Frances Lewis Law Center

Faculty News

Wednesday, August 09, 2017

Delaware Corporate Law Anniversary Symposium features W&L faculty member Lyman Johnson

The upcoming Delaware Corporate Law Anniversary Symposium will be held on September 26 & 27, 2017.  The symposium commemorates the 50th anniversary of the 1967 general revision of the Delaware General Corporation Law, the 225th anniversary of the establishment of the Delaware Court of Chancery and the 25th anniversary of the Delaware Limited Liability Company Act. Washington and … Continue reading Delaware Corporate Law Anniversary Symposium features W&L faculty member Lyman Johnson

Thursday, July 06, 2017

Scholarly Commons Hits 2,000,000 Downloads!

This month, Scholarly Commons, the law school’s institutional repository, reached a new milestone – 2 million downloads!  The 14,722 total items in the repository have been downloaded a total of 2,046,581 times. Scholarship at W&L Law is downloaded in countries across the world by individuals at 5,405 educational institutions, 23,784 different commercial entities, and 1,127 … Continue reading Scholarly Commons Hits 2,000,000 Downloads!

Tuesday, June 27, 2017

Professor Parella publishes “The Information Regulation of Business Actors” in AJIL Unbound

Professor Parella’s recent essay, “The Information Regulation of Business Actors,” was recently published in the American Journal of International Law (AJIL) Unbound series and is available for download here . The abstract is below: A transnational legal order (TLO) is emerging regarding the role of businesses in respecting human rights. This legal order includes multistakeholder … Continue reading Professor Parella publishes “The Information Regulation of Business Actors” in AJIL Unbound

Friday, June 23, 2017

Prof. Lyman Johnson Publishes in Cambridge Series on Law and Christianity

Washington and Lee Law professor Lyman Johnson has contributed to a new book published by Cambridge University Press, Agape, Justice, and the Law: How Might Christian Love Shape Law.  This new volume is part of the Cambridge Series on Law and Christianity.  Professor Johnson’s work is titled “Law, Agape, and the Corporation” in which he discusses … Continue reading Prof. Lyman Johnson Publishes in Cambridge Series on Law and Christianity

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”

Recent Publications

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.

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.