W&L Law Professor Susan Franck‘s essay Empiricism And International Law: Insights For Investment Treaty Dispute Resolution was recently listed on SSRN’s Top Ten download list for: Political Methods: Qualitative & Multiple Methods eJournal. Here is the abstract:
While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in using empiricism to explore international legal issues. Rather than relying on logic or instinct alone, empirical methodologies can provide scholars with tools to gain new facts, see existing ideas through a different lens, and engage in a more nuanced analysis of international law phenomena. There appears to be a natural synergy between empiricism and international investment treaty dispute resolution. With calls for trade time outs by U.S. presidential candidates, there is interest in how investment treaties function, whether they achieve their goals, and at what cost. Given the implications for public policy, international relations, and allocation of domestic financial resources, empirical assessment of international investment law is not misplaced. This Essay considers the efficacy of using empirical methodologies to gain insights about the resolution of investment treaty disputes and international investment law. Part I considers the historical tensions between international law and empiricism and moves towards reintegration. Part II explores what form empiricism might take and argues for a broad understanding of empiricism. Part III analyzes how to develop an empirical approach in light of the costs and benefits and proposes five steps to facilitate the creation of an empirical research agenda for international investment treaty dispute resolution. While recognizing that empiricism is not a panacea, the Essay suggests that the benefits of making empiricism part of the methodological landscape of investment treaty dispute resolution scholarship are worth the costs. Empiricism offers a chance to obtain accurate information about investment disputes, correct misperceptions about existing dispute resolution processes, permits considered analysis of legal issues affecting the public, and facilitates informed decisions about the negotiation and revision of investment treaties.
You may download the article at:
. To view a discussion of the essay by Prof. Franck and Prof. David Zaring on Opinion Juris, visit
W&L Law Professor Timothy Jost has published the Seventh Edition of Health Law: Cases, Materials, and Problems with the West Publishing Company. The Health Law casebook has been widely used throughout the United States for teaching health law since the first edition was published in 1987, and is credited as having defined the modern health law discipline. The book, which is over 1800 pages long, is also being published in an abridged (900 page) edition and as three separate “spin-off” books covering bioethics, health care organization and financing, and liability and quality. All books will be available this summer for classes in the fall. Professor Jost wrote chapters dealing with health care cost and access issues, private health insurance regulation, the Affordable Care Act, ERISA, Medicare, Medicaid, and the Children’s Health Insurance Program. These chapters have been extensively rewritten since the sixth edition because of changes made by the Affordable Care Act.
On June 3-4 Prof. Miller was in Lausanne, Switzerland to present the methodological portion of his research project “Germany’s Plural Legal Culture” at the annual meeting of the comparative law association Juris Diversitas. The two-day conference – hosted by the Swiss Institute of Comparative Law – featured paper presentations and commentary from comparative law scholars from around the world. The program’s website is:
A new article by Washington and Lee law professor Lyman Johnson is featured on the popular Legal Theory Blog, managed by Georgetown law professor Lawrence Solum. Here is the posting, which includes the paper abstract.
Johnson on Virtue Ethics, New Institutional Economics, & Delaware LLC Fiduciary Law
- This essay, a forthcoming book chapter, examines the recent flux in Delaware LLC fiduciary law (and lawmaking) through the perspectives of New Institutional Economics (NIE) and the virtue ethics tradition. Delaware’s recent unsettledness as to whether default duties apply to LLCs can be understood as an instance of dynamic regulation in a common law setting. Given bounded rationality and incomplete contracting, such “dynamic” regulation emphasizes experimentation, observation, adaptation, and rule revision as part of an ongoing process of regulation. Various institutions – such as legislators, judges, lawyers, private organizations, and social norms – serve as mechanisms through which key actors interact with and adapt to other actors as rules evolve, often incrementally over long periods, but occasionally with more evident and rapid bursts of change when existing rule-optimality is questioned. Dynamism is not at odds with the goal of determinacy; it is the process by which, over time, greater determinacy is achieved under conditions of change. Joined with the virtue ethics tradition’s emphasis on the development and exercise of core virtues (such as loyalty and fairness) in human relationships, dynamic regulation provides a theoretical account of Delaware’s recent experience with LLC fiduciary duties.
