Frances Lewis Law Center

Faculty News

Wednesday, April 24, 2019

Professor Chris Seaman Presents at U.S. Patent Office

Professor Chris Seaman presented a new work-in-progress entitled “Noncompete Agreements and Other Post-Employment Restraints on Competition: Empirical Evidence from Trade Secret Litigation,” at the U.S. Patent and Trademark Office in Alexandria, VA, on April 12, 2019.  Professor Seaman’s presentation was part of the Roundtable on Empirical Methods in Intellectual Property, which is intended to give … Continue reading Professor Chris Seaman Presents at U.S. Patent Office

Wednesday, March 13, 2019

Professor Sam Calhoun’s Article a Top Ten SSRN Download

A new article by Washington and Lee law professor Sam Calhoun, published in the Washington and Lee Law Review Online, is a top ten download on SSRN. The article, “If Separation of Church and State Doesn’t Demand Separating Religion from Politics, Does Christian Doctrine Require It?,” is a response to several reactions to Prof. Calhoun’s … Continue reading Professor Sam Calhoun’s Article a Top Ten SSRN Download

Thursday, February 28, 2019

Professor Mark Drumbl Lectures in Cambridge and The Hague

Mark Drumbl gave a public lecture at Cambridge University on January 18, 2019. He presented his research on the war crime of intentional destruction of cultural property. Audio of the lecture is available here. Publication of this project is forthcoming in the Journal of International Criminal Justice. Drumbl begins in Timbuktu, Mali, where in 2012 … Continue reading Professor Mark Drumbl Lectures in Cambridge and The Hague

Monday, October 29, 2018

Professor Mark Drumbl gives lectures in Australia, Kenya, Czech Republic

Mark Drumbl taught an intensive course on ‘Victims, International Law, and Mass Atrocity’ at Monash University in Melbourne Australia in August 2018. While there, he also had a chance to visit Griffith University in Brisbane Australia where he participated in a book launch and also gave a talk on a recent project he has begun … Continue reading Professor Mark Drumbl gives lectures in Australia, Kenya, Czech Republic

Monday, October 29, 2018

Professor Michelle Drumbl Presents on Taxpayer Rights

Washington and Lee law professor and Tax Clinic director Michelle Drumbl presented at Temple Law School on Oct. 26 as part of the Temple Law Review symposium, “Taxpayer Rights in the United States: All the Angles.” Prof. Drumbl appeared on the panel “Operationalizing Taxpayer Rights: IRS Efforts and Experiences of Lawyers Who Represent Clients Pro … Continue reading Professor Michelle Drumbl Presents on Taxpayer Rights

Recent Publications

Cary Martin Shelby

How Did We Get Here? Dissecting the Hedge Fund Conundrum Through an Institutional Theory Lens

This article dissects both the origins and resulting harms of what the author terms the "hedge fund conundrum," in which institutional investors, such as pension plans and endowments, have consistently increased hedge fund allocations over the past decade despite pervasive evidence of excessive fees and subpar returns. It then utilizes an historical institutionalist lens to examine how lawmakers may have enabled a conundrum of this magnitude. By and large, this phenomenon is a symptom of regulatory loopholes that have permitted the private hedge fund market to increase in "publicness" through its expanding access and subsequent harm to retail investors. Such investors are now indirectly exposed to hedge funds through pension plans and endowments, without receiving the investor protection guarantees under the federal securities laws. Subsets of historical institutionalism, such as "conversion" and "drift," provide useful rubrics in analyzing how the law has evolved in this regard. In terms of conversion, lawmakers initially converted concepts of publicness through administrative regulations and court rulings that expanded indirect retail investor access to private investments. With respect to drift, lawmakers then failed to update these amended definitions to accommodate evolving notions of publicness brought about by financial innovation and changing market conditions. An examination of this nature is novel in this area of the law and it provides a useful guidepost for exploring well-tailored solutions that concede the unlikelihood of subjecting hedge funds to direct regulation. Such a solution would therefore rely on conversion to effectively create a regulated market for "hedge-fund-like" strategies. This would entail loosening (but not eliminating) the section 18 capital restrictions that currently apply to mutual funds. Loosening these restrictions would allow pension plans and other institutional investors to access essential opportunities for wealth maximization, particularly during declining markets, in a transparent market that is subject to extensive regulation. If, however, pension plans and other institutional investors continue to allocate to hedge funds in an inefficient manner, Congress should then consider more drastic measures, such as completely excluding such investors from accessing private investment funds by amending elite investor definitions provided under federal securities laws.

