Category: Faculty Profiles

Welcome Kerry Shibib, Outreach and Reference Librarian

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Kerry Shibib

Kerry Shibib, W&L Law’s new librarian

The Law Library is delighted to welcome Kerry Shibib to our professional staff and the W&L Law community!

Professor Shibib holds the new position of Outreach and Reference Librarian, in which he will coordinate our research assistant programs, the Student Library Advisory Committee (SLACers), and provide expert research and instructional support to faculty and students. He also teaches the Legal Research course in our first-year curriculum.

Prior to becoming a law librarian, Kerry was an attorney with large firms in New York and a boutique family law practice in San José, California. He is also a technology and computer enthusiast, becoming Microsoft Certified in Artificial Intelligence earlier this year. Kerry is currently working towards his Master of Library and Information Science at San José State University and previously earned his JD from Columbia and undergraduate degree from Cornell.

Please join us in welcoming Professor Shibib! His office is 354, on the corner just across from the Circulation Desk.

Jill Fraley Profile

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Dr. Jill B. Fraley

Growing up in rural Kentucky, Dr. Jill Fraley recalls strip mines for playgrounds and orange-tinted stream water.  But for her, these memories have not been a burden.  Instead, they—and her love for the people and places of Appalachia–have become a driving force in her prolific, multi-disciplinary scholarship.

Dr. Fraley’s career path took her first from Kentucky to Yale, where she double-majored in religion and history, before obtaining her law degree from Duke.  After several years practicing law in the product and premises liability field, she returned to Yale and earned both an L.L.M. in 2008 and a doctorate of law degree in 2011.  She returned home to Appalachia, joining the faculty of Washington and Lee shortly thereafter.

During this period of intensive education and work, Dr. Fraley still managed to produce a wide variety of articles.   Among others, this included works of history (Missionaries to the Wilderness: A History of Land, Identity, and Moral Geography in Appalachia, Journal of Appalachian Studies, vol. 17, No. 1/2, pp.28-41 (2011); poetry (Night Screams, Appalachian Journal 234-234 (2008)); and social science (Walk along My Mind: Space, Mobility, and the Significance of Place, Humanity & Society, vol. 31.2-3, pp. 248-259 (2007)).

In 2009, she began focusing on legal articles. Re-Examining Acts of God, 27 Pace Envtl. L. Rev. 669, analyzes the traditional divide in tort law between human causation and natural causes, or acts of God.  Fraley argues, based on an exploration of the underlying geographical theories and the experience of law in related questions such as biotechnology patents, that this distinction is outdated and unhelpful.  Instead, she suggests that allocating percentages of fault would allow for greater fairness and justice in the case of damage caused by a global-warming induced hurricane, for example.

A 2011 piece, Finding Possession: Labor, Waste, and the Evolution of Property, 39 Cap. U. L. Rev. 51 looks at the historical development of the linkage between labor and possession of property and the “right of first possession”.  This concept and the related notion of waste, or un-worked land, was used by British and American settlers to justify their right to settle and develop new land claims.  Fraley concludes that the handed-down notions of Lockean private property as an unimpeachable right deserve reconsideration.   Instead, she suggests allowing for a more balanced approach between the good of society and the individual good.

Dr. Fraley has continued to study and publish in other fields, with articles such as: Images of Force: The Power of Maps in Community Development, Community Development Journal, 46(4), 421-435 (2011) and The Political Rhetoric of Property and Natural Resource Ownership: A Meditation on Chance, Taxation and Appalachia, Society & Natural Resources, 25(2), 127-140 (2012).  This firm grounding in the concerns and methodologies of other disciplines has given her an appreciation for the way in which they approach questions of the human condition.  In its relationship to other fields, “law can remain oddly isolationist and uninviting to scholars in other fields, despite the many connections that have already been made between law and other disciplines,” she says.  “This is unhealthy.  [Legal scholars]…should cultivate a sense of listening to scholars in other fields and inviting their insights.”

