Archive for November, 2012

Professor James Pannabecker Featured in Interview on Financial Fraud Law

November 30, 2012 Leave a comment
Prof. James Pannabecker

Prof. James Pannabecker

W&L Professor of Practice James Pannabecker was recently interviewed in the Financial Fraud Law Blog in a piece entitled “Mortgage Lenders Facing a Potential Regulatory Cliff, Banking Law Expert Says.” In the interview, Pannabecker suggests that the Consumer Financial Protection Bureau made a mistake by not issuing a detailed mortgage disclosure rule, doing a disservice to both the industry and consumers by failing to comply with a Dodd-Frank directive calling for final regulations before January 21, 2013. The interview is available at

Professor Susan Franck Makes Two Presentations on Trends in Investment Disputes

November 29, 2012 Leave a comment

Prof. Susan Franck

On Thursday, November  29, W&L Law Professor Susan Franck made two presentations entitled Tracking Trends in Investment Disputes: The New Data.

The first presentation was to the World Bank’s International Centre for the Settlement of Investment Disputes, which is the leading institution for the resolution of investment treaty disputes.

The second presentation was a joint presentation to the United States Department of State’s Office of the Legal Advisor and the United States Trade Representative. The previous generation of research was used by the U.S. Department of State Report of the Subcommittee on International Economic Policy Regarding the Model Bilateral Investment Treaty in generating the 2012 U.S. Model BIT.

Here is the abstract of both presentations:

Despite the global economic crisis, international investment is on the rise and the number of investment treaties, which contain ex ante agreements requiring states to arbitrate alleged treaty violations, continues to increase.  The convergence of these factors means that approximately 68% of foreign investment, approximately US$13 trillion, is now protected by at least one international investment agreement (IIA) and subject to arbitration.  As disputes follow investment and the related legal rights, it is no surprise that investors have exercised their legal options.  Yet there has been dissatisfaction with ITA, and some make assertions about systemic integrity with little (or no) data to back up their claims.  This presentation will provide an antidote by exploring the current status of ITA by offering an empirical assessment of data that is current to 2012.  It will focus on key elements including the institutional actors (investors, states and non-disputing parties), institutions involved, the lawyers pursuing claims, the amounts investors claimed, outcomes, time required to secure outcomes, and the fiscal costs of pursuing ITA.  The objective of the presentation is to provide information to promote a lively and informed policy debate about the future of international investment law and dispute resolution.

Data related to this material is forthcoming in Professor Franck’s book with Oxford University Press: Investment Treaty Arbitration: Myths, Realities and Costs.

Fellowship Announcement: Shaw Foundation Junior Research Fellowship in Law

November 28, 2012 Leave a comment

Jesus College, Oxford
Shaw Foundation Junior Research Fellowship in Law

Jesus College, Oxford invites applications for the Shaw Foundation Junior Research Fellowship (JRF) in Law, tenable for three years from 1 October 2013.

QUALIFICATIONS: The JRF is open to those intending to pursue research in Law, who are at an early stage of their academic career, typically at post-doctoral level.

SALARY/BENEFITS: The salary is on points 29-31 of the national pay spine, starting with point 29 (currently British Pound 29,249 p.a.). Free meals in College, USS pension, a College study room equipped with computer and printer, and an annual research allowance of British Pound 850 are also offered. The post is generously fully funded by The Shaw Foundation.

APPLICATIONS/FURTHER INFORMATION: Further information on the JRF may be accessed from the Jesus College website at, or obtained from:

Mrs Helen Gee
Principal’s Secretary
Jesus College
Oxford OX1 3DW

to whom applications should be sent by 21 January 2013.

Jesus College is an equal opportunities employer.

Prof. Mark Drumbl on ICTR’s genocide conviction of Pauline Nyiramasuhuko

November 27, 2012 Leave a comment

Prof. Mark Drumbl

Here is an IntLawGrrls blog post from W&L Law Professor Mark Drumbl on the International Criminal Tribunal for Rwanda’s genocide conviction of Pauline Nyiramasuhuko:

Much of the literature on gender and conflict focuses, appropriately, on women as victims of violence. Women, however, may also act as agents of violence, including mass atrocity, during conflict situations.

