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William & Mary Law School

2009

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Articles 1 - 30 of 211

Full-Text Articles in Law

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle Dec 2009

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.


Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan Devlin, Neel Sukhatme Dec 2009

Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan Devlin, Neel Sukhatme

William & Mary Law Review

Unlike other forms of intellectual property, patents are universally justified on utilitarian grounds alone. Valuable inventions and discoveries, bearing the characteristics of public goods, are easily appropriated by third parties. Because much technological innovation occurs pursuant to significant expenditures—both in terms of upfront research and subsequent commercialization costs—inventors must be permitted to extract at least part of the social gain associated with their technological contributions. Absent some form of proprietary control or alternative reward system, economics predicts that suboptimal capital will be devoted to the innovative process. This widely accepted principle comes with an important corollary: namely, that canons of …


A New Look At The Original Meaning Of The Diversity Clause, Mark Moller Dec 2009

A New Look At The Original Meaning Of The Diversity Clause, Mark Moller

William & Mary Law Review

Must a federal court have obtained the power to bind a party before her citizenship becomes relevant to diversity jurisdiction? For a long time conventional wisdom has assumed the answer is “no”: Congress can authorize diversity jurisdiction based on the citizenship of persons who, although currently beyond the court’s power to bind, might later join the suit. Congress, in turn, has acted on this assumption. Key provisions of the most ambitious, and controversial, expansion of diversity jurisdiction in the last decade, the 2005 Class Action Fairness Act (CAFA), hinge diversity jurisdiction on the citizenship of persons conventionally believed beyond a …


The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar Dec 2009

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

William & Mary Law Review

This Article explores an underappreciated legacy of the Supreme Court’s (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court’s opinion—which declares that the “spirit” of a statute should trump its “letter”—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion’s lengthy second half. In that second half, the Court tells a detailed narrative about the country’s …


Avoiding Another Eldorado: Balancing Parental Liberty And The Risk Of Error With Governmental Interest In The Well-Being Of Children In Complex Cases Of Child Removal, Andrew T. Erwin Dec 2009

Avoiding Another Eldorado: Balancing Parental Liberty And The Risk Of Error With Governmental Interest In The Well-Being Of Children In Complex Cases Of Child Removal, Andrew T. Erwin

William & Mary Law Review

No abstract provided.


Embedded Federal Questions, Exclusive Jurisdiction, And Patent-Based Malpractice Claims, Christopher G. Wilson Dec 2009

Embedded Federal Questions, Exclusive Jurisdiction, And Patent-Based Malpractice Claims, Christopher G. Wilson

William & Mary Law Review

No abstract provided.


Playing By The Rules: Combating Al Qaeda Within The Law Of War, David Glazier Dec 2009

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 …


The Constitutional Canon As Argumentative Metonymy, Ian Bartrum Dec 2009

The Constitutional Canon As Argumentative Metonymy, Ian Bartrum

William & Mary Bill of Rights Journal

No abstract provided.


A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath Dec 2009

A Promise The Nation Cannot Keep: What Prevents The Application Of The Thirteenth Amendment In Prison?, Raja Raghunath

William & Mary Bill of Rights Journal

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment—which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed “as a punishment for crime whereof the party shall have been duly convicted”1—has been seen by courts as one brick in this wall. This Article makes the novel argument that, properly read, the amendment should function instead …


Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown Dec 2009

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.


Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence Dec 2009

Rescuing The Fourteenth Amendment Privileges Or Immunities Clause: How "Attrition Or Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House, Michael Anthony Lawrence

William & Mary Bill of Rights Journal

No abstract provided.


Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang Dec 2009

Appeal To Heaven: On The Religious Origins Of The Constitutional Right Of Revolution, John M. Kang

William & Mary Bill of Rights Journal

No abstract provided.


The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher Dec 2009

The Bapcpa, The Gag Rule, And The First Amendment: A Proposal For Alignment Through Interpretive And Analytical Change, Cullen Ann Drescher

William & Mary Bill of Rights Journal

No abstract provided.


