Professor Kish Parella’s new manuscript, Procedural Fairness by the Corporation, places in the Top Ten lists for new papers in Contracts, International Economic Law, International Trade , Dispute Resolution, Public International Law: Organizations, Corporate Governance, and CSR Enforcement, among other subject areas.
From the abstract:
Global governance has not yet caught up with the globalization of business. As a result, our headlines provide daily accounts of the extent and consequences of these “governance gaps.” The ability of corporations to evade state control has also contributed to an unusual development: corporations are governing like states. Some public governance functions traditionally delivered by state actors are now increasingly undertaken by transnational corporate actors. One area that is experiencing this substitution is dispute resolution of human rights. Corporations and other business enterprises, individually or collectively, are creating a variety of grievance mechanisms to address human rights and other conflicts associated – even caused – by their business activities.
When these roles are fulfilled by state actors, we rely on procedural fairness to guide, even discipline, decision-makers. Procedural fairness improves our faith in decision-makers and their institutions even if we might disagree with the outcomes reached. What does procedural fairness mean when it is undertaken by a corporation performing quasi-public governance? What factors might improve its disciplining potential on corporations and increase the likelihood that the watching public, local and global, might accept the outcomes reached? This Article addresses this challenge by developing a framework for procedural fairness that is based upon human rights research and contract law. The result is a strategy for trust-building that can improve the quality of governance performed by the transnational business sector.
Washington and Lee law professor Christopher Seaman will speak at the 16th Annual IP Symposium: Patent Assertion Entities hosted by the Texas Intellectual Property Law Journal. The symposium is held at the University of Texas at Austin on Friday, February 20, 2015. Professor Seaman will present a new research projected titled Ongoing Royalties as an Alternative to Injunctive Relief for PAEs After eBay: An Empirical and Theoretical Assessment.
From the abstract:
Since the Supreme Court’s 2006 decision in eBay v. MercExchange, it has become increasingly difficult for patent assertion entities (PAEs)—firms that own, license, and assert patents in litigation, but do not practice the patented invention themselves—to obtain injunctive relief after a finding of infringement. Recent studies have shown that evidence of competition in a product market between a patentee and an infringer is the single most important consideration in granting injunctive relief post-eBay, which few if any PAEs can satisfy.
When a permanent injunction cannot be granted, the Federal Circuit has endorsed an alternative equitable remedy called an ongoing royalty, which is essentially a limited, post-judgment license to the infringer. However, lower federal courts have not settled on a consistent methodology for determining an appropriate ongoing royalty, including the related issue of whether enhanced damages should be awarded for post-judgment infringement. This Article addresses the issue of ongoing royalty awards from both an empirical and theoretical perspective. First, it reports the results of an original empirical study regarding ongoing royalty awards by district courts following eBay. Second, applying insights from this empirical data, it proposes a new framework for computing an ongoing royalty that serves patent’s law objective of incentivizing innovation while also avoiding excessive damages.
Washington and Lee Law professor Mark Drumbl recently traveled to Colombia with the organization, Lawyers without Borders. Professor Drumbl shares his account of his visit below.
At the invitation of a not-for-profit group called Lawyers Without Borders, I spent several days in Bogotá, Colombia, in mid-February. They are engaged in important work that explores questions of transitional justice, punishment, and reconciliation in Colombia.
I shared my experiences in other countries with regard to accountability for massive human rights abuses, including notably mechanisms that operate outside of formal criminal trials. I examined the usefulness of such mechanisms in my first book, Atrocity, Punishment, and International Law. I knew very little about Colombia so this was a huge learning experience for me.
Colombia has suffered multiple decades of internal armed conflict. The conflict, broadly speaking, occurred between the Colombia state and associated paramilitaries, on the one hand, and non-state insurgents, notably the FARC (Fuerzas Armadas Revolucionarias de Colombia or Revolutionary Armed Forces of Colombia) and the ELN (Ejército de Liberación Nacional or National Liberation Army), on the other. Both sides to the conflict have committed grave violations of human rights, war crimes, and crimes that could qualify as crimes against humanity.
The FARC and the government of Colombia are currently in peace negotiations in La Havana, Cuba. The ELN and the government are not part of these negotiations. The FARC has announced a cease-fire and has been weakened tremendously.
The FARC began as a social liberation movement fueled by goals of land redistribution to the poorest segments of Colombian society. Accordingly, it has political roots. At the apex of its power controlled significant swaths of Colombia territory. While ostensibly beginning as a political organization, and still retaining some elements of a well-intended ideology, the FARC membership and methods however became increasingly terroristic and motivated by extortion, drug running, sadism, and kidnapping Colombians and foreigners for ransom.
The government of Colombia, through the state and more grievously extremist right-wing paramilitary groups, also has committed human rights abuses. These include extrajudicial assassination of civilians. In some instances, the bodies of murdered civilians would be deceitfully dressed up in guerrilla uniforms so as to indicate that the murdered had been insurgents. These ‘false positives’ inhibited any reparation claim and also ostracized the family of the slain.
