In her article at the New Labor Forum “Open for Business: The Supreme Court Curbs Federal Regulatory Power”, Professor Jenny Breen examines the recent SCOTUS decision in West Virginia v. EPA.
Professor Breen surmises, “If we aspire toward a world that is more supportive of working people, more genuinely democratic, and less beholden to the ideological views of a handful of judges, then unions and other forms of political organizing are the only way to get there.”
Veterans often face a unique set of legal issues related to their service that require specialized knowledge and understanding to resolve. Those issues can become increasingly complex as veterans age, further intersecting with various aspects of physical, social, and emotional well-being. According to the U.S. Census Bureau, more than 80% of U.S. military veterans are over the age of 55.
At Syracuse University, the College of Law and the Falk College of Sport and Human Dynamics have formed a partnership to help veterans, and especially aging veterans, access the legal services they need and obtain the benefits they have earned and deserve.
Staffed by attorneys from the College of Law’s Betty and Michael D. Wohl Veterans Legal Clinic, law students, and graduate social work students, the Legal-Social Work Partnership program provides free, high-quality legal services for veterans, such as assistance with disability claims and discharge upgrades, benefits counseling and more. The partnership also works to educate veterans about their rights and how to navigate the legal system.
The partnership operates under the College of Law’s Office of Clinical Education, where Syracuse law students apply doctrinal law while representing clients under the supervision of faculty-mentors.
The Legal-Social Work Partnership places an emphasis on addressing the social determinants of health. By assisting veterans with housing, employment, aging and other issues, the Legal-Social Work Partnership can help reduce veteran homelessness and suicide rates and improve the lives of veterans and military families.
Elizabeth Kubala, Teaching Professor at the College of Law, is the executive director of the Betty and Michael D. Wohl Veterans Legal Clinic. “The veterans we assist often have needs and challenges outside the scope of our legal representation,” she says. “Bringing a social work perspective into our legal clinic will not only result in better overall outcomes for our veteran clients but also a better understanding by the students of how to best serve veterans.”
As Syracuse law students and social work students learn how their respective disciplines interact in real-world practice settings, this program is building a stronger legal system that can address the holistic needs of clients.
While there are law firms that employ social workers in their practices, it is still quite uncommon. Syracuse University alumna Wendy Goidel ’84, Esq., the founding and managing member of Goidel Law Group PLLC and its Estate Planning & Elder Law Center, is one of the few who is leading the way. Goidel is the founder and co-developer of Concierge Care Coordination, a holistic practice model, which merges geriatric social work with legal planning.
“While the interdisciplinary model in an elder law context is natural and essential, it should be replicated and embraced in other practice areas—such as matrimonial, family, medical malpractice, personal injury, and criminal—where legal problems are intertwined with social, medical, and emotional issues. There is no doubt that clients and their family members receive far superior services, strategies, and solutions when attorneys and social workers advocate and collaborate,” says Goidel.
Goidel established the Goidel Law Group Internship Fund to support social work graduate students interested in working at the intersection of law and social work, particularly with older adults, through the Legal-Social Work Partnership program at Syracuse University. Students will receive $5,000 stipends for their internship year while working within the Legal-Social Work Partnership.
“Collaborations between law students and social work students are essential in addressing the legal problems impacting the health and well-being of our nation’s veterans,” says Ken Marfilius, Falk College assistant dean for online and distance education and associate teaching professor in the Falk College School of Social Work. “Social work students will play a key role in connecting veterans to community resources beyond those typically addressed through legal representation, having a direct and immediate impact on veterans and their families.”
“In addition to addressing the critical needs of veterans, this project illuminates the needs of one of the fastest growing populations on our planet, and that is of aging individuals,” says Carrie Smith, chair of the Falk College School of Social Work. “Collaborative work among an increasing number of experts at the intersection of law and social work will be essential in addressing the myriad needs and concerns of this population.
“We are very appreciative of the pioneering work being led by Wendy Goidel in addressing these aims,” she adds.
