On Friday, November 20, Professor Sahani will present her forthcoming article, Judging Third-Party Funding, at a litigation funding conference hosted by the NYU School of Law’s Center on Civil Justice. Professor Sahani’s panel will focus on litigation funding in the context of the Federal Rules of Civil Procedure and will be moderated by Professor Arthur Miller of the NYU School of Law, who is a Faculty Co-Director of the Center on Civil Justice. The conference is free and open to the public, and CLE credit will be offered.
For more information and to register, please visit: http://www.law.nyu.edu/centers/civiljustice/2015-fall-conference.
Professor Sahani’s article will be published in the UCLA Law Review in February 2016.
From the abstract:
Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about third-party funding when it is relevant in a particular case,” but the Committee did not provide any additional guidance regarding how to determine the relevance of third-party funding, what information to obtain, or from whom to obtain that information. This Article provides that needed guidance by setting forth revisions and reinterpretations of procedural rules to provide judges and arbitrators with disclosure requirements and a framework for handling known issues as they arise. By revising and interpreting the procedural rules as suggested in this Article, judges and arbitrators will be able to gain a better sense of the prevalence, structures, and impact of third-party funding and its effects (if any) on dispute resolution procedures. Over time, these observations will reveal the true systemic impact of third-party funding and contribute to developing more robust third-party funding procedural regulations.
Washington and Lee law professor Christopher Seaman recently presented his new work, entitled Collaboration and Patentability, at the 4th Annual Mid-Atlantic Patent Law Works-in-Progress (MAPWIP) program. The event was held at American University Washington College of Law on Friday, November 13, 2015.
From the abstract:
Collaboration is a hallmark of modern innovation. Patented inventions are now more likely to be the result of large-scale research projects in private industry or academia involving a multidisciplinary team of collaborators, rather than the lone tinkerer in a garage. The rise of collaborative invention is due to several developments, including increased specialization within scientific disciplines, the prohibitive costs of independent research, and the ability for far-flung researchers to collaborate via the Internet. Although patent law has evolved to facilitate collaborative invention in several important ways, it has lagged in recognizing the shift to team-based innovation in one important respect: the concept of the so-called “person having ordinary skill in the art” (PHOSITA). The PHOSITA plays an important role in determining several key requirements for patentability, including nonobviousness, enablement, and written description. The PHOSITA also is central to determining the scope of a patent’s claims, which greatly influences both infringement and invalidity in patent litigation. This Article contends that the U.S. Patent and Trademark Office and the federal courts should account for the rise of collaborative invention by judging patentability from the perspective of a collaborative team, rather than a lone PHOSITA. By doing so, patent law will utilize a more realistic framework for judging patentability, which may raise the bar for some requirements like nonobviousness, but lower them for others like enablement and written description.
Christopher Bruner, the William Donald Bain Family Professor of Corporate Law at Washington and Lee, visited the University of Leeds School of Law as an invited Liberty Fellow during the week of November 9, 2015. As a part of his visit, hosted by the Leeds School of Law’s Centre for Business Law and Practice, Professor Bruner gave a public keynote lecture based on his book, Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power (Cambridge University Press, 2013). This lecture, together with responses by Professors Andrew Keay and Joan Loughrey of the Leeds law faculty, formed the basis for a half-day workshop on shareholder power that brought together faculty and student attendees from Leeds and other universities in England and Ireland. Throughout his visit Professor Bruner met with Leeds law faculty working in the areas of corporate, securities, and financial law, and conducted further research for his second book, Market-Dominant Small Jurisdictions in a Globalizing Financial World (Oxford University Press, forthcoming 2016), which examines the roles of small jurisdictions in cross-border corporate and financial services.
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. Read more about Professor Bruner’s scholarship here.
In October 2015 Washington and Lee law professor Jim Moliterno spent two weeks in Slovakia working on judicial ethics reform, conducting workshops, meeting with lawyers, and law schools. During this trip Professor Moliterno was interviewed by a Slovak journalist, Zuzana Petková, regarding controversial aspects of the Slovak judiciary and higher education system. In the article that was published last week, the headline reads: “Slovakia is Wasting Some of Its Best and Brightest.”
