William and Mary law review最新文献

{"title":"The Local Law of Global Antitrust","authors":"E. Swaine","doi":"10.2139/SSRN.263841","DOIUrl":"https://doi.org/10.2139/SSRN.263841","url":null,"abstract":"Antitrust is a brief for the uselessness of international law. Notwithstanding the apparent utility of international cooperation in accommodating global economic activity and reconciling the flourishing of national antitrust regimes, there is little by way of binding agreement or customary international law. Indeed, any \"reasonableness\" constraint on unilateral antitrust jurisdiction has largely been repudiated, in part because of the problematic role it describes for federal courts, and even beforehand was being held out as proof of the incoherence and irrelevance of custom. This article argues that existing doctrine, and its attempted repudiation, are both entirely misconceived. After examining the limits of existing international arrangements, I set out a new, general methodology for identifying what I term \"local international law\" - a process for evaluating potential custom that begins with the norm's potential application to particular members and subjects-matter within the international community, and its articulation, adaptation, and enforcement in domestic circumstances. Special custom, applicable through the interpretation of federal statutes in a fashion sensitive to local actors, permits us to overcome many of the universalist flaws that afflicted the reasonableness approach. Applying this theory to antitrust, I advocate recognizing antitrust comity, a principle requiring consideration of certain nations' legitimate interests, in particular the prospects for coordinated regulation of international antitrust matters among OECD members. This principle, and the underlying method, permit a fresh look at the diverse means of enforcing U.S. antitrust law. While antitrust comity binds the federal agencies, it does not directly constrain private enforcement; most controversially, it reflects constitutionally-premised limitations on the ability of state government enforcers to conduct the necessary intergovernmental relations, limits best mediated through a federal-state protocol that brings international antitrust comity home.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"43 1","pages":"627"},"PeriodicalIF":0.0,"publicationDate":"2001-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68236439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Political Reliance on Religiously Grounded Morality Does Not Violate the Establishment Clause","authors":"M. Perry","doi":"10.2139/ssrn.262676","DOIUrl":"https://doi.org/10.2139/ssrn.262676","url":null,"abstract":"I say, sir, that the purity of the Christian church, the purity of our holy religion, and the preservation of our free institutions, require that Church and State shall be separated; that the preacher on the Sabbath day shall find his text in the Bible; shall preach \"Jesus Christ and him crucified;\" shall preach from the Holy Scriptures, and not attempt to control the political organizations and political parties of the day. --Senator Stephen A. Douglas(1) Imagine a legislator who must decide whether to vote to outlaw, or otherwise disfavor, particular conduct--abortion, for example, or same-sex unions. She wonders what weight, if any, she should put on her religiously grounded belief that the conduct is immoral; in particular, she worries that it might not be appropriate for her to disfavor the conduct on the basis of her religiously grounded moral belief.(2) In another essay in the series of which this Essay is a part,(3) I argue that the morality of liberal democracy does not counsel her against disfavoring the conduct on the basis of religiously grounded moral belief.(4) In this Essay, I pursue a different but, for us citizens of the United States, complementary inquiry: Does the United States's constitutional morality of religious freedom--in particular, the requirement that government not \"establish\" religion--forbid government to disfavor conduct on the basis of a religiously grounded belief that the conduct is immoral? That the morality of liberal democracy does not counsel a legislator or other policymaker against disfavoring conduct on the basis of religiously grounded moral belief does not entail that the nonestablishment norm (as I prefer to call it) permits government to disfavor conduct on the basis of religiously grounded moral belief. As I have explained elsewhere, the nonestablishment norm that is part of American constitutional law is, in some respects, more restrictive than the morality of liberal democracy; in some respects, the limitations placed on government by the nonestablishment norm are greater than, they go beyond, the limitations placed on government by the morality of liberal democracy.(5) The First Amendment to the Constitution of the United States famously insists that \"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.