Washington & Lee University School of Law Scholarly Commons

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  Experiencing Civil Procedure (3d ed. 2022)

  James E. Moliterno

  This is the first primary text for a Civil Procedure course to incorporate skills assignments into the book. The book contains the statutes, rules, and edited cases that are the staples of traditional Civil Procedure casebooks. Beyond thoroughly covering the traditional materials, the book actively involves students in the application of civil procedure concepts. It includes three simple simulation cases: one contracts-based, one torts-based, and one blended case, all calibrated for use by first year students. Sample documents from real cases are also included, giving practical context to concepts. Reading the sample documents allows students to see how lawyers engage the civil procedure concepts in actual work. Students using this book will engage in experiential learning exercises, including drafting the jurisdictional allegations for complaints, drafting very simple pleadings and motions, and responding to supervisor email messages.

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  Global Intersectionality and Contemporary Human Rights (2021)

  Johanna Bond

  Global Intersectionality and Contemporary Human Rights argues for an expansive definition of human rights, one that encompasses the harm caused by multiple, intersecting forms of subordination. Intersectionality theory posits that aspects of identity, such as race and gender, are mutually constitutive and intersect to create unique experiences of discrimination and subordination. Perpetrators of sexual violence in armed conflict, of example, often target women based on both gender and ethnicity. Human rights remedies that fail to capture the intersectional nature of human rights violations do not offer comprehensive redress to victims.

  This title explores the influence of intersectionality theory on human rights in the modern era and traces the evolution of intersectionality as a theoretical framework in the United States and around the world. It draws upon feminist theory and human rights jurisprudence to argue that scholars and activists have under-utilized intersectionality theory in the global discourse of human rights. As the central intergovernmental organization charged with the protection of human rights, the United Nations has been slow to embrace the insights gained from intersectionality theory. This work argues that the United Nations and other human rights organizations must more actively embrace intersectionality as an analytical framework in order to fully address the complexity of human rights violations around the world.

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  Intersectionality, Women’s Rights in Africa, and the Maputo Protocol, in Patriarchy and Gender in Africa (Veronica Fynn Bruey ed., 2021)

  Johanna E. Bond

  This timely and expansive multidisciplinary and transdisciplinary collection dissects precolonial, colonial, and post-independence issues of male dominance, power, and control over the female body in the legal, socio-cultural, and political contexts in Africa. Contributors focus on the historical, theoretical, and empirical narratives of intersecting perspectives of gender and patriarchy in at least ten countries across the major sub-regions of the African continent. In these well-researched chapters, authors provide a deeper understanding of patriarchy and gender inequality in identifying misogyny, resisting male supremacy, reforming discriminatory laws, embracing human-centered public policies, expanding academic scholarship on the continent, and more.

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  Companies Are People Too (2021)

  Carliss Chatman

  Companies are People Too is a children's book that addresses the fundamental notion of personhood and how it enables companies to do business in the world just like human beings. It gives some everyday examples of what personhood allows a business to do—like having employees, signing contracts, and suing or being sued.

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  Prosecutors and Sentencing, in The Oxford Handbook of Prosecutors and Prosecution (Ronald F. Wright et al. eds., 2021)

  Nora V. Demleitner

  This Handbook connects the dots among existing theoretical and empirical research related to prosecutors. Major sections of the volume cover (1) prosecutor performance during distinct phases of a criminal case, (2) the features of the prosecutor's environment, both inside the office and external to the office, that influence the choices of individual prosecutors and office leaders, and (3) prosecutorial strategies and priorities when dealing with specialized types of crimes, victims, and defendants. Taken together, the chapters in this volume identify the founding texts, discuss leading theoretical and methodological approaches, explain the scope of unresolved issues, and preview where this field is headed. The volume provides a bottom-up view of an important new scholarly field.