Dr. Fraley has two book projects coming up this year.  The first is a revision and updating of her doctoral thesis on Law and Geography.  She explores the intersection of these two vital disciplines and argues that powerful actors sometimes use geographical methods such as map making and surveys to enforce their preferred structure on others.  The other book is a look at the impact of the early American concept of “waste” on the development of settlements and the allocation of natural resources.  Dr. Fraley traces how the norms of property ownership on the small scale had a large effect on the eventual division of natural resources between states and nations.  Of particular interest is the settlement and treatment of the greater Appalachian area.

As she continues her wide-ranging scholarly journey–exploring the connections between property, environment, history and geography–in some ways she has never left home.  Dr. Fraley’s love of Appalachia shines through.

Chris Seaman Profile

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Christopher B. Seaman

 

Intellectual Property (IP) is sometimes viewed as a separate world from the rest of law, where only those with science or engineering backgrounds are accepted.   For Professor Chris Seaman, however, the more crucial skills for an IP litigator are the ability to work with expert witnesses, juggle multi-forum and multi-party actions, and critically evaluate potential remedies—in short, the same skills used by attorneys in other complex litigation practices.

Although Professor Seaman has long maintained an interest in science and technology, his intention upon leaving law school was to go into complex litigation work.  Serendipitously, after a federal clerkship, he was offered a chance to work in the intellectual property litigation section of Sidley Austin LLP.  He found he enjoyed both the high-level litigation challenges and the “narrow but deep” slices of technology that he encountered in his practice.

Professor Seaman put his IP litigation experience to scholarly use.  His first major IP article, Reconsidering the Georgia-Pacific Standard for Reasonable Royalty Patent Damages, 2010 BYU Law Rev. 1661, critiques the now-dominant reasonable royalty method of calculating damages in patent infringement cases decided by juries.  Instead of the current fifteen factor Georgia Pacific test, Professor Seaman relies on economic and negotiation theory to propose that infringers should be liable only for the costs of adopting and implementing a non-infringing substitute technology, plus any lost benefits related to the substitute’s use.

Another paper, Willful Patent Infringement and Enhanced Damages After In re Seagate:  An Empirical Study, 97 Iowa L. Rev. 417 (2012), again delves into damages for infringement.  This article, an earlier version of which won a Stanford-Samsung Prize in 2010 for outstanding papers related to patent remedies, explores the impact of a recent Federal Circuit decision that raised the standard governing willful infringement of a patent.  A defendant who is found to have willfully infringed a patent can be liable for up to triple damages, so this decision was seen by scholars as an attempt by the court to reign in large damage awards.  To gauge the Seagate decision’s actual impact, Professor Seaman conducted an empirical study of how trial courts actually applied this new rule.  Contrary to expectations, the study found that there were only about 10% fewer willful infringement findings in the three years immediately following the decisions.

Finally in his most recent article, Standard of Proofs in Civil Litigation: An Experiment from Patent Law, Harvard Journal of Law and Technology (forthcoming 2013), Professor Seaman and a co-author tackle a question about the effectiveness of standards of proof.  Again utilizing an empirical approach, Professor Seaman compares the results of an experiment on mock jurors who were given different burdens of proof in determining whether a hypothetical patent should be found invalid.  Somewhat surprisingly, the study’s results show that mock jurors who were given a modified “clear and convincing” standard as recently mandated by the Supreme Court in a 2011 decision found the patent invalid at  statistically indistinguishable rates from mock jurors who received a lower “preponderance of the evidence” standard.  Given the importance of standards of proof in both criminal and civil litigation, this finding calls for further investigation of this pillar of the legal system.

In the future, this prolific young scholar has set his sights on a number of different topics, including  procedural complexities and challenges of litigating patents in multiple forums, the decision- making process of jurors in complex litigation, and an exploration of problems arising from joint ownership of patents.

 

Christopher Bruner Profile

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Who controls a corporation and what should its primary objective be? Over the last forty years, these questions have been answered principally by reference to an economically driven vision of the corporation. According to Professor Christopher Bruner, this view is insufficient because it fails to account for the social and political realities that have affected the corporate form, while providing no compelling vision for what corporations should do.

Professor Bruner was first drawn to such questions as a law student, but his approach was deeply influenced by his pre-law studies in the humanities. “I am very interested in social and cultural dimensions of economic law and how they impact general social welfare,” he says.

