Frances Lewis Law Center

Faculty News

Monday, June 19, 2017

Professor Todd Peppers Publishes Book, “A Courageous Fool”

Washington and Lee Visiting Professor of Law, Todd Peppers, will publish a new book this summer with co-author Margaret Anderson.  The book, titled “A Courageous Fool: Marie Deans and Her Struggle against the Death Penalty” will be published by Vanderbilt University Press on July 15, 2017. From the publisher: There have been many heroes and … Continue reading Professor Todd Peppers Publishes Book, “A Courageous Fool”

Monday, June 19, 2017

Professor Kish Parella Presents at 2017 Stanford/Harvard/Yale Junior Faculty Forum

On Wednesday, June 7, 2017 Professor Kish Parella presented her forthcoming article, Reputational Regulation, Duke Law Journal, Vol. 67, Issue 5 (2018) at Stanford Law School as part of the 2017 Stanford/Harvard/Yale Junior Faculty Forum.  Professor Parella’s article was selected for the session on civil litigation and disputes because it explores the information effects of … Continue reading Professor Kish Parella Presents at 2017 Stanford/Harvard/Yale Junior Faculty Forum

Friday, June 09, 2017

Assistant Dean Caroline Osborne Ranks in top 10% of SSRN authors

As of May 2017, Washington and Lee Assistant Dean and Professor of Legal Research Caroline Osborne ranks in the top 10% of authors on SSRN by total new downloads in the last 12 months.  Dean Osborne’s articles generated a total of 2,366 downloads including 302 in the last 12 months alone. Dean Osborne’s most frequently downloaded works are: … Continue reading Assistant Dean Caroline Osborne Ranks in top 10% of SSRN authors

Wednesday, May 31, 2017

Professor Moliterno Visits Ukraine as Fulbright Specialist Scholar

Washington and Lee law professor Jim Moliterno recently taught a two-week lawyer ethics course in Kharkiv Ukraine at Yaroslav Mudryi (Yaroslav the Wise) National Law University. While in Ukraine, Professor Moliterno also made a presentation on judicial ethics to the International Law Faculty and to the National Academy of Legal Science. A description and photos of his visit is … Continue reading Professor Moliterno Visits Ukraine as Fulbright Specialist Scholar

Tuesday, May 30, 2017

Professor Johnson Ranks in Top 10% of SSRN Authors

Washington and Lee law professor Lyman Johnson ranks in the top 10% of authors on SSRN by total new downloads in the last 12 months.  Professor Johnson’s articles  have generated a total of 11,696 downloads including 1,794 in the last 12 months alone. Professor Johnson’s most frequently downloaded works are: The Sarbanes-Oxley Act and Fiduciary Duties,  Corporate Officers and the … Continue reading Professor Johnson Ranks in Top 10% of SSRN Authors

Recent Publications

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.

January 29 - Michelle Lyon Drumbl

Joint Winners, Separate Losers: Proposals to Ease the Sting for Married Taxpayers Filing Separately

A taxpayer who is “considered as married” according to the Internal Revenue Code’s definition must file either a joint income tax return or an individual return using the “married filing separately” filing status. Those married taxpayers who file a separate, rather than a joint, income tax return are denied valuable benefits and subjected to a host of other unfavorable limitations. Low-income taxpayers, in particular, are hurt by these limitations. Certain married taxpayers, including victims of domestic violence and abandoned spouses, may have no choice but to file using the married filing separately status. Low-income taxpayers are denied tremendous benefits, such as the earned income tax credit, as they begin to rebuild their lives. Perhaps intentionally because of these limitations, and in other cases perhaps unintentionally by misunderstanding or mistake, some taxpayers incorrectly choose single or head of household as their filing status when the correct status should have been married filing separately. In the context of the earned income tax credit, the cost to the government of this particular type of filing status error is estimated to be between $2.3 and $3.3 billion annually. As currently structured, not unsurprisingly, the limitations on the married filing separately filing status create an incentive for this type of taxpayer or return preparer noncompliance. Further complicating this filing status frustration, the Code imposes limitations on how and when married taxpayers may amend their return to file a joint return after one or both spouses files a separate return. The Internal Revenue Service applies a restrictive reading of these limitations; whether the Service is interpreting the Code correctly remains an open question in the courts. This Article explores these married taxpayer filing status limitations and the collateral consequences thereof. It briefly outlines how and why the joint filing option developed and touches upon the concepts of the marriage bonus and the marriage penalty. It concludes by proposing three alternative models to the current limitations imposed on married taxpayers who choose to (or have no choice but to) file separate returns. In each proposal, low- income taxpayers would have increased access to the credits meant to assist them. In addition to increasing fairness, each proposal would reduce or remove a structural incentive for taxpayer noncompliance.

January 27 - Michelle Lyon Drumbl

Beyond polemics: Poverty, taxes, and noncompliance

The earned income tax credit (EITC) is perhaps the most significant refundable credit in the U.S. tax system. Designed as an anti-poverty program, it is a social benefit administered by the Internal Revenue Service (IRS). Studies show it has a positive impact upon the children whose families receive it. Despite its many positives, however, the EITC is a program that for years has been plagued by taxpayer noncompliance. Though it is believed that the majority of EITC noncompliance may be unintentional, public reports of misconduct and fraud hurt the program’s image and fuel political rhetoric. This article unpacks the rhetoric. It describes why the term ‘improper payments’ is not synonymous with fraud. It places EITC noncompliance within the broader context of the US ‘tax gap,’ explores motivations for intentional EITC noncompliance, and examines the role of inadvertent error in the overpayment rate. Building upon theories of taxpayer noncompliance, the article concludes that increasing the amount of information required from all taxpayers (whether self-prepared or using a preparer) at the time of filing will reduce both intentional and unintentional EITC errors. Increasing these requirements, coupled with slowing down the refund process generally, is a reasonable way to improve administration of the EITC program without unduly burdening low-income taxpayers.