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“If I Do Something, I Want to be the Best at It”: International Attorney Takes on LL.M. to Learn U.S. Legal Practices

https://law.syracuse.edu/news/if-i-do-something-i-want-to-be-the-best-at-it-international-attorney-takes-on-ll-m-to-learn-u-s-legal-practices/

Chatura Patil LL.M.’24 grew up in India, where her mother and brother are doctors, and her father is a successful businessman. Her parents expected her to be a doctor, too, but she chose another route: the law. That decision put her on an interesting career path that eventually brought her halfway around the world to Syracuse Law’s LL.M. program, opening up a new world of opportunities for her.

After earning a bachelor’s degree in finance in India, Patil moved to New York City to work as an intern. In 2014, she returned to India to earn an LL.B. from Bharati Vidyapeeth University and then an LL.M. in corporate and financial law from O.P. Jinal Global Law University, a partner school of Syracuse Law. After that, her legal career began to take off, working at several law firms as an intellectual property associate, a senior legal associate, and later in contract management and compliance.

While working for Udemy, a leader in online learning, as international commercial counsel for the E.U. and Middle East region and then for North America and Canada, she came to appreciate the utility of possessing a license to practice law in the U.S. as a way to advance her career. She then decided it was time to pursue another LL.M., and she began down the path that led her to Syracuse Law.

If she was going to pursue an LL.M. in the U.S., she knew she wanted to study in New York State. Patil had always lived in big cities, so she was eager for a slower-paced, mid-size city like Syracuse.

“Syracuse Law checked off all the boxes, and I was drawn by the engagement with the faculty and the many pro bono programs and extracurricular activities I could participate in to expand my knowledge of the law. There are so many resources here. Every time I’d hear of an opportunity, I’d put it on my checklist. I decided I would check off everything on that list before I graduated.”

Chatura Patil LL.M.’24

“Syracuse Law checked off all the boxes, and I was drawn by the engagement with the faculty and the many pro bono programs and extracurricular activities I could participate in to expand my knowledge of the law,” she explains. “There are so many resources here. Every time I’d hear of an opportunity, I’d put it on my checklist. I decided I would check off everything on that list before I graduated.”

She’s done an outstanding job at accomplishing that goal. Patil has been involved in several student organizations, including the Women’s Law Student Association, of which she was the class representative this past year. She was also elected by her peers to serve as the Class of 2024 LL.M. representative to the Student Bar Association.

“American law has a very different structure from Indian law. India is a conservative and developing society, where women tend to steer towards corporate law, not litigation. When I see the legal landscape in America, especially through my work at the Volunteer Lawyers Project, I see that you don’t have to worry about your gender. There’s that difference where men and women are following the same dream in their profession.”

Chatura Patil LL.M.’24

“American law has a very different structure from Indian law. India is a conservative and developing society, where women tend to steer towards corporate law, not litigation,” she explains. “When I see the legal landscape in America, especially through my work at the Volunteer Lawyers Project, I see that you don’t have to worry about your gender. There’s that difference where men and women are following the same dream in their profession.”

She also worked as a justice fellow at the Volunteer Lawyers Project of CNY, Inc., a fellowship she started last January, and worked on immigration law matters pro bono.

Patil is grateful to a number of faculty and staff for helping her succeed in the LL.M. program. Her biggest supporter has been the Assistant Dean of International Programs, Andrew Horsfall, who “has been a mentor to me since Day 1,” she says. “He has answered my questions, let me share good news and bad, helped me choose the right classes, and just been there for me. Without Andrew, there is no LL.M. program.”

She was also struck by how accessible the professors are to students, citing Professors Paula Johnson, director of the Cold Case Justice Initiative, and Rakesh Anand, as two who have been particularly impactful to her while she was in the LL.M. program.

“Professor Johnson is just an amazing soul. She is a really busy person, but she’s very down to earth,” Patil says. “I told her how criminal law was a new subject for me and how hard it was to keep up. She gave me a one-hour recap that would have taken me two months to learn on my own,” Patil says. “And, Professor Anand is amazing. I haven’t even had him for a class, but you don’t have to be in his class for him to remember you. He is willing to talk to you and give you good career advice. I really respect him and appreciate getting feedback from him.”

Now that she has just graduated from the LL.M. program, Patil is preparing to take the New York State Bar Exam. Starting in August, Patil will be clerking for the Hon. Robert Bingham II, of the Mercer County (N.J.) criminal court. Ultimately, she would like to practice in the U.S., but she is open to wherever all of this takes her. Navigating the LL.M. program in a new country was a challenge for Patil, but one she has met quite successfully. She is glad she took a chance on herself and came to Syracuse Law to further her education.

“If I do something, I want to be the best at it. Indian parents are always pushing their children to do more. You grow up with that mindset, and you don’t see anything wrong with that,” she says of where she got the strength to pursue her dreams. “I am my parents’ daughter; nothing in life is too big to achieve.”

Professors Maintain Pipeline from Brazil and Establish New Relationships to Bolster the LL.M. Program

Professor Gidi teaching from the front of a classroom

Professor Antonio Gidi is a scholar in civil procedure and class actions, teaching a heavy course load each fall at Syracuse Law and traveling internationally during the spring and summer semesters to present papers and teach at several universities and institutions. His work has created a major pipeline for students from his native Brazil, as Syracuse Law’s LL.M. Program consists of approximately one-third of Brazilian students annually.

Gidi has extensive academic credentials as a visiting professor of law in Brazil, as well as Mexico, Italy and France. His contacts in Brazil, in particular, have allowed him access to private and public lawyers, as well as state and federal prosecutors and judges, while also giving lectures and teaching about the law to organizations within the government.