This broad outlook permeates his scholarship. For example, in an article titled Culture, Sovereignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products, 40 N.Y.U. J. Int’l L. & Pol. 351 (2008), Bruner examines a recent treaty legitimating national laws that establish trade protections for domestic products deemed “cultural,” such as films and television shows. This treaty – championed by Canada and France – was adopted nearly unanimously (148-2) over the vocal opposition of the United States. Arguments for free trade and free speech, though theoretically compelling, were not enough to derail the treaty because of the powerful impetus most countries felt to protect their homegrown media from domination by Hollywood. According to Bruner, the U.S. failed to persuade other countries because our position relied too heavily on the theoretical merits of free trade and failed to take seriously the valid cultural concerns of other countries.

The importance of social and cultural context to economic law has loomed large in his more recent scholarship, which has increasingly focused on comparative corporate law and governance. In Power and Purpose in the “Anglo-American” Corporation, 50 Va. J. Int’l L. 579 (2010)  ) – an early version of which won the  the 2010 Association of American Law Schools Scholarly Papers Competition – Bruner investigates a striking divergence between U.S. and U.K. corporate law. While comparative legal scholars typically lump together British and American corporate law as a single “Anglo-American” system, Bruner teases out substantive and crucial distinctions in their respective degrees of shareholder-orientation, a divergence emerging most clearly in the context of hostile takeovers. In the U.K., shareholders have a nearly unfettered right to accept deals maximizing their own returns. In the U.S., however, the shareholders’ prerogative to seek the most profit is tempered substantially by protections for employees and other stakeholders. Through a detailed historical investigation, Bruner argues that social and political factors provide the most compelling explanation of this divergence—namely substantial differences in the two countries’ approaches to social welfare policy. In the U.S., where the social safety net remains relatively weak compared to the U.K., far greater social and political pressure has been brought to bear on corporate law to show regard for the concerns of employees. In short, corporate law can be fully understood only by reference to surrounding social and political conditions.

Professor Bruner’s current work continues to argue against the fallacy of understanding corporate law in a vacuum. In two more recent articles – Corporate Governance Reform in a Time of Crisis, 36 J. Corp. L. 309 (2011), and Conceptions of Corporate Purpose in Post-Crisis Financial Firms, 36 Seattle U. L. Rev. (forthcoming 2013) – Bruner critiques shareholder-centric reforms adopted in the wake of the crisis against the backdrop of his prior work. His new book, titled CORPORATE GOVERNANCE IN THE COMMON-LAW WORLD: THE POLITICAL FOUNDATIONS OF SHAREHOLDER POWER (Cambridge University Press, forthcoming 2013), extends and deepens his arguments about the importance of social and political context to corporate law, developing a new comparative theory of corporate governance in common-law countries through analysis of Australia, Canada, the U.K., and the U.S. Moving forward, Bruner plans to extend his comparative scholarship to financial systems more generally.

Johanna Bond Profile

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For most, our self-concept is a complex creation, mingling together different aspects of our life experiences and personal traits. Too often, however, in academia and in the law, this inherent complexity is glossed over in favor of essentialism—the idea that the human “self” can be reduced to a singular essential characteristic such as race or gender. Professor Johanna Bond has spent her career fighting this notion, particularly on behalf of African women and others in the Global South who both reject discrimination based on their gender and yet hold tightly to the positive aspects of their culture.

Professor Bond’s engagement with these issues began early in her legal life. As a law student at the University of Minnesota, she worked with the International Women’s Rights Action Watch, (IWRAW) which gathered information about the violation of women’s human rights to assist U.N. committees. Through these efforts she met a number of pioneering African feminists, such as Sarah Longwe from Zambia, who brought suit against the Intercontinental Hotel for gender discrimination after it prohibited her from attending a children’s party because she lacked a male escort. Unity Dow from Botswana, the first female justice on the High Court of Botswana, similarly brought suit for gender discrimination and won her case against steep odds. Reflecting back, Professor Bond describes these associations as being, “truly inspirational.”

