Distinguished Lecturer Luca Arnaudo, along with co-author Gabriella Muscolo (partner and head of the Antitrust Department at Franzosi Dal Negro Setti with Muscolo in Milan and Rome), won the Best Business Articles, Intellectual Property category at the 2023 Antitrust Writing Awards. The paper, Patent Settlements: An Overview of US, EU, and National Case Law, focuses on patent settlement practices in the bio-pharmaceutical industry from an antitrust perspective.
The paper appeared in 1 September 2022, e-Competitions Patent Settlements, Art. N° 108344.
Arnaudo teaches “Big Pharma & Biotech: Life Science Law & Economics” in the JDinteractive program.
The Best Antitrust Writing Awards competition is held annually by Concurrences Antitrust Publications and Events.
Luca Arnaudo with the certificate with co-author Gabriella Muscolo to his left.
Professor Mary Szto has published the paper “Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin” in the Connecticut Public Interest Law Journal. The article appears in 21 Conn. Pub. Int. L.J. 38 (2022).
Abstract
The American bar exam is an initiation rite that bars diversity in the legal profession.
According to the 2020 census, the US population is over 42% minorities. However, only 14% of the legal profession is. In 2020 the American Bar Association released data that the first-time bar exam pass rate was 88% for Whites, 80% for Asians, 78% for Native Americans, 76% for Hispanics, and 66% for Blacks.
Initiation rites often involve a separation from society, a liminal period, an ordeal, and then reincorporation into society. The bar exam follows this pattern. However, many minority candidates cannot afford months of unpaid isolated study, much less further bar attempts.
Racial disparities in first time bar passage rates are not coincidental, but rooted in the eugenics origin of the bar exam. Bar admissions standards arose amid teachings about Anglo-Saxon white supremacy in the late 1800s and early 1900s. Eugenics theory was then mainstream science and held that non-whites should be denied access to property ownership, education, and the legal profession. Minorities were excluded from most law schools, and there was widespread fear of immigrants diluting the US white population and the legal profession.
Eugenics-inspired federal redlining policies from the 1930s also led to huge racial wealth gaps then and now. Homeownership is the chief way Americans build intergenerational wealth. Redlining prevented non-whites from owning homes by blocking access to federally subsidized home mortgages. Thus, in pre-pandemic 2019 White families had eight times the wealth of Black families and five times the wealth of Hispanic families. Therefore, to diversify the legal profession, we must acknowledge this eugenics history and racial wealth gap and institute the diploma privilege, or create sequenced open book bar exams or other alternatives that do not require costly isolated study and bar preparation courses. Healing reform will help all candidates, and the public we serve.
Professor Shubha Ghosh, Director of the Syracuse Intellectual Property and Law Institute, has contributed the article “Ain’t It Just Software?” to the recently released Research Handbook on Intellectual Property and Artificial Intelligence. The book, from Edward Elgar Publishing, is edited by Ryan Abbott, Professor of Law and Health Sciences, School of Law, University of Surrey, UK, and Adjunct Assistant Professor of Medicine, David Geffen School of Medicine, University of California, Los Angeles.
The chapter offers an innovative look at how AI issues in copyright build on longstanding debates in software copyright. Examining Justice Breyer’s opinion in Oracle v Google, Professor Ghosh develops ideas that are further extended in his forthcoming article on AI and patent law.
Professor Lauryn Gouldin was an invited speaker at the Arizona Criminal Law for Legislators Panel on Criminal Law, hosted by the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University—in conjunction with the Arizona Prosecuting Attorneys’ Advisory Council.
Professor Gouldin spoke on the issue of pretrial decision-making during the Initial Appearance, Arraignment, and Pre-Trial Release session.
University Professor David Driesen will study the impact of carbon pricing and produce scholarship on his findings as to the outcome of his Fulbright U.S. Scholar selection. Driesen will be conducting his research at the University of Ottawa, Canada beginning on September 6. He joins Bond, Schoeneck & King Distinguished Professor Cora True-Frost G’01, L’01 as College of Law Fulbright scholars for 2022-2023.