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  Runaway Technology: Can Law Keep Up? (2021)

  Joshua A.T. Fairfield

  In an era of corporate surveillance, artificial intelligence, deep fakes, genetic modification, automation, and more, law often seems to take a back seat to rampant technological change. To listen to Silicon Valley barons, there's nothing any of us can do about it. In this riveting work, Joshua A. T. Fairfield calls their bluff. He provides a fresh look at law, at what it actually is, how it works, and how we can create the kind of laws that help humans thrive in the face of technological change. He shows that law can keep up with technology because law is a kind of technology - a social technology built by humans out of cooperative fictions like firms, nations, and money. However, to secure the benefits of changing technology for all of us, we need a new kind of law, one that reflects our evolving understanding of how humans use language to cooperate.

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  Property: Hypotheticals, Self-Assessment Rubrics, and Tools for Success (2021)

  Jill M. Fraley

  An innovative exam preparation tool, Property: Hypotheticals, Self-Assessment Rubrics, and Tools for Success addresses crucial problems students face as they approach exams. Exam-style hypotheticals are hard to find and never have detailed grading rubrics that will produce accurate scoring and actionable feedback. This book is equally helpful as a supplement to the basic property law course, a coursebook for academic success, or a practice book for the bar.

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  The Three Fiduciaries of Delaware Corporate Law—and Eisenberg's Error, in Fiduciary Obligations in Business (Arthur B. Laby & Jacob Hale Russell eds., 2021)

  Lyman Johnson

  This chapter argues that corporate law is unique in a way that is not widely recognized, and is not unique in the way it is widely thought to be.

  First, unlike other fields of law where fiduciary obligations play a key role, in corporate law, not one, not two, but three distinct actors owe fiduciary duties—executive officers, directors, and controlling shareholders. The beneficiaries of those actors' duties, the reasons for imposing duties, and the scope and demands of fiduciary duties differ for the three actors. Thus, there is not a singular duty of care and loyalty in Delaware corporate law, but multiple variations of those duties owed by multiple actors. Delaware has a law of fiduciaries, not a fiduciary law.

  Second, this chapter challenges the supposed standard of conduct-standard of review divergence first hailed in 1993 by Professor Melvin Eisenberg as unique to corporate law. The construct was descriptively inaccurate as a matter of corporate law doctrine when Professor Eisenberg first wrote, it has been little used by the Supreme Court since then—only one Supreme Court decision since 1993 uses both "standard of conduct" and "standard of review" in the same opinion—and the standards often converge rather than diverge. Where divergence does exist—infrequently—it is doubtful that unenforced standards of conduct can properly be considered to be "law" or that such divergence serves any useful purpose.

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  Of Courtiers and Princes: Stories of Lower Court Clerks and Their Judges (Todd C. Peppers ed., 2021)

  Todd C. Peppers

  Drawing on contributions from former law clerks and judicial scholars—including an essay by Ruth Bader Ginsburg—the book provides an inside look at the professional and personal bonds that form between lower court judges and their clerks. While the individual essays often focus on a single judge and his or her corps of law clerks, including their selection process, contributions, and even influence, the book as a whole provides a macro-level view of the law clerk’s role in the rapidly changing world of lower federal and state courts, thereby offering an unusual yet crucial perspective on the inner workings of our judicial system.

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  Children in Armed Conflict, in The Oxford Handbook of Children’s Rights Law (Jonathan Todres & Shani M. King eds., 2020)

  Mark A. Drumbl

  This chapter addresses a particularly vulnerable population of children, namely, children associated with armed forces or armed groups. These children are colloquially known as child soldiers. This chapter begins by surveying the prevalence of child soldiering globally. It then sets out the considerable amount of international law that addresses children in armed conflict, in particular, the law that allocates responsibility for child soldiering and the law that sets out the responsibility of child soldiers for their conduct. The chapter identifies significant gaps between the law and the securing of positive outcomes for former child soldiers, notably when it comes to post-conflict reintegration. The protective impulse that envisions militarized youth as faultless passive victims may not always reflect how youthful fighters see themselves nor necessarily support an emancipatory and empowering vision of how international law should promote the rights of children.

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  Profits v. Principles, in The Perilous Public Square: Structural Threats to Free Expression Today (David E. Pozen ed., 2020)

  Sarah C. Haan

  Americans of all political persuasions fear that “free speech” is under attack. This may seem strange at a time when legal protections for free expression remain strong and overt government censorship minimal. Yet a range of political, economic, social, and technological developments have raised profound challenges for how we manage speech. New threats to political discourse are mounting—from the rise of authoritarian populism and national security secrecy to the decline of print journalism and public trust in experts to the “fake news,” trolling, and increasingly subtle modes of surveillance made possible by digital technologies.