According to Gidi, Syracuse University offers the perfect academic destination for Brazilian legal professionals, and they flourish. Over the past decade, Syracuse Law has hosted dozens of judges, prosecutors, and lawyers. Most of them are prestigious mid-career professionals, some of whom already hold advanced degrees. Through their exposure to American law, they enrich their own careers, and, at the same time, contribute to the American students’ exposure to international influences. “It’s a win-win proposition,” he says.

Gidi has also recruited a number of students from Mexico, mostly graduates of the Instituo Tecnologico Autonomo de Mexico (ITAM), which tend to be a younger cohort, many of whom are recent graduates just starting out in their law careers. “They, too, benefit from the LL.M. program, as they learn more about the U.S. legal system and culture, while sharing elements of their own country’s laws with others at Syracuse Law,” he says. “Gidi is a wonderful partner for our recruitment efforts,” says Andrew Horsfall, assistant dean of International Programs. “He has been generous with his time and efforts to use his connections towards building partnerships in other countries, particularly Brazil, and he is quite successful at it. This is such a great benefit to a diverse experience for the students and faculty at Syracuse Law.”

Other members of Syracuse Law faculty have had the opportunity to visit Brazil, as well. In February, Professor Arlene Kanter, founding director of the Disability Law and Policy Program (DLPP) and faculty director of international programs, was invited to spend two weeks in Brazil meeting with judges, lawyers, and students, and lecturing about disability rights, particularly about the United Nations Convention on the Rights of Persons With Disabilities (CRPD), which she helped to draft. An internationally acclaimed expert in international law, human rights, and comparative disability law, Kanter also met with government officials, Human Rights Watch, and 10 other disability organizations to discuss their ongoing efforts to achieve greater equality and inclusion for people with disabilities in Brazil, particularly in the area of education and for those at risk for institutionalization.

Professor Arlene Kanter speaking on a panel at an event in Brazil

“I’m interested in how other countries have implemented the CRPD, which, by the way, is a treaty that the U.S. has not yet ratified,” she explains. “The disability laws are very different in many countries where I have worked, but the issues are the same—horrific conditions in institutions for people labeled mentally ill or developmentally disabled, unchecked violence against women with disabilities in institutions and in the community, denial of equal educational opportunities for children with disabilities who are sent to segregated and inferior schools, and lack of involvement by people with disabilities, themselves, in the development and implementation of the laws, policies, and practices that impact their lives. I’ve found that governments want to do right by people with disabilities, but, in many places, they just don’t know how. Brazil, for example, has enacted many excellent laws, but the hard part is implementing them. They have made great progress there, but they still have a long way to go.”

Kanter established the DLPP at Syracuse in 2007, which has recruited students with and without disabilities from all over the world to pursue careers in disability law. Her message has influenced lawyers, judges, government officials, and students in Brazil—and around the world—who come to Syracuse and study disability law through the LL.M. program. Many of those students have gone back to their respective countries to assume high level government jobs, to teach disability law, or to establish new organizations to promote disability rights.

Kanter acknowledges that despite excellent laws, much more needs to be done in the U.S. to ensure inclusion for people with disabilities in all aspects of life. “Learning from other countries is one way we can improve our own laws and practices,” she says.

After a 37-year career at Syracuse Law, Kanter retired at the end of the Spring 2024 semester. Year. But, given the ongoing requests for her assistance, she expects to continue to advocate for disability rights in the U.S. and elsewhere. In June, she traveled to Berlin at the request of the U.S. Department of State to provide training on international disability law to government offices there.

LondonEx: Syracuse Law Celebrates 45 Years in One of the World’s Most Dynamic Cities

A red double decker bus on a street with British flags hung between the buildings

Congratulations to Syracuse Law’s LondonEx Program as it celebrates 45 years of sending students abroad during the summer break to gain exposure to the British legal system and take in the culture of London.

Working with the Syracuse University London Centre, Faraday House, students from the College of Law and other ABA-accredited law schools take in an immersive experience that offers the practice of law in a global setting. The first week of the program is spent in an orientation where students gain insight into the legal system of the United Kingdom from guest lecturers, as well as tours through various “legal London” sites such as the Inns of Court, the Old Bailey, and British Parliament, as they start to understand the law beyond the U.S. system.

A large group of students and faculty pose for a photo at a long table. Large portraits hang on the wall in the background.

Students then begin six weeks of work in a professional legal setting alongside civil and criminal barristers, solicitors, and judges in the Crown Court system, human rights and international law NGOs, and others. The cohort comes together throughout the summer over evening lectures, networking events, and programming designed by the program’s co-directors, Assistant Dean Horsfall and Professor Margaret Harding.

The program typically enrolls 15-20 students each summer who have completed their 1L year. This year, Horsfall has been working in London to recruit more sites to host future LondonEx students.

Alex Stolfe headshot

“It was a fantastic opportunity to see how the English system is a bit different from the U.S. During the first week of the program, we took tours to see different places where the barristers practice. We went to Parliament and were able to speak to some of the Members and Lords, and we had the unique experience of seeing a bill passed into law.”

Alex Stolfe ’23, L’25

Alex Stolfe ’23, L’25 studied abroad in Florence, Italy, as an undergraduate, but once she joined Syracuse Law, she thought her days of international study and travel were a closed chapter. Then, she heard about the LondonEx program and was eager to spend time abroad once again, while pursuing the opportunity for an externship to gain experience unlike those of her classmates who remained in the U.S. after their 1L year.

“It was a fantastic opportunity to see how the English system is a bit different from the U.S.,” says Stolfe, who spent the summer of 2023 in London. “During the first week of the program, we took tours to see different places where the barristers practice. We went to Parliament and were able to speak to some of the Members and Lords, and we had the unique experience of seeing a bill passed into law.” Stolfe is Canadian, which made it an even more fascinating experience with yet another legal system to compare.

