Frances Lewis Law Center

Faculty News

Friday, October 05, 2018

Professor Chris Seaman Presents Empirical Review of Trade Secret Litigation to Philadelphia IP Law Association

Washington and Lee Law Professor Chris Seaman presented an empirical review on trade secret litigation in federal court under the Defend Trade Secrets Act of 2016 to the Philadelphia Intellectual Property Law Association (PIPLA) at on Thursday, Sept. 20, 2018.  Professor Seaman’s empirical research on trade secret litigation (with co-author David Levine) was recently published … Continue reading Professor Chris Seaman Presents Empirical Review of Trade Secret Litigation to Philadelphia IP Law Association

Thursday, October 04, 2018

Call for Papers: Washington and Lee Law School and ASIL Southeast Interest Group Host International Law Workshop for Junior Scholars

The American Society of International Law, the ASIL-Southeast Interest Group and Washington and Lee School of Law invite submissions for the second ASIL-Southeast Junior Scholar Workshop hosted by Washington and Lee School of Law on May 13, 2019. Format: ASIL-SE will invite 6-7 junior scholars to share works-in-progress at the workshop.  We will pair each … Continue reading Call for Papers: Washington and Lee Law School and ASIL Southeast Interest Group Host International Law Workshop for Junior Scholars

Wednesday, September 26, 2018

Prof. Michelle Drumbl Presents on Tax Credits at Boston College

Washington and Lee law professor Michelle Drumbl presents Improving Tax Credits for the Working Poor (Cambridge University Press 2019) at Boston College as part of its Tax Policy Workshop Series. Drumbl’s presentation is featured on the popular TaxProf blog.  

Wednesday, September 26, 2018

Prof. Sam Calhoun’s Article on Separation of Church and State is a Top-Ten Download

Washington and Lee law professor Sam Calhoun published an article recently in the online edition of the W&L Law Review on the separation of church and state. The article, titled “Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion From Politics,” is … Continue reading Prof. Sam Calhoun’s Article on Separation of Church and State is a Top-Ten Download

Thursday, August 23, 2018

W&L Law Faculty Present at SEALS

Several Washington and Lee Law School faculty members participated in panels and discussion groups and presented new papers at the annual meeting of the Southeastern Association of Law Schools (SEALS), which was held in Fort Lauderdale, FL, from August 5-11, 2018.  W&L Law Faculty involvement in SEALS included: Professor Sarah Haan moderated a panel on … Continue reading W&L Law Faculty Present at SEALS

Recent Publications

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.

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.