Frances Lewis Law Center

Faculty News

Wednesday, May 30, 2018

Professor Murchison Publishes in William & Mary Bill of Rights Journal

Washington and Lee law professor Brian Murchison has published new scholarship in the William & Mary Bill of Rights Journal.  The article, titled The Visibility Value of the First Amendment, appears in Volume 26 of the journal. More of Professor Murchison’s scholarship on First Amendment issues may be found here:  https://works.bepress.com/brian_murchison/  

Friday, May 18, 2018

Professor Parella Presents at the American Law & Economics Association (ALEA) annual conference

On Saturday, May 12, 2018 Professor Kish Parella presented her work in progress, “Public Relations Litigation,” at the annual meeting of the American Law & Economics Association (ALEA), which was held at Boston University School of Law. The abstract is below: Abstract from “Public Relations Litigation”: It is no secret that litigation can harm a … Continue reading Professor Parella Presents at the American Law & Economics Association (ALEA) annual conference

Friday, April 27, 2018

Professor Kish Parella Selected to Present Paper at Yale/Stanford/Harvard Junior Faculty Forum for Second Consecutive Year

Professor Kish Parella has been selected for the second time in consecutive years to present at the Yale/Stanford/Harvard Junior Faculty Forum, which will be held this summer at Harvard Law School on June 13-14, 2018. The Forum’s objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in … Continue reading Professor Kish Parella Selected to Present Paper at Yale/Stanford/Harvard Junior Faculty Forum for Second Consecutive Year

Tuesday, April 24, 2018

Prof. Russ Miller Presents on Free Speech at Cato Institute

Washington and Lee law professor Russ Miller participated in a Cato Institute panel on April 18 titled “What Europe Can Teach the United States about Free Speech.” In addition to Miller, the panel discussion featured  Jacob Mchangama, Director, Justitia (Copenhagen) and was moderated by  John Samples, Vice President, Cato Institute. From the program description: “After three decades … Continue reading Prof. Russ Miller Presents on Free Speech at Cato Institute

Recent Publications

June 28 - David S. Levine et al.

The DTSA at One: An Empirical Study of the First Year of Litigation Under the Defend Trade Secrets Act

This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals of creating more robust and efficient litigation vehicles for trade secret misappropriation victims, thereby helping protect valuable American intellectual property assets.

We find that, similar to state trade secrets law, the paradigm misappropriation scenario under the DTSA involves a former employee who absconds with alleged trade secrets to a competitor. Other results, however, raise questions about the new law’s ability to effectively address modern cyberespionage threats, particularly from foreign actors, as well as the purpose (or lack thereof) of trade secret law more broadly. We conclude by discussing our data’s implications for trade secret law and litigation, as well as commenting on the DTSA’s potential impact on the broader issues of cybersecurity and information flow within our innovation ecosystem.

January 22 - Margaret Hu

Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. A cybersurveillance nonintrusion test implicitly suggested by the Supreme Court in United States v. Jones first shifts the vantage point of the Fourth Amendment analysis from an individual-based tangible harm inquiry to an inquiry of a society-wide intangible harm— whether the modern surveillance method creates a “1984 problem” for society. A cybersurveillance nonintrusion test requires the government to justify the intrusion of the surveillance on society. A new test would remediate increasingly ineffective Fourth Amendment jurisprudence currently grounded in property and tort law. The Article argues that the adoption of a cybersurveillance nonintrusion test and the abandonment of the current privacy test is not only required; but, in practice, is already used by the federal courts.