Frances Lewis Law Center

Faculty News

Friday, December 08, 2017

Professor Moliterno

Washington and Lee law professor Jim Moliterno recently returned from the Czech Republic and Slovakia where he spent several days  speaking with lawyers, judges, and educators about the legal profession. Professor Moliterno’s engagements included: A two-day lawyer ethics course at Masaryk University in Brno Czech Republic (November 23-24) for forty student participants. A public forum … Continue reading Professor Moliterno

Thursday, December 07, 2017

Professor Russell Miller publishes new work on German Law

Washington and Lee law professor Russell Miller has published several new scholarly works in the area of German Law. First, Professor Miller’s latest article, A Pantomime of Privacy: Terrorism and Investigative Powers in German Constitutional Law, was recently published in Volume 68 of the Boston College Law Review.   From the abstract: Germany is widely regarded … Continue reading Professor Russell Miller publishes new work on German Law

Tuesday, October 17, 2017

Professors Fairfield and Fraley win Lewis Prize for Excellence in Legal Scholarship

Each fall, two prizes are awarded by the Frances Lewis Law Center to recognize outstanding legal scholarship supported by our summer grants.  This year’s winners of the Lewis Prize for Excellence in Legal Scholarship are Josh Fairfield and Jill Fraley. Professor Fairfield’s award recognizes his outstanding scholarship on the intersection of law and technology.  In … Continue reading Professors Fairfield and Fraley win Lewis Prize for Excellence in Legal Scholarship

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

Recent Publications

November 09 - Sarah C. Haan

Shareholder Proposal Settlements and the Private Ordering of Public Elections

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts. The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately negotiated social policy commitment by corporate management. Settlements of campaign finance disclosure proposals are memorialized in detailed private agreements that set the frequency, format, and substance of disclosure reports; are enforced by private actors; and typically are not available to other shareholders, corporate stakeholders, or the public. Proposal settlements are producing a body of private disclosure law that increases corporate transparency to advance First Amendment values and is exempt from First Amendment scrutiny. The disclosure standards themselves are a mixed bag: effective at filling some gaps in public campaign finance disclosure law, but inadequate to make corporate electoral spending transparent in advance of elections. As a form of private electoral regulation, the proposal settlement mechanism raises issues of democratic transparency, participation, accountability, and enforcement. This Article challenges the characterization of proposal settlements as “voluntary” corporate self-regulation, provides a framework for understanding settlement-related agency costs, and shows how settlement subverts the traditional justifications for the shareholder proposal itself. Solutions that address the democratic and corporate governance problems of settlement largely overlap, suggesting a path forward.

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.