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Archive for September, 2011

Faculty Profile: Susan Franck

September 30, 2011 Leave a comment

Susan FranckProfessor Susan Franck has opened two new areas of international investment law for one common goal: improving international dispute resolution systems.

Professor Franck is best known in academic and policy circles for her scholarship on the empirical evaluation of international investment law.  This work has been cited in the U.S. Department of State’s Report of the Advisory Committee on International Economic Policy Regarding the Model Bilateral Investment Treaty and published in journals such as the Washington University Law Review and the Harvard International Law Journal.  Her groundbreaking empirical research not only generates new empirical research opportunities in international law, but also supports Professor Franck’s primary objective –  to create meaningful innovations in the dispute resolution process and consider how best to benefit from Alternative Dispute Resolution (ADR) by using empirical tools to diagnose the investment treaty dispute resolution system.

Professor Franck’s beneficial ADR-based insights lead her to publish an article in the Minnesota Law Review.  The article explores how to use Dispute Systems Design to more effectively manage international investment conflict by minimizing the harm created by conflict at an early stage and by maximizing the benefits of ADR processes throughout the life cycle of disputes.  The concepts articulate by the article lead to a conference—International Investment and ADR—sponsored by the United Nations Conference on Trade and Development (UNCTAD), the Washington & Lee Francis Lewis Law Center, the Transnational Law Institute, the American Society of International Law, the American Arbitration Association and major international law firms including Foley Hoag LLP, Arnold & Porter LLP, Crowell & Moring LLP, Curtis, Mallet-Prevost, Colt & Mosle LLP, and Shearman & Sterling LLP.

That conference did several crucial things.  For the first time in history, it brought together scholars on international investment and ADR scholars to explore the possible application of ADR-insights to international investment law.  Next, with the help of Washington & Lee and an innovative use of technology, it created a pre-conference “Collaboration Blog” to bring together stakeholders from government, the private sector and the academy to discuss their concerns.  The Blog generated nearly 150 podcasts, blog posts and comments and also lead to the creation of eight Weekly Digests synthesizing the blog content.  Ultimately, the in-person conference in Lexington then physically brought together a “Mini United Nations” where Washington & Lee was able to host speakers and commentators from the governments Argentina, Costa Rica, the Dominican Republic, Ecuador, Japan, Rwanda, Thailand, the United States.  The Secretary-General of the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID), the President and CEO of the American Arbitration Association and the President of the American Society of International Law also offered their thoughts on the possibility of applying ADR to international investment law.

But the story does not end there.  Professor Franck’s scholarly efforts have taken root. The success of the conference warranted a major publication by the United Nations in June 2011. Investor-State Disputes: Prevention and Alternatives to Arbitration II features a preface from the Secretary-General of UNCTAD, Rapporteur Reports from several Washington & Lee Students, keynote addresses from Professor Michael Reisman, Margrete Stevens and Lucy Reed, fifteen other expert reports about the role of using ADR to facilitate better international dispute resolution, and a legal research pathfinder to facilitate capacity building from the W&L Law Library.  Meanwhile, the International Bar Association has created a sub-committee on Investor-State mediation, which will explore the possible use of ADR for international investment disputes.   Early in September, the World Trade Institute in Bern’s World Trade Forum 2011 spent a morning focusing on opportunities to use ADR and Dispute Systems Design in international investment law. Meanwhile, in connection with a World Bank initiative related to Law, Justice and Development, in November, Professor Franck will participate in a panel entitled, “What Will This Fight Cost?  Mediation vs. Arbitration vs. Litigation”.   But most tellingly, ICSID, the World Bank entity tasked with facilitating international investment disputes, just issued a list of designated Conciliators for the first time in its history.  Four of the ten names on that historically innovative list were participants and speakers in either the Collaboration Blog the in-person conference in Lexington, or both.  We are pleased to see that Professor Franck’s ideas are launching opportunities for global change.

W&L Student Note Winners

September 30, 2011 Leave a comment

Yesterday, third-year Washington and Lee law students Christine Shepard and Christopher Alexion presented their winning law review notes during the annual event recognizing the best student articles produced by Washington and Lee Law Review staff writers.

Shepard, winner of the Roy L. Steinheimer Law Review Award, presented “Corporate Wrongdoing and the In Pari Delicto Defense in Auditor Malpractice Cases:  A New Approach.”  Shepard is Editor in Chief for Volume 69 of the Law Review.

Shepard’s article examines how courts have addressed auditor malpractice claims using imputation in conjunction with the in pari delicto defense to insulate auditors from suit.  She argues that these doctrines do not work together and that, in order to allow auditors to use the in pari delicto defense, courts should examine whether a corporation can fairly be considered to be a wrongdoer.

Alexion, winner of the Washington and Lee Law Council Law Review Award, presented “Open the Door, Not the Floodgates:  Controlling Qui Tam Litigation under the False Claims Act.” Alexion is a Senior Articles Editor for Volume 69 of the Law Review.

Alexion’s article discusses lawsuits under the False Claims Act, which allows whistleblowers to receive a portion of the damages recovered from private contractors who cheat the government. The Note looks at the Affordable Care Act’s recent impact on whistleblower actions and suggests an approach that will maximize the value of these actions while minimizing frivolous lawsuits.

