Archive for May, 2013

Professor Jost Publishes Book Chapter on Supreme Court Health Care Case

May 29, 2013 Leave a comment
Prof. Tim Jost

Prof. Tim Jost

Washington and Lee law professor Timothy Jost has published “The  Affordable Care Act and the Constitution:  Beyond National Federation of Independent Business v. Sebelius” in  The Health Care Case:  The Supreme Court’s Decision and its Implications, published by Oxford University Press. The book features well-respected and ideologically diverse authors, some of whom participated in ACA litigation. It is among the first scholarly books to address the healthcare decision, perhaps the most significant decision of the Roberts Court to date, with major implications for constitutional law, the Roberts Court itself, and healthcare. Below is excerpt from Professor Jost’s chapter:

In National Federation of Independent Business v. Sebelius (NFIB),  the Supreme Court concluded that Congress had acted within its constitutional authority in adopting the Affordable Care Act (ACA)’s individual responsibility provision (although as an exercise of its taxing power, not its commerce power) but that the ACA’s Medicaid expansion was unconstitutional as written. The chapters in this book address the NFIB decision, its history, meaning, and ramifications for the future.

But the ACA and its implementation raise many other constitutional issues not settled by the NFIB case; issues that have been and continue to be litigated in the federal courts. While these challenges have not attracted the attention the NFIB case garnered, and most have either failed or are likely to fail, they are significant politically. Like the NFIB litigation, most of these other cases have been driven by political considerations.  They have given support and encouragement to the ACA’s enemies, offering state officials politically opposed to the ACA reasons to refuse to cooperate in its implementation and opponents in Congress ammunition to call for its repeal. On the other hand, the tables could have been turned had an administration come to power in Washington opposed to ACA implementation, with the ACA’s supporters then resorting to litigation to salvage health reform. This chapter considers a number of constitutional issues presented by the ACA that were not raised in NFIB. Some of these issues have been decided by the courts, while others continue to be litigated with no decision yet, and others could have been raised had President Barack Obama not been reelected in November 2012, and might still be relevant as ACA implementation moves forward.

The book is available now from the Oxford Press website.

Professor Franck presents at DISETTLE Workshop

May 29, 2013 Leave a comment
Prof. Susan Franck

Prof. Susan Franck

On June 6, Washington and Lee law professor Susan Franck will present “The Use of Economics for Empirical Studies in Investment Arbitration” at the DISSETTLE Research Workshop in Milan, Italy.  Professor Franck’s presentation will explore the use of empirical methodologies–whether quantitative or qualitative–for the exploration of international investment law.  In providing a framework for thinking about how to use quantitative tools, such as those used by economists, political scientists and psychologists, Professor Franck offers a “Seven Step Approach for an Evidence Based Approach” to international economic law.  In applying that framework to her own research as one possible application, she will explore basic demographics and test descriptive hypotheses related to investment treaty dispute resolution before moving to test more complicated associative hypotheses about what variables are reliably linked to dispute options.

DISSETTLE is funded by the European Union’s Framework Programme and involves a consortium of high level European universities including the Graduate Institute in Geneva, the University of St. Gallen, the Université Libre de Bruxelles, the University of Warsaw and Bocconi University.  These institutions have pioneered interdisciplinary work on economics and law and are dedicated to advancing the understanding of jurisprudence emerging from the dispute settlement body of the WTO and bilateral and regional trade agreement regimes.

George Mason Law School Public Policy Conference on the Law & Economics of Privacy and Data Security

May 24, 2013 Leave a comment
Wednesday, June 19, 2013
George Mason University School of Law
Arlington, VA

Dear Friend:

I am writing to invite you to attend the Law & Economics Center’s Public Policy Conference on The Law & Economics of Privacy and Data Security. The conference will be offered by the LEC’s Henry G. Manne Program in Law & Economics Studies on Wednesday, June 19 from 8:00 am to 5:00 pm. The full program can be viewed here.

Consumers have an incredible array of technologies and services available to them online. As these technologies have progressed, there are growing questions as to what policies are best suited to protect consumers and encourage industry innovation. Topics include the role of the state attorneys general in enforcing privacy laws, the role of privacy in antitrust analysis, how privacy regulation affects competition, and a discussion of the rapidly changing landscape of spam, spyware, data portability, and industry data retention guidelines.

