Frances Lewis Law Center

Faculty News

Wednesday, February 07, 2018

Professor Russell Miller to be featured at Virginia Festival of the Book

Washington and Lee law professor Russell Miller will speak at this year’s Virginia Festival of the Book.  He will participate in a panel titled Surveillance vs. Privacy: NSA, DARPA, and More which features his book Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair. The panel will take place on Friday, March 23, 2018.  … Continue reading Professor Russell Miller to be featured at Virginia Festival of the Book

Tuesday, January 30, 2018

Professor Rendleman Leading Remedies Scholar in Digital Commons Network

Washington and Lee Law Professor Doug Rendleman is a leading scholar in the area of Remedies in the Digital Commons Network.  Of the 1,155 authors in this disciple, Professor Rendleman’s work receives some of the highest downloads.  To date, his work has been downloaded 15,841 times.   Some of Professor Rendleman’s most recent works include: … Continue reading Professor Rendleman Leading Remedies Scholar in Digital Commons Network

Thursday, January 18, 2018

Christopher Seaman Publishes New Work in BTLJ

Washington and Lee law professor Christopher Seaman has published a new work in the Berkeley Technology Law Journal.  The article is titled “Toward a Federal Jurisprudence of Trade Secret Law” and was written with co-author Sharon K. Sandeen of Mitchell Hamline Law School. The article appears in volume 32 of the journal.  The full text is available … Continue reading Christopher Seaman Publishes New Work in BTLJ

Wednesday, January 17, 2018

Michelle Drumbl publishes in Feminist Judgements series

Washington and Lee law professor Michelle Drumbl published a commentary in Feminist Judgments: Rewritten Tax Opinions.  The volume is published by Cambridge University Press and edited by Bridget J. Crawford and Anthony C. Infanti.  Feminist Judgments is a series featuring key judicial decisions on issues of gender and justice, written applying feminist methods and theories. Professor Drumbl … Continue reading Michelle Drumbl publishes in Feminist Judgements series

Friday, December 08, 2017

Professor Moliterno travels to the Czech Republic and Slovakia

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 travels to the Czech Republic and Slovakia

Recent Publications

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.

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.