Frances Lewis Law Center

Faculty News

Friday, May 26, 2017

Professor Kish Parella Presents at the University of Oxford

On May 27, 2017, Professor Kish Parella presents her forthcoming article, Reputational Regulation, 67 Duke L. J. (forthcoming 2018), at the annual meeting of the Society for Environmental Law & Economics (SELE) at the University of Oxford. SELE is an interdisciplinary organization that brings together legal scholars, economists, and interested researchers in other fields to … Continue reading Professor Kish Parella Presents at the University of Oxford

Tuesday, May 23, 2017

Professor Margaret Hu ranks in top 10% of SSRN authors

Washington and Lee law professor Margaret Hu now ranks in the top 10% of authors on SSRN by total new downloads in the last 12 months.  Professor Hu’s 6 articles posted to SSRN have generated a total of 1,018 downloads including 369 in the last 12 months alone. Professor Hu’s most frequently downloaded works are: Biometric ID Cybersurveillance and Big Data … Continue reading Professor Margaret Hu ranks in top 10% of SSRN authors

Wednesday, April 26, 2017

Professor Seaman Presents at Trade Secret Law Conference

On April 20-21, 2017, Washington and Lee law professor Christopher Seaman participated in a conference at Mitchell Hamline School of Law entitled “The New Era of Trade Secret Law:  The DTSA and Other Developments.” Professor Seaman, along with Professor David Levin of Elon Law,  presented to the members of The Honorable Jimmie V. Reyna Intellectual Property … Continue reading Professor Seaman Presents at Trade Secret Law Conference

Monday, April 24, 2017

Professor Seaman Publishes in Washington Law Review

Washington and Lee law professor Christopher Seaman has published a new article in the Washington Law Review.  The article,  “Patent Injunctions on Appeal:  An Empirical Study of the Federal Circuit’s Application of eBay” (with co-author Prof. Ryan T. Holte), appears in volume 92 of the journal. Download the full -text of Professor Seaman’s article here. From the … Continue reading Professor Seaman Publishes in Washington Law Review

Thursday, April 20, 2017

Professor Kish Parella to speak at 18th Annual Stanford/ Yale/Harvard Junior Faculty Forum

Professor Kish Parella has been invited to participate in the 18th session of the Stanford/ Yale/Harvard Junior Faculty Forum, which will be held at Stanford Law School on June 6-7, 2017.  Professor Parella will present her paper, “Reputational Regulation,” 67 Duke L. J. (forthcoming 2018) (SSRN). The 18th Annual Stanford/ Harvard/Yale Junior Faculty Forum: The … Continue reading Professor Kish Parella to speak at 18th Annual Stanford/ Yale/Harvard Junior Faculty Forum

Recent Publications

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.