Through these personal contacts and her own evaluations of critical race and feminist theories, she began to focus on the plight of those who face discrimination from their culture yet do not wish to completely reject their culture. In a seminal 2003 piece, International Intersectionality: A Theoretical and Pragmatic Exploration of Women’s International Human Rights Violations (52 Emory L.J. 71), Bond criticizes the prevailing framework of women’s human rights for not adequately reflecting the experience…”[of] women who may experience discrimination or human rights violations as a result of both gender and another ground.” She further argues that the U.N. and other international legal organizations such as NGO’s have compounded this theoretical shortcoming by structuring responsibility for human rights along rigid lines of race, gender, and sexual orientation.

In a series of subsequent articles, Bond has applied these insights and explored attempts in particular situations to accommodate both culture and gender rights.
Gender, Discourse, and Customary Law in Africa (83 S. Cal. L. Rev. 509 (2010)), Pluralism in Ghana: The Perils and Promise of Parallel Law, (10 Or. Rev. Int’l L. 391, 418 (2008)), and Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law, (14 Yale Hum. Rts. & Dev. L.J. 1 (2011)) all discuss the effects on women’s rights when the state cedes legal jurisdiction over particular matters, mainly family law, to minority groups. In some cases that has resulted in discrimination against women because it removes them from the protective influence of equality laws; even if those laws are too often ignored by the regular judiciary.

Professor Bond recently broke new ground with a 2012 article, Honor As Property, (23 Colum. J. Gender & L. 202). It surveys the topic of honor-related violence, where women or girls who commit or are alleged to commit sexual improprieties are beaten or killed by their own family members to “cleanse” or repair the family honor. She argues that this stated justification for violence parallels in many ways justifications for violence in protection of real or personal property in jurisdictions, worldwide. This understanding of family honor as a form of non-tangible property owned collectively by the family and controlled primarily by males opens up new possibilities for innovative, grass roots driven reform. She suggests that while stiffer criminal penalties would help at the margin, the biggest advances will require cultural change where women gain the ability to share control of the honor property and the family’s honor is not tied so closely to the behavior of the female members.

Looking ahead, Bond envisions her work continuing to tackle the hard questions of gender intersecting with other identities. In her view, real change will not come from either government enforced laws and edicts, or imperialist pronouncements from Western human rights advocates. Real change, she believes, can only come as discursive space is carved out for dissenting voices within each culture and tradition.

Samuel Calhoun Profile

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What is the proper role of religion in public discourse? Can explicitly religious values inform public discussion on questions such as health care, abortion, and stem cells, or should these questions be addressed in purely secular terms? What duty does a personally religious scholar owe to his students when discussing such topics? As a believing Christian and a law professor, these questions define Professor Samuel Calhoun’s scholarship.

In Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, but Incomplete, Sez Who Critique, 20 J. L. & Religion 31 (2004-2005)), Calhoun explains his view that belief in God is fundamental to the moral foundations of law. The article is a response to Yale scholar Arthur Leff, who argued in Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229, that attempts to ground secular, universal norms are doomed to fail. Through rigorous logic, Leff demonstrates how even obvious statements such as “babies should not be napalmed,” can be countered by questioning the authority of the asserter; or “the Grand ‘Sez Who?’” Calhoun concurs with Leff that no moral statement can be definitively shown to be true in a universe without a Supreme Being. If God is introduced, however, normative assumptions can be securely grounded, although Calhoun acknowledges that looking to God for moral truth has many challenges.

Prof. Calhoun’s first engagement with the issue of religion in the legal and public spheres came earlier, in an article entitled, Conviction Without Imposition: A Response to Professor Greenawalt (9 J. L. & Religion 289 (1991-1992)). Greenawalt’s article was an attempt to define when good citizens of a democracy can rely on their religious convictions. Calhoun expands on this premise by articulating a strict principle of not imposing religious beliefs on others in society. For both the practical reason that not everyone is religious and the theological reason that Christians should not force their beliefs on non-believers, Calhoun argues that civil discourse is best served by religious people carefully self-monitoring the influence of these values on their arguments and decision-making. While not requiring a Christian to forgo all involvement in politics, this “non-imposition principle” would “disable the Christian from seeking laws which for him have no independently-compelling secular justification.”

