Archive for March, 2012

Prof. Lister on Guest Workers

March 28, 2012 Leave a comment

Matthew ListerIn the fourth installment of the Spring 2012 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Matthew Lister, Visiting Assistant Professor at Villanova School of Law, came to speak last week about his paper, Guest-Worker Programs: A Discussion and Partial Defense.

In the paper, Professor Lister argues that a well-crafted guest-worker program is both compatible with liberal principles of justice and likely to form an important part of a sensible immigration policy for the near future. He addresses many of the controversial aspects of guest-worker programs, including how the high potential for abuse seen in earlier programs can be avoided.  The paper thus recommends using a well-crafted guest-worker program over restricted borders or nearly open borders as alternatives.

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

Prof. Albert on the Constitution

March 21, 2012 Leave a comment

Richard AlbertIn the third installment of the Spring 2012 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Richard Albert, Assistant Professor of Law at Boston College, came to speak last week about his paper, Our Amoral Constitution.

In the paper, Professor Albert argues that the United States Constitution has no inherent morality associated with it. He draws from text, theory, history, and political practice to argue that the moral code of the United States Constitution is amoral. The paper illustrates that the Constitution entrenches no final judgment as to right or wrong, good or evil, virtuous or vicious, and that this suggest that the American constitutional tradition is oriented towards process, rather than content. To this end, Prof. Albert argues that there are no limitations, for better or for worse, on what may be amended via Article V, granting the blessing of legitimacy any amendment that successfully navigates the procedural strictures enshrined in the text of the Constitution.

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

Faculty Enclave

March 19, 2012 Leave a comment

Every year, the faculty at W&L Law convene to share current scholarship and provide feedback to one another. Last week, seven faculty presented their papers and invited discussions, criticism, and suggestions for improvement. The presenters were as follows:

  • Josh Fairfield: “Virtual Currency: How to Print Money for Fun and Profit”
  • Aaron Haas“The Marginalization of Religious Persecution in U.S. Asylum Law”
  • James MoliternoLawyer Regulation and Innovation”
  • Robin Wilson“Calculus of Accomodation”
  • Doug Rendleman: “The Last Tour of Calabresi and Melamed’s Cathedral You Need to Take”
  • Michelle Drumbl: “Decoupling Marriage and Taxes: Beyond Innocence and Income Splitting”
  • Tim Jost: “The Affordable Care Act Litigation”

Prof. Murchison on the First Amendment

March 16, 2012 Leave a comment

Brian MurchisonProfessor Brian Murchison, the Charles S. Rowe Professor of Law, recently spoke at the Washington and Lee Institute for Honor, which took place on March 2-3 and brought together journalists, professors, students, alumni, and other interested persons for a program entitled “The New Conversation: How Are the News Media Shaping Our Political Beliefs?”

The title of Murchison’s talk was “New Media, Old Media, and Media In Between: Variations in First Amendment Disputes.”  Examining the current media landscape, Murchison contrasted illustrative legal disputes affecting the traditional print and broadcast media (“old media”), avenues of expression on the internet (“new media”), and developing media such as 24/7 cable programming and talk radio.  As an example of a current case involving old media, Murchison discussed federal prosecutors’ efforts to obtain the testimony of New York Times reporter James Risen in a criminal case brought against an ex-CIA employee, Jeffrey Sterling, accused of unauthorized disclosure of national security information.  The case exemplified the professional norms of old media, including investigative reporting and reliance on confidential sources of information.  Turning to transitioning media, Murchison discussed libel actions brought against a Fox morning show and against liberal talk show host Randi Rhodes.  In both, the courts commented on the hyperbolic nature of speech on various cable and radio programs and found the challenged expression protected by the First Amendment.  Finally, in discussing cases typical of the new media, Murchison explored cases brought against bloggers and website commentators who post sometimes harsh opinions and wish to remain anonymous.  Murchison outlined the protections afforded them by the First Amendment, protections that are not without limits.

Faculty Profile: Russell Miller

March 8, 2012 Leave a comment
Russell Miller

Russell Miller

In an era of prolific globalization comparative law should be flying high. Instead, it has undergone a crisis of confidence, with prominent scholars calling into question some of its fundamental assumptions. A 2007 article, “The End of Comparative Law,” suggests that, among other problems, meaningful comparison of legal issues is impossible because it would require understanding the “historical, social, economic, political, cultural, religious, and psychological contexts of legal rules.”

Russell Miller views things differently. A professor at Washington and Lee Law School for the past four years, Miller rejects the notion that comparative law is at an end. Instead, he sees a transition from a solitary scholarly enterprise to a collaborative, sometimes chaotic, conversation among scholars deeply immersed in their own legal cultures. For Miller, this “lived” comparative law allows for greater richness and depth because it removes the requirement of near omniscience from any one scholar, and allows direct exchanges between a large, self-correcting community of scholars.

