Washington and Lee law professor Russ Miller has published a piece titled ”Differencing Same-Sex Marriage” at the blog site for the Journal of International Constitutional Law (I-Connect).
In the piece, Miller explores recent efforts by the U.S. Supreme Court and the Constitution Court of Germany to deal with same-sex marriage. He notes that there is strong temptation for comparative law scholars to draw comparisons between the U.S. and Germany in these cases, but argues that that effort might be mistaken. He concludes the piece by saying:
If the Supreme Court ends up ruling in favor of same-sex marriage, the temptation for comparative constitutional lawyers to conclude that there is an emerging constitutional convergence in favor of the rights of homosexuals will be great. Whatever political—or even theoretical—position that functionalist comparative law conclusion serves, it would be only the most superficial comparative “reality.”
W&L Law Professor A. Benjamin Spencer just published an article entitled Class Actions, Heightened Commonality, and Declining Access to Justice in the Boston University Law Review. Here is the abstract:
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’ s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that would otherwise never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.
This article may be downloaded by visiting the BU Law Review website.
Professor Timothy Lubin, Lecturer in Religion and Law and Professor of Religion at Washington & Lee University, recently posted an article on SSRN entitled Legal Diglossia: Modeling Discursive Practices in Premodern Indic Law. Here is the abstract:
This article proposes to analyze the socio-linguistic practices documented in inscriptions from South and Southeast Asia between the fourth and sixteenth centuries as a type of “functional diglossia” characteristic of legal discourse in states influenced by the transregional Dharmaśāstra tradition in Sanskrit. This diglossia can take two forms. Sanskrit itself may be used as an acrolect, either alone or in bilingual records, where it has primarily expressive or ceremonial functions. But the focus in this article is on the other form: the use of a highly Sanskritized, formal and formulaic register of the local vernaculars. Starting with some observations about the impact of Sanskrit legal discourse on Old Khmer and Old Javanese legal records, comparable inscriptions in Old Tamil are examined in detail, noting the influence of first Prakrit and then Sanskrit on legal idiom. It is concluded that use of this Sanskritized register reflects not simply the prestige of Brahmanical high culture but also the perceived value and utility of an imported specialized conceptual system of law and administration. This study further suggests that the introduction of written legal documentation, simultaneous with the spread of Brahmanical legal ideas, led in turn to the formal recognition of local customary norms as law, in keeping with the Dharmaśāstric principle that customary norms constitute Dharma.
This article may be downloaded by visiting http://ssrn.com/abstract=1720704. Prof. Lubin specializes in Sanskrit religious and legal literature and Hinduism, and teaches courses in the College on Asian traditions, the comparative study of religion, and Sanskrit. In the Law School, he teaches fall seminars on “Law and Religion” and “Hindu Law in Theory and Practice.” His research deals with Indic legal traditions and Brahmanical Hindu ritual codes, the connections between them, and their reception in modern India.
Washington and Lee Law Professor Tim MacDonnell has published an article examining contraband searches of the home. The article is titled “Florida v. Jardines: The Wolf at the Castle Door” and was published in the New York University Journal of Law & Liberty. From the introduction:
Despite its potential impact, Jardines seems innocuous at first. The State of Florida has appealed the Florida Supreme Court’s determination that police violated the Fourth Amendment when they used a narcotics dog to sniff the front door of a suspect’s home without a warrant. In its brief in support of certiorari, the State of Florida points out that police are already permitted to use narcotics dogs without warrants in airports and at traffic stops. Florida and seventeen other states have argued that the dog sniff of an automobile is no different than the dog sniff of a home. The claim is that there is no reasonable expectation of privacy in possessing contraband, thus any investigative technique that only reveals the presence or absence of contraband is not a search.
The purpose of this article is to examine the controversy regarding the application of the contraband exception to the home and the potential impact of the Jardines decision. The article will begin by examining the cases that make up the Supreme Court’s contraband exception and some of the Court’s precedent regarding the home and warrantless searches. Next, the article will examine the Florida Supreme Court’s holding in Jardines and discuss how the Florida court arrived at the conclusion that the canine sniff in that case was a search. This section will compare the Florida court’s conclusions with Supreme Court precedent. Finally, the article will examine the three most probable results of the Jardines decision and advocate for the Court’s rejection of warrantless canine sniffs of the home.
A PDF of the article is available here.
Washington and Lee School of Law Professor Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center, has received two honors recognizing his professional accomplishments and standing within the legal academy.
First, Prof. Spencer has been elected to the American Law Institute (ALI), the most prestigious law reform body in the U.S. The ALI is focused on producing scholarly work to clarify, modernize, and otherwise improve the law. It has a membership 4300 judges, lawyers, and teachers from all areas of the U.S. and many foreign companies.
Also, Prof. Spencer has been appointed by the President of the National Conference of Bar Examiners to the Civil Procedure Drafting Committee, which consists of 6 people who will write the civil procedure questions that appear on the Multistate Bar Exam (MBE). Civil Procedure is currently not tested on the MBE but will be beginning in 2016. Prof. Spencer will meet with the other committee members every six months as they prepare for the inclusion of this subject on the MBE.
