Archive for December, 2013

Prof. Margaret Hu’s Cybersurveillance Article Top Download at Duke Repository

December 29, 2013 Leave a comment
Prof. Margaret Hu

Prof. Margaret Hu

“Biometric ID Cybersurveillance,” an article by Washington and Lee law professor Margaret Hu, recently received more than 2000 downloads from the Duke Law Scholarship Repository. The article was discussed by a guest on the radio show Coast to Coast AM, and listeners of the show flocked to the Duke site to read the article.

In the article, Hu explores the constitutional and other legal consequences of big data cybersurveillance generally and mass biometric dataveillance in particular. The article focuses on how biometric data is increasingly incorporated into identity management systems through bureaucratized cybersurveillance or the normalization of cybersurveillance through the daily course of business and integrated forms of governance.

Prof. Hu’s article has already been reviewed favorably a number of times, including on the popular law blog Concurring Opinions. You can read an excerpt from the review here.

Call For Papers: AALS Workshop on Transnational Perspectives for Equality Law

December 19, 2013 Leave a comment

Association of American Law Schools


Call for Presentations and Papers


Corrected email address for submissions:

Workshop on Transnational Perspectives for Equality Law

June 22-24, 2014  |  Washington, D.C.

We are seeking proposals for presentations and papers for the 2014 Mid-Year Workshop on Transnational Perspectives for Equality Law.  The workshop will be held on June 22-24, 2014 in Washington, DC at the Renaissance Mayflower Hotel.  The workshop will begin with registration at 4:00 p.m. and a reception at 6:00 p.m. on Sunday, June 22 and conclude at 2:00 p.m. on Tuesday, June 24.  It will appeal to a wide range of teachers and scholars interested in these and related subject areas.





Antidiscrimination law is an American invention that has spread all around the world.  During the American civil rights movement of the 1960s, antidiscrimination law promised radical social transformations towards equality for women and minorities in the workplace, in politics, and in education.  But recent developments in Equal Protection and Title VII doctrine have paralyzed this trajectory.  Meanwhile, the last decade has seen the unprecedented globalization of antidiscrimination law, as well as its expansion and alternative development outside the United States, catalyzed largely by the European Union’s two directives in 2000, on race equality and on equal treatment in employment.  Over the last few years, a new body of equality law and policy experimentation has emerged not only in the EU and in European countries, but also in South Africa, Canada, Latin America, and Asia. There is a range of public policies adopted to mitigate the disadvantages of vulnerable groups such as racial, ethnic, and religious minorities, women, the disabled, the elderly, and the poor, constituting an “equality law” that goes beyond norms prohibiting discrimination.


At the same time, antidiscrimination law in the United States seems to be changing. U.S. Supreme Court decisions over the last several years (Ricci v. DeStefano, Parents Involved in Community Schools v. Seattle School District, Wal-Mart v. Dukes) have signaled the end of antidiscrimination law as envisioned by the civil rights movement in the United States.  In response, there is growing scholarly interest in finding new approaches to the persistent problem of structural inequality.  Comparative reflection is a productive tool, particularly when energy and optimism surround the trajectory of antidiscrimination law and equality policy outside of the United States.  Now that there is over a decade’s worth of new antidiscrimination activity in the EU countries following the 2000 equality directives, the time is ripe for scholarly reflection and evaluation of these developments. From an intellectual, practical, and strategic perspective, antidiscrimination scholars in the United States can no longer ignore developments in antidiscrimination law in other countries.


While a growing number of American legal scholars are lamenting the limits of antidiscrimination law, the recent growth of this body of law outside of the United States has largely gone unnoticed. The central purpose of this mid-year meeting is to widen the comparative lens on U.S. equality law — its failures, its achievements, and its potential — across a variety of subject areas.  The meeting will provide a unique and much-needed opportunity to bring together scholars from various fields — constitutional law, employment discrimination law, comparative law, comparative constitutional law, election law, education law — to deepen and enrich the scholarship and teaching of equality.   The meeting will also provide a unique opportunity for U.S. scholars to interact with a wide, varied, and stimulating group of antidiscrimination scholars working around the world.