By 2003, Calhoun reconsidered the non-imposition principle for Christians. In a book review of Elizabeth Mensch and Alan Freeman, The Politics of Virtue: Is Abortion Debatable? (16 J.L. & Religion 405 (2001)), Calhoun discusses his earlier article and concludes that he no longer believes these strictures are appropriate to impose on religious believers. Instead, he posits that beliefs based on religion have the same right to contend in the political arena as beliefs based on anything else, and that it is “abhorrent” to require believers to check their values at the door as the price of entry to political conversation. Christians, though, should exercise prudent political judgment in deciding when to seek laws that implement Christian values.

This revised approach was exemplified in a 2008 article, May the President Appropriately Invoke God? Evaluating the Embryonic Stem Cell Vetoes (10 Rutgers J. Of L. & Relig. 1 (Fall 2008). After President Bush invoked his religious values to explain why he was limiting federal funding for stem-cell research, he was severely criticized in many corners of the media and academia for improperly combining religion and government. Professor Calhoun, however, defends President Bush’s reliance on religion as appropriate under both historical precedent and because religious believers have the same right to apply their values in politics as agnostic or atheistic citizens. In fact, he concludes, outraged secularists were merely attempting to privilege their own values over religious values.

In his scholarly writings, Professor Calhoun leaves no doubt about his stance on many controversial issues. For example, he has published several articles strongly defending the pro-life side of the abortion debate. As a teacher, though, he takes very seriously his role of respecting and encouraging student discussion from all points of view. In his abortion seminar, he confronts this conflict head on. Impartiality in the Classroom: A Personal Account of a Struggle to Be Evenhanded in Teaching about Abortion (45 J. Legal Educ. 99 (1995)), is his account of the first time he conducted the seminar and the difficulties he experienced in attempting to present both sides of the issue fairly when his own pro-life beliefs were so well-known by the students. With his practical approach and inner turmoil candidly chronicled, this piece provides a useful model for partisans of any stripe who are called on to provide a balanced presentation.

Questions about religion, society, and the law are not going away; if anything, they are becoming more and more prominent. In his scholarship, Professor Calhoun defends the importance of including religious values in the discussion. And in his teaching on controversial subjects, he works to make sure that all points of view are represented.

Robin Fretwell Wilson

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The law cannot function properly without an intense grounding in empirical reality. Through dozens of books, scholarly articles, speeches, opinion pieces, and legislative testimonies, Professor Robin Fretwell Wilson keeps returning to this bedrock principle.

Professor Wilson’s scholarship focuses on health law and family law. She has touched on a wide variety of topics over the years, including: children at risk of sexual abuse, informed consent for medical training procedures, nano-sized cosmetics and sunscreens, and most recently, the need for broad religious exceptions to same-sex marriage laws, and the problems caused by rules allowing religious norms to govern marriage and divorce.

Her initial academic efforts were focused on the impact of incest and abuse and how to best help those at risk. In The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to a Victim’s Siblings, (51 Emory Law Journal 241, 2002), Professor Wilson delved deeply into statistics to show that it is better to remove the perpetrator of incest from a home rather than the victim, because the victim’s siblings have high risk of being victimized. This insight is intuitive, but without the empirical data, judges, too often, were leaving prospective victims with sexual predators.

In Nanotechnology: The Challenge of Regulating Known Unknowns, (34 Journal of Law, Medicine, & Ethics 704, 2006), Professor Wilson turned her analytical lens on the growing field of nanotechnology and cosmetics. Traditionally, the FDA has not regulated this market because the skin was believed to be an impermeable barrier to harmful substances contained in makeup and skincare products. An exploration of the science behind the new generation of cosmetics demonstrated that nanotech compounds penetrated the epidermis and lower layers of the skin, thus introducing foreign bodies directly into a user’s system. In April 2012 in response to the work of Professor Wilson and other scholars, the FDA issued draft guidance addressing these issues for the first time.

Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge or Consent, (8 Journal of Health Care Law & Policy 240, 2005) generated a large and still growing legislative response to an often common feature of medical students’ education. The conventional method for teaching students how to conduct a gynecological exam was to practice on women under anesthesia. These women were commonly unaware of this practice and rarely had given specific consent. The defenders of this teaching tool argue this hands-on experience is critical for new doctors, and requesting consent would cause a drastic decrease in these opportunities. Through a close look at surveys and statistics of consent given in similar contexts, Professor Wilson showed that in fact most people would give consent if asked. Today five states have enacted statutes to require informed consent from patients before performing pelvic examinations for medical or training purposes.

