Faculty SSRN Publications

Faculty Scholarship Blog

Prof. Susan Franck’s Essay Breaks into Political Science and Quantitative Methods Top 10
W&L Law Professor Susan Franck‘s essay Empiricism And International Law: Insights For Investment Treaty Dispute Resolution was recently listed on SSRN’s Top Ten download list for: Political Methods: Qualitative & Multiple Methods eJournal.  Here is the abstract: While scholars in the United States increasingly focus on the empirical dimension of legal scholarship, there have been challenges in […]

AALS Criminal Justice Section Junior Scholars Paper Competition

Professor Jost Publishes Health Law Book

George Mason Law & Economics Center Request for Proposals

Recent Publications

Timothy  C. MacDonnell .

Florida v. Jardines: The Wolf at the Castle Door, 7 NYU J.L. & Liberty 1 2012



Michelle  L. Drumbl .

Decoupling Taxes and Marriage: Beyond Innocence and Income Splitting, 4 Colum. J. Tax L. 94 (2012)



David  Millon .

Book Review, 52 Am. J. Legal Hist. 500 (2012) (reviewing, Blackstone in America: Selected Essays of Kathryn Preyer, Mary Sarah Bilder, Maeva Marcus & R. Kent Newmyer (eds.) 2009).



Robin  Fretwell Wilson .

The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. Rev. 1417 (2012).



The Law School Critique in Historical Perspective
Tue, 08 Jan 2013 | A. Benjamin Spencer
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 more scarce and salaries stagnate, the value proposition of law school rightly is being questioned from all directions.… Read more...

Best Mode Trade Secrets
Mon, 17 Dec 2012 | Christopher B. Seaman
Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Now, an inventor’s failure to disclose in her pa… Read more...

Mandatory Minimalism
Mon, 26 Nov 2012 | Erik Luna
Both authors of this article believe that reforming the federal mandatory minimum scheme would be good for the country. At the same time, however, there are substantial political barriers to making any change. Although public support for mandatory minimums has waned in recent times, it is still possible to paint a legislator who votes to repeal mandatory minimums as being “soft on crime.” For example, when then-presidential candidate Obama called for reexamination of mandatory minimum senten… Read more...

A Methodical Approach to Legal Research: The Legal Research Plan, an Essential Tool for Today's Law
Thu, 15 Nov 2012 | Caroline Osborne
Students frequently evaluate their research skills as “adequate or better” when asked; however, teachers and employers usually consider this assessment overrated. This paper argues that one part of the solution to increasing the quality of legal research generally and the research skills of new attorneys and law students specifically is by teaching students a methodical approach to research. The importance of teaching law students and new associates a methodical approach to a research quest… Read more...

When 'Mere Presence' Implicates, But the 'Scale of the Operation' Mitigates: The Curious Criminality
Mon, 22 Oct 2012 | Mark A. Drumbl
This paper unpacks thorny criminological and penological questions through the lens of a single case, Prosecutor v. Grégoire Ndahimana (International Criminal Tribunal for Rwanda, Trial Chamber III, 2011). This case is yet another judicial intervention into the Nyange church massacre, a tragedy that took the lives of up to 2,000 Tutsi civilians in Rwanda during the 1994 genocide. Ndahimana was the bourgmestre (mayor) of the commune – Kivumu – in which the church was sited. He was convicted… Read more...

Book Review: The Public International Law Regime Governing International Investment, by Jose E. Alva
Mon, 15 Oct 2012 | Susan D. Franck
Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and make
… Read more...

Through the Looking Glass: Understanding Social Science Norms for Analyzing International Investment
Thu, 11 Oct 2012 | Susan D. Franck
When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than
… Read more...

Managing Expectations: Beyond Formal Adjudication
Wed, 10 Oct 2012 | Susan D. Franck
The international investment system has depended heavily on international arbitration to provide guidance and clarification on the standards contained in international investment agreements. In order to assess the system realistically, this commentary discusses unpacking stakeholder expectations by recognizing where expectations may have been overly optimistic and thinking systematically about the mechanisms through which to capture and manage regulatory discretion. This article evaluates ideas
… Read more...

Book Review: The Public International Law Regime Governing International Investment, by Jose E. Alv
Thu, 04 Oct 2012 | Susan D. Franck
Jose Alverez's recent book, The Public International Law Regime Governing International Investment, places international investment law firmly within the rubric of public international law. Historically, international investment law might have been classified as pure private international law given the private commercial actors and investment activities involved. Alvarez posits that a dichotomous public versus private law paradigm does not work in the context of international investment and make… Read more...

The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between
Wed, 03 Oct 2012 | Robin Fretwell Wilson
Abstract: This Article considers a burning issue in society today — whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex mar… Read more...

Standards of Proof in Civil Litigation: An Experiment from Patent Law
Fri, 28 Sep 2012 | Christopher B. Seaman
Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the stan… Read more...