Additionally, law schools are increasingly making their curricula more transnational and comparative.  This conference will assist teachers in integrating comparative perspectives to illuminate constitutional law, employment discrimination law, employment law, and other traditional subjects.


The Workshop will explore a number of critical questions including what is at stake in looking comparatively when doing equality law; how affirmative action is understood in other legal systems; understanding disparate impact, accommodation, and positive rights.  There will be discussions of religion, profiling, and equality and social movements.  Transnational perspectives on equality law will be a greater component of antidiscrimination scholarship going forward. This meeting should not be missed.



Call for Presentations and Papers

The Workshop will feature several plenary panels.  These panels will address the following themes and subjects: the relevance of foreign law in the U.S. constitutional interpretation; the rise of quotas as a policy tool to achieve race and gender balance in legislatures, workplaces, and institutions of higher learning; a comparative assessment of disparate impact doctrine or indirect discrimination; a comparative analysis of secularism and religious tolerance; modalities and methodologies for teaching transnational law in U.S. law schools.


The Workshop Planning Committee seeks proposals for presentations and papers on any of the Workshop themes or on relevant issues at the intersection of transnational perspectives and equality law.  Selected papers will be presented in one of two concurrent sessions on Tuesday June 24, 2014 between 10:30 A.M. – 12:00 P.M.  For these concurrent sessions we are seeking proposals that are in various stages of development. We expect to select three or four presentations for each of the concurrent sessions.   Each presentation will be about 15 minutes, followed by questions from the moderator and the audience.


Interested faculty members should submit a brief written description (no more than 1000 words) of the proposed presentation or paper, along with their résumés. Please email these materials to by Friday, December 20, 2013.





The Planning Committee will notify selected speakers by January 13, 2014.  Please indicate if you would like the opportunity to receive comments from a senior scholar.





Faculty members of AALS member schools are eligible to submit proposals for the presentation opportunities or for papers.  Visiting, adjunct, and international faculty members, along with graduate students and fellows are not eligible.


Those selected for the presentation or paper opportunity must register for the Workshop and pay the registration fee.  Participants are also responsible for their own travel and other expenses.  Please direct questions to the

Planning Committee members.



Planning Committee

Tim A. Canova, Nova Southeastern University Shepard Broad Law Center

Guy-Uriel E. Charles, Duke University School of Law

Richard T. Ford, Stanford Law School Reva Siegel, Yale Law School

Julie Suk, Cardozo School of Law, Yeshiva University


Prof. Tim Jost Publishes Article in New England Journal of Medicine, Harvard Business Review

December 17, 2013 Leave a comment
Prof. Tim Jost

Prof. Tim Jost

Washington and Lee law professor Tim Jost has a new article out on health care reform, cross published by the New England Journal of Medicine and the Harvard Business Review. The article, titled “Regulating Private Health Insurance to Promote High-Value Health Care,” looks at how Title 1 of the Affordable Care Act impacts previous efforts to encourage the creation of high-value health care. In conclusion, Prof. Josts writes:

In adopting the ACA, Congress embraced an ambitious agenda of regulation and public reporting to encourage private insurers to improve the value of health care. Congress tried to encourage insurers to pursue activities that some were already pursuing and to emulate value-purchasing initiatives in the Medicare and Medicaid program. HHS [Health and Human Services] seems, however, to have made private insurance value purchasing a low priority. It is likely to be several years before we learn whether the ACA provisions that address private insurers will in fact improve the value of health care.

The article is available for download from the NEJM website.


