Law Commons^™

The Authority Of International Refugee Law, Evan J. Criddle, Evan Fox-Decent

William & Mary Law Review

As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a nonderogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the …

On Trust: The U.N. Security Council As Fiduciary, Devika Hovell

William & Mary Law Review

Perceived failures by the U.N. Security Council have been characterized as “betrayals of trust,” which threaten to impact the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes described as …

Updating The Liability Regime In Outer Space: Why Spacefaring Companies Should Be Internationally Liable For Their Space Objects, Alexander P. Reinert

William & Mary Law Review

Nothing inspires the human imagination quite like outer space. How many people have laid on their backs on a dark, clear night and gazed up at the stars above? The vast expanse of outer space seems endless. But satellite operators are increasingly realizing that space is not endless. Indeed, space is becoming more crowded with space objects, and the threat of these objects causing damage is rapidly growing. The space industry has changed dramatically in recent years, and the threats facing the industry have concurrently evolved.

The world is experiencing the dawn of a new space race—only this time, private …

Defining “Unduly”: Resolving Inherent Textual Ambiguity In The Imo’S Ballast Water Management Convention, John R. Bobka

William & Mary Law Review

No abstract provided.

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

The Common Law Of War, Jens David Ohlin

William & Mary Law Review

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the “common law of war” referred to a branch …

The Logic Of Contract In The World Of Investment Treaties, Julian Arato

William & Mary Law Review

Investment treaties protect foreign investors who contract with sovereign states. It remains unclear, however, whether parties are free to contract around these treaty rules, or whether treaty provisions should be understood as mandatory terms that constrain party choice. While investment treaties clearly apply to contracts in some way, they are silent as to how these instruments ultimately interact. Moreover, arbitral jurisprudence has varied wildly on this point, creating significant problems of certainty, efficiency, and fairness—for states and foreign investors alike.

This Article reappraises the treaty/contract issue from the ex ante perspective of contracting states and foreign investors. I advance three …

Determining Extraterritoriality, Franklin A. Gevurtz

William & Mary Law Review

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality—which the United States Supreme Court has increasingly invoked in recent years—calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside the United States …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

William & Mary Law Review

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …

Incapacitating The State, Daryl J. Levinson

William & Mary Law Review

No abstract provided.

Rethinking Legal Globalization: The Case Of Transnational Personal Jurisdiction, Donald Earl Childress Iii

William & Mary Law Review

Under what circumstances may a United States court exercise personal jurisdiction over alien defendants? Courts and commentators have yet to offer a coherent response to this question. That is surprising given that scholars have been calling for the globalization of U.S. law since the late 1980s as part of a transnational litigation narrative.

Through doctrinal and empirical analysis, this Article argues that a U.S. court should have power to exercise personal jurisdiction over an alien defendant not served with process within a state’s borders when (1) the defendant has received constitutionally adequate notice, (2) the state has a constitutionally sufficient …

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

William & Mary Law Review

No abstract provided.

Why Jurisprudence Doesn't Matter For Customary International Law, Steven Walt

William & Mary Law Review

No abstract provided.

Neuroscience In The Courtroom: An International Concern, Dominique J. Church

William & Mary Law Review

No abstract provided.

Globalization And Structure, Julian Ku, John Yoo

William & Mary Law Review

No abstract provided.

Partisan Conflicts Over Presidential Authority, Jide Nzelibe

William & Mary Law Review

No abstract provided.

Rejecting Refugees: Homeland Security's Administration Of The One-Year Bar To Asylum, Philip G. Schrag, Andrew I. Schoenholtz, Jaya Ramji-Nogales, James P. Dombach

William & Mary Law Review

Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum—regardless of the merits of the underlying claim—for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule.

