Professor Peppers co-edited the book with Artemus Ward. It is a collection of essays on law clerks and their justices by a variety of former law clerks, legal scholars, and social scientists. Prof. Peppers also contributed several essays to the book, including an essay on Justice Ruth Bader Ginsburg and her law clerks, which was based on an interview he had with the Justice.

The book may be found on Amazon.

The paper discusses the possibility of allowing states to file for bankruptcy. In the article, Professor Skeel makes a case for the creation of a bankruptcy structure for individual states. He outlines that most of the traditional benefits from a bankruptcy framework would potentially exist for states, as well. Such benefits include establishing a more coherent priority structure for state obligations, providing additional restructuring tools, and helping to more equitably distribute the sacrifice of bankruptcy among creditors. Professor Skeel then addresses many of the principal concerns, including the constitutionality of a state bankruptcy and the potential for severley damaging credit ratings bondholder trust. Ultimately, Prof. Skeel concludes that bankruptcy would significantly improve on the existing strategies for dealing with a state’s financial collapse.

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

While scholars have often debated the specifics of President Abraham Lincoln’s religion, some elements of his religious faith appear “beyond doubt;” that is, specific beliefs have been “verified … at least as far as historical facts can be verified.” Professors Calhoun and Morel assert that another element of Lincoln’s faith should be added to the list: his belief in a personal, sovereign God. They utilize the historical record including Lincoln’s words (both written and spoken), and his actions to come to the conclusion that by the end of his life, he believed in a personal, sovereign God.

You may find the article on SSRN here.

The Exceptions Clause of the Constitution, which provides that the Supreme Court’s appellate jurisdiction is subject to “such Exceptions, and … such Regulations as the Congress shall make,” has long been viewed as a threat to the Court’s central constitutional function: establishing definitive and uniform rules of federal law. In the article, Professor Grove argues that the clause has been fundamentally misunderstood. Indeed, she argues that Congress has a strong incentive to use its control over federal jurisdiction to promote the Court’s role in settling disputed federal questions. When the Court’s docket grew unmanageable, Congress used the Exceptions Clause to replace the Court’s mandatory review with discretionary review. Prof. Grove asserts that Congress has used its power to safeguard the Supreme Court’s essential role in the constitutional scheme rather than undermine it.

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

Professor Drumbl is the head of the W&L Tax Clinic. In the last four years, the clinic has helped nearly 150 clients navigate the treacherous paths of audits and other tax problems. On a wide range of issues that sometimes involves litigating in the U.S. Tax Court, Professor Drumbl and her students have brought relief and resolution to these taxpayers, some of whom were previously so overwhelmed with their tax woes that they burned rather than opened the letters they received from the IRS.

Professor Drumbl began her life in the law as a student at George Washington University Law School. She found herself drawn to the tax law classes, because of their “statutory nature and the way the puzzle all fits together.” After law school she practiced tax and estate planning law for two years prior to earning her LL.M. in Taxation at New York University. Following graduation in 2002, she accepted a job with the Office of Chief Counsel at the IRS, where she was an attorney in the International division of the National Office in Washington DC. While working there, she provided advisory opinions on the interpretation of bilateral income tax treaties and was the principal author of several private letter rulings and public guidance items issued on international tax matters.

While still with the IRS she began to moonlight as an adjunct professor at W&L. In 2007, when she was offered the opportunity to set up the Tax Clinic, she gladly accepted the challenge.

The Tax Clinic, part of a nationwide grant program overseen by the IRS Taxpayer Advocate Service, offers eligible taxpayers free legal representation before the IRS on matters such as: audits, non-filing, innocent spouse claims and other similar issues. Any Virginian with a household income under 250% of the federal poverty line is eligible for assistance. Prof. Drumbl oversees a roster of eight students per semester, who manage approximately 45 to 50 cases per year.

Clients most commonly arrive at the clinic because of a notice of audit or non-payment or underpayment of previous taxes. Often, they face large liabilities, including penalties and interest, with scant resources. Under Professor Drumbl’s guidance, students are often able to vastly reduce this financial burden through negotiations with the IRS.

Drumbl finds the daily work of running the clinic to be intellectually stimulating in ways beyond the client work. It has inspired ideas for her scholarship, including a current project titled Decoupling Taxes & Marriage: Beyond Innocence and Income Splitting. In this article, Professor Drumbl tackles the issue of joint and several liability for married couples filing joint returns, examining how the law creates an unfair conundrum for low-income taxpayers in particular. In 2010, Professor Drumbl co-authored Skills and Values: Federal Income Tax, a Lexis-Nexis book designed to help law students bridge the gap between the basic federal income tax class and the practice of tax law.

Helping clients faced with the might of the IRS, is “always a fantastic feeling” according to Drumbl; but her greatest satisfaction comes from watching third-year law students grow in confidence and ability as they prepare for the profession. “What I enjoy most is watching the students evolve into thoughtful counselors who take ownership of their clients’ legal cases. My hope is that the Tax Clinic experience will help our students transition effectively as they enter practice following graduation, whether that practice involves tax, corporate law, or public interest work.” Also, working with clients who are struggling engenders a greater sense of perspective on life and the law for professor and students alike. “It is humbling…and that’s a good thing,” Drumbl says.

The book, a compilation of works and essays, discusses the powerful role the American prosecutor plays in the judicial system. They wield the authority to accept or decline a case, choose which crimes to allege, and decide the number of counts to charge. These choices, among others, are often made with little supervision or institutional oversight. This prosecutorial discretion has prompted scholars to look to the role of prosecutors in Europe for insight on how to reform the American system of justice.

