, Graeme B. Dinwoodie
Developing A Private International Intellectual Property Law: The Demise Of Territoriality?, Graeme B. Dinwoodie
William & Mary Law Review
No abstract provided.
Cyber-Territoriality, Timothy Zick
Constitutional Domain And The Court, Timothy Zick
The Dark Side Of Territoriality, Timothy Zick
Mandatory Rules, Scott Dodson
Mandatory Rules, Scott Dodson
Faculty Publications
Whether a limitation is jurisdictional or not is an important but often obscure question. In an article published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity …
Choice Of Law, The Constitution And Lochner, James Y. Stern
Choice Of Law, The Constitution And Lochner, James Y. Stern
Faculty Publications
No abstract provided.
Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson
Appreciating Mandatory Rules: A Reply To Critics, Scott Dodson
Faculty Publications
It seems that few are pleased with the Court’s recent decision in Bowles v. Russell, in which the Court held the time limit for filing a notice of appeal to be jurisdictional and therefore not susceptible to the unique circumstances doctrine. As I wrote in this original essay, I believe the Court disrupted prior precedent and missed a golden opportunity to develop, in a principled way, a framework for characterizing rules as jurisdictional or not, and I adhere to those views. Three have responded to my essay. Professor Beth Burch criticizes Bowles for some of the same …
Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman
Corporations And Autonomy Theories Of Contract: A Critique Of The New Lex Mercatoria, Nathan B. Oman
Faculty Publications
One of the central problems of contracts jurisprudence is the conflict between autonomy theories of contract and efficiency theories of contract. One approach to solving this conflict is to argue that in the realm of contracts between corporations, autonomy theories have nothing to say because corporations are not real people with whose autonomy we need to be concerned. While apparently powerful, this argument ultimately fails because it implicitly assumes theories of the corporation at odds with economic theories of law. Economics, in turn, offers a vision of the firm that is quite hospitable to autonomy theories of contract. The failure …
Peoples Divided: The Application Of United States Constitutional Protections In International Criminal Law Enforcement, Ian R. Conner
Peoples Divided: The Application Of United States Constitutional Protections In International Criminal Law Enforcement, Ian R. Conner
William & Mary Bill of Rights Journal
In an age of globalization, criminal activity too has become internationalized. The response from the United States and other countries has been a growing number of treaties, international accords, and multinational law enforcement programs. This Note addresses the extent to which these international agreements have impacted the rights of the accused both in the United States and abroad
Federal Jurisdiction Over State Claims To Shipwrecks: Should The Eleventh Amendment Go Down With The Ship?, Mark R. Baumgartner
Federal Jurisdiction Over State Claims To Shipwrecks: Should The Eleventh Amendment Go Down With The Ship?, Mark R. Baumgartner
William & Mary Bill of Rights Journal
The Eleventh Amendment prohibits citizens from bringing actions in law or equity against individual states in federal courts. The Amendment does not address whether states are subject to federal jurisdiction for actions in admiralty in which both a shipwreck salvor and a state claim title to a shipwreck Analyzing applicable admiralty, federal, and common law in the context of Eleventh Amendment jurisprudence, this Note examines whether the states are subject to pure admiralty actions in federal court by citizen-salvors seeking either title to or reward for salvaging a shipwreck. The original intentions of admiralty law: rewarding salvors for their efforts, …
Admiralty And Federalism In The Wake Of Yamaha Motor Corp., Usa V. Calhoun: Is Yamaha A Cry By The Judiciary For Legislative Action In State Territorial Waters?, David R. Lapp
William & Mary Law Review
No abstract provided.
Trade And Domestic Protection Of Endangered Species: Peaceful Coexistence Or Continued Conflict? The Shrimp-Turtle Dispute And The World Trade Organization, Terrence P. Stewart, Mara M. Burr
Trade And Domestic Protection Of Endangered Species: Peaceful Coexistence Or Continued Conflict? The Shrimp-Turtle Dispute And The World Trade Organization, Terrence P. Stewart, Mara M. Burr
William & Mary Environmental Law and Policy Review
No abstract provided.
Divorce And Domicile: Time To Sever The Knot, Rhonda Wasserman
Divorce And Domicile: Time To Sever The Knot, Rhonda Wasserman
William & Mary Law Review
No abstract provided.
Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green
Legal Realism, Lex Fori, And The Choice-Of-Law Revolution, Michael S. Green
Faculty Publications
No abstract provided.
Exclusive Or Concurrent Jurisdiction Over Private Civil Rico Actions: Finding The Appropriate Reference, Kimberly O'D. Thompson
Exclusive Or Concurrent Jurisdiction Over Private Civil Rico Actions: Finding The Appropriate Reference, Kimberly O'D. Thompson
William & Mary Law Review
No abstract provided.
Federalism, State Courts, And Section 1983, Gene R. Nichol
Federalism, State Courts, And Section 1983, Gene R. Nichol
Faculty Publications
No abstract provided.
Criminal Procedure And The Conflict Of Laws, John Bernard Corr
Criminal Procedure And The Conflict Of Laws, John Bernard Corr
Faculty Publications
No abstract provided.
Modern Choice Of Law And Public Policy: The Emperor Has The Same Old Clothes, John Bernard Corr
Modern Choice Of Law And Public Policy: The Emperor Has The Same Old Clothes, John Bernard Corr
Faculty Publications
The author critically evaluates the adoption of the modern learning model in choice of law analysis. After evaluating the judiciary's use of this model in seven jurisdictions, the author concludes that the traditional learning is better suited to resolving choice of law issues.
Interest Analysis And Choice Of Law: The Dubious Dominance Of Domicile, John Bernard Corr
Interest Analysis And Choice Of Law: The Dubious Dominance Of Domicile, John Bernard Corr
Faculty Publications
No abstract provided.