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.
Professor Adam F. Scales, Associate Professor of Law, recently published his article, SIGTARP: A Problem in Name Only, 68 Wash. & Lee L. Rev. 457 (2011), in the Washington & Lee Law Review.
The short article is a review and discussion of Aaron Sims’s article, SIGTARP and the Executive-Legislative Clash: Confronting a Bowsher Issue with an Eye Toward Preserving the Separation of Powers During Future Crisis Legislation, 68 Wash. & Lee L. Rev. 375 (2011). Prof. Scales addresses Sims’s constitutional concern that Congress, acting through the SIGTARP, will obtrude into a function explicitly assigned to the President.
Congratulations again to Aaron Sims and to Professor Scales.
Third year law student, Anthony Michael Kreis, recently had his article that reviewed the Fourth Circuit case, Educational Media Co. at Virginia Tech Inc. v. Swecker, accepted by the South Carolina Law Review, 62 S.C. L. Rev. 533 (2011), for its annual Fourth Circuit Survey.
Virginia’s Alcohol Beverage Control Board is charged with promulgating regulations governing the possession, transportation, distribution, and sale of alcohol in the Virginia. In keeping with its mandate, the Board banned alcohol advertisements in any “college student publication”– a publication distributed to or aimed at a community primarily under 21 years of age. Losing thousands of dollars in potential revenue, newspapers at the University of Virginia and Virginia Tech brought suit against Virginia arguing the Board’s ban violated the First Amendment. The case was appealed to Fourth Circuit Court of Appeals after the newspapers’ successful challenge in district court. The Fourth Circuit reversed finding that the ban did not violate the First Amendment. Kreis reviews the doctrinal underpinnings of the majority and minority opinions. He then provides additional commentary on why the Fourth Circuit’s treatment of the claim possibly caused a split with the Third Circuit Court of Appeals and why the United States Supreme Court denied certiorari.
Congratulations to Anthony on this exceptional publication.
Professor David Millon, the J.B. Stombock Professor of Law, recently published his article, Keeping Hope Alive, 68 Wash. & Lee L. Rev. 369 (2011), in the Washington & Lee Law Review.
The short article is a review and discussion of Micah Jost’s article, Independent Contractors, Employees, and Entrepreneurialism Under the National Labor Relations Act: A Worker-by-Worker Approach, 68 Wash. & Lee L. Rev. 311 (2011). Prof. Millon discusses the main battleground over unions, the legal distinction between “employees” and “independent contractors.” The right to unionize under the National Labor Relations ACT is limited only to employees, but no clear, bright-line definition of employee has emerged. Prof. Millon praises Jost’s article, stating that it “explains this confused area of law clearly and thoroughly.” He then proceeds to agree with Jost’s conclusions and suggestions.
Congratulations again to Micah Jost and to Professor Millon.
Washington & Lee 3L Nathan Howe recently had his article, The Political Question Doctrine’s Role in Climate Change Nuisance Litigation: Are Power Utilities the First of Many Casualties published in the Environmental Law Institute‘s monthly Reporter.
The article provides a case study of two recent decisions from the Second and Fifth Circuits, American Electric Power v. Connecticut and Comer v. Murphy Oil USA, which have permitted climate change litigation suits to progress to the discovery stage that the lower courts had barred through use of the political question doctrine. The courts in these decisions reviewed the political question doctrine’s applicability, and each court has created novel approaches to the 6-prong Baker v. Carr test as applied to climate change nuisance actions, reversing the lower court decisions. In evaluating these new tests, the article draws comparisons to both historical and modern interpretations of the doctrine since its original conception in Marbury v. Madison.
As a matter of policy, the article further investigates the desirability of regulation through litigation during the period before political action by the Executive or Legislative branches, and addresses one of the major criticisms of this approach, namely, that judges are not politically accountable. Ultimately, the article promotes the view that the courts were correct to restrain the political question doctrine in these types of cases, and as a final topic, discusses some options for heavy-emitting power utilities who may now be subject to litigation.
Many congratulations to Nathan.
On October 21, third-year law students Micah Jost and Aaron Sims presented their winning law review notes during the annual event recognizing the best student articles produced by Washington and Lee Law Review staff writers.
Jost, winner of the Roy L. Steinheimer Law Review Award, presented “Independent Contractors, Employees, and Entrepreneurialism under the National Labor Relations Act: A Worker-by-Worker Approach.” Jost graduated from Goshen College and is a Senior Articles Editor for Volume 68 of the Law Review.
Jost’s note discusses the often blurry line in labor and employment law between employees, who enjoy a variety of basic legal rights and protections on the job, and independent contractors, whom the law excludes from such coverage. It focuses on the failure of American labor law to recognize that many workers classified as independent contractors deserve the right to organize and collectively bargain with their employers. In particular, it examines a recent case in which the United States Court of Appeals for the District of Columbia Circuit concluded that FedEx Home Delivery drivers were independent contractors lacking the right to join a union under the National Labor Relations Act. Jost critiques the D.C. Circuit’s decision to focus on the drivers’ “entrepreneurial potential,” and argues that a worker-by-worker examination of each individual’s actual exercise of entrepreneurial rights could provide a more reasonable distinction between statutory employees and contractors who are, in some meaningful way, independent.
Sims, winner of the Washington and Lee Law Council Law Review Award, presented “SIGTARP and the Executive-Legislative Clash: Confronting a Bowsher Issue with an Eye toward Preserving the Separation of Powers during Future Crisis Legislation.” Sims graduated from George Wythe University and is a Managing Editor for Volume 68 of the Law Review.
Sims’s note explores the constitutionality of the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), an office created by the Emergency Economic Stabilization Act of 2008. SIGTARP is the government watchdog commissioned to oversee the Treasury Department’s management of the TARP program, a $700 billion economic bailout fund. The statute fashions a relationship in which SIGTARP recommends to Treasury certain actions regarding Treasury’s management of TARP. His note argues that the statute’s language requires Treasury to implement SIGTARP’s recommendations unless they are both unnecessary and inappropriate. It concludes that this dynamic violates the separation of powers. Although the statute lodges in the President the power to remove SIGTARP, Congress retains practically all remaining control over SIGTARP. While Supreme Court precedent stands for the proposition that presidential retention of the removal power neutralizes congressional-presidential separation of powers concerns, the note argues that this precedent is inapplicable to the SIGTARP dynamic because SIGTARP (unlike officers in the Supreme Court’s prior separation of powers cases) wields the power to shape policy and to commandeer the entire executive machine by submitting to Treasury recommendations that must be implemented unless they are both unnecessary and inappropriate. Sims concludes by examining the critical importance of preserving the separation of powers, the central role that the separation of powers plays in America’s unique form of government, and how the people are the primary guardians of the separation of powers.
Congratulations to both Jost and Sims for their impressive work.