A paper I am writing explores this latter reality through the conviction of Pauline Nyiramasuhuko, Rwanda’s former Minister of Family and Women’s Development. Trial Chamber II of the International Criminal Tribunal for Rwanda sentenced Nyiramasuhuko (above, center) to life imprisonment on June 24, 2011. (creditAt the time of her conviction, she was 65 years old.

I first prepared this paper for a fantastic conference on Gendering Conflict and Post-Conflict Terrains that IntLawGrrls contributors Fionnuala Ní AoláinNaomi Cahn andDina Haynes organized at the University of Minnesota Law School this past May. Drawing from wonderful feedback generated at the conference, the paper was updated. Now available at SSRN, the paper, entitled “‘She makes me ashamed to be a woman’: The Genocide Conviction of Pauline Nyiramasuhuko, 2011,” will appear in the Michigan Journal of International Law next year.

Nyiramasuhuko was prosecuted jointly with five other defendants, including her son,Arsène Shalom Ntahobali (who also was given a life sentence). All the defendants were from Butare, a préfecture in southern Rwanda. The defendants became colloquially known as the “Butare Group” or the “Butare Six.” The other four defendants received sentences of 25 years, 30 years, 35 years, and life.

Nyiramasuhuko is the ICTR’s only female accused. She is, moreover, the only woman tried and convicted by an international criminal tribunal for genocide, and the only woman tried and convicted by an international criminal tribunal for rape as a crime against humanity.

The only other woman convicted by a post-Cold War international criminal tribunal (the International Criminal Tribunal for the former Yugoslavia) is Biljana Plavšić. A leading Bosnian Serb politician with de facto control and authority over members of the Bosnian Serb armed forces, Plavšić pleaded guilty in 2002 to one count of persecution (crimes against humanity). She was sentenced in 2003 to eleven years’ imprisonment.
Each of the Butare Six defendants has appealed the convictions. Appeal proceedings are underway. It is anticipated that the ICTR will complete all its work by December 31, 2014, though no concrete time line has been established in the Butare Six case.

My article explores the intersections between gender and justice in the strategies of participants in the proceedings against Nyiramasuhuko and, more tellingly, in public portrayals thereof.

The judgment itself, 1,500 pages in length and available here, is gender-neutral in terms of its depiction of Nyiramasuhuko. She is presented as a perpetrator indifferently from her male co-perpetrators.

Public portrayals of Nyiramasuhuko, in contrast, exude problematic essentialisms, stereotypes, and imagery of women and mothers. These caricatures emerge at two distinct levels:

► First, they are invoked by the media to sensationalize and spectacularize the trial itself – in short, to titillate.
► Second, they are instrumentally invoked to favor strategic operational outcomes.

For example, those stakeholders who condemn Nyiramasuhuko’s conduct turn to her status as woman and mother to accentuate her personal culpability and individual deviance (i.e. she is a worse perpetrator, a greater disappointment, and a more shocking offender because she is a woman, mother, and grandmother). Those who defend her conduct, including Nyiramasuhuko herself, pretextually invoke tropes rooted in imagery of womanhood and motherhood to emphasize the impossibility of her culpability (i.e. she can’t be a perpetrator, in particular of rape, because she is a woman, mother, and grandmother).