Congratulations to both Jost and Sims for their impressive work.

Prof. Nancy Dowd on Justice for Kids

September 29, 2011 Leave a comment

Nancy DowdIn the first installment of the Fall 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Nancy E. Dowd, the David H. Levin Chair in Family Law and Director of the Center on Children & Families at the University of Florida Levin College of Law, came to speak yesterday about her forthcoming publication, Justice for Kids:  Keeping Kids Out of the Juvenile Justice System.

Prof. Dowd discussed the growing gap between what the juvenile justice system needs to do for kids and what it actually does. As it currently operates, Prof. Dowd argues that the juvenile justice system does much to hurt and little to help. She suggests that the first priority should be to keep kids out of the system entirely, if possible, and to reconceptualize the system around children’s needs. Her book is a collection of articles that explore the system’s fault lines with respect to all children, and focuses in particular on issues of race, gender, and sexual orientation that skew the system. It provides specific program initiatives that offer alternatives to our thinking about prevention and deterrence, with an ultimate focus on keeping kids out of the system altogether.

Many thanks to Professor Dowd for visiting W&L and sharing her paper with the faculty.

Prof. Moliterno on Wrongful Convictions

September 22, 2011 Leave a comment

James MoliternoProfessor James E. Moliterno, the Vincent Bradford Professor of Law at Washington and Lee, recently published his article, Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client’s Confidences to Rectify the Wrongful Conviction of Another?, 38 Hastings Const. L. Q. 811 (2011), in the Hastings Constitutional Law Quarterly, as part of a roundtable discussion of the ABA Standards for Criminal Litigation).

In 2002, the American Bar Association amended the Model Rules of Professional Conduct (“Model Rules”) to allow an attorney to reveal client information when necessary to prevent certain future harms as well as crimes. Thus, if a client reveals that the client was the perpetrator of a crime for which someone else has been convicted and is scheduled to be executed, the lawyer is free to reveal that confidence. Prof. Moliterno asks: “But what of non-capital, wrongful convictions? Is the presence of the wrongly convicted in prison such a future harm? In particular, is the wrongly convicted ‘reasonably certain’ to suffer ‘substantial bodily harm?'”

In the paper, Prof. Moliterno suggests that the Model Rules should include any incarceration within “reasonably certain . . . substantial bodily harm.” Should the rules as written not encompass incarceration, Prof. Moliterno argues that an exception should be added to the Model Rules to permit disclosure of confidences to rectify wrongful incarceration. He provides example cases and the wrongs that occurred because of the confidences lawyers felt bound to keep. He then addresses the current state of the law and possible interpretations. Prof. Moliterno concludes the paper by stating that “[c]onfidence in the justice system cannot survive in the face of long-past revelations of wrongful convictions when silence was mandated by lawyer ethics law. The change advocated for in this paper is overdue and now needed if confidence in the justice system is to be preserved.”

Prof. Jost on the 4th Circuit

September 14, 2011 Leave a comment

Timothy JostProfessor Timothy S. Jost blogged a few days ago on the popular health policy blog, Health Affairs, about the U.S. Circuit Court of Appeals for the Fourth Circuit’s ruling on two cases, Virginia ex rel. Cuccinelli v. Sebelius and Liberty University Inc. v. Geithner, finding a lack of standing for the plaintiffs and dismissing the cases on jurisdictional grounds.

In the post, Prof. Jost describes the two cases that found themselves before the 4th Circuit and explains what the opinions mean. Both cases were decided on jurisdictional grounds, rather than on the merits, although two judges expressed the opinion that the minimum coverage requirement is constitutional. After explaining the two cases, Prof. Jost then outlines the potential paths forward and how ultimately, this issue will need to be decided by the Supreme Court.

Prof. Jost on ACA Loopholes

September 5, 2011 1 comment

Timothy JostProfessor Timothy S. Jost, the Robert L. Willett Family Professor of Law, recently had his article, Loopholes in the Affordable Care Act: Regulatory Gaps and Border Crossing Techniques and How to Address Them, published in the Saint Louis University Journal of Health Law and Policy.

In the article, Professor Jost discusses the comprehensive regulation found in the Affordable Care Act.  Most insurance reform provisions apply to individual and group coverage, including small group, large group, and self-insured plans. A number of types of insurance, however, are not covered by some or all of the ACA reforms, including grandfathered plans, early retiree plans, health care sharing ministries, excepted benefits, and short-term limited duration policies. The ACA also leaves open the possibility of “border crossing” techniques, which could allow small group or even individual plans to claim to be subject to less protective regulatory provisions governing large group plans. Professor Jost analyzes the “loopholes” in the ACA and examines what the state and federal governments can do to ensure that consumers receive the protection they are promised by the ACA.

The article may be found on SSRN here.

Prof. Drumbl on International Criminal Tribunals

September 1, 2011 Leave a comment

Mark DrumblEarlier this week, Professor Mark A. Drumbl, Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, chaired a panel discussion of the prosecutors of the international criminal tribunals at the Robert Jackson Center at the Chautauqua Institution in New York. It was part of the 5th annual International Humanitarian Law Dialog, which was a three day event that encourages the participants and the public to engage in a meaningful dialog concerning past and contemporary crimes against humanity and the role of modern international criminal law.

For more information on the conference, click here.

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