A large group photo

She spent the next six weeks at an externship at Withers Worldwide, a global litigation firm with expertise in a range of practice areas and legal services for private individual and business clients, art museums, high fashion and luxury brands. There, she was assigned to one of the firm’s partners in the litigation and dispute resolution practice area.

“The biggest difference for me is that the British system doesn’t seem as adversarial,” she says. “It’s very cordial with the barristers wearing their traditional beautiful wigs and robes. They addressed each other with phrases like, ‘My learned friend,’ when speaking to opposing counsel.”

Alex in an art gallery

“And, beyond the work and class experience, we made sure we got to see all of the city, including plays in the West End, group dinners, and meeting other mentors in the program, as well as alumni networking events with Syracuse graduates living and working in London.

Alex Stolfe ’23, L’25

Stolfe also had the opportunity to get to know other students spending the summer in London. “The University sets up everything for you,” she says. “And, beyond the work and class experience, we made sure we got to see all of the city, including plays in the West End, group dinners, and meeting other mentors in the program, as well as alumni networking events with Syracuse graduates living and working in London. We definitely became fast friends.”

Stolfe is very pleased that she spent time in London learning about the law in the U.K. “I’ve always been an advocate for exposing yourself to other cultures, and I’m very grateful for the LondonEx program,” she says. “It helps to create more well-rounded lawyers and better global citizens.”

A person in a trenchcoat walks passed a double decker bus

Assistant Dean of International Programs Travels the World to Promote Global Relationships with Syracuse Law

Andrew Horsfall speaks with Arlene Kanter in a bright classroom

Assistant Dean of International Programs at the College of Law Andrew Horsfall ’05, L’10 has a career that has put him all over the map. Most recently his travels have taken him to London, Poland, and Switzerland, but the stamps in his passport are too numerous to count.

Horsfall’s journey with Syracuse University began as an undergraduate at the Maxwell School of Citizenship and Public Affairs, where he earned a bachelor’s degree in political science and government with a minor in French and Francophone studies. After graduating, he went to work as an admissions counselor for Syracuse Abroad, helping undergraduates spend a semester in another country, while also supporting Syracuse Law’s summer externship program in London (now referred to as LondonEx). In hindsight, he sees that this first foray helped him understand how international higher education could become a profession he might enjoy.

Horsfall in London with JDi students
Andrew Horsfall with JDi students in London during the Comparative Trial Advocacy course in 2023.

But first, he decided to become a lawyer, earning his J.D. from Syracuse Law in 2010 and becoming a practicing attorney with Smith, Sovik, Kendrick & Sugnet P.C., in Syracuse. After a few years, however, another opportunity surfaced. “At the time, I wasn’t sure I would transition out of private practice altogether, but Syracuse Law had very recently launched its LL.M. program and was looking for someone to develop it who had familiarity with international higher education, legal education, and legal practice,” says Horsfall. “My experience brought together all of these, and I found myself in the right place at the right time.”

“The great diversity of students the program has attracted has led to a more vibrant and rich program for Syracuse Law. Faculty and students regularly interact with LL.M. students who are academics, judges, and lawyers of varied expertise.”

Andrew Horsfall ’05, L’10

Twelve years later, he has led the development of a robust portfolio of international programs that have allowed foreign-educated lawyers, academics, and judges to earn an LL.M. or Doctor of Juridical Science (S.J.D.); expanded the LondonEx program and short-term study abroad opportunities in several other countries; built strong partnerships with dozens of foreign governments, sponsoring organizations, NGOs, private organizations and global universities to support enrollment in the Syracuse LL.M. program; and fostered academic partnerships, created recruitment strategies for prospective student exchanges and managed programs that welcome visiting scholars and semester exchange students. In turn, these international relationships have also allowed Syracuse Law faculty and students to benefit from many of these programs and experiences, as well as represent the College at recruitment events, conferences and speaking engagements around the globe.

LL.M. students pose in their caps and gowns during commencement in 2024
Syracuse University College of Law LL.M. Class of 2024

The LL.M. program in 2012 started with just two students from South Korea and Sierra Leone but has since built itself into a program that welcomes 30-40 students each year from disparate corners of the globe.

“The great diversity of students the program has attracted has led to a more vibrant and rich program for Syracuse Law,” Horsfall explains. “Faculty and students regularly interact with LL.M. students who are academics, judges, and lawyers of varied expertise.”

LL.M. Students in a classroom at Orientation
The LL.M. class at orientation in August of 2023.

Horsfall has worked diligently to build pathways for students from various countries and cultivate routes to Syracuse Law on a regular basis through in-country visits by him and others at the College of Law. “The cultivation of relationships and development of new partnerships takes consistent effort that is well worth it. It can take months, if not years, to see ideas for collaboration culminate in a new project or the mobility of students or faculty, but the rewards are invaluable to everyone involved,” he says. “Facilitating the exchange of ideas, the exposure to otherness, and the widening of perspectives and opportunities to learn from one another are my core drivers.”

Currently, Syracuse Law has a number of Memorandums of Understanding (MOU) with foreign law schools (see sidebar). Horsfall’s intention is that these MOUs don’t only bring students to Syracuse Law but also create valuable partnerships that foster the exchange of researchers and professors as visiting scholars to collaborate on projects, lecture to students and faculty, and explore new ways of working together. He says support among faculty, which is high at Syracuse Law, through their own relationships and referrals from abroad are also key to success. See Syracuse Law’s thriving partnership with Poland’s University of Bialystok.

Andrew Horsfall, Dean dr hab. Mariusz Popławski and Craig Boise pose for a photo
Andrew Horsfall, University of Bialystok Dean dr hab. Mariusz Popławski and Craig Boise pose for a photo during a visit to the University of Bialystok in spring 2024.

While Horsfall oversees these international initiatives, he is quick to praise faculty colleagues and staff in the Office of International Programs. “Most of these accomplishments would not have been possible without the team effort among various faculty and staff who understand and support the mission of the Office,” he says.