“Professor Driesen is a leading scholar in environmental law and this support will further his thoughtful research in the area of carbon pricing and climate change,” says College of Law Dean Craig Boise. “Fulbright Scholarships are highly competitive and receiving one reflects the value and urgency of an applicant’s research. I look forward to David’s continued scholarship in this area and the impact it will have on our students.”
What is your research focus for this distinguished appointment and what are your intended outcomes?
My research focus is on new literature suggesting that carbon pricing (emissions trading and carbon taxes) has not worked very well. I want to evaluate this literature and put it into a kind of conceptual framework. Much of this literature builds on my previous scholarship in this area.
What are your intended outcomes from your research?
I plan to publish a law review article and probably at least one short peer-reviewed piece reporting the results. I hope to improve the debate about the value of carbon pricing.
Why did you pursue a Fulbright?
The University of Ottawa has a “Smart Prosperity Institute,” which is very good, and its leadership encouraged me to apply. Canada has required each of its provinces to adopt some sort of carbon pricing program, so it’s a good laboratory for looking at how well it’s working.
What impact will this have on your teaching/scholarship?
I expect that this will inform my teaching of climate law and in one way or another inform the future direction of my climate scholarship. I’ve been doing more constitutional law work in the last few years, and this is a way of bridging back to the climate disruption work.
As chair of the ABA Section of Civil Rights and Social Justice’s Elder Affairs Committee, Professor Nina Kohn has helped draw attention to policies that closely align with nursing home reforms the Biden administration announced in February.
Featured in this ABA Journal article, Kohn explains, “the ABA has played a leadership role historically in thinking through the law around long-term care. That has been in part through particular entities within the ABA, such as the Commission on Law and Aging, which has been an important resource for advocates, but also through some discreet resolutions the ABA has adopted over the years.”
More than 200,000 lives of nursing home residents and staff have been taken by COVID-19 in the past two years. Due to this severe impact, the administration has tasked the U.S. Department of Health and Human Services Office (HHS) with developing and implementing reforms aimed to improve the safety and quality of nursing home care, hold nursing homes accountable for the care they provide, and make the quality of care and facility ownership more transparent so that potential residents and their loved ones can make informed decisions about care.
“For decades now, the ABA has understood how important enforcement is in this space,” Kohn says. “On paper, nursing home residents have robust rights related to the quality of care and quality of life. The problem is that there is ineffective enforcement of those rights and, as a result, what are on paper very clear requirements end up being treated more than aspirational goals.”
Professor Jennifer Breen and Associate Dean Kristen Barnes have both been awarded 2022 Collaboration for Unprecedented Success and Excellence (CUSE) grants from the Syracuse University Research Office.
Breen will receive a Seed Grant of up to $5,000 for her new research project on the Disparate Responses of Labor Unions to COVID Workplace Protections.
Associate Professor of Sociology Gretchen Purser was a co-primary investigator for this project. The research team is interested in understanding the variation in public health responses to the COVID pandemic from labor unions. According to Breen and Purser’s research, unions are important drivers of political participation, particularly among individuals with low levels of education. The team plans to explore how unions might drive political participation, also considering whether unions counter misinformation on the pandemic.
Barnes will receive an Interdisciplinary Seminar Grant of up to $7,500 for her interdisciplinary series on the Write2Vote: Curricula to Enhance Civic Engagement and Representation.
Barnes is one of the investigators on the team, along with Patrick Berry, Associate Professor of Writing Studies, Rhetoric, and Composition, Mark Brockway, Faculty Fellow in Political Science and Religion, Brice Nordquist, Associate Professor and Dean’s Professor of Community Engagement Writing Studies, Rhetoric, and Composition, and Hector Rendon, Assistant Professor of Communications. The primary goal of this interdisciplinary series is to develop and connect civically engaged courses, assignments, and experiences across a range of curricular contexts at Syracuse University and assess the impact of implemented civic engagement for students, instructors, and community partners. Building on the Write2Vote civic engagement framework by a national network of scholars, the team seeks to use course assignments and curricular components to promote civic engagement among students and facilitate representation for marginalized groups in local communities.
