Roadblocks to Remedies: Recently Developed Barriers to Relief for Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent

Gwynne L. Skinner *


The founders of the United States, especially those who wrote the Constitution and the subsequent First Judiciary Act, wanted to ensure that aliens who were victims of torts in violation of the law of nations (now commonly referred to as customary international law) had the ability to seek redress in federal court for the injuries they suffered. Providing remedies for violations of the law of nations to aliens was important in order to demonstrate that the young country took the law of nations seriously and to prevent foreign conflicts, some of which might lead to war. At the time of the nation’s founding, just as it does now, international law required that nations provide remedies to foreign citizens who were wrongfully injured while under the protection of the host nation, an obligation the founders took seriously.

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*Assistant Professor, Willamette University College of Law. M.St. (LL.M. equivalent), International Human Rights Law, Oxford University; J.D., University of Iowa; M.A., University of Iowa; B.A., Political Science, University of Northern Iowa. The author wishes to thank Professors Beth Stephens and Chimène Keitner for their helpful comments and input regarding this article. However, all opinions and any errors are the author’s. It is important to also disclose that the author is counsel for plaintiffs in two civil cases brought on behalf of former Guantanamo Bay detainees Hamad v. Gates and Ameur v. Gates, and was plaintiff’s counsel in the case of Corrie v. Caterpillar. These cases are mentioned in this article.

Leasing Sovereignty: On State Infrastructure Contracts

Matthew Titolo *


Infrastructure privatization is in the news. In the past ten years, Pennsylvania, California, Colorado, Indiana, and many other states and municipalities have privatized—or attempted to privatize—toll roads, parking meters and other public infrastructure. State and federal policies have encouraged these public-private partnerships and infrastructure privatizations.  Private development of public infrastructure was common in states and municipalities during the nineteenth century. This was typically done through granting corporate charters and franchises. Disenchantment with this model led to a public finance counterrevolution in the twentieth century. Privatization re-emerged in the 1980s and 1990s. Headlines such as “Why Does Abu Dhabi Own All of Chicago’s Parking Meters?” and “Cities for Sale” attest to the continuing controversy surrounding these arrangements.

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*Associate Professor, West Virginia University College of Law. J.D., University of California, Berkeley; Ph.D, University of California, Los Angeles. I am grateful for the feedback I received on this article by faculty at the Ohio Legal Scholarship Workshop, at the Seventh Annual Conference on Contracts at the Thomas Jefferson School of Law, and in faculty colloquia at West Virginia University College of Law. Brittany Vascik and Bill Bogard provided excellent and timely editorial assistance. This article was completed with the support of a West Virginia University Bloom Summer Research Grant.

A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet

R. George Wright *


The worst forms of religious persecution are unfathomably horrific. American law has extinguished the most severe forms of classical and modern public religious persecution. Whether other forms of public religious persecution have been reduced, or are instead on the increase, is controversial and undoubtedly important. This particular question, as briefly illustrated below, is unfortunately not subject to any reasoned, consensual resolution. It should come as no surprise when commentators raise largely unresolvable claims as to the existence of public persecution or of the burdening of religious rights of conscience, doctrine, and practice.


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* Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law; J.D., 1982, Indiana University School of Law-Indianapolis; Ph.D., 1976, Indiana University; A.B., 1972, University of Virginia. The author’s thanks are hereby extended to Samantha Everett and Angela Stackhouse. The subtitle of this article is adapted from Prime Minister Winston Churchill, Speech to the House of Commons: Their Finest Hour (June 18, 1940), in THE INTERNET HISTORY SOURCEBOOK (Paul Halsall ed., 1998), [hereinafter Their Finest Hour].

Filing Status and Today’s Families

Erik Baines *


A long-standing issue of tax policy is whether to tax people as separate individuals or as social beings. That is, how should a taxable unit be defined? Today, married couples may file either a joint return or separate returns as married individuals. However, filing separately often increases a couple’s combined tax liability. Single people must file exclusively as individuals, but their rates are generally, though not always, higher than those of married couples with the same amount of income. This tax difference between a married person and an individual creates what are known as marriage penalties and bonuses. These penalties and bonuses often create a disincentive for both partners of a married couple to be employed. Historically, a single-earner couple was the norm; however, society has changed since Congress adopted the joint return in 1948. Shifting attitudes towards marriage and cohabitation continue to move the family away from the single earner married couple norm.

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* Law Clerk to the Honorable Melvin R. Hughes and the Honorable Bradley B. Cavedo, Circuit Court of the City of Richmond. J.D., 2012, University of Richmond School of Law; B.A., 2002, Virginia Military Institute. This comment was the first place winner of the 2012 McNeill Writing Competition sponsored by the McNeill Law Society of the University of Richmond School of Law. Tax rates are referred to in the context of the year 2011 throughout the comment.


The University of Richmond Law Review proudly presents the twenty-seventh issue of the Annual Survey of Virginia Law. The Law Review is proud to commemorate the memories of two members of the University family, Anne Louise Hasselback and Judith Campbell Meyer, in the 2012 Annual Survey. Ms. Hasselback was a member of the law school’s Career Development Office, and Mrs. Meyer was a member of the law school’s Admissions Office. We are saddened by the loss of their presence in the school and are indebted to them for the contributions they made while they were here.

The Law Review offers the Annual Survey as a compilation of the recent legislative, judicial, and administrative developments in the Commonwealth of Virginia. The 2012 Annual Survey includes ten articles, each providing comprehensive updates in a specific field of law. The Annual Survey authors are well-seasoned experts in their fields and have dedicated countless hours to providing readers practical advice and poignant commentary. The 2012 Annual Survey includes four essays, which seek to inform its readers on a wide range of issues, from an examination of the rhetoric surrounding reproductive rights issues in the 2012 General Assembly, to a discussion of the current state of non-competition agreements in Virginia. The Law Review is proud to include a comment written by one if its own staff members and to boast three current Law Review members as co-authors to other pieces throughout the Annual Survey.

The Annual Survey traditionally is the most popular and largest edition of the Law Review. I attribute its success to the diligence and efforts of its authors in providing thoughtful and pertinent pieces. It has been an honor to work with each of you, and I sincerely appreciate your contributions. I thank the 2011 Annual Survey Editor, Laura May, for connecting me with many of you and providing crucial guidance from the very beginning.

I also would like to thank the staff of the Law Review. It is truly a privilege to be surrounded by such intelligent, patient, and talented people on a daily basis. Thank you to the Law Review Executive Board—Maggie Bowman, Clint Nichols, Simone Raess, Andrew Tarne, and especially Robert S. Claiborne, Jr. and Frank Talbott. Publishing a book is an enormous team effort, and I could not have asked to be part of a more pleasant, determined team. And to the indispensable Glenice Coombs, a huge thank you for quietly providing the wisdom and warmth that keeps the Law Review running smoothly. Thank you finally to my parents and siblings for their unrelenting support and understanding.

It has been an honor and privilege to serve as the editor of the 2012 Annual Survey of Virginia Law. Thank you for your support and patronage.

Tracey A. Theret
Annual Survey Editor

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