Washington and Lee law professor A. Benjamin Spencer has been appointed by the Virginia Supreme Court to the Council of the Virginia State Bar as an at-large member. The Council is the governing body that exercises the authority of the VSB. The vast majority of Council members are elected in each judicial circuit around Virginia, but the Supreme Court appoints a handful of people to at-large seats. Prof. Spencer’s term will begin July 1, 2014.
This is not the only bar-related work in which Prof. Spencer is currently engaged. Last year, he was appointed by the President of the National Conference of Bar Examiners to the Civil Procedure Drafting Committee, which consists of 7 people who will write the civil procedure questions that appear on the Multistate Bar Exam (MBE). Civil Procedure is currently not tested on the MBE but will be beginning in 2015. Prof. Spencer will meet with the other committee members every six months as they prepare for the inclusion of this subject on the MBE.
On Thursday and Friday, November 7 and 8, the Frances Lewis Law Center at Washington and Lee School of Law is hosting the first-ever Works-in-Progress Roundtable for Third-Party Funding Scholars for scholars who write in the area of third-party funding of litigation and arbitration.
Third-party funding is a phenomenon by which an outside entity financially supports the legal representation of a party’s claim in exchange for the promise of a share of the proceeds if the party recovers any money. On the defense-side, the funding arrangement typically involves the defendant making payments (similar to an insurance premium) to the funder in exchange for the funder paying the defendant’s legal expenses in the case.
Over the next two days, eight eminent scholars will present works-in-progress and share feedback on wide-ranging and cutting-edge topics in the field of third-party funding. Here are their names and topics:
– Nora Freeman Engstrom of Stanford Law School: “Lawyer Lending: Costs and Consequences”
– Anthony J. Sebok of the Benjamin N. Cardozo School of Law: “What Do We Talk About When We Talk About Control?”
– Brian T. Fitzpatrick of Vanderbilt Law School: “Should Third-Party Litigation Financing Come to Class Actions?”
– Manuel A. Gómez of Florida International University College of Law: “Alternative Litigation Financing Heads South: The Potential for and obstacles to third party funding in Latin America”
– Selvyn Seidel of Fulbrook Capital Management LLC: “Buying and Selling Claims – Why Not?”
– Maya Steinitz of the University of Iowa College of Law: “Incorporating Legal Claims”
– Benjamin Spencer of Washington and Lee School of Law: “The Law of Litigation Finance”
– Victoria Shannon of Washington and Lee School of Law: “Optimal Dispute Systems for Third-Party Funding”
Washington and Lee School of Law Dean Nora Demleitner has announced the recipients of a number of annual faculty fellowships that recognize excellence in teaching and scholarship.
Prof. Michelle Drumbl directs the Tax Clinic and also teaches courses in Federal Income Tax. She received the Jessine Monaghan Faculty Fellowship for Teaching awarded to “recognize stellar teaching in the third year.”
Prof. Jill Fraley has taught Environmental Law, a new Environmental Practicum, a seminar on Law and Geography, and a small section of Property. She is the recipient of the John W. Elrod Law Alumni Fellowship in Teaching Excellence.
Prof. Brant Hellwig teaches a number of introductory and upper-level specialized tax courses. He is the recipient of a Law Alumni Faculty Fellowship for Teaching.
Christopher Bruner’s book Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power, published this spring by Cambridge University Press, examines shareholder influence and power that challenges popular wisdom and provides fascinating insights into the uniqueness of U.S. corporate governance. He is the recipient of the Ethan Allen Faculty Fellowship for Scholarship.
Jim Moliterno published his book A Profession in Crisis (Oxford) to great acclaim and also put out a new Civil Procedure book with West, designed to provide a new approach to the teaching of civil procedure in law school. He is the recipient of a Law Alumni Faculty Fellowship for Scholarship.
Ben Spencer continues to be a prolific scholar despite his new duties as director of the Lewis Law Center and Associate Dean for Research. His scholarly work on civil procedure has received increasing acclaim, and his latest article “Class Actions, Heightened Commonality, and Declining Access to Justice” appeared in the Boston University Law Review. He also authored an insightful commentary on the state of legal education in his magnum opus on The Law School Critique in Historical Perspective. He is the recipient of the Law Alumni Faculty Fellowship for Scholarship.
W&L Law Professor A. Benjamin Spencer has just published an article on the Supreme Court’s civil pleading jurisprudence in the UCLA Law Review. It is entitled, Pleading and Access to Civil Justice: A Response to Twiqbal Apologists. Here is the Abstract:
Professor Stephen Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.” One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious claims that fail to offer sufficient specificity and support at the pleading stage. But some have questioned whether this purported threat is more perceived than real. Indeed, this doctrinal shift has been defended in several ways that each suggest—in their own way—that the critical response to Twombly and Iqbal may be much ado about little or nothing.
These apologies for the doctrinal shift, if you will, generally fall into three categories. The first consists of arguments suggesting that the standard has not really changed at all, which I will refer to as the “consistency” defense. The second group concedes that there has been a change but argues that the change has not had or will not have a substantial impact; I will call this the “inconsequentiality” defense. The final category contains those arguments asserting that the changes are consequential but in a good way, meaning that the strengthening of pleading standards was warranted and will be beneficial to the litigation system. I refer to this type of argument as the “efficiency” defense.
This essay responds to each of these apologies, finding that the consistency defense is doctrinally unsound, that the inconsequentiality defense is doubtful (if not counterfactual), and that the efficiency defense is misguided, given the patent overinclusiveness and subjectivity of the plausibility doctrine.
A. Benjamin Spencer is Associate Dean for Research, Frances Lewis Law Center Director, & Professor of Law at Washington & Lee University School of Law.
W&L Law Professor A. Benjamin Spencer just published an article entitled Class Actions, Heightened Commonality, and Declining Access to Justice in the Boston University Law Review. Here is the abstract:
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’ s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that would otherwise never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.
This article may be downloaded by visiting the BU Law Review website.
Washington and Lee School of Law Professor Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center, has received two honors recognizing his professional accomplishments and standing within the legal academy.
First, Prof. Spencer has been elected to the American Law Institute (ALI), the most prestigious law reform body in the U.S. The ALI is focused on producing scholarly work to clarify, modernize, and otherwise improve the law. It has a membership 4300 judges, lawyers, and teachers from all areas of the U.S. and many foreign companies.
Also, Prof. Spencer has been appointed by the President of the National Conference of Bar Examiners to the Civil Procedure Drafting Committee, which consists of 6 people who will write the civil procedure questions that appear on the Multistate Bar Exam (MBE). Civil Procedure is currently not tested on the MBE but will be beginning in 2016. Prof. Spencer will meet with the other committee members every six months as they prepare for the inclusion of this subject on the MBE.
Congratulations to Prof. Spencer on these honors.
W&L Law Professor A. Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center, has just published an article entitled The Law School Critique in Historical Perspective, 69 Wash. & Lee L. Rev. 1949 (2012). This article provides an extensive review of the history of legal education and legal education reform up to the present day, gleaning lessons along the way for how we might address contemporary challenges facing law schools. Here is the abstract:
Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the current model of legal education developed. Indeed, a historical perspective on legal education is sorely missing from this debate, as many of the criticisms merely echo charges that have been lodged against legal education for well over a century, but do not draw lessons from how those former critiques ultimately failed to deliver fundamental change. This Article reviews the historical development of legal education in America, including the critiques and reforms made along the way, to gain insight that will inform our own efforts to make law schools better at preparing lawyers for practice.
This article, which was published in the Washington & Lee Law Review, may be downloaded from SSRN by visiting http://ssrn.com/abstract=2017114.