In selecting CUSE grants, the panel reviews certain criteria in assessing a competitive number of proposals. Subject matters span from the overall merit of the application to potential success for extramural funding, increased scholarship, enhanced reputation, and success with past intramural funding. The panel also reviews the qualifications of project personnel, adequacy of facilities, and significance of the project regarding relevance and alignment with CUSE program priorities and current or future research trends.
Cora True-Frost G’01, L’01, Bond, Schoeneck and King Distinguished Professor, has been selected by the U.S. Department of State and the Fulbright Program to join the University of Oslo,Pluricourts as a Fulbright Scholar. Beginning in August 2022, True-Frost will conduct her research and scholarship on European Tribunals and International Disability Law: Definitions, Discrimination, and Involuntary Detention.
“Fulbright Scholarships are prestigious academic achievements and Professor True-Frost is a deserving recipient and representative of the College of Law in this program,” says College of Law Dean Craig M. Boise. “Her scholarship at the intersection of international law and politics and the rights of the disabled is being justly recognized. Cora is a gifted classroom teacher and will ultimately enrich this field and our students, building connections between leading international courts and our law school.”
Q: What is your research focus for this distinguished appointment and what are your intended outcomes?
True-Frost: I will be examining contests between European tribunals and international bodies over the interpretation and application of international law, with a specific focus on international disability law norms within Europe by the Court of Justice for the European Union (CJEU) and the European Court of Human Rights (ECtHR.) Several substantive areas in the Convention on the Rights of Persons with Disabilities (CRPD) are provoking high-stakes contests of legitimacy and authority between and among both international-level treaty bodies, and regional courts. I intend to initially engage an admittedly broad question, but through a methodologically narrow approach: in the 2020s, what relative roles do international courts, regional tribunals, as well as “soft law”-makers, such as human rights treaty bodies and the European Commission (“EC”), play in determining the rights of people with disabilities in Europe?
While national domestic legal systems work to avoid conflicts by permitting appeals only within a strict hierarchy of authority and constrained jurisdiction, the same is not true of the international system. The complexities and sophistication of the judicial system of the European Union (“EU”) offer a perfect opportunity to examine conflicts and variations arising in the legal interpretation and application of a relatively new international law, the CRPD. Within Europe, multiple sources of law and policy protect people with disabilities—national legislation, European Union Directives, European Commission subsidiary organs, regional conventions, the European Disability Forum, and Council of Europe policies. International law, such as the CRPD, also protects people with disabilities in Europe.
My past scholarship has examined the effects of the CJEU’s efforts to respect and observe its international legal obligations. To give an example, a past project examined the impacts of the Kadi & al-Barakaat case, in which the CJEU struck down a Council of the European Union (“Council”) law for violating fundamental rights[1] in implementing the UN Security Council’s (UN SC) resolution. The CJEU decision took pains to emphasize the EU’s compliance with international law even in the face of a particularly draconian UN SC resolution. My work showed how the CJEU decision in turn helped push the powerful UN SC to reform its procedures related to targeted sanctions in the fight against terrorism post-9/11.
My broader scholarly focus on international-level tribunals and organizations inevitably and frequently overlaps with decisions of regional tribunals such as the CJEU and the ECtHR. For example, my forthcoming article, “Listening to Dissonance at the Intersections of International Human Rights Law” contributes to the fragmentation literature by focusing on conflicts between the interpretations of provisions of treaties by international-level treaty bodies; through analyzing issues related both to the horizontal allocation of authority and the impacts of conflicting interpretations on different norms, my research continuously led to the jurisprudence of the CJEU and ECtHR.[2] I am excited to be able to take this next step in my research.
