Conflict of Laws Commons^™

The Erie Doctrine: A Flowchart, Michael S. Green

Faculty Publications

No abstract provided.

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

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 …

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

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

Faculty Publications

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 …

Can Erie Survive As Federal Common Law?, Craig Green

William & Mary Law Review

No abstract provided.

Law's Dark Matter, Michael S. 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

William & Mary Law Review

No abstract provided.

Choice Of Law As General Common Law: A Reply To Professor Brilmayer, Michael S. Green

Faculty Publications

No abstract provided.

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

Faculty Publications

No abstract provided.

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 …

Anti-Federalist Procedure, A. Benjamin Spencer

Faculty Publications

"[T]he new federal government will ... be disinclined to invade the rights of the individual States, or the prerogatives of their governments."

"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States-independence in their legislative and independence in their judicial departments. . . . Any interference with either, except as [constitutionally] permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The understanding expressed by these opening quotes-that the national government was designed to be one of limited powers that would refrain from encroaching …

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 …

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

William & Mary Environmental Law and Policy Review

No abstract provided.

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

Faculty Publications

No abstract provided.

Using Currie's Interest Analysis To Resolve Conflicts Between State Regulation And The Sherman Act, James R. Ratner

William & Mary Law Review

No abstract provided.

Federalism, State Courts, And Section 1983, Gene R. Nichol

Faculty Publications

No abstract provided.

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

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

Faculty Publications

No abstract provided.

Lessons Of Lumpkin: A Review Of Recent Literature On Law, Comity, And The Impending Crisis, John Phillip Reid

William & Mary Law Review

No abstract provided.

Choice Of Law And The State's Interest In Protecting Its Own, John Hart Ely

William & Mary Law Review

No abstract provided.

Mcmillan V. Mcmillan: Choice Of Law In A Sinkhole, Doug R. Rendleman

Faculty Publications

No abstract provided.

The Choice Of Law Process: Territorialism And Functionalism, Jeffrey M. Shaman

William & Mary Law Review

No abstract provided.