Prof. Lyman Johnson Publishes Article on the Business Judgment Rule

December 13, 2013 Leave a comment
Lyman Johnson

Prof. Lyman Johnson

Washington and Lee law school professor Lyman Johnson has published “Unsettledness in Delaware Corporate Law: Business Judgment Rule, Corporate Purpose” in the Delaware Journal of Corporate Law. From the abstract.

This Article revisits two fundamental issues in corporate law. One — the central role of the business judgment rule in fiduciary litigation — involves a great deal of seemingly settled law, while the other — is there a mandated corporate purpose — has very little law. Using the emergent question of whether the business judgment rule should be used in analyzing officer and controlling shareholder fiduciary duties, the latter issue having recently been addressed by Chancellor Strine in the widely-heralded MFW decision, this Article proposes a fundamental rethinking of the rule’s analytical preeminence. For a variety of reasons, it is suggested that fiduciary duties should be made more prominent and the business judgment rule should be dramatically deemphasized. The policy rationales for the rule are sound, but they have no relevance for shareholders and introduce needless complexity. For directors, those rationales do not apply in the loyalty setting, and in the care setting, can be achieved by recalling simply that there is no substance to judicial review in that context.

As to corporate purpose, the Article advocates that Delaware law permit a pluralistic approach in the for-profit corporate sector. Long agnostic about ultimate corporate objective, Delaware law may have turned unnecessarily toward a strict shareholder primacy focus in the 2010 eBay decision. To bring clarification and to foster flexibility, Professor Johnson recommends a legislative default provision, with an opt-out feature. This feature should be in the business corporation statute itself. Delaware’s new benefit corporation law laudably advances the goal of institutional pluralism, but does so at the ironic risk of reinforcing a belief that business corporations themselves are legally permitted only to maximize profits. Judges in a democratic society should not dictate institutional goals.

The article is available for download from SSRN. This work is based on Prof. Johnson’s lecture last year at Widener University School of Law, where he delivered the prestigious Francis G. Pileggi Distinguished Lecture in Law.

Prof. Christopher Bruner Publishes Article on Fiduciary Duty

December 10, 2013 Leave a comment

Prof. Christopher Bruner

Prof. Christopher Bruner

Washington and Lee law professor Christopher Bruner has published an article titled “Is the Corporate Director’s Duty of Care a ‘Fiduciary’ Duty? Does It Matter?” in the Wake Forest Law Review. From the abstract:

While reference to “fiduciary duties” (plural) is routinely employed in the United States as a convenient short-hand for a corporate director’s duties of care and loyalty, other common-law countries generally treat loyalty as the sole “fiduciary duty.” This contrast prompts some important questions about the doctrinal structure for duty of care analysis adopted in Delaware, the principal jurisdiction of incorporation for U.S. public companies. Specifically, has the evolution of Delaware’s convoluted and problematic framework for evaluating disinterested board conduct been facilitated by styling care a “fiduciary” duty? If so, then how should Delaware lawmakers and judges respond moving forward?

In this Essay I argue that styling care a “fiduciary” duty has impacted Delaware’s duty of care analysis in ways that are not uniformly positive. Historically, loyalty has been aggressively enforced, while care has hardly been enforced at all – the former approach aiming to deter conflicts of interest through probing analysis of “entire fairness,” while the latter aims to promote entrepreneurial risk-taking through a hands-off judicial posture embodied in the business judgment rule. Conflation of these differing concepts as “fiduciary duties,” however, has facilitated a tendency toward over-enforcement of care, periodically threatening to impair entrepreneurial risk-taking until arrested by a countervailing legislative or judicial response. Additionally, their conflation threatens to erode the duty of loyalty by fueling the contractarian argument that the sole utility of such “fiduciary duties” is to fill contractual gaps, and that corporations therefore ought to possess latitude to “opt out” of loyalty to the degree already permitted with respect to care.

Prof. Bruner’s new article is available for download from SSRN. In addition, Prof. Bruner has also published a book review of Directors’ Duties and Shareholder Litigation in the Wake of the Financial Crisis by Joan Loughrey (ed). The review appears in the Cambridge Law Journal and is available for download for the journal’s website.

