Mark Drumbl, Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, instructed an intensive class at Monash University, School of Law, in Melbourne Australia at the end of August 2016 entitled ‘Victims, law and mass atrocity’.
While in Australia he gave a lecture at the Griffith Law School in Brisbane on victims who victimize others in times of mass atrocity and how to approach such tragic perpetrators. The lecture draws from an article he recently published.
In September he spoke at a conference on International Criminal Law and Film held at the London School of Economics and also at a conference held at Laval University in Quebec City on transitional justice.
He also published a short article on child soldiers.
Christopher Bruner, the William Donald Bain Family Professor of Corporate Law at Washington and Lee, was a Visiting Professor during the week of September 12 at the Southwest University of Political Science and Law (SWUPL) in Chongqing, a major economic center on the upper Yangtze River in southwest China. SWUPL is regarded as one of China’s top institutions for legal education.
As a part of his visit, hosted by SWUPL’s Civil and Commercial Law School, Professor Bruner gave two lectures based on his book, Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power (Cambridge University Press, 2013). A Chinese edition of the book, translated by Professor Lin Shaowei of SWUPL’s commercial law faculty, recently appeared in print.
Corporate Governance in the Common-Law World has been called “a revelation,” and “a work of monumental significance and scholarly craft.” In the book, Professor Bruner develops a new political theory to explain why shareholders in the U.K. and other common-law jurisdictions are both more powerful and more central to the aims of the corporation than are shareholders in the U.S. Specifically, he argues that relatively robust social welfare protections in countries like the U.K., Australia, and Canada have freed up their corporate legal systems to focus more intently on shareholder interests without giving rise to “political backlash” – because other legal structures accommodate the interests of employees. Professor Bruner’s second book, Re-imagining Offshore Finance: Market-Dominant Small Jurisdictions in a Globalizing Financial World, will be published by Oxford University Press in late 2016. Read more about Professor Bruner’s scholarship here.
Washington and Lee law professor Christopher Seaman and co-author Ryan Holte of Southern Illinois University School of Law have been selected as winners in the Young Legal Scholars Paper Competition hosted by the Federalist Society for Law and Public Policy Studies.
Professor Seaman’s winning paper is titled “Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit’s Application of eBay.” The paper will be featured as part of the Young Legal Scholars Paper Presentations Panel at the Federalist Society’s Annual Faculty Conference in San Francisco, CA on January 5, 2017.
The paper is currently available to download from SSRN.
From the abstract:
Ten years after the U.S. Supreme Court’s 2006 seminal decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the U.S. Court of Appeals for the Federal Circuit sharply divided regarding whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.
This article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset of appeals in nearly 200 patent cases — representing all cases involving contested permanent injunction decisions for a 7½ year period after eBay — we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate that the Federal Circuit is generally more favorable to prevailing patentees regarding permanent injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, some implications of this and other empirical findings from the study are considered.
In a talk entitled “Institutions Under the Microscope,” Professor Brian Murchison reviewed cases decided in the 2015-16 U.S. Supreme Court Term as guest of the Federal Bar Association chapter in Roanoke on August 25, 2016. This was Murchison’s fourth annual review for the FBA, whose members include federal judges and practitioners in the Roanoke area.
The talk was simulcast to attorneys in Charlottesville. Among the cases Murchison discussed were: Williams v. Pennsylvania (finding that a state supreme court justice’s refusal to recuse himself in a case in which he had been involved as a district attorney decades earlier amounted to a violation of a death row prisoner’s due process rights in a current appeal); Luis v. United States (deciding that an indictee’s Sixth Amendment right to counsel of choice outweighed the government’s interest in freezing assets unrelated to the charged crime); Army Corps of Engineers v. Hawkes Co. (finding that an agency’s Jurisdictional Determination under the Clean Water Act amounted to final agency action and hence was reviewable); Blake v. Ross (holding that an inmate suing corrections guards need only exhaust internal prison remedies that are “available” in the sense of “capable of use to obtain some relief”); Encino Motorcars v. Novarro (declining to defer to a superficially explained agency interpretation of a federal labor statute); Bank Markazi v. Peterson (finding no separation of powers flaw in a federal statute that changed applicable law for a pending case and was outcome-determinative); McDonnell v. United States (vacating convictions of former Virginia governor under federal bribery statute).
Washington and Lee law professor Christopher Seaman recently published a new article in the Iowa Law Review. The new article, titled Permanent Injunctions in Patent Litigation After eBay: An Empirical Study, appears in volume 101 of the journal.
Since its posting on SSRN Permanent Injunctions in Patent Litigation After eBay: An Empirical Study has climbed into the SSRN All Time Top Papers list for patents.
The datasets for this project are also now available online in Scholarly Commons.
From the abstract:
The Supreme Court’s 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected this “general rule” that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Almost ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has there has been little rigorous empirical examination of eBay’s actual impact in patent litigation.
This Article helps fill this gap in the literature by reporting the results of an original empirical study of contested permanent injunction decisions in district courts for a 7½ year period following eBay. It finds that eBay has effectively created a bifurcated regime for patent remedies, where operating companies who compete against an infringer still obtain permanent injunctions in the vast majority of cases that are successfully litigated to judgment. In contrast, non-practicing entities almost always are denied injunctive relief. These findings are robust even after controlling for the field of patented technology and the particular court that decided the injunction request. It also finds that permanent injunction rates vary significantly based on patented technology and forum. Finally, this Article considers some implications of these findings for both participants in the patent system and policy makers.
Washington and Lee law professor Victoria Sahani recently published an article to Law360.com. The article, titled “The Latest State To Regulate 3rd-Party Funding By Statute”, is published in the Legal Industry section of the site as featured expert analysis. Professor Sahani’s article discusses Indiana’s recently adopted statute which authorizes and regulates the consumer third-party litigation funding industry.
The full text of the article is available to the W&L Law community here. (log in required for off-campus access).
Washington and Lee law professor Lyman Johnson presented at the annual Fiduciary Law Workshop, held this year at Duke Law School. The Fiduciary Law Workshop is intended to foster broad scholarly interest in the field. The Workshop is open to scholars whose work is historical, doctrinal, economic, philosophical, or empirical in methodology.
Prof. Johnson presented his paper titled “Relating Fiduciary Duties to Corporate Personhood and Corporate Purpose.” He was one of twelve scholars to present during the workshop. From the paper:
Corporate personhood and corporate purpose should be taken seriously in theory and doctrine by taking the corporate entity as a socio-legal institution seriously; that is, as a person distinct from associated persons both in juridical status and in its organizational purpose(s). This should extend into the realm of fiduciary duties as well. Coherence demands that the director duties of care and loyalty run to the corporation, at least with respect to the purpose of the corporation. Delaware’s corporation statute, after all, charges the board of directors to direct the business and affairs of the corporation itself, not those of stockholders. And its formulation of the business judgment rule presumes, likewise, that directors are acting in the best interests of the 99 Gold and Miller (2014) (collection). 35 corporation.