However, most at the law school give Horsfall a tremendous amount of credit for growing the program to its current popularity, as well as continually looking for other opportunities to make Syracuse Law’s international connections even more robust.

“I don’t think you can talk about the success of our international programs without talking about Andrew’s contributions,” says Shannon Gardner, teaching professor and associate dean of online education. “He has been a part of this growing initiative to bring foreign students and professors here, while also finding ways to send others to various countries, which is beneficial in every way. Part of our success at Syracuse Law is the richness and diversity that these programs bring to our school and our students, which makes for an extraordinary law school experience.”

Professor Emeritus William C. Banks on SCOTUS Jan. 6 Obstruction Decision: “Will Likely Only Impact a Small Number of Convicted Rioters”

Professor Emeritus William C. Banks spoke with Independent on the SCOTUS ruling that narrowed the definition of obstruction in January 6 riot cases.

“The decision will not have tremendous significance in the January 6 cases, including that of former president Trump, because in almost all cases there are other charges that have a felony status alongside the obstruction charge,” says Banks.

He continued “The basic question before the court was the meaning of a straightforward statute banning obstruction of an official proceeding. Sixteen of 17 federal judges had construed the statute to reach the kind of obstruction at issue in most of the January 6 cases. Today, the Supreme Court majority read the statute differently and said that the obstruction statute applied only to documents. Their reading of the statute is contrary to plain meaning of the law.”

Professor Gregory Germain Writes: What’s Next for the Sackler Family and for Creditors in Other Cases after Supreme Court Eliminates Third Party Releases in Bankruptcy Cases?

In this legal review, Professor Gregory Germain examines the SCOTUS ruling in the case Harrington v. Purdue Pharma, Slip Op (June 27, 2024).

Media wishing to interview Professor Germain on this or related topics should email Rob Conrad, director of communications and media relations or Syracuse University’s media team by email.

The Supreme Court ruled today, as I predicted in my commentary on Law 360, that non-debtor third parties cannot obtain non-consensual discharges or releases as part of a plan of reorganization in another debtor’s bankruptcy case.  Harrington v. Purdue Pharma, Slip Op (June 27, 2024). 

Purdue’s bankruptcy plan sought to release the non-debtor Sackler family from $40 trillion (yes trillion) in tort claims by Purdue Pharma’s creditors.  The Sackler family owned and ran Purdue, which manufactured and falsely marketed OxyContin as a safe and non-addictive pain killer.  OxyContin was the main culprit in the opioid epidemic in the United States, which has killed more than 247,000 people from overdose and has ruined millions of lives. 

In return for the release of claims against them, the Sackler family agreed to repay Purdue $5.5 billion over 10 years, plus $500 million in contingent payments – a fraction of the $11 billion that the Sackler family caused Purdue to distribute to them in dividends between 2008 and 2016.  The bankruptcy court found that the Sacklers hid those dividends in offshore trusts, self-settled spendthrift trusts, and other asset protection schemes to make it difficult or impossible for their creditors to collect from them. 

A high percentage of the creditors who voted on Purdue’s plan of reorganization accepted it (between 88% and 95% of each class), but fewer than 20% of claimants voted at all.  The bankruptcy confirmation process only counts those creditors who vote, so non-voters are ignored in the confirmation process. 

The Court of Appeals for the Second Circuit upheld Purdue’s plan and non-debtor release, relying on prior Second Circuit authority recognizing the bankruptcy court’s inherent equitable power to discharge third party claims in extraordinary cases.  Three other circuit courts, the Fifth, Ninth, and Tenth had previously held that bankruptcy courts do not have the power to discharge third party claims.

The statutory debate was framed by two provisions of the Bankruptcy Code:  Section 524(e), providing that a bankruptcy discharge “does not affect the liability of any other entity on, or the property of any other entity for, such debt”, and Section 1123(b)(6), which allows a plan of reorganization to “include any other appropriate provision not inconsistent with the applicable provisions of this title.” 

While I correctly predicted the result, I did not correctly predict the split among the judges.  Gorsuch, Thomas, Alito, Barrett and Jackson made up the majority, barring third party releases as part of the plan without creditor consent.  Gorsuch’s opinion recognizes that the Bankruptcy Court has the power to discharge claims only against the debtor who files bankruptcy and submits their property to the jurisdiction of the court.  Third party releases can be granted only with the creditors’ consent.

In a surprise to me, four judges (Roberts, Sotomayor and Kagan, led by Kavanaugh) dissented.  They thought the vague catchall in Section 1123(b)(6) should give the bankruptcy court the power to confirm a non-debtor release without the consent or participation of the parties whose claims were being released, even if the releases were broader than the third parties could have received if they themselves had filed bankruptcy.

So what happens to Purdue, the Sacklers, and their creditors now, and more importantly, what happens with all of those bankruptcy plans that have previously been confirmed that contain now-illegal provisions releasing claims against third parties?

What Happens Next for the Sacklers?

Assuming that Congress and the President do not step in to pass a law for the Sacklers’ benefit (a scenario that strikes me as nearly impossible), the Sacklers have two options. 

The Doomsday Litigation Scenario

The first possibility is doomsday litigation, where the government and private creditors pursue their claims against the Sacklers and try to reach their assets.  These cases would be very expensive to litigate for both sides, and the outcome would be uncertain for both sides.  In the Sacklers favor, the government failed to address the addiction problems with OxyContin for 20 years, allowing the drug to be sold by prescription to an unwitting public.  The Sacklers have statute of limitations defenses to the many claims, and they have engaged in extensive asset protection planning to shield their money from the claims of creditors in self-settled and foreign trusts that will make recovery for successful plaintiffs difficult. 

The creditors are in three basic groups: 

  • Claims by the Corporate Debtor, Purdue Pharma.

