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2003

William & Mary Law School

Faculty Publications

Articles 1 - 30 of 48

Full-Text Articles in Law

Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick Dec 2003

Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick

Faculty Publications

The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and ...


Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl Oct 2003

Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.


Human Rights And Genetic Discrimination: Protecting Genomics' Promise For Public Health, Anita Silvers, Michael Ashley Stein Oct 2003

Human Rights And Genetic Discrimination: Protecting Genomics' Promise For Public Health, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.


Copyrighting Facts, Michael S. Green Oct 2003

Copyrighting Facts, Michael S. Green

Faculty Publications

No abstract provided.


Rhetorically Reasonable Police Practices: Viewing The Supreme Court's Multiple Discourse Paths, Kathryn R. Urbonya Oct 2003

Rhetorically Reasonable Police Practices: Viewing The Supreme Court's Multiple Discourse Paths, Kathryn R. Urbonya

Faculty Publications

This Article analyzes the United States Supreme Court's numerous and shifting rhetorical discourse paths for declaring whether particular governmental practices constituted unreasonable searches or seizures under the Fourth Amendment to the United States Constitution. It examines how the Court has manipulated classic discourse paths arising from text, history, precedent and structure. It reveals that among and within each of these categories, the Court has created conflicting approaches. The Article argues that the Court's construction of Fourth Amendment reasonableness has depended upon which discourse paths it has selected as well as how it has characterized the values embedded within ...


W & M Law School Came First. Why Care?, W. Taylor Reveley Iii Oct 2003

W & M Law School Came First. Why Care?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.


Envisioning A Global Legal Culture, Charles H. Koch Jr. Oct 2003

Envisioning A Global Legal Culture, Charles H. Koch Jr.

Faculty Publications

No abstract provided.


Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt Jul 2003

Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.


International Courts And Tribunals, Nancy Amoury Combs, Daryl A. Mundis, Ucheora O. Onwuamaegbu, Mark B. Rees, Jacqueline A. Weisman Jul 2003

International Courts And Tribunals, Nancy Amoury Combs, Daryl A. Mundis, Ucheora O. Onwuamaegbu, Mark B. Rees, Jacqueline A. Weisman

Faculty Publications

This article reviews and summarizes significant developments in 2002 involving international courts and tribunals, particularly events relating to the International Court of Justice, the United Nations Compensation Commission, the Iran-U.S. Claims Tribunal, the Claims Resolution Tribunal, and the International Commission on Holocaust Era Insurance Claims. Significant developments relating to the International Criminal Court, the International Criminal Tribunals for the former Yugoslavia and for Rwanda, proposed additional ad hoc international criminal tribunals, the International Tribunal for the Law of the Sea, the World Trade Organization dispute settlement system, and other trade dispute settlement systems are detailed in other articles in ...


The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas Jul 2003

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the ...


Bring Back The Draft?, Neal Devins Jul 2003

Bring Back The Draft?, Neal Devins

Faculty Publications

No abstract provided.


Attitudes About Attitudes, Michael J. Gerhardt May 2003

Attitudes About Attitudes, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Chevron Deference And Treaty Interpretation, Evan J. Criddle May 2003

Chevron Deference And Treaty Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.


Approving Employee Retention And Severance Programs Judicial Discretion Run Amuck, A. Mechele Dickerson Apr 2003

Approving Employee Retention And Severance Programs Judicial Discretion Run Amuck, A. Mechele Dickerson

Faculty Publications

No abstract provided.


Remembering Andrew I. Batavia, Michael Ashley Stein Apr 2003

Remembering Andrew I. Batavia, Michael Ashley Stein

Faculty Publications

No abstract provided.


The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas Apr 2003

The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas

Faculty Publications

No abstract provided.


Behavioral Approach To Analyzing Corporate Failures, A. Mechele Dickerson Apr 2003

Behavioral Approach To Analyzing Corporate Failures, A. Mechele Dickerson

Faculty Publications

Recent corporate failures indicate that existing laws fail to give boards of directors adequate incentives to acknowledge that some financially troubled firms simply cannot be salvaged. Relying primarily on insights from law and behavioral science literature, this Article notes that directors have a natural tendency to underestimate risks and overestimate their ability to save an insolvent or near insolvent firm. This Article urges the imposition of a duty to file a timely bankruptcy petition because such a duty will encourage directors to consider the interests of all the firms' constituents, including workers, creditors, and the local community, when making decisions ...


Congress And The Making Of The Second Rehnquist Court, Neal Devins Apr 2003

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.


The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason Apr 2003

The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason

Faculty Publications

No abstract provided.


Public Reason As A Public Good, Aaron-Andrew P. Bruhl Jan 2003

Public Reason As A Public Good, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.


Ethnic Federalism: Its Promise And Pitfalls For Africa, Alemante G. Selassie Jan 2003

Ethnic Federalism: Its Promise And Pitfalls For Africa, Alemante G. Selassie

Faculty Publications

No abstract provided.


The Constitution Outside The Courts, Michael J. Gerhardt Jan 2003

The Constitution Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Funding Religion In A Post-Zelman World, James G. Dwyer Jan 2003

Funding Religion In A Post-Zelman World, James G. Dwyer

Faculty Publications

No abstract provided.


International Decisions: Prosecutor V. Plavsic, Nancy Amoury Combs Jan 2003

International Decisions: Prosecutor V. Plavsic, Nancy Amoury Combs

Faculty Publications

No abstract provided.


Judicial Selection As War, Michael J. Gerhardt Jan 2003

Judicial Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Price Theory, Competition, And The Rule Of Reason, Alan J. Meese Jan 2003

Price Theory, Competition, And The Rule Of Reason, Alan J. Meese

Faculty Publications

Challenging traditional antitrust jurisprudence, Professor Alan J. Meese argues that the present structure of Rule of Reason analysis, applied pursuant to Standard Oil v. United States, has become outdated. The Rule of Reason as currently applied by the courts rests upon neoclassical price theory, an economic paradigm that assumes that legitimate competition consists of unbridled technological rivalry, unconstrained by nonstandard contracts. Recently, however, the Supreme Court has begun to apply a competing paradigm- Transaction Cost Economics-when determining whether a contract is unreasonable "per se" or instead deserving of Rule of Reason scrutiny. Professor Meese argues that Transaction Cost Economics more ...


Priestley V. Fowler (1837) And The Emerging Tort Of Negligence, Michael Ashley Stein Jan 2003

Priestley V. Fowler (1837) And The Emerging Tort Of Negligence, Michael Ashley Stein

Faculty Publications

Priestly v. Fowler has long been noted as the source of the doctrine of common employment. This Article, however, argues that the case is better understood in the context of the then-emerging independent tort of negligence-specifically, as an unsuccessful attempt to require of masters a duty of care towards their servants. The Article re-examines the facts, arguments, personalities, and various reported versions of the case in tracing the effort to establish a new duty of care. The Article traces, as well, to another case, Hutchinson v. York, the true origins of the common employment doctrine. Finally, the Article compares the ...


Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein Jan 2003

Book Review Of Prejudicial Appearances: The Logic Of American Antidiscrimination Law, Michael Ashley Stein

Faculty Publications

No abstract provided.


Book Review Of Against Equality Of Opportunity, Michael Ashley Stein Jan 2003

Book Review Of Against Equality Of Opportunity, Michael Ashley Stein

Faculty Publications

No abstract provided.


Vectoral Federalism, Scott Dodson Jan 2003

Vectoral Federalism, Scott Dodson

Faculty Publications

In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups.Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also ...