A 1999/2000 alum of the Robert Bosch Foundation Fellowship Program, Prof. Russell Miller was elected by the 450 members of the alumni association to serve as Co-President for the 2012-2013 term. That service concluded Friday and Saturday (May 30 / June 1) in Berlin with a two-day program organized by Miller (and his Co-President Emily Olman).
Responding to German President Gauck’s query “How is it that Germans and Americans have such a different understanding of freedom?” – the program had the title “Freedom in the Transatlantic Sphere” and featured a keynote address from Former German Constitutional Court Justice Dieter Grimm and two panels that pursued a transatlantic dialogue on “Freedom as Rights” and “Freedom as Social or Economic Liberty”. The program’s website is:
W&L Law Professor Jim Moliterno has posted his article entitled The Trouble with Lawyer Regulation on SSRN, where it has become a top 10 download in its category. Here is the abstract:
The American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs the society of what could be a positive role of the legal profession in time of change, and it deprives the profession itself of being as robust and successful as it could be.
The article may be downloaded by visiting
Washington and Lee law professor Timothy Jost has published “The Affordable Care Act and the Constitution: Beyond National Federation of Independent Business v. Sebelius” in The Health Care Case: The Supreme Court’s Decision and its Implications, published by Oxford University Press. The book features well-respected and ideologically diverse authors, some of whom participated in ACA litigation. It is among the first scholarly books to address the healthcare decision, perhaps the most significant decision of the Roberts Court to date, with major implications for constitutional law, the Roberts Court itself, and healthcare. Below is excerpt from Professor Jost’s chapter:
In National Federation of Independent Business v. Sebelius (NFIB), the Supreme Court concluded that Congress had acted within its constitutional authority in adopting the Affordable Care Act (ACA)’s individual responsibility provision (although as an exercise of its taxing power, not its commerce power) but that the ACA’s Medicaid expansion was unconstitutional as written. The chapters in this book address the NFIB decision, its history, meaning, and ramifications for the future.
But the ACA and its implementation raise many other constitutional issues not settled by the NFIB case; issues that have been and continue to be litigated in the federal courts. While these challenges have not attracted the attention the NFIB case garnered, and most have either failed or are likely to fail, they are significant politically. Like the NFIB litigation, most of these other cases have been driven by political considerations. They have given support and encouragement to the ACA’s enemies, offering state officials politically opposed to the ACA reasons to refuse to cooperate in its implementation and opponents in Congress ammunition to call for its repeal. On the other hand, the tables could have been turned had an administration come to power in Washington opposed to ACA implementation, with the ACA’s supporters then resorting to litigation to salvage health reform. This chapter considers a number of constitutional issues presented by the ACA that were not raised in NFIB. Some of these issues have been decided by the courts, while others continue to be litigated with no decision yet, and others could have been raised had President Barack Obama not been reelected in November 2012, and might still be relevant as ACA implementation moves forward.
The book is available now from the Oxford Press website.
On June 6, Washington and Lee law professor Susan Franck will present “The Use of Economics for Empirical Studies in Investment Arbitration” at the DISSETTLE Research Workshop in Milan, Italy. Professor Franck’s presentation will explore the use of empirical methodologies–whether quantitative or qualitative–for the exploration of international investment law. In providing a framework for thinking about how to use quantitative tools, such as those used by economists, political scientists and psychologists, Professor Franck offers a “Seven Step Approach for an Evidence Based Approach” to international economic law. In applying that framework to her own research as one possible application, she will explore basic demographics and test descriptive hypotheses related to investment treaty dispute resolution before moving to test more complicated associative hypotheses about what variables are reliably linked to dispute options.