Taking My Leave, Timothy Zick Nov 2009

Taking My Leave, Timothy Zick

Popular Media

No abstract provided.


Health Care And The Un Disability Rights Convention, Michael Ashley Stein, Penelope J S Stein, Dorothy Weiss, Raymond Lang Nov 2009

Health Care And The Un Disability Rights Convention, Michael Ashley Stein, Penelope J S Stein, Dorothy Weiss, Raymond Lang

Popular Media

No abstract provided.


Flipping The Bird, Timothy Zick Nov 2009

Flipping The Bird, Timothy Zick

Popular Media

No abstract provided.


Foreign Contacts And The First Amendment, Timothy Zick Nov 2009

Foreign Contacts And The First Amendment, Timothy Zick

Popular Media

No abstract provided.


Objecting In The Open: Why Occupy Wall Street Chose Public Spaces, Timothy Zick Nov 2009

Objecting In The Open: Why Occupy Wall Street Chose Public Spaces, Timothy Zick

Popular Media

No abstract provided.


Fifth Avenue Freeze-Out, Timothy Zick Nov 2009

Fifth Avenue Freeze-Out, Timothy Zick

Popular Media

No abstract provided.


Free Speech And Civil Liability, Timothy Zick Nov 2009

Free Speech And Civil Liability, Timothy Zick

Popular Media

No abstract provided.


Washington Tax Legislative Update: Weathering The Gathering Storm, Jonathan Talisman Nov 2009

Washington Tax Legislative Update: Weathering The Gathering Storm, Jonathan Talisman

William & Mary Annual Tax Conference

No abstract provided.


Estate Planning For 2010 And Beyond, Ronald D. Aucutt Nov 2009

Estate Planning For 2010 And Beyond, Ronald D. Aucutt

William & Mary Annual Tax Conference

No abstract provided.


Recent Developments In Federal Income Taxation, Ira B. Shepard Nov 2009

Recent Developments In Federal Income Taxation, Ira B. Shepard

William & Mary Annual Tax Conference

No abstract provided.


The Virginia Historic Tax Credit Funds Case And The Uncertain Federal Income Tax Treatment Of State Tax Credits, William F. Machen Nov 2009

The Virginia Historic Tax Credit Funds Case And The Uncertain Federal Income Tax Treatment Of State Tax Credits, William F. Machen

William & Mary Annual Tax Conference

No abstract provided.


The Changing Landscape Of Tax Administration: Hot Topics Of Irs Audits Of Partnerships And S Corporations (Slides), Robert D. Schachat, Deborah M. Nolan Nov 2009

The Changing Landscape Of Tax Administration: Hot Topics Of Irs Audits Of Partnerships And S Corporations (Slides), Robert D. Schachat, Deborah M. Nolan

William & Mary Annual Tax Conference

No abstract provided.


Cross-Border Speech Conflicts, Timothy Zick Nov 2009

Cross-Border Speech Conflicts, Timothy Zick

Popular Media

No abstract provided.


Making Chicken Salad - Monetizing Tax Losses (Slides), Steven M. Friedman, Glenn M. Johnson Nov 2009

Making Chicken Salad - Monetizing Tax Losses (Slides), Steven M. Friedman, Glenn M. Johnson

William & Mary Annual Tax Conference

No abstract provided.


Debt Workouts For Partnerships And S Corporations (Slides), Peter J. Genz Nov 2009

Debt Workouts For Partnerships And S Corporations (Slides), Peter J. Genz

William & Mary Annual Tax Conference

No abstract provided.


Beyond First Blushes And Gut Reactions: Planning For The Coming Tax Increases (Slides), Mitchell A. Drossman Nov 2009

Beyond First Blushes And Gut Reactions: Planning For The Coming Tax Increases (Slides), Mitchell A. Drossman

William & Mary Annual Tax Conference

No abstract provided.


Recent Developments In Virginia Taxation: The Present And The Future?, Craig D. Bell, William L.S Rowe Nov 2009

Recent Developments In Virginia Taxation: The Present And The Future?, Craig D. Bell, William L.S Rowe

William & Mary Annual Tax Conference

No abstract provided.