The International Criminal Court is conducting preliminary examinations into the Colombian situation. As a result of this, Colombia is getting a fair bit of international attention. The state in an affirmation of positive complementarity has passed a number of pieces of legislation to encourage justice and reconciliation. The Colombia courts have been active as well. Civil society is very rich and engaged. Because of civil society actions other international actors, such as the Inter-American Court of Human Rights, have entered the conversation as well.
Major questions facing Colombia today are:
- Reintegration of FARC fighters convicted and serving jail time and possibilities of restorative justice within prison; amnesties for those not yet in custody.
- Accountability for state-sponsored abuses and stopping paramilitary violence.
- Some form of truth commission to explore the roots of the violence and suggest a greater political inclusiveness and equitable distribution of the benefits and burdens of society.
- Managing these issues within a process of peace negotiations that map onto a sense in certain communities that the conflict continues owing to the continued paramilitary attacks.
- Recognizing that Colombia has made huge strides forward over the past several years, and how to continue that momentum.
I met with a series of human rights lawyers at their offices in Bogota. I gave a talk about restorative justice as a potential methodology to help transition societies from violence to a more stable place. Afterwards there was a question and answer session.
On another day we flew to Bucamaranga. This is a city in the north, in the direction of the Venezuelan border. There we met with about 10 families of people (along with their lawyers) that had been murdered by state sponsored paramilitaries and their lawyers. In the afternoon I participated in a discussion with a group of judges, prosecutors, professors, activists, and international officials at the law school in Bucamaranga. Then the group (about 30 people) had a very intense conversation. Things are quite polarized in particular about what to do about the state crimes. The victims see those as part of a general plan of persecution while others see these crimes as aberrations that happen in the war against insurgents.
Lawyers without Borders together with the main law school in Bogota, the University of the Andes, hosted a conference about non-penal sanctions in the accountability process in Colombia. The auditorium was packed and there were many great speakers from all segments of society and the government. I spoke on the last panel, on questions of what it takes for an amnesty to be legal under international law, the definition of crimes against humanity and applicability to non-state actor groups with political missions, state responsibility, and the limits of law in transitional contexts.
Washington and Lee law professor Christopher Seaman presented a new research project, entitled Property Rules vs. Liability Rules in Patent Litigation After eBay: An Empirical Study, at the 2015 Works in Progress in Intellectual Property Colloquium on February 6-7 at the U.S. Patent and Trademark Office in Alexandria, VA. The conference was jointly hosted by The George Washington University Law School and the United States Patent and Trademark Office.
Professor Seaman’s presentation at the conference was also featured on the blog Written Description.
From the abstract:
This project 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 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 both valid and infringed. 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. 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,” 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.
To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, this project empirically analyzes all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the Supreme Court’s eBay decision through 2013. Each case was coded for a number of variables that may have impacted district courts’ decisions regarding whether to grant injunctive relief, including the technological field of the asserted patent(s), whether the litigants are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent. The results from this study provide empirical evidence that supports conventional wisdom in some respects, such as finding that NPEs are rarely granted permanent injunctions post-eBay, but that challenges other commonly-held assumptions, such as finding that a history of licensing the asserted patent(s) does not appear to routinely preclude injunctive relief.
Washington and Lee law professors Lyman Johnson and David Millon have published an article in the most recent issue of The Business Lawyer. The article, “Corporate Law After Hobby Lobby” appears in Vol. 70, Issue 1.
From the abstract:
We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and also of the broad scope of managerial discretion.
Washington and Lee law professor Mark Drumbl joined the University of Ottawa faculty in January as a visiting professor. During the University’s January term Professor Drumbl taught an intensive course titled Mass Atrocity and International Law.
Professor Drumbl also lectured at the University of Ottawa on January 13, 2015. The program, “Stepping Outside Nuremberg’s Halo: the Supreme National Tribunal of Poland and the History of International Criminal Law” and is featured as part of the annual lecture series.
On Friday, January 16, Professor Parella will present her work in progress, “Institutional Legitimacy in the Global Value Chain,” at a faculty workshop at Indiana University Maurer School of Law in Bloomington, IN.
From the abstract:
Over the past few decades, we have witnessed the growth of private standard-setting and monitoring as a means to control environmental and labor conditions in international production. Enforcing private standards introduces a historically unfamiliar problem for the transnational business sector: institutional legitimacy. Institutional legitimacy is usually associated with public administration but its need also emerges at the edges of the global marketplace where businesses now undertake private governance. Legitimacy is important to the project of private governance because businesses confront a diverse and expanding audience of stakeholders who often have conflicting interests: consumers, shareholders, suppliers, suppliers’ subcontractors and workers, local and foreign government officials, media, international and local NGOs, international and local unions, and community groups. Businesses need to develop strategies whereby these different stakeholders accept outcomes even if their interests do not ultimately prevail. This is the pluralist challenge from the public arena that has now been replicated within the global marketplace.