Washington and Lee law professor Brian Murchison has published a new article in the latest issue of the Columbia Journal of Law & the Arts. Professor Murchison’s article is titled “Speech and the Truth-Seeking Value” and appears the first issue of volume 39.
From the abstract:
Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in an absolute or transcendent sense. Third, the law’s current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value’s limitations, focusing on the complex setting of campaign finance.
Washington and Lee law professor Christopher Seaman has recently co-authored an amicus curiae brief (with Professor Jason Rantanen of the University of Iowa College of Law). The brief was filed at the U.S. Supreme Court on behalf of several intellectual property law professors last week in two cases: No. 14-1513, Halo Electronics, Inc. v. Pulse Electronics, Inc., and No. 14-1520, Stryker Corp. v. Zimmer, Inc. The issue in both cases is the standard for awarding enhanced (increased) damages for patent infringement under 35 U.S.C. § 284.
Professor Seaman has written about this issue in a previously published piece titled, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, 97 Iowa L. Rev. 417 (2012),
Prof. Christopher Seaman Co-Authors Letter to Congress Opposing the Defend Trade Secrets Act of 2015
Washington and Lee law professor Christopher Seaman has co-authored (with Professors Eric Goldman, David Levine, and Sharon Sandeen) a letter to Congress signed by 42 IP law professors opposing the Defend Trade Secrets Act of 2015. The Act would create a new civil cause of action for trade secret misappropriation under federal law. This letter builds on Professor Seaman’s critiques of similar legislation introduced in the previous Congress and published in the Virginia Law Review earlier this year.
Washington and Lee law professor Christopher Seaman presented at the Fourth Annual Patent Colloquium on Friday, November 20, 2015. The colloquium was hosted by the University Toronto, Faculty of Law. Professor Seaman participated on a panel entitled “The Evolving Landscape of Patent Remedies” to discuss permanent injections and ongoing royalty awards in U.S. patent litigation after the Supreme Court’s decision in eBay v. MercExchange (2006). The talk presented empirical research from Professor Seaman’s recent and forthcoming articles in the Texas Intellectual Property Law Journal and the Iowa Law Review.
Professor Seaman’s article in the Texas Intellectual Property Law Journal is titled “Ongoing Royalties in Patent Cases After eBay: An Empirical Assessment and Proposed Framework“. It appeared in volume 23 of the journal in the spring 2015 issue.
“Permanent Injunctions in Patent Litigation After eBay: An Empirical Study” will be published in a forthcoming issue of the Iowa Law Review.
On Friday, November 20, Professor Sahani will present her forthcoming article, Judging Third-Party Funding, at a litigation funding conference hosted by the NYU School of Law’s Center on Civil Justice. Professor Sahani’s panel will focus on litigation funding in the context of the Federal Rules of Civil Procedure and will be moderated by Professor Arthur Miller of the NYU School of Law, who is a Faculty Co-Director of the Center on Civil Justice. The conference is free and open to the public, and CLE credit will be offered.
For more information and to register, please visit: http://www.law.nyu.edu/centers/civiljustice/2015-fall-conference.
Professor Sahani’s article will be published in the UCLA Law Review in February 2016.
From the abstract:
Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about third-party funding when it is relevant in a particular case,” but the Committee did not provide any additional guidance regarding how to determine the relevance of third-party funding, what information to obtain, or from whom to obtain that information. This Article provides that needed guidance by setting forth revisions and reinterpretations of procedural rules to provide judges and arbitrators with disclosure requirements and a framework for handling known issues as they arise. By revising and interpreting the procedural rules as suggested in this Article, judges and arbitrators will be able to gain a better sense of the prevalence, structures, and impact of third-party funding and its effects (if any) on dispute resolution procedures. Over time, these observations will reveal the true systemic impact of third-party funding and contribute to developing more robust third-party funding procedural regulations.
Washington and Lee law professor Christopher Seaman recently presented his new work, entitled Collaboration and Patentability, at the 4th Annual Mid-Atlantic Patent Law Works-in-Progress (MAPWIP) program. The event was held at American University Washington College of Law on Friday, November 13, 2015.
From the abstract:
Collaboration is a hallmark of modern innovation. Patented inventions are now more likely to be the result of large-scale research projects in private industry or academia involving a multidisciplinary team of collaborators, rather than the lone tinkerer in a garage. The rise of collaborative invention is due to several developments, including increased specialization within scientific disciplines, the prohibitive costs of independent research, and the ability for far-flung researchers to collaborate via the Internet. Although patent law has evolved to facilitate collaborative invention in several important ways, it has lagged in recognizing the shift to team-based innovation in one important respect: the concept of the so-called “person having ordinary skill in the art” (PHOSITA). The PHOSITA plays an important role in determining several key requirements for patentability, including nonobviousness, enablement, and written description. The PHOSITA also is central to determining the scope of a patent’s claims, which greatly influences both infringement and invalidity in patent litigation. This Article contends that the U.S. Patent and Trademark Office and the federal courts should account for the rise of collaborative invention by judging patentability from the perspective of a collaborative team, rather than a lone PHOSITA. By doing so, patent law will utilize a more realistic framework for judging patentability, which may raise the bar for some requirements like nonobviousness, but lower them for others like enablement and written description.
Christopher Bruner, the William Donald Bain Family Professor of Corporate Law at Washington and Lee, visited the University of Leeds School of Law as an invited Liberty Fellow during the week of November 9, 2015. As a part of his visit, hosted by the Leeds School of Law’s Centre for Business Law and Practice, Professor Bruner gave a public keynote lecture based on his book, Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power (Cambridge University Press, 2013). This lecture, together with responses by Professors Andrew Keay and Joan Loughrey of the Leeds law faculty, formed the basis for a half-day workshop on shareholder power that brought together faculty and student attendees from Leeds and other universities in England and Ireland. Throughout his visit Professor Bruner met with Leeds law faculty working in the areas of corporate, securities, and financial law, and conducted further research for his second book, Market-Dominant Small Jurisdictions in a Globalizing Financial World (Oxford University Press, forthcoming 2016), which examines the roles of small jurisdictions in cross-border corporate and financial services.
Corporate Governance in the Common-Law World has been called “a revelation,” and “a work of monumental significance and scholarly craft.” In the book, Professor Bruner develops a new political theory to explain why shareholders in the U.K. and other common-law jurisdictions are both more powerful and more central to the aims of the corporation than are shareholders in the U.S. Specifically, he argues that relatively robust social welfare protections in countries like the U.K., Australia, and Canada have freed up their corporate legal systems to focus more intently on shareholder interests without giving rise to “political backlash” – because other legal structures accommodate the interests of employees. Read more about Professor Bruner’s scholarship here.