\" Yet, according to the authoritative case law--law that is constitutional bedrock in the United States(6)--it is not just \"Congress\" but all three branches of the national government that may not prohibit the free exercise of religion, abridge the freedom of speech, etc. Moreover, it is not just the (whole) national government but the government of every state that may not do what the First Amendment forbids. I have suggested elsewhere that there is a path from the text of the Firs","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"42 1","pages":"663"},"PeriodicalIF":0.0,"publicationDate":"2001-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68231023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Definite Articles: Using the Law Review Article Type Indicator® to Make Law Review Publishing Decisions","authors":"Eric A. Chiappinelli","doi":"10.2139/SSRN.1102806","DOIUrl":"https://doi.org/10.2139/SSRN.1102806","url":null,"abstract":"Each year close to two thousand law review articles are circulated among about two hundred student-edited law journals. As a result, Law reviews around the country spend upwards of three thousand hours a year screening potential articles for publication. This process is exhausting for both authors and editors alike. The core problem in the law review article selection process is the information asymmetry between authors and law reviews. This article presents a tool, the Law Review Article Type Indicator (LRATI) that aims to reduce the information disparity, in turn making the article selection process less time consuming, more fruitful, and generally more pleasant for law review editors and authors. To achieve this end, the LRATI employs four bipolar scales that systematically evaluate both the author and the submission in an effort to ensure that law reviews only publish author's who are \"stars\" or \"keepers\", or at the very least \"fillers\" while eliminating with ease any and all \"losers.\" This article argues that if law reviews implement the LRATI, the selection of law review articles will be quicker, more accurate, and will take place with less rancor and fewer interpersonal conflicts than ever before.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"42 1","pages":"559"},"PeriodicalIF":0.0,"publicationDate":"2000-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68139961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking the History of American Freedom","authors":"M. Klarman","doi":"10.2139/SSRN.223776","DOIUrl":"https://doi.org/10.2139/SSRN.223776","url":null,"abstract":"This essay looks at three issues concerning freedom in American history. First, it examines competing conceptions of freedom--positive/negative and individual/political-and considers whether the equal validity of these competing conceptions makes freedom such a malleable concept that it is vacuous. In other words, freedom apparently can be invoked with equal plausibility on either side of any significant political dispute. Second, the essay seeks to identify the circumstances or conditions under which particular freedoms prosper and expand. Third and finally, it considers the complex and sometimes paradoxical role that courts have played in the history of American freedom.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"42 1","pages":"265"},"PeriodicalIF":0.0,"publicationDate":"2000-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68019944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Misconceived laws: the irrationality of parental involvement requirements for contraception.","authors":"J R Arons","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"41 3","pages":"1093-131"},"PeriodicalIF":0.0,"publicationDate":"2000-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25740725","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Moral Reasons and the Limitations of Liberty","authors":"J. Murphy","doi":"10.1093/acprof:osobl/9780199764396.003.0011","DOIUrl":"https://doi.org/10.1093/acprof:osobl/9780199764396.003.0011","url":null,"abstract":"I find myself in substantial agreement with Professor Dworkin, and I find this deeply disturbing - not merely because it will make my role as his commentator more difficult, but also for reasons of a more personal nature. In Bowers, however, this distinction was lost on Justice White; for in Bowers, once he had decided that citizen disapproval of homosexual sodomy was moral disapproval, he concluded that the rational basis test had been satisfied, with no inquiry at all into the question of whether the moral judgment involved is a rational or reasonable moral judgment or perhaps simply a judgment of unexampled stupidity, ignorance, prejudice, and animus. By arguing that disapproval of homosexuality may not be moral disapproval and that moral disapproval of homosexuality may not be rational, I have tried to fill out in some detail my reading of two of Professor Dworkin's claims - the claim that our thinking about issues such as homosexuality requires a plausible account of what is involved in the making of moral judgments, and