Michelle Lyon Drumbl

Tax Attorneys as Defenders of Taxpayer Rights

What is the modern role of a tax practitioner, in particular a tax attorney, in the United States? In an era in which the Internal Revenue Service (IRS) is underfunded, understaffed, and struggles to address its mission, tax attorneys play an important role as advocates for taxpayer rights. Tax attorneys act as advocates who represent ordinary individual taxpayers in controversies with the IRS. These controversies include post-filing disputes, such as audits, as well as issues arising with the collection of assessed taxes. Many of these cases are resolved at the administrative level; those that cannot be resolved are litigated, most commonly in the United States Tax Court. Tax attorney advocates matter because for millions of low-income families, filing a tax return is not just about reporting income but also a mechanism for claiming social benefits. And for the impoverished, the collection powers bestowed upon the IRS represent a threat to their ability to meet day-to-day needs. Meanwhile, the IRS increasingly relies on automated procedures and provides a decreasing level of human service for taxpayers. Further, the sweeping tax reform that was rushed into law in December 2017 added new challenges and workload for the overburdened administrative agency, as it had to train employees on the changes, design new forms, and issue public guidance for taxpayers. Looking into the future, tax attorneys will continue to play a crucial role in defending taxpayer rights and advocating on behalf of the most vulnerable population. This Essay explores that role.

Nora V. Demleitner

Structuring Relief for Sex Offenders from Registration and Notification Requirements: Learning from Foreign Jurisdictions and from the Model Penal Code: Sentencing

This paper first discusses the scope of sex offender registration and notification under federal and state laws, and contrasts U.S. laws with those in other countries. Part III turns to the prevailing rationales for these laws and tests their empirical validity. It highlights the negative effect of registries and notification on criminal investigations, and the cost they impose on public coffers, public safety, and those labeled sex offenders. Part IV discusses a set of proposals to turn registries, which may serve a limited legitimate function, into more effective law enforcement tools while restricting public notification. This section outlines ex ante limitations on such laws, and then turns to mechanisms that would allow individual offenders to petition for their termination. This discussion provides the context for an analysis of the relief provisions set out in the American Law Institute (ALI) Model Penal Code (MPC): Sentencing, Article 7. The article concludes that to enhance public safety and reintegrate sex offenders, the United States would be better served by moving away from public notification, limiting registries, and investing more heavily in prevention and the treatment of convicted sex offenders.

Nora V. Demleitner

Felon Disenfranchisement

In its broadest forms, felon disenfranchisement excludes even individuals who have long been rehabilitated. Yet they are still treated only as partial citizens. Automatic, long-term restrictions on the franchise are unnecessarily exclusionary. More importantly, they hinder reentry and rehabilitation. Citizens returning from imprisonment, who can vote, have lower rates of recidivism than those who are barred from voting. Re-enfranchisement signals a return to citizenship. It advances and confirms a returning citizen’s full participatory rights. Ultimately, that means we recognize these individuals as having lived up to the expectation of rehabilitation rather than leaving them feeling defeated.

James E. Moliterno

And Now a Crisis in Legal Education

The current crisis in legal education coincides with a crisis in the practice of law. Law practice has changed as a result of technology, globalization, and economic pressures. The market for legal education's product, law graduates, have diminished. Law schools cannot remain the same in this environment. Except for a very small number of elite schools, those that do not adjust are at serious risk of failing. An economic change has taken place against a system in which mostly corporate clients willingly paid for the training of beginners at major law firms. Law firms could absorb those costs if partners allowed their incomes to shrink, but so far they are not doing so. Billing for newly minted associates' time is substantially decreasing. Far fewer law graduate find jobs in major firms, and the few who do are not given comprehensive training. Everyone from law firms and their clients to prospective law students and even to the New York Times has turned to the law schools to say, "It's your turn; you have to do this for us." The cost once borne by corporate clients of law firm is now increasingly borne by law schools. The call for law schools to produce "practice-ready" lawyer arrives as the cost of legal education is already too high and application numbers are too low for the current supply of legal education seats. Legal education can only hope to maintain relevance if it can forge partnership with the profession's practicing branch. Another suggested antidote is the two-year J.D., or two-year legal education bar eligibility.