Many claims that could be asserted by creditors of Purdue outside of bankruptcy now belong to the corporate debtor and cannot be brought by creditors, including fraudulent conveyance and other claims against the Sacklers for causing harming Purdue. 

While Purdue has strong substantive fraudulent conveyance claims against the Sacklers for the $11 billion that the Sacklers pulled out of Purdue with knowledge that creditors were likely to come after them,  these claims are subject to strict statutes of limitation –  transfers within two years before bankruptcy under Section 548 claims, and maybe 6 years from the transfer under state law, although delay in discovery of the claims may extend the timing.

And then there is the difficulty of collecting from the Sacklers, who have transferred their money in to spendthrift trusts and other asset protection schemes in the US and abroad.  There is a special 10 year statute of limitations for transfers to self-settled trusts in Section 548(e)(1) of the Bankruptcy Code, but that 10 year period runs from the filing of personal bankruptcy petitions by the Sacklers, not from Purdue’s filing, and the only way to force the Sacklers into bankruptcy would be by filing involuntary bankruptcy petitions.  An involuntary petition would require three creditors holding liquidated undisputed claims (11 U.S.C.§ 303(b)), and to avoid dismissal the petitioning creditors would have to show that the Sacklers were “generally not paying their debts when due.”  11 U.S.C. § 303(h).  Presumably, an involuntary could not be filed by the creditors until they obtained judgments, and the delay in obtaining judgments would reduce the amounts recoverable through the running of the 10-year lookback period.  Collection by Purdue will be difficult.

  • Governmental Consumer Protection Claims. 

The biggest claims are held by the state attorneys general, who have billions or trillions of dollars in claims against the Sacklers under their states’ consumer protection statutes.  These claims pose the most serious threats to the Sacklers.  The government entities could also potentially bring criminal and civil forfeiture claims against the Sacklers in a doomsday litigation scenario.  These claims would be very expensive for the Sacklers to defend and for the states to prove, and would seriously threaten the Sacklers’ peace and security.  They are also subject to many defenses including statutes of limitations and collection problems will also exist, although the potential for prison sentences can often be used to obtain repatriation of funds controlled by the Sacklers.

  • Individual Claims by OxyContin Users and Their Families. 

The individual and family victims’s personal injury and fraud claims, are (as Justice Sotomayor pointed out at the hearing) primarily claims against Purdue, which manufactured and sold the pills.  While these claims are the most sympathetic, they are also the most difficult claims for the individual creditors to fund and win against the Sacklers.  To hold the Sacklers liable as shareholders of Purdue, the creditors will have to pierce the corporate veil, which under the laws of most states requires a two prong showing:  (a) the “alter ego” prong that Purdue did not honor its separate corporate existence, usually by commingling property and failing to follow proper corporate formalities, and (b) thereby committing “fraud and injustice” on the creditors.  The piercing requirement will pose a significant barrier to success for the individual creditors. 

Some of the Sacklers may have committed direct torts by approving or participating in Purdue’s fraudulent representations, but these will not be easy claims to prove.  All of the claims are also subject to statute of limitations defenses.

Finally, even after recovering judgments against the Sacklers on the merits, the creditors would need to break through the asset protection trusts adopted by the Sacklers.  Funds in offshore asset protection trusts cannot be recovered directly because the foreign governments generally will not comply with orders from our courts.  If the trust beneficiaries are physically located in the US, the courts could order them to repatriate their trust funds, hold them in contempt if they do not comply, and put them in jail until they do comply, but only the Sacklers can be shown to have the power to comply with the courts’ orders.  Well drafted offshore protection trusts generally purport to limit the beneficiaries’ control over the funds, so the courts would have to determine whether the beneficiaries have the ability to comply with the orders before holding the beneficiaries in contempt.  Furthermore, the courts may not have jurisdiction over beneficiaries living outside of the US. 

While collecting from the foreign and spendthrift trusts would be difficult, the creditors (especially the governments) would make litigation expensive and miserable for the Sacklers for many years, and could prevent the Sacklers from accessing their money.  The Sacklers were formerly honored members of their communities and would suffer continuing public condemnation and humiliation if the cases are not settled.  If the government creditors are successful, the Sacklers could lose their assets and maybe their freedom. 

An understanding of the legal realities for both sides explains why the Sacklers were willing to pay $5.5 billion for peace, and why the active creditors were willing to accept that amount.  There remains a huge incentive for the parties to reach an agreement to avoid the doomsday scenario of scorched-earth litigation.

The Revised Plan of Reorganization Scenario

The second option is for the parties to return to the bargaining table to negotiate a settlement similar to the one they previously reached, but without attempting to release or discharge the claims of non-consenting creditors. 

The Supreme Court made it clear that parties can consensually release third party claims as part of a bankruptcy plan settlement.  Presumably, the parties who vote in favor of the plan will be bound to its terms, including any release, by consent. 

That leaves three groups:  (1) the few active creditors who explicitly voted against the plan, (2) the large number of creditors (80%) who did not and are likely not to vote at all, and (3) unknown future creditors. 

The plan will not be able to release or discharge the claims of creditors against the Sacklers who vote “no” on the plan.  But they are few in number.  Similarly, unknown creditors cannot consent.  There is a question of whether a guardian could be appointed for unknown creditors who could consent to the plan.  This may be an important consideration in mass tort cases involving large numbers of unknown creditors, but Purdue probably has a good idea who the creditors are since they purchased prescription drugs. 

That leaves the large number of creditors who did not vote.  Does Purdue need the affirmative “opt-in” vote to bind creditors, or can they bind creditors who have the right to but do not “opt out.” 

The US Trustee argued that creditors must specifically “opt in” to the release by voting for the plan or signing a consent.  But I see no reason for that to be true.  Class actions regularly bind creditors who do not “opt out,” and I see no reason that the class action model could not be utilized in a bankruptcy case.  If the plan required creditors to “opt out,” the large number of creditors (maybe 80%) who do not participate would be bound by the release.  That would leave the Sacklers to defend only a small number of committed angry creditors who will likely lack the resources to win their cases and reach the Sacklers’ assets.