You may register through the link below.


I hope to see you in June.


Henry N. Butler
George Mason University Foundation Professor of Law
George Mason University School of Law
Executive Director, Law & Economics Center

Incoming W&L Law Prof. Margaret Hu’s Article Reviewed

May 23, 2013 Leave a comment
Margaret Hu

Margaret Hu

Over at the Criminal Law JOTWELL, Mary Fan has reviewed Margaret Hu’s forthcoming article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN.  Margaret will be joining the W&L Law Faculty this coming July.  Here is an excerpt of the review, which was also featured at The Faculty Lounge:

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.

The future is unfolding now, her article suggests.  Proposals such as a biometric national ID are just ideas now, she notes.  But in myriad ways, methods and modes of identification are developing toward such a future.  Hu’s paper has several informative tables that collect valuable information about the ways that more pervasive technology-aided methods of identity verification and tracking are seeping into our present and future.  Fittingly for an article about the government amassing data, one of the article’s most helpful contributions is its impressive amassing in one place numerous charts regarding the myriad programs, agencies and proposals that are structuring the future of more pervasive identity surveillance.

There is a brain trust of scholars working at the cutting edge of technology, privacy, big data, and the bounds of government power.  Many convene each year at the Privacy Law Scholars Conference, an exciting hub for ideas created by Dan Solove and Chris Hoofnagle.  Attend the conference and you will be struck by the dynamism and diversity of intellectual threads in this fast-expanding field of work.

What Hu’s article contributes to the rich conversation is a new voice and great ambition in bringing together many of the major themes and challenges.  Readers will benefit from her great labors in offering useful taxonomies to frame the analysis and illuminate the scope and scale of what is unfolding.

Call for Papers: AALS 2014 Joint Program on Sections on Poverty Law and Clinical Legal Education

May 21, 2013 Leave a comment

In honor of the 50th Anniversary of the “War on Poverty,” the AALS sections on Poverty Law and Clinical Legal Education will sponsor a joint program at the AALS Annual Meeting, entitled 50 Years After the “War on Poverty:” Evaluating Past Enactments and Innovative Approaches for Addressing Poverty in the 21st Century.

The program will explore the effectiveness of the federal “War on Poverty” programs in addressing/eradicating poverty, and participants will discuss how amendments to those laws have had an impact on their effectiveness. The “War on Poverty” programs include: Medicaid, Temporary Assistance for Needy Families (“TANF,” formerly Assistance for Families and Dependent Children), Supplemental Nutrition Assistance Program (“SNAP,” formerly known as food stamps), federally funded legal services (originally under the Office of Economic Opportunity, and now the Legal Services Corporation), Head Start, and the No Child Left Behind Act (originally the Elementary and Secondary Education Act), among others. In addition, the joint program will explore newer ways that the federal government has attempted to address poverty, such asthe Patient Protection and Affordable Care Act, the Children’s Health Insurance Program, the Family and Medical Leave Act and others.

Among the questions to be considered are: In what ways were individual “War on Poverty” programs effective and why? How and why were those programs ineffective? How did amendments to the War on Poverty enactments affect their efficacy in ameliorating poverty? What impact have exclusions from the poverty programs on such grounds as immigration status had on poverty? How do more recent federal laws affect poverty? Do they work with or in opposition to prior federal laws? Can the walls between federal poverty programs be broken down to more effectively address poverty? If so, how? How have communities responded to the “War on Poverty” programs and what impact has their efforts had on reshaping the poverty programs? What are concrete and innovative ways for the federal government to address poverty in the 21st Century for both individuals and communities? In collaboration with the Boston College Journal on Law and Social Justice, the joint program seeks papers for presentation and publication relating to the program’s topic. Submissions may include papers, on substantive law, interdisciplinary innovation or analysis, policy, empirical work, or clinical pedagogy, that either evaluate the effectiveness of the federal role in addressing poverty over the past 50 years, address how the federal government can address poverty in the 21st Century, or both.

The Boston College Journal of Law and Social Justice will publish selected papers, no more than two of which will be selected for presentation at the joint program in New Orleans. Selected authors must agree not to publish their work in another journal. Not all papers selected for publication will be presented at the annual meeting.