  The Perilous Public Square brings together leading thinkers to identify and investigate today’s multifaceted threats to free expression. They go beyond the campus and the courthouse to pinpoint key structural changes in the means of mass communication and forms of global capitalism

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  Foreword, in From the Texas Cotton Fields to the United States Tax Court: The Life Journey of Juan F. Vasquez (Mary Theresa Vasquez & Anthony Head, 2020)

  Brant J. Hellwig

  The story of the life of the first Hispanic American appointed to serve as a judge on the United States Tax Court. An educational and inspirational story of a professional career, the book is accessible to lawyers and laypersons of all ages.

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  Digitized Election Administration: Perils and Promise, in America Votes! Challenges to Modern Election Law and Voting Rights (4th ed. 2020)

  Margaret Hu and Rebecca Green

  Watergate brought us the modern era of campaign finance regulation. Government by the consent of the governed has become government by the consent of the rich. After Citizens United, dark money has become the currency for political engagement. At the same time, the Supreme Court in Shelby County ushered in a return to limits on access to registration and voting. The Supreme Court also continues to struggle to define unconstitutional gerrymandering. America Votes! Fourth Edition confronts these issues.

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  Compliance as an Exchange of Legitimacy for Influence, in The Oxford Handbook of Global Legal Pluralism (Paul Schiff Berman ed., 2020)

  Kishanthi Parella

  This chapter explains that business actors comply with legally nonbinding institutions because of an exchange between legitimacy and influence. Specifically, the information effects produced by both binding and nonbinding institutions can cause reputational damage to a company. To regain its legitimacy, that company associates itself with a more reputable organization than itself, regaining legitimacy through that association. However, that association often comes at a price. In exchange for conferring legitimacy, the external organization will promote its own institutions for the company’s adoption. Companies therefore adopt these institutions in order to credibly signal the quality of their association with the external organization and maximize legitimacy gains. This analysis is applicable to the wide array of nonbinding guidelines, declarations, codes of conduct, principles, and other international institutions that increasingly govern the global conduct of corporations and other business nonstate actors.

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  Corruption, Ethics and Integrity in Public Administration in Ukraine, in Handbook on Corruption, Ethics and Integrity in Public Administration (Adam Graycar ed., 2020)

  Thomas H. Speedy Rice, Alora Jiang, and Artem Shaipov

  This timely Handbook unpacks the underlying common factors that give rise to corrupting environments. Investigating opportunities to deliver ethical public policy, it explores global trends in public administration and its vulnerability to corruption today, as well as proposing strategies for building integrity and diminishing corruption in public sectors around the globe.

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  Federal Income Taxation of Trusts and Estates: Cases, Problems, and Materials (4th ed. 2019)

  Mark L. Ascher and Robert T. Danforth

  Federal Income Taxation of Trusts and Estates: Cases, Problems, and Materials examines the income taxation of estates and trusts, estate and trust beneficiaries, and trust settlors; its emphasis is on the provisions of "Subchapter J"— the relevant portion of the Internal Revenue Code (sections 641 through 692)—and its first priority is to give readers an understanding of those provisions and how they work. The fourth edition brings the book completely up to date, and includes all relevant developments since the preparation of the third edition. In addition, there are numerous expansions of note materials to accommodate developments over the past ten years.

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  Women's Legal Rights, in Oxford Research Encyclopedia of African History (2019)

  Johanna E. Bond

  In the colonial and postcolonial period, African women have advocated for legal reforms that would improve the status of women across the continent. During the colonial period, European common and civil law systems greatly influenced African indigenous legal systems and further entrenched patriarchal aspects of the law. In the years since independence, women’s rights advocates have fought, with varying degrees of success, for women’s equality within the constitution, the family, the political arena, property rights, rights to inheritance, rights to be free from gender-based violence, rights to control their reproductive lives and health, rights to education, and many other aspects of life. Legal developments at the international, national, and local levels reflect the efforts of countless African women’s rights activists to improve the status of women within the region.