One of the several themes in the article is Professor Moliterno’s assertion that too many excellent judicial and academic candidates are denied permanent positions in favor of those with family connections to current judges and professors. In his opinion, which is based on his three years of work in Slovakia on legal ethics, the country is losing its best people who could make important contributions to the life of the country and its prosperity in favor of a system that relies on nepotism and favor-trading in the selection process for judicial and academic positions.
Washington and Lee law professor Mark Drumbl, director of the Transnational Law Institute, participated in an online symposium hosted by the blog Opinio Juris and the NYU Journal of International Law and Politics. The symposium focuses on a recent paper titled The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, by Drexel law professor Rachel Lopez. Drumbl, who has written extensively on genocide and mass atrocity, was one of four participants to comment on the paper. His submission is titled “The Memories of Collectives, the Gadgetry of Victimhood.”
Drumbl is currently a visiting scholar at the Center for International Criminal Justice at VU University, Amsterdam. While abroad, Drumbl has given a number of presentations and media interviews on topics including the Supreme National Tribunal of Poland and child soldiers in Columbia.
This December, the University of Virginia Press will publish a new collection of essays on Supreme Court law clerks, edited by Visiting Professor Todd Peppers. The title of the book is “Of Courtiers and Kings: More Stories of Supreme Court Law Clerks and their Justices,” and was co-edited by Peppers and Clare Cushman, Director of Publications at the Supreme Court Historical Society, with a foreword by retired Supreme Court Justice John Paul Stevens.
The essays are by a “who’s who” of the legal professional, from prominent Supreme Court litigator Carter Phillips, Harvard Law School Dean Martha Minow and law professor Norman Dorsen to former White House Counsel Abner Mikva, Judge J. Harvie Wilkinson III, and Mimi Clark Gronlund, daughter of former Supreme Court Justice Tom C. Clark. Peppers himself has contributed essays on Chief Justice William Howard Taft and his clerks as well as Justice Hugo Black and his clerks. He also co-wrote an essay on Abe Fortas and his clerks with Bridget Tainer-Parkins ’09L.
In praising the book, J. Harvie Wilkinson III, U.S. Court of Appeals for the Fourth Circuit said, “Nobody knows more about Supreme Court clerkships than Todd Peppers. Nobody has a better bird’s-eye view of the Supreme Court than Clare Cushman. All the essays in this book go to show why Supreme Court clerks play an important and intriguing role in the judicial process.”
Peppers writes extensively on the Supreme Court justices and their clerks. This fall he published an article in the National Law Journal’s Supreme Court Brief titled “Why Justice Alito Jumped Out of the Pool,” which explored why Alito does not rely on cert. pool memos written by law clerks in other chambers in deciding which cert. petitions to grant or deny. He also published an article in the Supreme Court Insider, also published by the National Law Journal, titled “Of Potted Plants and Popes.” The article examined why specific Supreme Court justices (like Antonin Scalia) declined to attend the Pope’s speech before a joint session of Congress.
A recent symposium on law clerks organized by Peppers and a colleague at Marquette Law School was featured in that law school’s magazine. That article is available online (PDF format).
On November 3 and 4, 2015 Washington and Lee law professor Jim Moliterno worked in Czech Republic on a project organized by a Czech NGO, Pro Bono Alliance, and financed by The US Embassy-Prague and the Prague international law firm, Kinstellar. The work was designed to increase the possibilities of required lawyer ethics courses at Czech Republic’s main law schools, Charles University in Prague, Masaryk University in Brno and Palacky University in Olomouc. Professor Moliterno met with interested faculty and deans and conducted a demonstration lawyer ethics class for a group of each school’s students with interested faculty and deans observing. He has already been invited back by two of the schools to teach a short ethics course.
In addition to the law school events, Professor Moliterno conducted a session with business lawyers in Prague at the Kinstellar offices. The group of about 25 lawyers engaged thoroughly in his interactive ethics teaching and several proposed that he do such a session for their own firms’ lawyers in house.
Finally, Professor Moliterno was the guest of honor at a reception hosted by the US Ambassador at the Ambassador’s Residence in Prague. The guests were leading lawyers, leading professors and deans, and Constitutional Court judges.