In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners suspected that this …

Playing By The Rules: Combating Al Qaeda Within The Law Of War, David Glazier

William & Mary Law Review

Although the conflict formerly known as the “war on terror” is now in its eighth year, key legal issues governing the use of force and military detention remain largely unresolved. These questions survive the Bush administration, as the United States continues to launch aerial strikes against al Qaeda and President Obama has indicated his intention to continue the use of preventative detention and military trials even after Guantánamo is closed. Military victory is not possible, but good faith application of authority from the law of war can effectively complement traditional criminal law in combating the threat. Even if the Geneva …

Developing A Private International Intellectual Property Law: The Demise Of Territoriality?, Graeme B. Dinwoodie

William & Mary Law Review

No abstract provided.

State Regulation Of Sexuality In International Human Rights Law And Theory, Aaron Xavier Fellmeth

William & Mary Law Review

In Part I, this Article presents the first published, worldwide survey of international practice in interpreting and applying various international human rights norms to the issue of sexual freedom, with a special emphasis on the rights to privacy, family life, and freedom from arbitrary discrimination based on sexual orientation. Although progress toward general recognition of such rights by international authorities and states has been extremely rapid over a very short period, such recognition continues to vary geographically and according to the subject matter. For example, some rights, such as the right to consensual, adult, private intercourse have achieved more widespread …

Extraterritoriality In U.S. Patent Law, Timothy R. Holbrook

William & Mary Law Review

Globalization has eroded traditional territorial limits on intellectual property laws. Although this pressure was first seen in trademark and copyright law, recent court decisions have demonstrated that the territorial lines of U.S. patents are also under assault. Indeed, the Supreme Court recently considered extraterritoriality in U.S. patent law in its 2007 decision in Microsoft Corp. v. AT&T Corp., discussed thoroughly in this Article. Courts and commentators have offered two primary approaches to deal with the issue of the extraterritorial reach of U.S. patents. First, many courts, including the Supreme Court, continue to adhere to a strict view of a patent's …

Expanding Participation In Constitution Making: Challenges And Opportunities, Angela M. Banks

William & Mary Law Review

No abstract provided.

Baghdad, Tokyo, Kabul….Constitution Making In Occupied States, Zachary Elkins, Tom Ginsburg, James Melton

William & Mary Law Review

No abstract provided.

What's In A Name? Reflections On Timing, Naming, And Constitution-Making, Vicki C. Jackson

William & Mary Law Review

No abstract provided.

Invoking The Rule Of Law In Post-Conflict Rebuilding: A Critical Examination, Balakrishnan Rajagopal

William & Mary Law Review

No abstract provided.

Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne

William & Mary Law Review

No abstract provided.

Conciliatory Institutions And Constitutional Processes In Post-Conflict States, Donald L. Horowitz

William & Mary Law Review

No abstract provided.

Political Judging: When Due Process Goes International, Montré D. Carodine

William & Mary Law Review

The Supreme Court's recent reliance on foreign precedent to interpret the Constitution sparked a firestorm of criticism and spawned a rich debate regarding the extent to which U.S. courts should defer to foreign law when developing U.S. constitutional norms. This Article looks at a subset of the issue of deference to foreign law and international influences in judicial decision making: the extent to which our courts should apply American notions of due process in determining whether to recognize and enforce judgments obtained abroad. Courts reviewing foreign judgments to determine whether they areworthy of recognition have created an "international due process"analysis. …

Inefficient Customs In International Law, Eugene Kontorovich

William & Mary Law Review

This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply. The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent …

Reconsidering The Law Of Democracy: Of Political Questions, Prudence, And The Judicial Role, Luis Fuentes-Rohwer

William & Mary Law Review

In Vieth v. Jubelirer, the U.S. Supreme Court seemed poised to offer its definitive position on political gerrymandering questions. Yet the Court splintered along familiar lines and failed to offer an unequivocal answer. This Article focuses on the Court's plurality opinion, and particularly on its conclusion that judicially manageable standards are wanting in this area. This conclusion is implausible and masks the real question at the heart of the case. The Vieth plurality is best understood by examining the Court's political and prudential concerns as cabined by the political question doctrine. One understanding is simply that the plurality is making …