Nyiramasuhuko and her son Ntahobali are not the first parent/child defendants before the ICTR. In 2003, an ICTR Trial Chamber convicted Reverend Elizaphan Ntakirutimana, a Seventh-Day Adventist pastor (now deceased), and his son, Gérard Ntakirutimana, a physician, of genocide. Whereas the Ntahobali and Nyiramasuhuko proceedings tended to become telegraphed to the public as “mother and son,” the proceedings concerning the Ntakirutimanas tended to become telegraphed as “pastor and son.” When it came to the elder parent figure, Ntakirutimana was reduced to his profession, not his fatherhood. Nyiramasuhuko, on the other hand, was reduced to her motherhood, not her profession. Her case is not presented as “Minister and songénocidaires,” nor is Ntakirutimana’s case presented as “father and son génocidaires.”
Nyiramasuhuko’s trial and conviction also offer a number of important lessons for the development and effectiveness of international legal interventions in post-conflict spaces.
A need arises to assess the role of femininities and masculinities in the metastasis of atrocity. Recognizing women as agents of violence, as bystanders to violence, as resisters of violence, as well as victims of violence, informs a more nuanced understanding of atrocity and, thereby, solidifies deterrent aspects.
The division between victims and victimizers is not always that clear.

The proceedings against Nyiramasuhuko also reveal the limits to criminalization in the process of transitional justice more generally, and important components thereof, such as emboldening the status of women in post-conflict societies. To be sure; the status of women has been emboldened in contemporary Rwanda. Women sit in the Rwandan Parliament in percentage numbers that well exceed the percentage of women in the U.S. House of Representatives or Senate and that also transcend international averages. Discriminatory land laws have been pared back. Women’s enrolment in education has substantially increased. One way to consolidate these advances for Rwandan women is to demystify those Rwandan women – such as Nyiramasuhuko, and others prosecuted nationally – who perpetrated atrocity.

But women’s advances also need to be demystified, as well.

What women actually do in public roles and as public officials matters greatly. The autocratic nature of Rwanda’s government should not be obscured; neither should the fact that empowered women enthusiastically support this autocracy and thrive within it. Women’s rights can expand in contexts where other human rights may shrink, shrivel, or remain under siege. Gender relations can equalize while other civic rights – freedom of expression and freedom of association, for example – wither.

It is also crucial to hone in on which women have seen their opportunities expand in the post-conflict phase. In contemporary Rwanda, arguably, it is the rights of educated anglophone former émigrées that have become most robustly actualized, whereas the rights of women genocide survivors – largely francophone – remain underachieved.

Just as the role of women during atrocity calls out for more careful and less assumptive or categorical analysis, so, too, does the role of women as change agents after atrocity.

Professor Tim Jost Comments on Liberty University’s Affordable Care Act Challenge

November 27, 2012 Leave a comment

Prof. Tim Jost

Here is a story from The Los Angeles Times in which W&L Professor Tim Jost–a leading expert on health care law–is quoted:

The Supreme Court rectified an oversight Monday and gave a Christian university in Virginia a chance to argue in a lower court two claims that were not considered in June when the justices upheld President Obama’s healthcare law.

Lawyers for Liberty University say the law violates the Constitution by requiring large employers to pay a tax if they do not provide health insurance to their full-time workers.

No one has seriously disputed that the federal government has broad power to regulate employers, and the justices did not even consider this claim earlier this year. Instead, they debated whether Congress could require an individual to buy insurance or pay a tax, the so-called individual mandate. The court upheld that requirement in a 5-4 decision.

Liberty’s lawyers also say “forced funding of abortion” under the law violates the school’s right to religious liberty. Obama administration officials say the law does not require funding of abortions, and district judges have rejected the claim.

Nonetheless, because Liberty University’s claims had not been heard or decided, the justices issued a one-paragraph order allowing the university to raise these claims before the U.S. 4th Circuit Court of Appeals in Richmond, Va.

Last month, the Obama administration told the justices it had no objection to such an order. The high court’s move does not suggest, however, that the justices are reconsidering the issue.

“It’s a frivolous argument. Congress had regulated wages and benefits issues under the commerce clause for decades,” said Timothy Jost, a health law expert at Washington and Lee University in Virginia.

Employers with more than 50 full-time employees will be required, starting in 2014, to offer health insurance that meets new minimum standards of coverage.

Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law.

