Archive for February, 2011

Professor Scott Dodson on Hybridizing Jurisdiction

February 23, 2011 Leave a comment

Scott DodsonIn the second installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Scott Dodson, Associate Professor of Law at William and Mary, came to speak on February 21 about his forthcoming article, Hybridizing Jurisdiction. Professor Dodson’s talk was part of the Junior Faculty Workshop Series as well, which allows younger professors to benefit from both a discussion and critique of their papers from more experienced faculty.

Professor Dodson’s paper challenged the traditional notions of jurisdictionality. Historically, an issue is either jurisdictional or its nonjurisdictional. Unlike matters of procedure or substance, which are nonjurisdictional, a jurisdictional issue cannot be consented to or waived. A jurisdictional defect may be raised by any party at any time and any judgment entered into without jurisdiction is void. Therefore, it can often be quite important if a particular factor is deemed jurisdictional or not.

Professor Dodson argued that the lines are not so clear when dealing with jurisdictionality. Courts have allowed jurisdictional defects to be waived and barred nonjurisdictional issues from being consented to. Professor Dodson discussed this disparity and suggested a more open hybridization of jurisdictionality. A jurisdictional issue can be hybridized with various nonjurisdictional features and considerations. Thus, he argues, each form would enable regulation of jurisdiction in ways that can be beneficial to parties and the judicial system as a whole to minimize costs and maximize advantages.

Professor Dodson’s paper generated a healthy discussion from W&L’s faculty, who, in turn, asked pointed and insightful questions of the young William & Mary professor.

Many thanks to Professor Dodson for coming and we hope he found his visit productive and helpful.

Mark Drumbl: A Semester Down Under

February 17, 2011 Leave a comment

Mark Drumbl

Professor Mark A. Drumbl, the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, spent a half-year research sabbatical in Fall 2010 in Australia. His wife, Associate Clinical Professor of Law Michelle Drumbl, who also serves as Director of the Tax Law Clinic, and their two young sons accompanied Professor Drumbl for the semester. Michelle took advantage of her time away to finalize her forthcoming federal income tax supplemental casebook, under contract with Lexis/Nexis, and participate in the tax law discussion group at Melbourne Law School. Read more…

Professor Frederick Schauer on Appellate Fact-Finding

February 16, 2011 Leave a comment

Frederick SchauerLast week, Frederick Schauer, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, delivered this year’s Tucker Lecture to a packed audience at the Millhouser Moot Court Room at Washington and Lee University School of Law. Professor Schauer gave his lecture entitled “Do Appellate Judges Find Facts as Well as Apply Law?”

Professor Schauer discussed the traditional theory that appellate courts do not find facts. Historically, appellate courts were confined to the interpretation of the law as it applies to the facts documented in the lower court records. If a fact was not to be found in the record, the higher courts were required to remain ignorant or blind towards it. Professor Schauer argued that this is false. He cited many examples of appellate courts utilizing facts that were nowhere to be found in the record, such as the infamous Brandeis Brief and Brown v. Board of Education. He went on further to claim that appellate fact finding is commonly done and that the legal system would do well to openly acknowledge its existence and incorporate it into legal procedures.

The full video can be found here.

We thank Professor Schauer for coming to speak to the legal community at Washington & Lee.

Professor June Carbone on Red Families v. Blue Families

February 15, 2011 Leave a comment

June CarboneIn the first installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor June Carbone, the Edward A. Smith/Missouri Chair of Law, the Constitution and Society Professor at the University of Missouri-Kansas City School of Law, came to speak on February 14 about her book, Red Families v. Blue Families.

In her talk, Professor Carbone discussed the growing polarization amongst American families. “Blue Families,” she argues, emphasize the importance of workforce participation for both men and women, egalitarian gender roles, and the delay of family formation until both parents are emotionally and financially ready. In contrast, “Red Families” reject these new family norms and view the change in moral and sexual values as a crisis. They view marriage as a sacred undertaking between a man and a woman and see divorce as society’s greatest moral challenge. Professor Carbone noted that the changing economy is rapidly eliminating the stable, blue collar jobs that have historically supported young families, and the advanced education needed for success is being derailed by early marriage and childbearing. This results in the highest divorce and teen pregnancy rates in the areas of the country most committed to traditional values, which only fuels a greater call to reinstill traditional values.

Professor Carbone gave a detailed and interesting presentation, displaying many startling statistics and figures she and others have compiled over the years. It garnered a healthy discussion amongst the faculty.

Many thanks to Professor Carbone for coming to speak.

Margaret Howard: Bankruptcy Federalism: A Doctrine Askew

February 15, 2011 Leave a comment

Margaret HowardProfessor Margaret Howard, the Law Alumni Association Professor of Law, recently published her article, Bankruptcy Federalism: A Doctrine Askew38 Pepp. L. Rev. 1 (2010), in the Pepperdine Law Review.

Professor Howard discusses the interplay between federal courts and state courts within the context of injunctions. The Anti-Injunction Act, originally passed in 1793, bars a federal court from enjoining a state court proceeding. Since then, many exceptions to this absolute bar have been included in the Act, including one for bankruptcy. In 1973, the U.S. Supreme Court decided Younger v. Harris, which created a nearly insurmountable bar to an injunction, even if one of the statutory exceptions was otherwise met. Professor Howard argues that such judicial guidance is unwarranted particularly when dealing with bankruptcy, since the Bankruptcy Code expressly establishes standards for when injunctions are appropriate.

Professor Howard continues to discuss the types of injunctions allowed under the Bankruptcy Code and how, even when utilized, they are being misapplied, particularly in cases where states are using criminal proceedings to collect personal debts for creditors.

Many congratulations are due to Professor Howard for the publication of her article.

3L Nathan Howe Published in Environmental Law Reporter

February 11, 2011 Leave a comment

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.

New York Bar Debates A. Benjamin Spencer’s Proposed FRCP 37(e) Revision

February 8, 2011 Leave a comment

A. Benjamin SpencerLast year, Professor A. Benjamin Spencer wrote an article that has been published in the Fordham Law Review titled The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court, 79 Fordham L. Rev. 2005 (2011). In the article, Professor Spencer proposed a change to Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The amendment would clarify pre-litigation preservation obligations and allow a prospective litigant to petition the court for a preservation order before actually filing suit.

Last week, the New York State Bar Association met for its annual meeting. One of the panels, titled “Bridging the E-Discovery Gap Between Bench and Bar” discussed the issue of preservation and, more specifically, Professor Spencer’s proposed amendment. The panel of nine included five sitting judges in New York.

This is an upcoming and interesting debate that will only become more relevant in this age of digital communication and information. Congratulations to Professor Spencer for being at the forefront of the issue.

To read Professor Spencer’s article, you can go to the SSRN website or the Fordham Law Review here.

To read articles about the panel, you can click here or here.