In The Prosecutor in Transnational Perspective, Professor Luna and Marianne Wade, through the works of their contributors coupled with their own analysis, demonstrate that valuable lessons can be learned from a transnational examination of prosecutorial authority. They examine both parallels and distinctions in the processes available to and decisions made by prosecutors in the United States and Europe. Ultimately, they demonstrate how the enhanced role of the prosecutor represents a crossroads for criminal justice with weighty legal and socio-economic consequences.

The book may be found on Amazon here.

Scholarly analysis and popular perceptions of the American criminal justice system tend to focus on serious crimes. The majority of Americans, however, will interact with the criminal justice system (if at all) in a misdemeanor courtroom, in which dozens of defendants wait for hours to spend a few moments in front of a judge. Many of them will not be represented by a lawyer and very few of them will have a single piece of paper filed on their behalf. Individually, their cases might command the scrutiny of a police officer for a couple of hours, a prosecutor for a couple of minutes, and a judge for a couple of moments. With a few notable exceptions, the process by which we prosecute and adjudicate low-level cases in the American criminal justice system has gone largely unexplored and unexamined, despite its being the primary contact that most Americans have with the criminal justice system.

In his essay, Prof. King addresses some of the issues surrounding the prosecution and adjudication of low-level offenses in the United States, looking specifically at the changed context within which such prosecutions take place today. He explores the tension between the formal procedural safeguards and adversarial zeal that is supposed to characterize the American criminal justice system, and the practice of the processing of misdemeanor cases as it actually occurs in courtrooms across the country. Prof. King also examines the recent explosion of the scope and number of collateral consequences that attend a criminal conviction, including many misdemeanor convictions. He addresses the issue of wrongful convictions, an issue that has received great focus recently in the context of serious cases but much less so with regard to the low-level prosecutions that dominate the criminal justice system. Finally, Professor King argues that the dramatic increase in misdemeanor prosecutions as well as the sharp rise in the seriousness and scope of the resulting collateral consequences requires a change in how such cases are adjudicated.

The article can be found on SSRN here.

On November 10th and 11th, the Washington and Lee Law Review, sponsored the “Regulation in the Fringe Economy” symposium at the Washington and Lee School of Law. The symposium was co-sponsored by the Frances Lewis Law Center, the Consumer Credit Research Foundation, the Washington and Lee Class of 1963 Scholar-in-Residence Fund, and the National Conference of Bankruptcy Judges Endowment for Education.

The symposium focused on lenders dealing in the fringes of the economy – payday loans, auto title loans, rent-to-own stores, and for-profit college loans. With the economy in shambles, more and more people have turned to these lenders and services rather than traditional, mainstream financial service providers. This trend and how to response was the primary topic of the renowned scholars in attendance.

The first panel, moderated by Bruce Miller, discussed mainstream ideas about fringe lending and regulation. Professor Robert Mayer addressed loan sharking and the effect of interest caps on their prevalence. Professor Lance McMillian used the lens of HBO’s The Wire to discover that regulation is superior to prohibition for inevitable markets. Professor Todd Zywicki discussed the rise of overdraft protection and the data surrounding it.

Professor Ronald Mann of the Columbia Law School gave the keynote address. Prof. Mann set a measured tone for the symposium by discussing the arguments that exist on both sides of the issue. He contrasted the paternalistic approach of regulation and consumer protection with the rational decisions consumers make regarding fringe lenders.

The second panel, moderated by Hilary Miller, addressed whether payday lenders should be regulated and the best way to do so. Jay Speer discussed the predatory lending practices he has witnessed as Director of the Virginia Poverty Law Center and promoted heightened regulation. William Webster, Chairman of Advance America, argued that payday loans are a valuable service for short-term, small-dollar customers and that excessive regulation would leave consumers worse off. Professor Paige Marta Skiba analyzed consumer behavior and concluded that many regulations considered are ineffective in protecting consumers. Professor Christopher Peterson addressed the problems with regulation enforcement to date and proposed a mandatory warning sign for all vendors charging an annual percentage rate above 45%.

The third panel, moderated by W&L’s own Professor Margaret Howard, discussed what future issues may arise in the fringe economy. Professor Jean Braucher raised the issue of for-profit college loans and the ability for students to pay their debts after graduation. Professors Eric Chaffee and Geoffrey Rapp talked about peer-to-peer lending, the practice where debtors borrow from a collection of their peers rather than a bank or institution. Professor Nathalie Martin addressed internet-based payday lending and the use of tribal immunity to skirt consumer protection laws.

The last panel, moderated by Professor Harlan Beckley of W&L, covered empirical data about fringe lending and some of the federal measures enacted. Professor Creola Johnson covered the Military Lending Act’s 36% cap on consumer loans for military members and the power of the newly-created Consumer Financial Protection Board. Professor Rich Hynes analyzed the data behind common criticisms of the payday lending industry. His results overall were inconclusive, acknowledging the complexity of the issue. Professor Alan White used examples in microcredit programs to highlight regulation suggestions for the small-loan credit industry. Professor Jim Hawkins presented data he gathered about the auto title industry and how consumers view them.

The symposium overall was a great success, highlighting many of the discussions regarding the fringe economy. It fostered a tense, but productive discourse between consumer protection advocates, academics, and industry representatives.

The article discusses the third branch of the federal government, the Judiciary, which traditionally has been viewed as the least of the three branches in terms of the scope of its power and authority. The Supreme Court has permitted Congress to exercise authority over the Federal Judiciary, including the limitation of jurisdiction of inferior federal courts, without much thought or explanation.

Professor Spencer argues that it may be possible to imagine a more robust vision of the Judicial Power through closer scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests Judicial Power of the United States exclusively in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In the article, Prof. Spencer reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. The article argues that this fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges—or at least may moderate—our understanding of Congress’s authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.