the claim (made in the final sentence of his essay) that the reason that homosexual conduct ought not to be criminalized is that there is nothing immoral in such activity.","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"40 1","pages":"947"},"PeriodicalIF":0.0,"publicationDate":"1999-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60654780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Constitution in Congress: Jefferson and the West, 1801-1809","authors":"David P. Currie","doi":"10.1163/2468-1733_shafr_sim030170092","DOIUrl":"https://doi.org/10.1163/2468-1733_shafr_sim030170092","url":null,"abstract":"The original understanding of the Constitution, I wrote not so long ago, was forged not in the courts but in Congress and the executive branch.(1) That was true of the Federalist period, the first twelve years under the new Constitution--a time of great constitutional controversies involving such matters as the Bank of the United States, the Jay Treaty, and the Alien and Sedition Acts and of quaint and curious squabbles now largely forgotten: what to call the president, whether he must accept a salary, how the vice president signs a bill. Some of these disputes sound petty, but even they helped to define what kind of country the United States would be. All of them were initially, and many of them finally, fought out in the executive and legislative branches. The same was true of the years that followed, when Thomas Jefferson was president. Jefferson's inauguration was a significant victory for the new system, a peaceful transfer of power from one political party to another, which at the time was not to be taken for granted.(2) \"We are all Republicans,\" he said in his inaugural address, \"we are all Federalists.\"(3) It was a breath of fresh air. Jefferson's brave words, of course, did not put an end to controversy. His presidency was another exciting time: the Burr conspiracy, the embargo, the war against the Barbary pirates--in which Jefferson, following Washington's example, took a refreshingly narrow view of the president's powers as commander in chief.(4) The Twelfth Amendment, designed with the simple goal of avoiding the near disaster of the 1800 election, proved to be a surprising can of worms, a monument to the difficulty of constitutional drafting.(5) In the great Court fight of Jefferson's first term, which rivaled that of the 1930s, judicial independence suffered grave setbacks in the repeal of the Judiciary Act and the removal of Judge Pickering, only to emerge more firmly entrenched than ever after the dramatic acquittal of Justice Samuel Chase.(6) Jefferson's presidency was also a time of significant events in westward expansion: the admission of Ohio, the Louisiana Purchase, and the beginnings of the Cumberland Road. Each of these events raised fundamental constitutional questions. Each was extensively debated in Congress and in the executive branch, not in the courts. And each served as an important precedent when similar issues arose again. I. OHIO The Northwest Ordinance contemplated the creation of three to five new states in the territory ceded by individual states to the Union after the Revolution.(7) As soon as any of the areas defined in the Ordinance had sixty thousand free inhabitants it was to be admitted to statehood, and Congress was directed to admit it earlier if that was \"consistent with the general interest of the confederacy.\"(8) Settlement of the Northwest was retarded, however, by hostile Indians; the first western states admitted were Kentucky and Tennessee.(9) Then Mad Anthony Wayne defeated the Indians at Falle","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"39 1","pages":"1441"},"PeriodicalIF":0.0,"publicationDate":"1998-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64629410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rise and Fall of Supreme Court Concern for Racial Minorities","authors":"J. Nowak","doi":"10.4324/9781315053592-12","DOIUrl":"https://doi.org/10.4324/9781315053592-12","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"16 1","pages":"345"},"PeriodicalIF":0.0,"publicationDate":"1995-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70625205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors","authors":"M. Minow","doi":"10.4324/9781315093727-19","DOIUrl":"https://doi.org/10.4324/9781315093727-19","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"33 1","pages":"1201"},"PeriodicalIF":0.0,"publicationDate":"1992-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70629415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The furor over psychotherapist-patient sexual contact: new solutions to an old problem.","authors":"L Jorgenson, R Randles, L Strasburger","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":75324,"journal":{"name":"William and Mary law review","volume":"32 3","pages":"645-732"},"PeriodicalIF":0.0,"publicationDate":"1991-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24995941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}