The Sixth Annual Conference on The Future of Adversarial and Inquisitorial Systems

December 5, 2013 Leave a comment

The Future of Juvenile Justice

The Sixth Annual Conference on

The Future of Adversarial and Inquisitorial Systems

Chapel Hill, North Carolina

April 10-12, 2014

This year the main conference and the preconference for young scholars will address two different aspects of the changing face of juvenile justice: the main conference will address juvenile justice from a comparative point of view, while the preconference will address juvenile justice in transnational and international law.

Juvenile Justice in Comparative Perspective

Sixth FAIS Conference, Chapel Hill, 11-12 April 2014

Tamar Birckhead, UNC, Coordinator

Emily Buss, Chicago, USA

Tamar Birckhead, UNC, USA

Nick Bala, Queen’s University, Ontario, Canada

Claudia Cesari, Macerata, Italy

Frieder Duenkel, Greifswald, Germany

Kevin Haines, Swansea, Wales

Jackie Hodgson, Warwick, England

Barbara Woodhouse/ Sayali Bapat, Emory, USA

* * * * *

Juvenile Criminal Justice and Human Rights:

International and Transnational Perspectives
Pre-Conference for Young Scholars, Chapel Hill 10 April 2014

Solange Mouthaan, Warwick, UK, Coordinator


Nicholas Atallah, JD student, Duke, USA

Regula Echle, PhD student, Basel, Switzerland

Marta Lavacchini, PhD student, Florence, Italy

John Miller, JD student, UNC, USA

Maura O’Keefe, JD student, UNC, USA

Michele Simonato, PhD, Genoa, Italy

Hugh Williams, PhD student Warwick, England


For more information, please contact Mike Corrado at

Prof. Josh Fairfield Presents on Virtual Worlds at Judicial Conference

December 4, 2013 Leave a comment
Prof. Josh Fairfield

Prof. Josh Fairfield

On Dec. 4, Washington and Lee law professor Josh Fairfield will present during a plenary session at  the Minnesota Annual Judicial Conference. The title of his talk is “We the People in a Virtual World.” Below is the abstract for the talk:

What if The Matrix were real? Through virtual world technology, users experience persistent and interactive computerized three dimensional worlds populated by many other people, all while sitting at their computer, or even as they walk or drive around. There is a lot of money at stake in this technology. Millions of citizens spend thousands of hours and billions of dollars in virtual worlds, for digital objects, or to buy digital currency. Virtual worlds, social networks, and augmented reality enable people to live out their economic, social and political lives in new online communities. Because citizens care deeply about their property, personhood, and community, they will bring claims of harm or disputes needing resolution to courts.

In the common law system, state courts see technology cases first. The common law often is technology law. New cases are often cases of first impression because of new technology. Virtual world technology has brought multi-million-member communities together online and supported a multi-billion dollar economy, but it has also afforded new opportunities for fraud, crime, or disputes over property. Claims of theft of virtual property, fraud through Ponzi schemes based on virtual currency, and questions who inherits virtual property or social network accounts either have or will soon come before courts.

This presentation will touch on core common law areas, and show how they are likely to be affected by the rise of virtual worlds, social networks, virtual currency, and wearable computing. The presentation will begin with an introduction to virtual world technology, continue with a description of the present and near-future cases that courts have or will soon engage, and conclude with a further-future look at the future of crypto-currencies. Finally, the developments of the past year make it clear that virtualization technologies will not merely remain in virtual worlds, but increasingly impact everyday life. Virtual currencies let drug dealers sell real drugs. Wearable computing like Google’s Glass take virtual worlds out of the desktop computer and overlay it on top of the real world. This look into the further future will also engage mixed and augmented reality technologies: computer technologies that bring these virtual experiences into the real world.