The Internal Revenue Service’s Implementation and Administration of the Democrat’s Health Care L
Tue, 25 Sep 2012 | Timothy S. Jost
In a widely publicized paper, Jonathan Adler and Michael Cannon claim that the Affordable Care Act does not authorize federal exchanges to offer premium tax credits and that an IRS rule allowing them to do so is illegal. It is clear that Congress in fact intended all exchanges, including federal exchanges, to issue premium tax credits. Moreover, the language Cannon and Adler point to in the ACA as supporting their position, when read in context, does not preclude federal exchange premium tax c… Read more...

Reforming the Third Year of Law School
Sun, 02 Sep 2012 | David Millon
In early 2008, Washington and Lee fundamentally reformed the entire third year law school curriculum. The new curriculum broke with decades-long tradition by focusing entirely on student-centered, experiential learning. It also sharply distinguished the educational approach in the third year from that in the first and second years, thereby creating a strong sense of pedagogical progression. Finally, it more deliberately prepared students for the transition to practice and emphasized the impor… Read more...

Reforming the Third Year of Law School
Sun, 02 Sep 2012 | Lyman P. Q. Johnson
In early 2008, Washington and Lee fundamentally reformed the entire third year law school curriculum. The new curriculum broke with decades-long tradition by focusing entirely on student-centered, experiential learning. It also sharply distinguished the educational approach in the third year from that in the first and second years, thereby creating a strong sense of pedagogical progression. Finally, it more deliberately prepared students for the transition to practice and emphasized the impor… Read more...

Reforming the Third Year of Law School
Sun, 02 Sep 2012 | Robert T. Danforth
In early 2008, Washington and Lee fundamentally reformed the entire third year law school curriculum. The new curriculum broke with decades-long tradition by focusing entirely on student-centered, experiential learning. It also sharply distinguished the educational approach in the third year from that in the first and second years, thereby creating a strong sense of pedagogical progression. Finally, it more deliberately prepared students for the transition to practice and emphasized the impor… Read more...

Gender and Securities Law in the Supreme Court
Thu, 23 Aug 2012 | Lyman P. Q. Johnson
The 2010 appointment of Elena Kagan to the United States Supreme Court meant that, for the first time, three female justices would serve together on that court. Less clear is whether Justice Kagan’s gender will really matter in how she votes as a justice. This question is an especially visible aspect of a larger issue: do female judges display gendered voting patterns in the cases that come before them? This article makes a novel contribution to the growing literature on female voting patte… Read more...

Avatar Experimentation: Human Subjects Research in Virtual Worlds
Tue, 07 Aug 2012 | Joshua A.T. Fairfield
Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their a… Read more...

Self Insurance for Small Employers Under the Affordable Care Act: Federal and State Regulatory Optio
Thu, 28 Jun 2012 | Timothy S. Jost
As implementation of the Affordable Care Act reshapes the US health insurance market, state and federal policy makers should be prepared to revisit regulation of stop-loss coverage — a form of reinsurance — for small businesses. Aspects of the reform law could motivate small businesses to self-insure, rather than participate in state-regulated markets either inside or outside the new health insurance exchanges. If younger or healthier groups self-insure, premiums for insured plans will rise,… Read more...

Fractured Families, Fragile Children - The Sexual Vulnerability of Girls in the Aftermath of Divorce
Sat, 23 Jun 2012 | Robin Fretwell Wilson
Overwhelming empirical evidence suggests that a female child faces a significantly elevated risk of being sexually abused after her parents divorce, at the hands of a parent, a parent's partner, or someone outside the home. This article considers whether the law can effectively mitigate this risk of child sexual abuse in divorce proceedings by educating parents about the risk, or by directing the parent with whom the child resides to take precautions against molestation.… Read more...

Stopping Philadelphia Abortion Provider Kermit Gosnell and Preventing Others Like Him: An Outcome th
Tue, 19 Jun 2012 | Samuel W. Calhoun
This article focuses on three of the atrocities committed by Philadelphia abortion provider Kermit Gosnell: his shameful, destructive treatment of women; his brutal killing of born-alive infants; and his performance of illegal post-viability abortions. Pro-choicers and pro-lifers alike should unite in condemning, stopping, and preventing these abuses. Women seeking abortions need the protection of medically appropriate health and safety regulations; a civilized society should not tolerate the ki… Read more...

Self Insurance for Small Employers Under the Affordable Care Act: Federal and State Regulatory Opti
Wed, 30 May 2012 | Timothy S. Jost
As implementation of the Affordable Care Act reshapes the US health insurance market, state and federal policy makers should be prepared to revisit regulation of stop-loss coverage — a form of reinsurance — for small businesses. Aspects of the reform law could motivate small businesses to self-insure, rather than participate in state-regulated markets either inside or outside the new health insurance exchanges. If younger or healthier groups self-insure, premiums for insured plans will rise, per… Read more...