Q: What are your intended outcomes from your research?
True-Frost: I will be developing a qualitative series of case studies of contests of authority and legitimacy focused on various EU Directives implementing the CRPD and CJEU judicial decisions regarding these Directives will form the core research. The first phase of this project will map and analyze various consistencies, conflicts, and variations in European tribunals’ articulation of three substantive areas of disability law in relation to international disability law standards: defining disability,[3] applying employment discrimination law,[4] and setting forth standards for involuntary detention.[5] In its second phase, the project will develop normative implications both for the legitimacy of international and regional courts and for the substance of disability law.
I very much welcome the opportunity to closely engage CJEU and ECtHR decisions in conversation with the community of many scholars working on Pluricourts’ international tribunals’ research in Norway, and would plan to make research trips, as needed, to Geneva, Luxembourg, and Strasbourg. My work overlaps with the literature focused on at Pluricourts. I have written regarding almost all of the research topics, particularly: the legitimacy of international tribunals; the proper allocation of powers between different international and national lawmaking, executive, and judicial organs; the impacts of global administrative law, and best practices of international lawmaking bodies.
Q: Why did you pursue a Fulbright?
True-Frost: My international law scholarship has always benefitted and grown from my experience abroad. Pursuing this important research topic about conflicts between international and disability law in Europe will offer me the opportunity to meet with various stakeholders in European regional and domestic courts and do primary research.
I am an international law scholar with a focus on the development of human rights norms in international tribunals and organizations. However, my research over the last decade has continued to lead me to the jurisprudence of European tribunals, which have had a strong influence on the content of international human rights law.
Q: Why study European law in Norway in particular?
True-Frost: Norway has a unique relationship with the EU, so the opportunity to examine its own domestic interpretations of European and international human rights law will offer more context to my research on conflicts. Luckily, in 2020, when I decided to pursue my research with the Fulbright program in Europe to focus on European law, I learned that the University of Oslo offered a Fulbright grant focused on international courts and tribunals. I was already aware of the University of Oslo’s Pluricourts research center, which is a Center of Excellence funded by the Norwegian government, as I had the opportunity to attend the 11th Annual Conference of the European Society of International Law in Norway in September 2015, which Pluricourts had sponsored. During my brief visit, as a junior scholar on pre-tenure leave, I was extremely impressed by the University, its faculty, and its strong networks in international law. Over the course of the short conference, I saw many ways that the Pluricourts’ research agenda overlapped with my own research agenda. My interest in living and researching in Norway now is helped by the knowledge that two dear friends and former colleagues of mine from my earlier work on gender justice in East Timor, who are Norwegian, both live in Oslo now with their families. This is an example of how networking and staying in touch professionally builds bridges to future international experiences.
The Fulbright also offers me the opportunity for concentrated, comparative research in disability law, a new area of interest for me. At Syracuse Law, I have had the pleasure of teaching international and domestic law students who are Blind, Deaf, dyslexic, and wheelchair-using, among many other disabilities. I have seen the challenges my students, both domestic and international, face in securing the support and accommodations they require. In recent years, as international attention has rightly if belatedly, focused on too long-delayed calls for racial justice, my interest in race and intersectionality along with my experience with disabled students, have raised my awareness and concern about the many unnecessary challenges disabled people face.
Q: What impact will this have on your teaching?
True-Frost: I look forward to integrating connections and publications from this research project into both the ECtHR and International Human Rights Law classes I teach. I also look forward to connecting our students interested in international law with the work I will be doing abroad, by delivering remarks/observations to College of Law students via Zoom or Skype while I am at the University of Oslo. I look forward to learning more about Norwegian higher education techniques, as I have been able to do in France with our partners there during the ECtHR classes.
[1] The ECJ held that the review of lawfulness applied only to the EC act purporting to give effect to the international agreement, and not to the international agreement itself. See, e.g., C. Cora True-Frost, Signaling Credibility: The Development of Standing in International Security, 32 Cardozo L. Rev. 1183 (2011).