Professor Susan Franck Presents Her Work to U.N. Conference on Trade and Development

November 19, 2012 Leave a comment

Prof. Franck

On Wednesday, November 14, W&L Law Professor Susan Franck presented her work to UNCTAD’s Division of Investment and Enterprise,, in the Palais des Nations in Geneva, which is a portion of UNCTAD dedicated to exploring issues related to international investment and sustainable development, in an effort to understand the scope of and implications for investment treaty dispute resolution and conflict management.  The presentation built on Professor Franck’s recent research that will shortly be forthcoming in the American Journal of International Law, which explored initial data about amounts claimed and awarded in investment treaty disputes.  Given recent major cases such as Occidental v. Ecuador, in which Ecuador was held liable for nearly $2 billion — — there is renewed interest in this type of arbitration.  Professor Franck’s research is designed to explore whether cases such as Occidental are typical or aberrational and the normative implications of those determinations.  In a two-hour presentation, Professor Franck explored the newest generation of data that is current to 2012 to provide a holistic assessment of investment treaty dispute resolution.  The presentation covered issues related to 272 awards rendered up to 2012.  With 517 variables, this means the research is now capable of analyzing more than 140,000 pieces of individual data to offer a more sophisticated systemic analysis of the system of investment arbitration.  Data related to this presentation is forthcoming in Professor Franck’s book with Oxford University Press: Investment Treaty Arbitration: Myths, Realities and Costs.

Susan Franck joined the faculty as an Associate Professor in 2008. Professor Franck’s teaching and scholarship relates to international economic law and dispute resolution.

Professor David Bruck’s Advocacy in Murder Case Profiled in South Carolina Newspaper

November 14, 2012 Leave a comment

Prof. Bruck

W&L Professor David Bruck recently participated in oral arguments before the South Carolina Supreme Court on behalf of his client, Billy Wayne Cope.  The Herald of Rock Hill, S.C. covered the proceedings in an article on November 13, 2012.  Here is an excerpt:

The fate of Billy Wayne Cope , convicted of raping and killing his own 12-year-old daughter in a 2001 crime that he confessed to but claims he did not commit, now rests with the S.C. Supreme Court .

Cope’s lawyer, David Bruck , claimed defiantly Tuesday to the state’s highest court that Cope “did not get a fair trial” in 2004. Bruck said the other man convicted in the crime, a sexual predator named James Edward Sanders , is the sole monster.

. . .

The Supreme Court , which spent about 45 minutes grilling Bruck and Zelenka, made no decision Tuesday. A decision could be reached in weeks or months.

. . .

Only Bruck, Zelenka and the five justices spoke. The Supreme Court hearing was a legal fistfight, with the justices repeatedly interrupting the lawyers and demanding answers about the confessions and more. It will take a majority – three of the five justices – to overturn any conviction and potentially order a new trial.

Nobody disputes that Cope was home with his three daughters when Amanda, the oldest, was brutally attacked.

. . .

In the hearing, the justices first heard from Bruck, the Virginia law professor who specializes in claims of wrongful convictions. In 2004, the trial judge refused to allow Cope’s defense attorneys to tell the jury about all of Sanders’ previous rapes and break-ins. Not being able to tell the jury that Sanders was a serial sexual predator, Bruck argued, gutted the defense case.

. . .
“To say that was a fair trial…That simply was not true,” Bruck stated.

The justices then turned to Zelenka, from the attorney general’s office, who claimed that the other crimes Sanders committed were not “sufficiently similar” and, therefore, should have stayed out of the trial. The trial judge’s decision in 2004 not to allow the jury to consider Sanders’ other crimes was “a harmless error,” Zelenka claimed.

But Bruck pounced, describing that claim as “a retreat” by prosecutors who fought to keep Sanders’ sexual deviance away from the jury.

“There is no way that this was harmless,” Bruck argued.

The justices were clearly concerned about the evidence excluded in the 2004 trial. Justice Costa Pleicones stated that excluding some of the evidence “deprived Mr. Cope the opportunity to present a defense.”

David Bruck is a Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington & Lee University School of Law.