The Sacklers’ plan payments could be reduced pro tanto for creditors who are not bound by the plan, leaving those small non-consenting creditors free to bring their claims in state court and try to run the Sacklers’ gauntlet of defenses:  statute of limitations, piercing the veil, proving the merits, and collecting from the trusts.  Without the support of the sophisticated government creditors, the small creditors do not stand much of a chance against the well-funded Sacklers.  

What Happens to Other Plans That Were Previously Confirmed?

Bankruptcy courts have been confirming plans with non-debtor releases for the past 20 years.  We now know, after the Supreme Court’s decision in Purdue, that these plans’ provisions for non-debtor releases were unlawful.  Does that mean that the creditors who did not explicitly consent to the plan can now sue the third parties who were wrongly released in the plan? 

The Court explicitly ducked that question in the majority opinion in Purdue:  “Additionally, because this case involves only a stayed reorganization plan, we do not address whether our reading of the bankruptcy code would justify unwinding reorganization plans that have already become effective and been substantially consummated.”

But the Court has previously addressed a similar issue.  Just because a confirmed plan contains unlawful provisions does not mean that those unlawful provisions are not binding and enforceable.  Indeed, the general rule is that you must appeal an unlawful order or judgment against you, or you are bound by it.  The Supreme Court in a unanimous opinion in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), held that a confirmed and final Chapter 13 bankruptcy plan, which purported to discharge a federal student loan that was explicitly non-dischargeable under the Bankruptcy Code, was nevertheless enforceable against the creditor who did not appeal from the confirmation order.  The longstanding rule prevents parties from “collaterally-attacking” an order of a court, by challenging the order in a different court, rather than directly appealing the order.

The Court in Espinosa recognized exceptions to the rule of finality if the court lacked jurisdiction to issue the order, or the party seeking to collaterally attack the order did not receive notice and due process.  But absent the court’s lack of jurisdiction to issue the order, or a due process violation, the order is binding unless appealed, and cannot be collaterally attacked, even if the order was wrong. 

Thus, confirmation orders in other cases providing for an illegal release or discharge of third party claims are going to be very difficult to collaterally attack by parties who received notice of, and had the ability to participate in and appeal, the case.  They will likely have to show that the discharge was “jurisdictional,” and not simply a legal error.  Espinosa suggests that granting discharges or releases, which the court has the power to do under certain circumstances (with consent in Purdue or by making a finding of “undue hardship” in Espinosa, is not jurisdictional, and does not render the order subject to collateral attack.

Does Espinosa sanction bad faith conduct by litigants, or by judges seeking to confirm plans, even though they contain known unlawful provisions?  Justice Thomas’s opinion in Espinosa recognized the potential for abuse:  “We acknowledge the potential for bad-faith litigation tactics. . . .  But . . . [a]s we stated inTaylor v  Freeland & Kronz, 503 U. S. 638 (1992), ‘[d]ebtors and their attorneys face penalties under various provisions for engaging in improper conduct in bankruptcy proceedings.’ The specter of such penalties should deter bad-faith attempts to discharge student loan debt without the undue hardship finding Congress required. And to the extent existing sanctions prove inadequate to this task, Congress may enact additional provisions to address the difficulties United predicts will follow our decision.” 

Therefore, I believe that creditors in other cases, who received proper notice and could have objected to and appealed the conformation order, will be bound by the bankruptcy court’s confirmation order discharging third party claims even though that order was unlawful.  These creditors will not be allowed to collaterally attack the confirmation order. 

On the other hand, creditors who did not receive notice of the case (and were not at least virtually represented by a guardian ad litem or by some similar method), should be free to pursue their claims since they could not be bound by the order or judgment because they did not receive due process.  Because of the limitation on collateral attacks, the decision in Perdue is unlikely to ignite a firestorm of litigation against parties who settled prior cases.

Professor Lauryn Gouldin Discusses the Hunter Biden Ruling and Rahimi SCOTUS Ruling with the Washington Examiner and Law 360

Professor Lauryn Gouldin recently spoke with the Washington Examiner concerning the recent Supreme Court of the U.S. ruling in United States v. Rahimi and its potential impact on an appeal in the Hunter Biden Federal gun case.

Gouldin said the Supreme Court repeatedly noted that Rahimi had notice and process for being subject to a domestic violence protective order, whereas Biden did not.

“You don’t have any of that notice or process that attaches for Biden’s case. That is a lot of what his defense team was challenging before the trial and at the trial.”

Gouldin also spoke with Law 360 on the cases (may be behind paywall.) Here, she says a review of the drug addiction cases will also require a “completely different” historical analysis given that opium and other drugs were not illegal when the Second Amendment was enacted.

Reflections on the Career of Professor Arlene Kanter

Arlene Kanter

More than 50 faculty, students, alumni, and friends from Syracuse Law and Syracuse University along with dozens on Zoom from around the world, attended the program “The Past, Present, and Future of Disability Lawn and Policy at the College of Law” to honor the retirement of Professor Arlene Kanter.

Kanter’s contributions to the lives of numerous Syracuse Law students and the global legal profession during her four-plus decades of service are difficult to wrap one’s head around. There are countless books, articles, presentations, committee memberships, guest teaching positions, not to mention co-counsel to two U.S. Supreme Court cases, and so much more, it is hard to narrow these accomplishments down to a few highlights.