[2] C. C. True-Frost, Listening to Dissonance at the Intersections of International Human Rights Law, 43 Mich. J. Int’l L. 361 (2022).
[3]See, e.g., Case C-13/05, Sonia Chacon Navas v. Euerst Colectividades SA,2006 E.C.R. I-6467 (defining “disability” as “referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”); Case C-303/06, S. Coleman v. Attridge Law and Steve Law, 2008 E.C.R. I-5603 (reaffirming the CJEU’s definition of “disability” from Chacon Navas); Joined Cases C-335/11 & C-337/11, HK Danmark, acting on behalf of Jette Ring v. Dansk almennyttigt Boligselskab and HK Danmark, acting on behalf of Lone Skouboe Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, 2013 E.C.L.I. 222 (in the aftermath of the EU’s ratification of the CRPD re-defined the concept of “disability” by writing that it “must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments in which interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one”).
[4] A complainant proceeding before the CJEU in 2021 will find the CJEU’s interpretations of EU employment discrimination law to be far more harmonious with international disability law standards than they were in just 2015. See, e.g., Grainne de Burca, The Decline of the EU Anti-Discrimination Law?, __ N.Y. Univ. L. Rev. (forthcoming); Michael Rubenstein, Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union, 15 Equal Rts. Rev. 57 (2015); Vlad Perju, Impairment,
Discrimination, and the Legal Construction of Disability in the European Union and the United States, 44 Cornell Int’l L. J. 280 (2011).
[5]See, e.g., Oviedo Convention and its Protocols, Council of Eur. (n.d.), https://www.coe.int/en/web/bioethics/oviedo-convention;Robert Adorno, The Oviedo Convention: A European Legal Framework at the Intersection of Human Rights and Health Law, 2 J. Int’l Biotechnology L. 133 (2005); UN Rights experts call on Council of Europe to stop legislation for coercive mental health measures, Eur. Disability F. (May 28, 2021), https://www.edf-feph.org/un-rights-experts-call-on-council-of-europe-to-stop-legislation-for-coercive-mental-health-measures/; Karolina Kozik, What Does the Council of Europe Have Against People with Disabilities?, Hum. Rts. Watch (Nov. 4, 2020), https://www.hrw.org/news/2020/11/04/what-does-council-europe-have-against-people-disabilities#.
The paper lays out an indictment of numerous war crimes, crimes against humanity, and crimes of aggression from February 24, 2022, to April 1, 2022, during the invasion of Ukraine. The report includes a sample draft (Appendix A, page 47) of a criminal indictment against President Vladimir Putin for his war crimes. The white paper was created by the Ukraine Task Force, comprised of law students and legal scholars, with the goal to create a non-partisan, high-quality analysis of open-source materials.
“Because of his aggressive acts and his intentional targeting of Ukrainian civilians, Vladimir Putin has lost all political legitimacy and has made Russia a pariah state. This white paper catalogs the horror he has unleashed and lays out a pathway for holding him accountable for aggression, war crimes, and crimes against humanity,” said David Crane L’80, the project leader of the white paper and Distinguished Scholar in Residence at Syracuse University College of Law.
Crane is the founding chief prosecutor of the Special Court for Sierra Leone, an international war crimes tribunal where he indicted Liberian President Charles Taylor, the first sitting African head of state in history to be held accountable in this way.
According to the report on Ukraine:
“Since the invasion, Ukrainian citizens have been forced to endure kidnappings, property destruction, starvation, terror, shellings, and murder at the hands of the Russian Federation. As is consistent with the complex and intricate history of Ukraine, Russia once again seeks to assert its dominance and control of the territory in wanton violation of international law and Ukrainian sovereignty. As of the writing of this document, President Zelenskyy continues to lead his country and seek peace for its citizens, while the Russian Federation continues its campaign of atrocities meant to terrorize Ukraine and strip it of its national identity.