DISSETTLE is funded by the European Union’s Framework Programme and involves a consortium of high level European universities including the Graduate Institute in Geneva, the University of St. Gallen, the Université Libre de Bruxelles, the University of Warsaw and Bocconi University. These institutions have pioneered interdisciplinary work on economics and law and are dedicated to advancing the understanding of jurisprudence emerging from the dispute settlement body of the WTO and bilateral and regional trade agreement regimes.
Over at the Criminal Law JOTWELL, Mary Fan has reviewed Margaret Hu’s forthcoming article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN. Margaret will be joining the W&L Law Faculty this coming July. Here is an excerpt of the review, which was also featured at The Faculty Lounge:
The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned. She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.” She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking. For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.
The future is unfolding now, her article suggests. Proposals such as a biometric national ID are just ideas now, she notes. But in myriad ways, methods and modes of identification are developing toward such a future. Hu’s paper has several informative tables that collect valuable information about the ways that more pervasive technology-aided methods of identity verification and tracking are seeping into our present and future. Fittingly for an article about the government amassing data, one of the article’s most helpful contributions is its impressive amassing in one place numerous charts regarding the myriad programs, agencies and proposals that are structuring the future of more pervasive identity surveillance.
There is a brain trust of scholars working at the cutting edge of technology, privacy, big data, and the bounds of government power. Many convene each year at the Privacy Law Scholars Conference, an exciting hub for ideas created by Dan Solove and Chris Hoofnagle. Attend the conference and you will be struck by the dynamism and diversity of intellectual threads in this fast-expanding field of work.
What Hu’s article contributes to the rich conversation is a new voice and great ambition in bringing together many of the major themes and challenges. Readers will benefit from her great labors in offering useful taxonomies to frame the analysis and illuminate the scope and scale of what is unfolding.
Washington and Lee law professor Susan Franck will present research related to her book at the European Society of International Law’s 5th Annual Research Forum. The topic this year is International Law as a Profession. Franck’s panel is on the specific topic of the Dynamics of International Judicial Law Making, but her particular topic will focus on the role of counsel in investment treaty arbitration (ITA).
Using a dataset of 272 public ITA awards in 202 different cases rendered before January 2012, Franck’s research is the first of its kind internationally to explore the role of counsel through both descriptive and associative hypothesis testing. It first offers basic descriptive information about the number of entities involved in representing clients in ITA, the relative roles of in-house and external counsel, and the patterns of representation exhibited by investors and states that retain counsel. It next considers whether counsel involved in ITA solely represent investors, states or perhaps switch sides to represent different types of parties in different disputes. The paper then identifies the most prevalent players and constructs the “Top 21” list of legal entities involved in ITA.
On the basis of this information, the paper constructs two different measures to both identify the impact of repeat players in the legal representation involved in ITA. It constructs one variable—a binary measure—to simply identify whether counsel have ever been involved in multiple claims; and it constructs a second variable—a weighted variable—to provide a weighted assessment of the relative expertise of the individual legal entities involved in the arbitration process. These variables are then coded to assemble data about the total experience of both the investors’ and respondent’s legal teams. The research then explores the role of lawyers and the impact of the expertise of parties’ legal representation on critical variables.
The next section identifies whether the expertise of each party’s legal team is reliably linked to fundamental aspects of ITA, particularly variables such as amounts claimed, ultimate outcomes and amounts awarded. It also explores whether expertise is linked in some way to either: (a) the amounts charged by lawyers; or (b) the amount of lawyer fees shifted by tribunal’s during the cost phase. Finally, it considers the link between each side’s relative expertise, thereby offering the possibility of exploring whether the “lawyering up” by investors that retain more sophisticated counsel is linked to the expertise of respondent’s counsel and vice versa.
Ultimately, by exploring the role of lawyers in ITA and assessing whether they do (or do not) make meaningful contributions to the arbitration process, Franck argues we will have a better sense of the value of international lawyers in an area of law with critical implications for the international political economy. This, in turn, permits considered evolution of how lawyers potentially impact the generation of international law through their capacity as advisors and advocates.