William and Mary Law Review

Professional publication covering law.

Articles from Vol. 54, No. 3, February

A Critical Guide to Erie Railroad Co. V. Tompkins
TABLE OF CONTENTS INTRODUCTION I. THE RELATIONSHIP BETWEEN STATE AND FEDERAL COURTS BEFORE ERIE A. The Bottom Line B. Were People Crazy Then? 1. The Nature and Sources of Unwritten Law 2. Who Should Defer to Whom About What? ...
A General Theory of Governance: Due Process and Lawmaking Power
ABSTRACT This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses....
Can Erie Survive as Federal Common Law
A remarkable aspect of this symposium is its self-conscious effort to straddle theory and doctrine. On the theoretical side, our title "Law Without a Lawmaker" gestures toward an abyss of imponderables. If law without lawmakers were even conceivable,...
General Law in Federal Court
II. THE BREAKDOWN OF GENERAL AND LOCAL LAW In the decades following Swift, the evolving Swift doctrine became increasingly inconsistent with the constitutional structure and acts of Congress. As discussed below, states increasingly exercised their...
How Customary Is Customary International Law?
TABLE OF CONTENTS INTRODUCTION I. AN INTELLECTUAL GENEALOGY II. THE HISTORY OF CUSTOM AND CURRENT DEBATES ABOUT CUSTOMARY INTERNATIONAL LAW A. Practice and the Extra Ingredient B. The Theory and Practice of Custom C. Customary Law and...
Law's Dark Matter
In this Article, I argue that the spirit of Swift v. Tyson is alive today--and that it's a good thing too. (1) As it is usually understood, Swift depended on a nonpositivist theory of the common law that few currently share). (2) I will argue that...
The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes
TABLE OF CONTENTS INTRODUCTION I. WHY HAVE THE CANONS OF STATUTORY INTERPRETATION BEEN LEFT OUT OF THE DEBATE OVER POST-ERIE FEDERAL COMMON LAW? A. Federal Common Law and the Charming Betsy Canon B. Other Canons Fare No Better Under...
Untethered Norms after Erie Railroad Co. V. Tompkins: Positivism, International Law, and the Return of the "Brooding Omnipresence"
TABLE OF CONTENTS INTRODUCTION I. ERIE'S JURISPRUDENCE: THE POSITIVE SIDE A. General Common Law: Some Background 1. General Common Law: Position 2. General Common Law: Provenance 3. Untethered Norms, Popular Participation,...
Valid Rule Due Process Challenges: Bond V. United States and Erie's Constitutional Source
TABLE OF CONTENTS INTRODUCTION I. ALLGEYER AND LOCHNER A. Allgeyer B. Lochner II. ERIE III. LOPEZ AND MORRISON IV. OVERBREADTH, THIRD-PARTY STANDING, AND BOND A. Overbreadth and Third-Party Standing B. Bond v. United States 1....
Why Jurisprudence Doesn't Matter for Customary International Law
Table of Contents Introduction I. Positivism as Dicta II. Shifting the Source of Authority A. Erie's Conception of Positivism B. Mixed Conceptions of Positivism 1. Hart's Practice Version 2. Mixed Conceptions and Their Problems III. Priority and...

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