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Professor Franck speaks at Center for Transnational Legal Studies in London

May 5, 2015 Leave a comment
Prof. Susan Franck

Prof. Susan Franck

Washington and Lee law professor Susan Franck recently spoke at the Center for Transnational Legal Studies in London.  The event, International Economic law and the Challenge of Global Inequality was held on April 17-18, 2015 at King’s College.

Professor Franck participated on a panel discussing international investment law with other experts in the field.

The organization used Twitter to share details of the event including Professor Franck’s remarks and photos of participants: https://twitter.com/ctls_london

 

Dean Osborne wins Outstanding Article Award from AALL

April 29, 2015 Leave a comment
Caroline Osborne

Caroline Osborne

Assistant Dean of Legal Information Services and Professor of Legal Research, Caroline Osborne has been awarded the Outstanding Article Award from the American Association of Law Libraries’ Academic Law Libraries Special Interest Section.  Her article “The Open Access Advantage for American Law Reviews” appears in 3A Edison: Law and Technology 1 (2015) (with J. Donovan and C. Watson).

From the abstract:

Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and law reviews can ex- pect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a lower OA advantage (11.4%) due to the attention such prestigious works routinely receive regardless of the format. When focusing on the availability of new scholarship, as compared to creating retrospective collections, the aggregated advantage rises to 60.2%. While the first tier advantage rises to 16.8%, the mid-tiers skyrocket to 89.7%. The fourth tier OA advantage comes in at 81.2%.

Citations of legal articles by courts is similarly impacted by OA availability. While the 15-year aggregate advantage is a mere 9.5%, new scholarship is 41.4% more likely to be cited by a court decision if it is available in open access format.

Professor Seaman Presents at PatCon5

April 21, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman presented a current work-in-progress, Property vs. Liability Rules in Patent Litigation Post-eBay: An Empirical Study, at the Fifth Annual Patent Conference (PatCon5) at the University of Kansas School of Law on April 11-12, 2015.  The Patent Conference is the largest annual conference for patent scholars in the world.

From the Abstract:

In this paper, I empirically assess the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), on grants of permanent injunctions or, in the alternative, ongoing royalty awards, in patent litigation.

Prior to eBay, the Federal Circuit established a “general rule” granting injunctive relief after entry of a final judgment that the asserted patent was valid and infringed. Id. at 391. Overcoming this presumption required a significant showing of public harm that outweighed the patentee’s irreparable harm. In practice, however, this rarely occurred, and district courts routinely granted injunctions after a finding of infringement.

In eBay, the Supreme Court unanimously rejected the Federal Circuit’s “general rule” in favor of injunctive relief, instead holding that trial courts must apply “traditional equitable principles” in the form of a four-factor test. Id. at 391-94. However, in concurring opinions, Chief Justice Roberts and Justice Kennedy offered seemingly divergent assessments regarding eBay’s likely impact in patent litigation. Chief Justice Roberts suggested that trial courts would continue to grant injunctive relief after a finding of infringement in “the vast majority of patent cases,” id. at 395, whereas Justice Kennedy asserted that injunctive relief may be inappropriate in situations that differed from traditional patent litigation, such as suits by non-practicing entities (NPEs) and cases involving business method patents. Id. at 396.

To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, I am empirically studying all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the eBay decision through the end of 2013. Each case is being coded for a number of variables that may have affected district courts’ decisions regarding whether to grant or deny injunctive relief, including the technological field of the asserted patent(s), whether the parties are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent. A summary of the results and data analysis from this empirical study will be presented at the conference.

 

 

Professor Seaman Publishes in the Virginia Law Review

April 14, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman has just published a new article in the Virginia Law Review.  The article titled “The Case Against Federalizing Trade Secrecy” appears in volume 101 published in April 2015.

Download the full text of the article here.

From the abstract:

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach — a modest expansion of federal courts’ jurisdiction over state law trade secret claims — that can help address the issue of trade secret theft without requiring outright federalization.

 

The Army Lawyer Republishes Professor MacDonnell’s Work in Anniversary Issue

April 13, 2015 Leave a comment
Tim MacDonnell

Prof. Time MacDonnell

Washington and Lee Law professor Timothy MacDonnell’s 2002 article,  “Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts” was republished in the 500th anniversary issue of The Army Lawyer.    The 500th anniversary issue was published in January 2015.  The editors acknowledge Professor MacDonnell’s work as “cited more frequently than any other appearing in this publication written by a judge advocate.”

The full text of the article may be found in the Army Lawyer here.

Professor Shannon Presents on Third-Party Funding at William & Mary Law School

April 3, 2015 Leave a comment
Prof. Victoria Shannon

Prof. Victoria Shannon

On Tuesday, March 31, 2015, Professor Victoria Shannon presented her article, Judging Third-Party Funding, 63 UCLA L. Rev __ (2016) (forthcoming), at William & Mary Law School as part of the Junior Faculty Exchange Program.  Professor Shannon’s article provides guidance to judges and arbitrators regarding how to reinterpret the Federal Rules of Civil Procedure, evidentiary privileges, and international arbitration procedures in light of third-party funding. By interpreting the existing 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 robust third-party funding regulations.  The current draft is available here.

 

Read more about Professor Shannon’s scholarship here.

Professor MacDonnell publishes new article in Virginia Journal of Criminal Law

April 2, 2015 Leave a comment
Tim MacDonnell

Prof. Time MacDonnell

Washington and Lee law professor Timothy McDonnell published a new article in the Virginia Journal of Criminal Law.  The article, “Justice Scalia’s Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism”, appears in volume three, issue one of the journal.

Read the full text of the article here.

From the abstract:

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity. This article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the interpretation of the Fourth Amendment in favor of law enforcement interests.

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