In Virginia, Professor Wilson, together with a team of Washington and Lee students provided legislative testimony resulting in Virginia’s law requiring specific consent before performing intimate exams for teaching purposes. Most recently Hawaii also enacted a measure after hearing testimony from both Professor Wilson and recent W&L graduate Anthony Kreis.

Professor Wilson’s latest work addresses the intersection of religion and family law, in two different contexts. As same-sex marriage is legalized in a growing number of jurisdictions, a common concern of religious objectors who believe in traditional heterosexual marriage is they will be forced to facilitate marriages in violation of their religious belief — or face severe civil penalties. While every proposed same-sex marriage bill has contained an exception for clergy, Professor Wilson, together with two groups of religious liberty scholars around the country, has argued for broader exemptions that include religiously affiliated non-profit institutions, small businesses and even government employees such as county clerks.

In her view, the dueling principles of equality and freedom of religious beliefs should not be forced to clash unnecessarily. In most cases, the data suggests that same-sex couples’ right to marry can be readily accommodated by, for example, county clerks who do not object to gay marriage—and when a willing provider is not immediately available, a carefully tailored exemption can and should preference marriage equality over religious liberty, given the state’s monopoly power over marriage. Using studies and surveys she illuminates the plight of those whose livelihoods may be lost due to shifting mores of the law and argues that exemptions qualified by hardship to same-sex couples can affirm two values worthy of respect: religious liberty and marriage equality. (The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State, forthcoming, 2012)

On the other hand, Professor Wilson has also explored the problems that may occur when religious groups are allowed to apply religious precepts instead of civil family law to questions of inheritance or divorce in Western nations. These exceptions to the general law are permitted by countries out of a desire to protect the values and unique culture of the group. In practice however, this deference to religious norms about marriages, divorces, and child custody tends to disadvantage the women and children, compared to the outcomes that would result from a judgment using civil law. Professor Wilson has attempted to shed much needed empirical light on these widely divergent outcomes as a way to evaluate the wisdom of such schemes of deference

What is next for this prolific and deeply engaged scholar? “I tend to choose my topics based on what I am interested in and where the law can be improved with a push,” she says. Wherever her interests lead, a keen appreciation for the facts on the ground will continue to light the way.

J.D. King

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The rift between legal theory and the practice of law can be wide and deep. As the director of the Washington and Lee Criminal Justice Clinic and also through his own scholarship, Professor J.D. King has endeavored to bridge this chasm.

Professor King opened the doors of the W&L Criminal Justice Clinic in 2009. Clinic students serve as court-appointed attorneys for indigent criminal defendants facing misdemeanor charges in local criminal courts. Under Virginia’s third-year practice rule, Professor King supervises the work of 8-10 students each year. Together these students will represent approximately 75 clients per year. Most students will conduct at least one trial during their time in the clinic. The mission of the clinic is two-fold in Professor King’s view: “To provide a level of representation that is second to none, and to allow the students to truly take ownership of a case from start to finish.”

According to King, clinical education complements traditional courses in a number of ways. First, it teaches students how to develop facts. “Facts are messier in real life than they appear in first year case books,” King says. “Students in the clinic learn how to investigate, develop, and present the facts from an advocacy perspective that they don’t generally see in the classroom. Second, the clinical experience promotes “critical self-reflection. Not only do students learn how to think and act like lawyers, but they are explicitly trained to reflect on their practices with an eye towards improving their performance the next time around.” Finally, King hopes that “the clinic will impart some lessons about social justice. . . how the system can be structured in a way that makes it very difficult for people to achieve justice or fairness, and what lawyers can do to change that.”