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  Comparative Law and Legal Education, in The Oxford Handbook of Comparative Law (Mathias Reimann & Reinhard Zimmermann eds., 2d ed. 2019)

  Nora V. Demleitner

  This fully revised and updated second edition of The Oxford Handbook of Comparative Law provides a wide-ranging and diverse critical survey of comparative law at the beginning of the twenty-first century. It summarizes and evaluates a discipline that is time-honored but not easily understood in all its dimensions. In the current era of globalization, this discipline is more relevant than ever, both on the academic and on the practical level. The Handbook is divided into three main sections. Section I surveys how comparative law has developed and where it stands today in various parts of the world. This includes not only traditional model jurisdictions, such as France, Germany, and the United States, but also other regions like Eastern Europe, East Asia, and Latin America. Section II then discusses the major approaches to comparative law - its methods, goals, and its relationship with other fields, such as legal history, economics, and linguistics. Finally, section III deals with the status of comparative studies in over a dozen subject matter areas, including the major categories of private, economic, public, and criminal law.

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  Histories of the Jewish ‘Collaborator’: Exile, Not Guilt, in The New Histories of International Criminal Law: Retrials (Immi Tallgren & Thomas Skouteris eds., 2019)

  Mark A. Drumbl

  The language of international criminal law has considerable traction in global politics, and much of its legitimacy is embedded in apparently 'axiomatic' historical truths. This innovative edited collection brings together some of the world's leading international lawyers with a very clear mandate in mind: to re-evaluate ('retry') the dominant historiographical tradition in the field of international criminal law. Carefully curated, and with contributions by leading scholars, The New Histories of International Criminal Law pursues three research objectives: to bring to the fore the structure and function of contemporary histories of international criminal law, to take issue with the consequences of these histories, and to call for their demystification. The essays discern several registers on which the received historiographical tradition must be retried: tropology; inclusions/exclusions; gender; race; representations of the victim and the perpetrator; history and memory; ideology and master narratives; international criminal law and hegemonic theories; and more. This book intervenes critically in the fields of international criminal law and international legal history by bringing in new voices and fresh approaches. Taken as a whole, it provides a rich account of the dilemmas, conundrums, and possibilities entailed in writing histories of international criminal law beyond, against, or in the shadow of the master narrative.

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  US Courts, Jurisdiction, and Mutual Trust: RJR Nabisco v. European Community, in Dealing with Terrorism: Empirical and Normative Challenges of Fighting the Islamic State (Marc Engelhart & Sunčana Roksandić Vidlička eds., 2019)

  Mark A. Drumbl

  In Dealing with Terrorism – Empirical and Normative Challenges for Fighting the Islamic State an international panel of experts analyses current trends and new developments in legal systems and in law enforcement in Europe as well as in the USA and the Middle East. Offering a succinct overview with special focus on criminal law, police law, and European and international law, the book provides unique insights into what dealing with terrorism means to European and non-European countries. It includes material from non-English-speaking countries that is seldom available to a broader academic community. Its comparative approach offers readers three levels of understanding: by country, in terms of the European Union, and the international community as a whole. The book is geared at specialists in national and international institutions, scholars, and students in the field but will also be of great interest to the wider legal community. Its profound insights and expert perspectives enhance the ongoing national and international debate on public security issues by striking a balance between freedom and security.

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  When Perpetrators Become Defendants, and then Convicts, in The Routledge International Handbook on Perpetrator Studies (Susanne C. Knittel & Zachary J. Goldberg eds., 2019)

  Mark A. Drumbl

  The Routledge International Handbook of Perpetrator Studies traces the growth of an important interdisciplinary field, its foundations, key debates and core concerns, as well as highlighting current and emerging issues and approaches and pointing to new directions for enquiry. With a focus on the perpetrators of mass killings, political violence and genocide, the handbook is concerned with a range of issues relating to the figure of the perpetrator, from questions of definition, typology, and conceptual analysis, to the study of motivations and group dynamics to questions of guilt and responsibility, as well as representation and memory politics. Offering an overview of the field, its essential concepts and approaches, this foundational volume presents contemporary perspectives on longstanding debates and recent contributions to the field that significantly expand the theoretical, temporal, political, and geographical discussion of perpetrators and their representation through literature, film, and art. It points to emerging areas and future trends in the field, thus providing scholars with ideas or encouragement for future research activity. As such, It will appeal to scholars across a range of disciplines, including sociology, anthropology, criminology, philosophy, memory studies, psychology, political science, literary studies, film studies, law, cultural studies and visual art.

