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

Todd C. Peppers et al.

Clerking for God’s Grandfather: Chauncey Belknap’s Year with Justice Oliver Wendell Holmes, Jr.

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, unfiltered peek at the personalities who populated the bench and the issues with which the Court was grappling. Just such a snapshot in time is provided by the diary of Chauncey Belknap, a remarkable Harvard Law School graduate who clerked for Justice Holmes during October Term 1915. Through Belknap’s near-daily records of his clerkship, as well as his encounters with the glittering social set of pre-war Washington, we are permitted a singular and fascinating glimpse into the colorful experience of working for one of the Court’s most famous jurists.

Joseph R. Slights III et al.

Corwin v. KKR Financial Holdings LLC—An After-Action Report

Vice Chancellor Slights presented this speech as the Eighteenth Annual Albert A. Destefano Lecture On Corporate, Securities, and Financial Law at the Fordham Corporate Law Center on April 9, 2018. Includes an introduction by Matthew Diller, Dean of the Fordham University School of Law.

Doug Rendleman

The Defamation Injunction Meets the Prior Restraint Doctrine

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill. A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” turns out to be formidable. This article examines the Sullivan v. New York Times privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining several Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction to avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, and the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s. The administration of the prior restraint doctrines has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. In Balboa Island Village Inn v. Lemen, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrines’ reasoning and application. The procedure leading to an injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful torts without threatening free-speech values. The article closes by asking for abolition of the Maxim and suspension or qualification of the prior restraint doctrine for defamation.

Mark A. Drumbl

Book Review, Jamie Rowen, Searching for Truth in the Transitional Justice Movement (2017) & Leonie Steinl, Child Soldiers as Agents of War and Peace: A Restorative Transitional Justice Approach to Accountability for Crimes under International Law (2017)

Why do truth commissions emerge following some conflicts but not others? Jamie Rowen tackles this question in Searching for Truth in the Transitional Justice Movement. Rowen approaches this topic through a detailed study of three jurisdictions: the former Yugoslavia, Colombia, and the United States. Although truth commissions did progress in Colombia, they stalled in both the former Yugoslavia in the wake of the Balkan Wars as well as in the United States in regard to the conduct of US officials after the events on 11 September 2001. Rowen unpacks what happened and what failed to happen — and why — in each of these three jurisdictions. Rowen structures her book around national jurisdictions. In other words, she turns to places as units of analysis. Discussion could also be grounded in conceptual spaces, to wit, kinds of human rights abuses and types of abusers. It is on this latter note that the compelling book, authored by Leonie Steinl, enters the mix as a complement to Rowen’s innovative work. Steinl examines how law and justice suffuse and infuse child soldiers. Steinl normatively interrogates how questions around child soldiers should intersect with transitional justice initiatives. Steinl picks up the toughest questions: how to approach the child who, subject to a variety of conditions, murders, maims or mangles others? What does justice mean for these others, which could well include children; and what does it mean for the child who commits the hurt, who too is a victim?

Mark A. Drumbl

From Timbuktu to The Hague and Beyond: The War Crime of Intentionally Attacking Cultural Property

This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature.What might the work product of the ICC in the Al Mahdi proceedings ç and international criminal law more generally ç add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that undergird transitional justice which, in turn, often insist upon cultural change, including to cultures of oppression and impunity. Along the way, this essay also unpacks thorny questions as to how to value cultural property; how to determine what, exactly, constitutes the kind of property whose destruction should be criminalized; and which ‘cultures’ should be protected by ‘whom’ and in ‘whose’ interests.