After graduating from the University of Michigan Law School, King began his legal career knowing that he wanted to represent poor people charged with crimes. After a two-year federal clerkship, he landed a prestigious E. Barrett Prettyman Fellowship at Georgetown University Law Center, where he represented clients facing criminal charges in the D.C. courts, and supervised law students as part of Georgetown’s Criminal Justice Clinic. He then moved to the Public Defender Service for D.C., where he represented indigent clients on charges ranging from shoplifting to homicide and everything in between. During his time at the Public Defender Service, King also served as a Supervising Attorney in the Trial Division in addition to handling his own cases.
King’s scholarship has flowed directly from his professional experience with the issues involved in ethics and criminal defense. “There is a dearth of high-level scholarship that explains what one should actually do. . . when confronted with these situations, “ he explains. His first article Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant, 58 Am. U. L. Rev. 207 (2008) examines the ethical dilemmas faced by a criminal defense attorney who represents a mentally impaired client. King argues that granting defense attorneys more leeway in fulfilling their role of zealous advocate would enhance the ultimate aim of dignity and due process in the criminal justice system.
Another article, forthcoming in the Harvard Civil Rights-Civil Liberties Law Review is entitled, Beyond “Life and Liberty”: The Evolving Right to Counsel. It takes a broad look at misdemeanor convictions in the United States and the traditional doctrine that holds there is no constitutional right to counsel unless incarceration is actually imposed. Recently, however, there has been an explosion in the numbers of these low-level prosecutions as well as an increase in the severity of collateral consequences, such as deportation or loss of public housing. Given these trends, King argues that this traditional view needs to be modified to allow for a broader right to court-appointed representation for misdemeanor defendants.
In his quest to marry theory and practice together, King has found a sweet spot of education and practice. “I love coming to work every day.”

Russell Miller

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In an era of prolific globalization comparative law should be flying high. Instead, it has undergone a crisis of confidence, with prominent scholars calling into question some of its fundamental assumptions. A 2007 article, “The End of Comparative Law,” suggests that, among other problems, meaningful comparison of legal issues is impossible because it would require understanding the “historical, social, economic, political, cultural, religious, and psychological contexts of legal rules.”

Russell Miller views things differently. A professor at Washington and Lee Law School for the past four years, Miller rejects the notion that comparative law is at an end. Instead, he sees a transition from a solitary scholarly enterprise to a collaborative, sometimes chaotic, conversation among scholars deeply immersed in their own legal cultures. For Miller, this “lived” comparative law allows for greater richness and depth because it removes the requirement of near omniscience from any one scholar, and allows direct exchanges between a large, self-correcting community of scholars.

Ironically, despite his innovative approach, Miller has personified the classic paradigm of the comparativist as, “a scholar journeying in exotic lands”. He lived and worked in Germany for three years, first as a Bosch Foundation fellow working in both the German Constitutional Court and the European Court of Human Rights and then as a Research Fellow at the Max Planck Institute in Heidelberg. He also earned a L.L.M. from Johann Wolfgang Goethe University in Frankfurt. These unique experiences gave him a solid grounding in German law and legal culture – and set him on his comparative law path.

One of these opportunities came when Professor Miller met Peer Zumbansen, a fellow clerk at the German Constitutional Court. They shared a common passion for the law and recognized a need for greater understanding in English jurisdictions of the work being done in Germany. Together they founded the German Law Journal. “We would meet twice at month at my apartment in Frankfurt . . . and ask ourselves what legal issues are percolating, and then with smoke coming off of our fingers we would type case reports and comments in a manic fashion,” said Miller.

From its humble origins as a bi-monthly email newsletter, the German Law Journal has become the leading “online, peer-reviewed” law journal of any subject, and the leading law journal based in Germany, whether online or in print. The Journal, a forum for “developments in German, European and International Jurisprudence,” has come to embody the new comparative approach. By garnering submissions from scholars worldwide about German legal issues, as well as articles from German scholars on a range of topics, the Journal provides a constant, though sometimes only implicit, engagement with the Germanic legal approach.

Professor Miller’s approach will bear fruit this year in the form of two major publications.   Global Legal Traditions: Comparative Law for the 21st Century (forthcoming from Lexis-Nexis) is the first generalist casebook of comparative law in a generation. The Constitutional Jurisprudence of the Federal Republic of Germany (forthcoming from Duke University Press) is a weighty, deeply-contextual treatise on German constitutional law. In both projects Miller has sought to rigorously implement his unconventional theory and approach to comparative law.