Congratulations to Prof. Spencer on these honors.
Washington and Lee Law Professor Tim Jost has published a new article in the Journal of Health Economics, Policy and Law, published by Cambridge University Press. The article, titled “The Affordable Care Act and the Supreme Court: American health care reform inches forward despite dysfunctional political institutions and politics,” discusses the political landscape of that enabled the ACA to become law. Beginning with the law’s passage in early 2010, Jost examines the various challenges and court decisions that occurred over the next 2.5 years, evaluating the legal arguments and developments during the run-up to the decision by the U.S. Supreme Court upholdng the law.
The article is available from the Cambridge Press Website.
W&L Law Professor A. Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center, has just published an article entitled The Law School Critique in Historical Perspective, 69 Wash. & Lee L. Rev. 1949 (2012). This article provides an extensive review of the history of legal education and legal education reform up to the present day, gleaning lessons along the way for how we might address contemporary challenges facing law schools. Here is the abstract:
Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the current model of legal education developed. Indeed, a historical perspective on legal education is sorely missing from this debate, as many of the criticisms merely echo charges that have been lodged against legal education for well over a century, but do not draw lessons from how those former critiques ultimately failed to deliver fundamental change. This Article reviews the historical development of legal education in America, including the critiques and reforms made along the way, to gain insight that will inform our own efforts to make law schools better at preparing lawyers for practice.
This article, which was published in the Washington & Lee Law Review, may be downloaded from SSRN by visiting http://ssrn.com/abstract=2017114.
May 9-10, 2013. Copenhagen Business School, Denmark
Morten Bennedsen, Insead
Patrick Bolton, Columbia Business School
Ronald Gilson, Columbia and Stanford University
Zohar Goshen, Columbia Law School
Henry Hansmann, Yale Law School
Reinier Kraakman, Harvard Law School
Colin Mayer, Said Business School, Oxford University
OVERVIEW: Large owners play a central role as monitors of companies around the world, but who monitors the monitors? What are their incentives to exercise their ownership well – in the interest of society as a whole? We know that security and company law plays a role in this respect, but informal mechanisms like reputation, trust or social norms may be important as well. In this workshop we aim to explore how and when these mechanisms informal work. Is reputation a source of long term decision making in family firms? What induces institutional investors to active ownership and stewardship? What role do social norms play in ownership structures less disciplined by market forces? What is the interplay between formal accountability and a more subjective sense of responsibility? These are some of the issues that we would like to discuss.
ORGANIZATION: The workshop is organized by the Center for Corporate Governance, Copenhagen Business School. It is sponsored by the Research Project on Industrial Foundations.
WORKSHOP LOCATION: Copenhagen Business School
PARTICIPATION: Potential participants should e-mail the Center for Corporate Governance (ccg@cbs,.dk) before 1. March 2013. Attendance is limited, but free of charge. Notification of acceptance 15. March 2013. Deadline for registration 1. April 2012.
The January 2013 issue of the Banking Law Journal includes an article by W&L Professor of Practice James Pannabecker entitled “The CFPB Issues an Exemption from Dodd-Frank Mortgage Disclosures, Leading the Industry to a Potential Regulatory Cliff.”
The article argues that the Consumer Financial Protection Bureau made a mistake in not issuing a detailed final rule by January 21, 2013 as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act, doing a disservice to both the industry and consumers. Instead, the agency issued an exemption for twelve disclosure requirements it intends to address in a final rule later in 2013. The agency took this action despite a Dodd-Frank provision stating that its mortgage requirements, including the twelve disclosures, would automatically take effect on January 21 if regulations were not adopted by that date. The CFPB could have excised from previous proposals the rules for each of the twelve disclosures and issued them in final form before January 21, then later adjusted the compliance date if appropriate. Its admittedly temporary exemption relies on regulatory flexibility options and invites litigation. The article offers disclosure language for lenders that choose to implement the twelve disclosures despite the CFPB exemption. Download: 130 Banking Law Journal 37 (January 2013).
Washington and Lee law professor Tim Jost has been named a contributing editor for Health Affairs, the nation’s leading health policy journal. Jost has been a regular contributor to the Health Affairs blog this year, authoring over thirty posts on the Affordable Care Act covering implementation issues and legal challenges.
Jost’s look at the 2012 election and the implementation of the Affordable Care Act in its aftermath topped the list of most-read Health Affairs Blog posts for November 2012. His posts previously captured three spots on Health Affairs 2011 Most Read List. An archive of Jost’s posts can be found here: http://healthaffairs.org/blog/author/jost/.
In addition, a perspective column Jost wrote on the litigation challenging the Affordable Care Act requirement that insurers and group health plans cover contraception was published recently in the New England Journal of Medicine. That column can be found here: http://www.nejm.org/doi/full/10.1056/NEJMp1214605?query=featured_home