Ironically, despite his innovative approach, Miller has personified the classic paradigm of the comparativist as, “a scholar journeying in exotic lands”. He lived and worked in Germany for three years, first as a Bosch Foundation fellow working in both the German Constitutional Court and the European Court of Human Rights and then as a Research Fellow at the Max Planck Institute in Heidelberg. He also earned a L.L.M. from Johann Wolfgang Goethe University in Frankfurt. These unique experiences gave him a solid grounding in German law and legal culture – and set him on his comparative law path.

One of these opportunities came when Professor Miller met Peer Zumbansen, a fellow clerk at the German Constitutional Court. They shared a common passion for the law and recognized a need for greater understanding in English jurisdictions of the work being done in Germany. Together they founded the German Law Journal. “We would meet twice at month at my apartment in Frankfurt . . . and ask ourselves what legal issues are percolating, and then with smoke coming off of our fingers we would type case reports and comments in a manic fashion,” said Miller.

From its humble origins as a bi-monthly email newsletter, the German Law Journal has become the leading “online, peer-reviewed” law journal of any subject, and the leading law journal based in Germany, whether online or in print. The Journal, a forum for “developments in German, European and International Jurisprudence,” has come to embody the new comparative approach. By garnering submissions from scholars worldwide about German legal issues, as well as articles from German scholars on a range of topics, the Journal provides a constant, though sometimes only implicit, engagement with the Germanic legal approach.

Professor Miller’s approach will bear fruit this year in the form of two major Global Legal Traditions: Comparative Law for the 21st Century (forthcoming from Lexis-Nexis) is the first generalist casebook of comparative law in a generation. The Constitutional Jurisprudence of the Federal Republic of Germany (forthcoming from Duke University Press) is a weighty, deeply-contextual treatise on German constitutional law. In both projects Miller has sought to rigorously implement his unconventional theory and approach to comparative law.

There are more innovations to come from the former linebacker (Washington State 87-91). Studying the comparative theory and method of other disciplines will be his next project. Miller has begun to explore “how and why literature, history, religion, and other textual disciplines ‘do’ comparison.” Filled with enthusiasm, Miller concludes: “Comparative lawyers stand to learn a lot from our fellow travelers in other disciplines.”

M.M Siems, The End of Comparative Law, 2 Journal of Comparative Law 133 (2007 Russell A. Miller, The German Law Journal as “Lived” Comparative Law, 10 German Law Journal 1309-1318 (2009), available at 2011 Law Journals Rankings, Hall Law Library, Washington and Lee University at (Results: #1 – peer reviewed/online – all countries/allsubjects; #1 – all subjects/all formats – Germany; #1 – “European Law” – non-US/all formats; #2 – “European Law” – all countries/all format.)

Prof. Bruner on Shareholder Value

March 7, 2012 Leave a comment

Christopher BrunerProfessor Christopher M. Bruner, Associate Professor of Law, recently participated in the Aspen Institute’s roundtable program, “Rethinking ‘Shareholder Value’ and the Purpose(s) of the Firm” at the NYU-Stern School of Business. The dialogue between business and legal scholars, as well as business executives, was a continuation of a discussion started in late September last year at the Aspen Institute.

The purpose of the dialogue was to discuss the purpose of the corporate firm and the role of “shareholder value” in corporate governance and evaluation of firm performance. The group addressed key questions that have profound consequences for both corporations and the long-term health of society. The representatives also discussed how broader conceptions of purpose influence how we think about leadership, strategy and accountability in business.

You can see the list of participants and agenda for the roundtable here.

Prof. powell on Corporate Prerogative

March 7, 2012 Leave a comment

john a powellIn the third installment of the Spring 2012 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor john a. powell (lower case), formerly of the Moritz College of Law at The Ohio State University and presently the Director of the Haas Diversity Research Center and Robert D. Haas Chancellor’s Chair in Equity and Inclusion at the University of California, Berkeley, came to speak last Monday about his recent paper, Beyond Public/Private: Understanding Excessive Corporate Prerogative.

Professor powell makes the argument, in its simplest form, that the expansion and exercise of corporate power coincides with and makes concomitant disempowerment of people of color. Historically, he observes that the Lochner era, which defined and expanded corporate prerogatives, was the same era as Jim Crow, which narrowed the meaning and reach of civil rights. He asserts that the public/private distinction that has been used to establish many of these prerogatives, is flawed. The paper argues that there are four domains: public, private, non-public/non-private, and corporate. Thus, the exercise of excessive corporate prerogative is not only a threat to the public sphere, but the private sphere and the non-public/non-private as well. Ultimately, Prof. powell argues that we cannot achieve racial justice, economic justice, protection of our environment, or enjoy a strong democracy unless we have a realignment of corporations.

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