There is no clearer violation of the laws of humanity. At its most basic elements, international law and the laws of humanity establish self-determination and self-expression of a people as fundamental rights free from infringement by foreign powers. President Putin, and the rest of his Russian Federation political and military command seek to upend these values and establish a new world order with authoritarianism, terror, and oppression at its center. The international community cannot remain silent, and the road does not end at sanctions — it begins.” (page 40)
The 276-page report lays out the history of Russian aggression in Ukraine, the legal framework of accountability, individuals who bear the responsibility for crimes, and the specific violations of international law.
“The Ukraine Task Force established by the Global Accountability Network (GAN) was an incredible and unique experience that allowed law students to take an active part in international legal discourse,” said Syracuse Law student 3L Christopher Martz, the task force director and one of the lead writers of the white paper. “The Ukraine Task Force encountered serious difficulties in documenting war crimes in real time, especially considering the fact that GAN pulled students from all across the country. However, the leadership of Professor Crane and the commitment of GAN volunteers helped overcome these difficulties, resulting in an important living document that creates a framework of accountability moving forward.”
Additionally, the appendix of the report offers exhaustive details of how the researchers documented their evidence:
Appendix B (page 68) is a crime narrative detailing by date and cities where crimes were committed and by the responsible party. Appendix B is a grim summary of the civilian deaths suffered during the invasion from bombings and attacks on residences, hospitals, schools, grocery stores, public buses, and many more.
Appendix C (page 102) expands on the crime narrative and provides a more detailed breakdown of the violations of International Humanitarian Law, as well as documenting violations of the Ukrainian Penal Code. Appendix C gives a day-by-day and detailed accounting of the atrocities and war crimes committed and the specific articles of the Rome Statute, Geneva Convention, and Ukrainian Penal Code they violate.
Appendix D (page 124) is a comprehensive profile detailing the command-and-control structure of the Russian political and military senior leadership. This “dossier” lists the individuals responsible for the atrocities in Ukraine, and documents relevant information surrounding their responsibility and complicity.
“We have done this once before and we can do it again with the International Criminal Court prosecuting the alleged war crimes and crimes against humanity and a United Nations-backed Special Court for Ukraine, the world’s second hybrid international war crimes tribunal, the Special Court for Ukraine the crime of aggression”, according to Crane. “Its mandate will be to prosecute those who bear the greatest responsibility for the aggression against Ukraine must include President Vladimir Putin,”
Members of the media, please contact Ellen James Mbuqe, executive director of media relations at Syracuse University, at 412-496-0551 or ejmbuqe@syr.edu, for interviews.
More about David Crane and Syracuse University
David Crane was a professor of practice at Syracuse University College of Law from 2006 until his retirement in 2018. During that time, he taught international criminal law, international humanitarian law, military law, and national security law. While at Syracuse Law, Crane founded Impunity Watch, an online student-run law review, and public service blog, and the Syrian Accountability Project (SAP), an internationally-recognized effort among students, activists, journalists, and non-governmental organizations to document war crimes and crimes against humanity during the Syrian Civil War. Crane later returned to the College of Law as a Distinguished Scholar in Residence.
In 2014, Crane co-authored the “Caesar Report” that detailed the systematic killing of thousands of people in Syria and testified about the report at the UN Security Council. Crane also has testified to the US House of Representatives Committee on Foreign Affairs and its Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations on the Syria crisis and related human security and humanitarian issues. In 2016, Crane helped to draft a UN resolution “to establish a special team to ‘collect, consolidate, preserve and analyze evidence” as well as to prepare cases on war crimes and human rights abuses committed during the conflict in Syria.” Subsequently, he assisted the UN in setting up the independent justice mechanism mandated by the resolution.
When he was chief prosecutor of the Special Court for Sierra Leone, Crane was the first American to be a Chief Prosecutor of an international war crimes tribunal since 1945 when Justice Robert Jackson and Telford Taylor were prosecutors at the Nuremberg Trials.
