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Articles 1 - 30 of 43
Full-Text Articles in Law
The Authority Of International Refugee Law, Evan J. Criddle, Evan Fox-Decent
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
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 …
Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn
Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn
William & Mary Law Review
Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to …
The Common Law Of War, Jens David Ohlin
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
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
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 …
Rethinking Legal Globalization: The Case Of Transnational Personal Jurisdiction, Donald Earl Childress Iii
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
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
Why Jurisprudence Doesn't Matter For Customary International Law, Steven Walt
William & Mary Law Review
No abstract provided.
Beyond Morrison: The Effect Of The "Presumption Against Extraterritoriality" And The Transactional Test On Foreign Tender Offers, Vladislava Soshkina
Beyond Morrison: The Effect Of The "Presumption Against Extraterritoriality" And The Transactional Test On Foreign Tender Offers, Vladislava Soshkina
William & Mary Law Review
No abstract provided.
Information Wants To Be Free (Of Sanctions): Why The President Cannot Prohibit Foreign Access To Social Media Under U.S. Export Regulations, Jarred O. Taylor Iii
Information Wants To Be Free (Of Sanctions): Why The President Cannot Prohibit Foreign Access To Social Media Under U.S. Export Regulations, Jarred O. Taylor Iii
William & Mary Law Review
No abstract provided.
Neuroscience In The Courtroom: An International Concern, Dominique J. Church
Neuroscience In The Courtroom: An International Concern, Dominique J. Church
William & Mary Law Review
No abstract provided.
Partisan Conflicts Over Presidential Authority, Jide Nzelibe
Partisan Conflicts Over Presidential Authority, Jide Nzelibe
William & Mary Law Review
No abstract provided.
Globalization And Structure, Julian Ku, John Yoo
Globalization And Structure, Julian Ku, John Yoo
William & Mary Law Review
No abstract provided.
Playing By The Rules: Combating Al Qaeda Within The Law Of War, David Glazier
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
Developing A Private International Intellectual Property Law: The Demise Of Territoriality?, Graeme B. Dinwoodie
William & Mary Law Review
No abstract provided.
Extraterritoriality In U.S. Patent Law, Timothy R. Holbrook
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 …
Political Judging: When Due Process Goes International, Montré D. Carodine
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
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 …
The Political Economy Of International Antitrust Harmonization, John O. Mcginnis
The Political Economy Of International Antitrust Harmonization, John O. Mcginnis
William & Mary Law Review
No abstract provided.
The Diaspora Of Ethnic Economies: Beyond The Pale?, Lan Cao
The Diaspora Of Ethnic Economies: Beyond The Pale?, Lan Cao
William & Mary Law Review
No abstract provided.
The Local Law Of Global Antitrust, Edward T. Swaine
The Local Law Of Global Antitrust, Edward T. Swaine
William & Mary Law Review
No abstract provided.
A Dickensian Era Of Religious Rights: An Update On Religious Human Rights In Global Perspective, John Witte Jr.
A Dickensian Era Of Religious Rights: An Update On Religious Human Rights In Global Perspective, John Witte Jr.
William & Mary Law Review
No abstract provided.
Regulating Corporate Human Rights Abuses: Is Unocal The Answer?, Pia Zara Thadhani
Regulating Corporate Human Rights Abuses: Is Unocal The Answer?, Pia Zara Thadhani
William & Mary Law Review
No abstract provided.
Customary International Law And International Human Rights Litigation In United States Courts: Revitalizing The Legacy Of The Paquete Habana, Kathleen M. Kedian
Customary International Law And International Human Rights Litigation In United States Courts: Revitalizing The Legacy Of The Paquete Habana, Kathleen M. Kedian
William & Mary Law Review
No abstract provided.
Stanford V. Kentucky And Wilkins V. Missouri: A Violation Of An Emerging Rule Of Customary International Law, Laura Dalton
Stanford V. Kentucky And Wilkins V. Missouri: A Violation Of An Emerging Rule Of Customary International Law, Laura Dalton
William & Mary Law Review
No abstract provided.
Hijacking Trials Overseas: The Need For An Article Iii Court, Maryellen Fullerton
Hijacking Trials Overseas: The Need For An Article Iii Court, Maryellen Fullerton
William & Mary Law Review
No abstract provided.
Evidence Seized In Foreign Searches: When Does The Fourth Amendment Exclusionary Rule Apply?, Steven H. Theisen
Evidence Seized In Foreign Searches: When Does The Fourth Amendment Exclusionary Rule Apply?, Steven H. Theisen
William & Mary Law Review
No abstract provided.
Admiralty - Applicability Of The Jones Act To Foreign Seamen And Foreign Shipowners. Hellenic Lines Ltd. V. Rhoditis, 90 S. Ct. 1731 (1970), John A. Scanelli
Admiralty - Applicability Of The Jones Act To Foreign Seamen And Foreign Shipowners. Hellenic Lines Ltd. V. Rhoditis, 90 S. Ct. 1731 (1970), John A. Scanelli
William & Mary Law Review
No abstract provided.
The Public Interest And Private International Maritime Law, Allan I. Mendelsohn
The Public Interest And Private International Maritime Law, Allan I. Mendelsohn
William & Mary Law Review
No abstract provided.