There are more innovations to come from the former linebacker (Washington State 87-91). Studying the comparative theory and method of other disciplines will be his next project. Miller has begun to explore “how and why literature, history, religion, and other textual disciplines ‘do’ comparison.” Filled with enthusiasm, Miller concludes: “Comparative lawyers stand to learn a lot from our fellow travelers in other disciplines.”
M.M Siems, The End of Comparative Law, 2 Journal of Comparative Law 133 (2007)
Russell A. Miller, The German Law Journal as “Lived” Comparative Law, 10 German Law Journal 1309-1318 (2009), available at http://www.germanlawjournal.com/index.php?pageID=11&artID=1208
2011 Law Journals Rankings, Hall Law Library, Washington and Lee University at http://lawlib.wlu.edu/LJ/index.aspx. (Results: #1 – peer reviewed/online – all countries/allsubjects; #1 – all subjects/all formats – Germany; #1 – “European Law” – non-US/all formats; #2 – “European Law” – all countries/all format.)

Margaret Howard

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Puzzle: a question, problem, or contrivance designed for testing ingenuity. (Merriam-Webster)

While most people associate puzzles with jigsaws or crosswords, for Margaret Howard nothing beats the intricacies of the Bankruptcy Code.

It did not start out that way. When she began graduate school at Washington University it was to become a social worker. Her particular interest was the problems of those who receive government benefits. Realizing there were important laws she needed to understand, Howard enrolled in two law courses, family law and welfare law. Although “in a lot of the classes I didn’t understand anything that was being said,” Howard says now, “both courses reached out and grabbed me…. I’d never run into anything more interesting.”

Three years later, Howard graduated with a J.D. and a Masters in Social Work. She began practicing law at Lewis and Rice, a general corporate firm, in St. Louis. There she found complex, intricate problems to work through, but “I was always frustrated because some of the issues I was given were absolutely fascinating . . .. and I couldn’t take the time to play around with them.”
When a teaching position opened up at St. Louis University School of Law, she took it.

Her initial scholarly interests were welfare and family law, but that began to change when a colleague asked her to teach a commercial law course as a favor. It was a lot of work. “I was struggling every night to stay ahead of the students, the next day, and one or two times…we got right to last line of the case book I had read. But I loved the material.”

Professor Howard’s academic evolution continued as she moved from St. Louis University to Vanderbilt University. Intellectually, she became drawn to bankruptcy. “It’s got this wonderful, hard, long statute . . . yet seriously important, very vital questions are not addressed [by the statute]. It has case law, legislative history, constitutional questions, and a rich history dating back to Roman time . . . It deals with problems that are universal.”

A career highlight occurred in 1992. After working for over a year on a legal question coinciding with a case pending in front of the U.S. Supreme Court, she was appalled when the Court handed down a decision in Dewsnup v. Timm that was strongly for the other side. “I sat down and wrote a forty page law review article in a week. I tried as hard as I could to pick Dewsnup apart, not leaving even a greasy spot on the floor.”  This heartfelt, yet scholarly tour de force, Dewsnupping the Bankruptcy Code, 1 J. Bankr. Law & Prac. 513 (1992) established her as a leading voice in the bankruptcy academy.

Following a semester long visit to Washington and Lee, Professor Howard accepted a full-time job offer and moved to Lexington in 2001. Since then she has taught Bankruptcy, Secured Transactions, Contracts and Legal Writing; published Bankruptcy Overview: Issues, Law and Policy and Cases and Materials on Bankruptcy, and as the American Bankruptcy Institute’s Scholar in Residence in 2002. She also continues publishing law review articles, with a particular focus on the 2005 amendments to the Bankruptcy Code. In her view, the 2005 amendments have made a few advances (such as clearer rules for coordinating international bankruptcies) but on the whole, “they did not accomplish what they tried to do and what they tried to do was misguided.”
Bankruptcy law is a long way from where she started, but it has proven a satisfying test for her ingenuity. Still, the way she views it, Margaret Howard is not all that far from her early aspirations to help those in need. “Bankruptcy is an area of law . . . that when it works right can truly be a lifeline.”