There are, however, two lasting accomplishments that will continue to make an impact on the world at large:

  • Kanter established the Syracuse Law Disability Law and Policy Program (DLPP) in 2005 which has evolved into one of the most comprehensive disability legal studies programs in the country. DLPP draws J.D., LL.M., S.J.D., and visiting scholars from around the world to immerse themselves in all aspects of disability law and its intersection with international human rights law.
  • From 2001-06, Kanter worked with the United Nations committee on drafting the Convention on the Rights of People with Disabilities (CRPD). Since then, she has collaborated with governments and disability organizations on implementing the CRPD in more than a dozen countries and counting.

In Their Words:

Dean Craig Boise clapping in recognition of Arlene at the podium

“As we gather today, we owe a big thank you to Professor Arlene Kanter for founding the DLPP back in 2005 and serving as the director of the program for nearly 20 years. Under her leadership, the DLPP has grown into a center that is not only integral to the College of Law but also to the broader university.”

Craig Boise, Dean

Paula Johnson speaking at the podium

“You are a beloved teacher, and that is to say not only for the law students and [those] in the School of Education and other places, but for all of us. You have always committed to teaching us to make us more aware. Your path-making ways have also inspired all of us to be and do our best.”

Paula Johnson, Director of the Cold Case Justice Initiative

Suzette Meléndez speaking at the podium

“There were several instances when the Children’s Rights and Family Law Clinic represented members and families that were members of the disability community. When I needed to seek out disability expertise, and someone who knew the area at both a theoretical and practical level, for me there was only one answer. It was Arlene. Arlene always made herself available as a collaborative partner who could consult to make sure that I was serving our clients to the best of our ability and withwhom I could explore the latest and greatest developments in disability law that would provide the best option for our clients.”

Suzette Meléndez, Faculty Fellow for the Office of Strategic Initiatives in Academic, Affairs and the Office of Diversity and Inclusion, Syracuse University; former director of the Children’s Rights and Family Law Clinic


Cora True-Frost laughing

“You have fostered an environment of inquiry and critical thinking and most importantly to me, you have delivered real change in our university community. You secured a commitment that our university would ensure that our newly-constructed buildings not only ensure accessibility but also move beyond mere compliance to ensure equity through your advocacy on the campus facilities advisory board. Simply put, your voice matters in the room. It matters for people with disabilities and all of us.”

Cora True-Frost G’01, L’01, Bond, Schoeneck & King Distinguished Professor

Beth Ferri speaking into a microphone

“We are truly indebted to your leadership, your energy, and your passion for all things disability rights. I know you’ll continue to be a strong force for change, but I also hope you get to enjoy a little bit more time with family and friends and the beautiful sun and sea of Cape Cod.”

Beth Ferri, Associate Dean for Research, School of Education

Julie and Arlene pose together for the camera

“Every time I return to SU for alumni events or to speak with disability law students, I am astounded by the diversity of students and professions and interests that Arlene has cultivated within the DLPP. Every time I’m at an event I am inspired by the law students and alums. It’s an amazing legacy.”

Julie Morse G’05, L’05, Attorney, Legal Services of Central New York


Two people hugging

“Although I did not have the benefit of being one of your students, the lessons I’ve learned from you transcend the classroom. Evidenced here today, your work and your humanity have left an imprint on so many and the seeds you planted continue to grow.”

Andrew Horsfall L’10, Assistant Dean of International Programs, Co-Director, LondonEx


Daniel VanSant speaking into the microphone

“What strikes me is that my story is not really special when you look at the alums in this network. She’s created a who’s who network of people in disability rights. I think it’s important to summarize what an impact she has had on the world if we just think of the number of people with disabilities who were her alumni’s clients as part of a class action, as part of policies we are changing, we quickly get to millions of people that were positively impacted by Arlene and whose lives have her fingerprints on them.”

Daniel Van Sant G’16, L’16, Director of Disability Policy, The Harkin Institute


Renci “Mercy” Xie, Arlene and Johannes pose for a photo

“Professor Kanter is an internationally recognized scholar in disability law. And she writes incisive articles defending disability rights. Yet she is a humble, warm, and friendly person. I am so grateful and honored to be Professor Kanter’s student as an LL.M. and S.J.D. As an advisor, she is guiding me through my dissertation and encourages me to explore new methods in legal study. I could not ask for a better Ph.D. advisor.”

Renci “Mercy” Xie LL.M.’20, S.J.D. candidate

Kat Macfarlane speaking into the microphone

“As I think of the past very busy year as I settle into my life in Syracuse, one thing has been constant—Arlene’s support. In the disability law field, Arlene is nothing short of a legend. The College of Law has a reputation as a disability law and policy leader thanks to Arlene’s groundbreaking work. As I continue to think of the future of DLPP, I think about continuing to live up to Arlene’s standards and staying true to her values.”

Katherine Macfarlane, Director of the Disability Law and Policy Program

3Ls Jackson Dankert and Brett VanBuren Win the 2024 New England Hockey Arbitration Competition

The team of 3Ls Jackson Dankert and Brett VanBuren have won the 2024 New England Hockey Arbitration Competition (NEHAC) hosted by Western New England School of Law.

NEHAC is a moot court competition centered on hockey arbitration offered to law students from schools across the U.S. and Canada held every summer virtually. In the first stage, Dankert and VanBuren represented two players seeking arbitration as well as their corresponding hockey teams during three rounds of competition. After the first stage, the Syracuse Law team scored highest amongst all competing teams, earning a spot in the finals where they prevailed in one final round. VanBuren was selected as M.V.P. of the competition.

Before the competition, Dankert and VanBuren submitted two 10-page briefs in support of both the player side and the club in one of the arbitration scenarios. They then prepared scripts and slides to present at the competition. Daniel Greene L’16, an associate at Newman & Lickstein, served as their coach. Greene competed at the Hockey Arbitration Competition of Canada and took second place in 2015.

Dankert is currently a Mergers and Acquisitions summer intern at KPMG and is Vice President of the Sports and Entertainment Law Society as well as being a member of the Travis H.D. Lewin Advocacy Honor Society Alternative Dispute Resolution Division, and Syracuse Law Review.