Submission information: Papers should be submitted by email attachment to As the Planning Committee will use a blind review process, a cover letter with the author’s name and contact information should accompany the paper. The paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. Near complete papers should be submitted by August 9, 2013. Authors of papers chosen for presentation and/or publication will be notified by September 27, 2013. Final papers are due by December 2013.

Eligibility: Full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (without a full-time position at an AALS member law school), and adjunct faculty members; graduate students; fellows and non-law school faculty are not eligible to submit. Faculty at fee-paid non-member schools are also ineligible.

For more information, please contact Emily Suski, Planning Committee Co-Chair for the Poverty Law Section at esuski@gsu.eduor Hina Shah, Planning Committee Member for the Clinical Legal Education Section at


Professor Franck to Present at European Society of International Law

May 21, 2013 Leave a comment
Prof. Susan Franck

Prof. Susan Franck

Washington and Lee law professor Susan Franck will present research related to her book at the European Society of International Law’s 5th Annual Research Forum.  The topic this year is International Law as a Profession.  Franck’s panel  is on the specific topic of the Dynamics of International Judicial Law Making, but her particular topic will focus on the role of counsel in investment treaty arbitration (ITA).

Using a dataset of 272 public ITA awards in 202 different cases rendered before January 2012, Franck’s research is the first of its kind internationally to explore the role of counsel through both descriptive and associative hypothesis testing.  It first offers basic descriptive information about the number of entities involved in representing clients in ITA, the relative roles of in-house and external counsel, and the patterns of representation exhibited by investors and states that retain counsel.  It next considers whether counsel involved in ITA solely represent investors, states or perhaps switch sides to represent different types of parties in different disputes.  The paper then identifies the most prevalent players and constructs the “Top 21” list of legal entities involved in ITA.

On the basis of this information, the paper constructs two different measures to both identify the impact of repeat players in the legal representation involved in ITA.  It constructs one variable—a binary measure—to simply identify whether counsel have ever been involved in multiple claims; and it constructs a second variable—a weighted variable—to provide a weighted assessment of the relative expertise of the individual legal entities involved in the arbitration process.  These variables are then coded to assemble data about the total experience of both the investors’ and respondent’s legal teams.  The research then explores the role of lawyers and the impact of the expertise of parties’ legal representation on critical variables.

The next section identifies whether the expertise of each party’s legal team is reliably linked to fundamental aspects of ITA, particularly variables such as amounts claimed, ultimate outcomes and amounts awarded.  It also explores whether expertise is linked in some way to either: (a) the amounts charged by lawyers; or (b) the amount of lawyer fees shifted by tribunal’s during the cost phase.  Finally, it considers the link between each side’s relative expertise, thereby offering the possibility of exploring whether the “lawyering up” by investors that retain more sophisticated counsel is linked to the expertise of respondent’s counsel and vice versa.

Ultimately, by exploring the role of lawyers in ITA and assessing whether they do (or do not) make meaningful contributions to the arbitration process, Franck argues we will have a better sense of the value of international lawyers in an area of law with critical implications for the international political economy. This, in turn, permits considered evolution of how lawyers potentially impact the generation of international law through their capacity as advisors and advocates.

Professor Drumbl to Present Research on Child Soldiers

May 21, 2013 Leave a comment
Prof. Mark Drumbl

Prof. Mark Drumbl

Washington and Lee law professor Mark Drumbl will give two international presentations on his recent book examining child soldiers and international law.

Drumbl will present first as a faculty member at the 13th Specialization Course in International Criminal Law, titled the Future of International Criminal Law in the Era of Globalization. The week long series of workshops will be held at the International Institute of Higher Studies in Criminal Sciences (ISISC) in Siracusa, Italy. Next, Drumbl will give a keynote address as part of the Canadian Bar Association’s National Military Law Conference, held in Ottawa, Ontario.

Both presentations are based on Drumbl’s book, Reimagining Child Soldiers, published by Oxford University Press. According to Drumbl, the international community’s efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front. The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects.

Drumbl’s book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind. This book takes a second look at these efforts. It aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. Along the way, Drumbl questions central tenets of contemporary humanitarianism and rethinks elements of international criminal justice.