Frances Lewis Law Center

Faculty News

Wednesday, October 04, 2017

Professor Parella Presents at Yale Law Workshop on Informal-Formal Governance

On September 28, 2017 Professor Kish Parella presented her working draft, “Public Relations Litigation,” at a workshop exploring the intersection of formal and informal governance sponsored by the Center for Private Law at Yale Law School. Her draft explores the reputational repair functions of business litigation, especially for plaintiffs implicated in a broader corporate crisis.  … Continue reading Professor Parella Presents at Yale Law Workshop on Informal-Formal Governance

Tuesday, October 03, 2017

Professor Parella Hosts Scholarly Roundtable on the Information Effects of Litigation

On September 21-22, 2017 Professor Kish Parella hosted a scholarly roundtable on the information effects of litigation. The other participants were Sadie Blanchard (Yale), Nathan Cortez (SMU), Brandon Garrett (UVA), Jake Linford (FSU), Kathryn Sabbeth (UNC), and Roy Shapira (IDC).  All participants exchanged working drafts exploring the information value of litigation, including the reputational benefits … Continue reading Professor Parella Hosts Scholarly Roundtable on the Information Effects of Litigation

Tuesday, September 19, 2017

Professor Demleitner contributes to The Conversation with article on civil forfeiture

Washington and lee law professor Nora Demleitner has authored an article published by The Conversation.  The article is titled “How the government can steal your stuff: 6 questions about civil asset forfeiture answered” and appeared on Sunday, September 17, 2017. Professor Demleitner further explores the issue of forfeiture as a funding source for police departments and … Continue reading Professor Demleitner contributes to The Conversation with article on civil forfeiture

Monday, September 18, 2017

Professor Kish Parella Presents at Corporations on Trial: International Criminal and Civil Liability for Corporations for Human Rights Violations

On Friday, September 15, 2017 Professor Kish Parella presented at Corporations on Trial: International Criminal and Civil Liability For Corporations for Human Rights Violations that was held at Case Western Reserve University School of Law and co-sponsored by CWRU’s Frederick K. Cox International Law Center, Center for Professional Ethics, and Inamori International Center for Ethics … Continue reading Professor Kish Parella Presents at Corporations on Trial: International Criminal and Civil Liability for Corporations for Human Rights Violations

Monday, September 11, 2017

Professor Lyman Johnson Authors Supreme Court Amicus Brief

Washington and Lee law professor Lyman Johnson has co-authored an amicus curiae brief submitted to the United States Supreme Court on Friday, September 8, 2017.   The brief was submitted in support of respondents in Leidos, Inc. v. Indiana Public Retirement System, No. 16-1581.  Professor Sarah Haan also signed the brief. The legal question presented in Leidos is whether a … Continue reading Professor Lyman Johnson Authors Supreme Court Amicus Brief

Recent Publications

June 27 - Kishanthi Parella

The Information Regulation of Business Actors

A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder initiatives, international organization recommendations and guidelines, NGO certifications, and other voluntary instruments. Many of the norms within this TLO are nonbinding and therefore lack mandatory compliance; what they may possess is persuasive power, particularly when the norms are developed, endorsed, and managed by reputable organizations. It is that reputational, or legitimacy, advantage that matters for encouraging industry associations to comply with the nonbinding norms associated with these organizations. Industry associations and other business actors will gravitate more towards legitimacy enhancing organizations when their own legitimacy is at stake. They pivot towards public organizations such as the United Nations or private NGO initiatives like the Rainforest Alliance, seeking to associate themselves publicly with these organizations that enjoy more perceived legitimacy. These business relationships with legitimizing bodies can take the form of partnerships, certifications, or other arrangements where an industry association adopts and incorporates nonbinding norms when it otherwise might not. In this essay, I discuss three transnational legal processes that encourage industry associations, their members, and other business actors to abide by nonbinding transnational legal norms concerning business and human rights.

June 02 - Christopher B. Seaman et al.

Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit's Application of eBay

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset on appeals from almost 200 patent cases, we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate the Federal Circuit is generally more favorable to prevailing patentees regarding injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, the implications of this and other empirical findings from the study are considered.

February 22 - Victoria Sahani

Reshaping Third-Party Funding

Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. law firms are actively seeking advice (including from this Author) regarding partnering with third-party funders or starting their own internal third- party funders to fund their own cases, both of which are controversial practices. This Article analyzes the benefits and drawbacks of third-party funders becoming internal partners of U.S. law firms, rather than remaining as external investors. To that end, this Article diagrams the existing structure of the third-party funding transaction and suggests new possible structures. This Article then explores how those new structures may affect procedure, evidentiary, and ethics rules and reshape both the third-party funding industry and the legal services industry. This Article concludes that careful, limited experimentation would reveal whether such a practice is a viable, desirable addition to the menu of third-party funding transactions or whether the existing third-party funding transaction paradigm remains the best option. Ultimately, this Article aims to start a conversation about rethinking the structure of third-party funding transactions.