VanBuren is a US Army JAG Corps summer intern assigned to Southern European Task Force – Africa where he competed in the NEHAC from Vicenza, Italy, President of the Corporate Law Society, a member of the Journal of International Law and Commerce, and a member of the Travis H.D. Lewin Advocacy Honor Society Alternative Dispute Resolution Division. He was recently appointed the Law Student Representative to the Syracuse University Board of Trustees.

Brett VanBuren and Jackson Dankert

New Director Brings Disability Law Expertise and Lived Experience to Disability Law and Policy Program

Katherine Macfarlane, a leading expert on disability law, civil procedure and civil rights litigation, joined the College of Law last summer to lead the groundbreaking Disability Law and Policy (DLPP) program. The program was founded and led by Professor Emerita Arlene Kanter, who retired in June after 35 years of teaching.

Macfarlane’s disability law research and advocacy focus on reasonable accommodations in the workplace and higher education. Macfarlane is herself a person with disabilities. She has had rheumatoid arthritis, an autoimmune disease that causes joint deterioration and visual impairment, since childhood. Her lived experience with disability is one reason she’s excited to direct the DLPP program, she says.

Before joining the faculty as an associate professor last August, Macfarlane served as special counsel for disability rights in the U.S. Department of Education’s Office for Civil Rights, an appointment supported by a grant from the Ford Foundation’s U.S. Disability Rights Program. She previously was an associate professor at Southern University Law Center and the University of Idaho College of Law. She also was an assistant corporation counsel in the New York City Law Department, where she served as lead counsel in federal civil rights actions and an associate in Quinn Emanuel Urquhart & Sullivan’s Los Angeles and New York offices. After law school, she served as a law clerk for the District of Arizona and the U.S. Court of Appeals for the Ninth Circuit.

woman seated at table smiling

Katherine Macfarlane (Photo by Marilyn Hesler)

In addition to her disability law research, Macfarlane writes at the intersection of federal civil procedure and civil rights litigation. Her article about the modern implications of 42 U.S.C. § 1983, the landmark civil rights law originally passed as part of the Ku Klux Klan Act of 1871, has been cited twice by U.S. District Court Judge Carlton Reeves, most recently in Green v. Thomas, an order denying qualified immunity that received national media attention.

New DLPP Initiatives

Macfarlane appreciates that Kanter’s DLPP groundwork has provided an understanding of disability law and policies here.

“The University’s understanding of what it takes to support people with disabilities means I can jump right into the kind of programming I want to do. Things I might have had to fight for at other institutions are a given at Syracuse. That’s so refreshing.”

Through DLPP, Macfarlane wants to empower law students to see themselves as disability law scholars and future academics. She hopes to make this year’s inaugural student scholarship-focused symposium a yearly tradition and continue hosting discussions with cutting-edge disability law scholars and advocates. She plans to spotlight the novel disability law work being done by several law faculty. She will also continue to offer disability knowledge workshops and trainings to departments and faculty at Syracuse and around the country and wants to involve DLPP students in those efforts. She especially hopes to maintain the University’s reputation as a destination for law students interested in disability law and law students with disabilities.

“I want for us as a university to think beyond compliance and consider what it takes to continue to attract students and faculty who have disabilities—how to remain an institution where disabled individuals are supported and succeed,” she says. “That means we need to think through the experience of people with disabilities from the minute they arrive on campus and about how to streamline the process of obtaining a reasonable accommodation, for example. We need to ask how much time, money, and health insurance a person with disabilities is required to expend and how we can lessen those burdens. Our conversations should reach far beyond a discussion about accessible design and dive into the day-to-day experience of people with disabilities.”

Early Law Interest

Macfarlane lived in Canada and Italy in her youth and always wanted to go to law school. When she moved to the U.S., she was drawn to and inspired by U.S. civil rights movements and civil rights law. Congressman John Lewis is one of her heroes. Her disability law specialty came about later in her career.

“I have been disabled for as long as I can remember, but in law school, I was too self-conscious to identify with the disability community or focus on disability law,” she says. “Well into my twenties, I lived my medical experience in secret, hiding my constant procedures and chronic pain from even my closest friends. Finding the disability community and disability law has been pretty life-changing for me in that I can finally be myself. I became an expert in disability law because I had to in order to protect my own rights, but then I realized I loved this area of the law and the people doing this work, and I never left.”

People with disabilities are underrepresented in the practice of law and academia, Macfarlane says. “Not only is there a real need for people with disability law experience, there is also an absolute need for people with disabilities to go into this area of law. Having more disabled people in the practice of law is a readily attainable goal. But the spaces they work in have to be accessible, too, so law schools, courthouses and law firms have to constantly audit their physical spaces and their disability-related policies,” she says.

DLPP As Leverage

DLPP provides a forum to leverage both objectives, Macfarlane says. “I also love that I can expose students with disabilities to this area of law and advocacy and help give them the confidence to exist as a person with disabilities that I didn’t have myself as a law student. And this generation of law students makes me so excited! They understand what access requires. I’m very interested to see what this generation of young people do when they enter the practice of law or when they come into positions like mine.”

A focus on the specialty requires careful monitoring of litigation and Supreme Court decisions to guard against a decline in disability rights, Macfarlane says. She cites a recent attempt to narrow the Americans with Disabilities Act that could allow businesses to forego making their establishments accessible. She finds it concerning that some recent Supreme Court decisions may foreshadow a lowering of America’s commitment to disability rights as well.

That’s why the DLPP’s efforts are essential, Macfarlane says. “I’m always pitching DLPP to students. Disability law is a vital, cutting-edge area of law; it’s always changing. Many of us come to this specialty because we’re fired up about disability rights in our own lives. That’s why I’m so pleased to be here; it’s tremendous that a person with a disability is at the helm of this program.”