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  Research Handbook on Child Soldiers (Mark A. Drumbl & Jastine C. Barrett eds., 2019)

  Mark A. Drumbl and Jastine C. Barrett

  Child soldiers remain poorly understood and inadequately protected, despite significant media attention and many policy initiatives. This Research Handbook aims to redress this troubling gap. It offers a reflective, fresh and nuanced review of the complex issue of child soldiering. The Handbook brings together scholars from six continents, diverse experiences, and a broad range of disciplines. Along the way, it unpacks the life-cycle of youth and militarization: from recruitment to demobilization to return to civilian life. The overarching aim of the Handbook is to render the invisible visible – the contributions map the unmapped and chart new directions. Challenging prevailing assumptions and conceptions, the Research Handbook on Child Soldiers focuses on adversity but also capacity: emphasizing the resilience, humanity, and potentiality of children affected (rather than ‘afflicted’) by armed conflict.

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  Article 38: The Rights of Children in Armed Conflict, in The UN Convention on the Rights of the Child: A Commentary (John Tobin ed., 2019)

  Mark A. Drumbl and John Tobin

  The United Nations Convention on the Rights of the Child is the most extensive and widely ratified international human rights treaty. This Commentary offers a comprehensive analysis of each of the substantive provisions in the Convention and its Optional Protocols on Children and Armed Conflict and the Sale of Children, Child Prostitution and Pornography. It offers a detailed insight into the drafting history of these instruments, the scope and nature of the rights accorded to children and the obligations imposed on states to secure the implementation of these rights. In doing so, it draws on the work of the Committee on the Rights of the Child, international, regional and domestic courts, academic and interdisciplinary scholarly analyses. It is of relevance to anyone working on matters affecting children including government officials, policy makers, judicial officers, lawyers, educators, social workers, health professionals, academics, aid and humanitarian workers, and members of civil society.

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  The Optional Protocol on Children and Armed Conflict, in The UN Convention on the Rights of the Child: A Commentary (John Tobin ed., 2019)

  Mark A. Drumbl and John Tobin

  The United Nations Convention on the Rights of the Child is the most extensive and widely ratified international human rights treaty. This Commentary offers a comprehensive analysis of each of the substantive provisions in the Convention and its Optional Protocols on Children and Armed Conflict and the Sale of Children, Child Prostitution and Pornography. It offers a detailed insight into the drafting history of these instruments, the scope and nature of the rights accorded to children and the obligations imposed on states to secure the implementation of these rights. In doing so, it draws on the work of the Committee on the Rights of the Child, international, regional and domestic courts, academic and interdisciplinary scholarly analyses. It is of relevance to anyone working on matters affecting children including government officials, policy makers, judicial officers, lawyers, educators, social workers, health professionals, academics, aid and humanitarian workers, and members of civil society.

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  Tax Credits for the Working Poor: A Call for Reform (2019)

  Michelle Lyon Drumbl

  The United States introduced the earned income tax credit (EITC) in 1975, where it remains the most significant earnings-based refundable credit in the Internal Revenue Code. While the United States was the first country to use its domestic revenue system to deliver and administer social welfare benefits to lower-income individuals or families, a number of other countries, including New Zealand and Canada, have experimented with or incorporated similar credits into their tax systems. In this work, Michelle Lyon Drumbl, drawing on her extensive advocacy experience representing low-income taxpayers in EITC audits, analyzes the effectiveness of the EITC in the United States and offers suggestions for how it can be improved. This timely book should be read by anyone interested in how the EITC can be reimagined to better serve the working poor and, more generally, whether the tax system can promote social justice.