Through the Goidel Law Group Internship Fund, two social work graduate students at Syracuse University will be selected annually for the Goidel Law Group Internship Fund. Students do not need to be enrolled in Syracuse University’s J.D./master of social work dual degree program to be selected. Interested students must apply online by June 30, 2023, for the 2023-24 academic year.
For more information about the Legal-Social Work Partnership program or the Goidel Law Group Internship Fund, please contact Elizabeth Kubala, 315. 443.8420 or egkubala@syr.edu, or Kenneth Marfilius, 315.443.5586 or kjmarfil@syr.edu.
Does the Fourth Amendment require officers conducting searches to have suspicion of a specific crime? Professor Lauryn Gouldin examines these topics in a current work in progress, “Specific Suspicion.” This project follows a related article, forthcoming in the Emory Law Journal, “Crimes of Suspicion,” that analyzes whether officers conducting street stops need reasonable suspicion of specific crimes.
Gouldin presented her research last week at the Law and Society Conference in San Juan, Puerto Rico, and will present at the Law of Policing Conference at the University of Chicago tomorrow, Wednesday, June 7.
Syracuse University College of Law has added James L. Kelly L’99, Partner and Chair, New York Private Equity at DLA Piper, and Sandeep (Sandy) Qusba L’94, Partner and Head of the Restructuring Practice at Simpson Thatcher & Bartlett LLP, to its Board of Advisors. Kelly and Qusba will strengthen the College’s Board with their extensive legal and leadership experiences.
“James and Sandy are highly accomplished attorneys who bring to our Board deep knowledge of the legal industry and an understanding of the skills that new attorneys need to achieve their goals,” says Dean Craig M. Boise. “I look forward to working with them. Their insights into the profession will help steer our academic programs in support of our mission.”
“On behalf of the Board, I want to welcome James and Sandy,” says College of Law Board of Advisors Chair Melanie Gray L’81. “As lawyers and leaders at two of the world’s largest and most respected law firms, James and Sandy are shining examples of the heights that Orange lawyers reach and serve as inspiration for our students.”
James Kelly focuses his practice on representing private equity funds in all aspects of their investment activities. He is recognized by The Legal 500 US in Private Equity Buyouts and has been recognized for numerous consecutive years by Chambers in New York M&A. Kelly graduated from Syracuse University College of Law magna cum laude where he was Lead Articles Editor for Syracuse Law Review and received the Order of the Coif. He received his B.A. from the University of Washington.
Sandeep (Sandy) Qusba focuses on restructurings, bankruptcies, acquisition of distressed companies, and bank financings. He has represented private equity sponsors, special committees of boards and portfolio companies, agent banks, steering committees, and official and ad hoc committees and creditors in some of the largest Chapter 11 proceedings and out-of-court restructurings in recent years across a wide range of sectors, among them media, real estate, healthcare, energy, automotive, manufacturing, and telecommunications.
Qusba was recently named an “Outstanding Restructuring Lawyer” by Turnarounds & Workouts and has also been inducted as a Fellow of the American College of Bankruptcy.
Qusba received his J.D. cum laude from Syracuse University College of Law and his B.A. from Tufts University. He served as a law clerk for Chief Judge Stephen D. Gerling in the U.S. Bankruptcy Court of the Northern District of New York.
Crandall Melvin Professor of Law Lauryn Gouldin discussed the status and future of bail reform in New York on WCNY’s Connect NY program.
In response to a question about trying to gauge, not just what is happening but why things are happening the way they are in New York State, Gouldin says “I think the biggest thing, picking up on the point about recidivism is when we talk about bail reform, I think we don’t focus enough on the fact that pretrial detention leads to recidivism. There is study after study that demonstrates that detaining people before trial is not a public safety gain overall. We have long-term negative public safety impacts from detaining people before trial. So I applaud the fact that the reforms included more data collection. I think we need to do a lot more data analysis. Trying to figure out what causes crime to go down, or what, you know, led to this example of recidivism or that is really complicated so the more data that we have, the better. But I don’t– I think it’s been very hard to sort of dig through pretty fraught political conversation and actually get to the real facts and try to analyze what is actually going on.”
She was joined on the panel by Onondaga County District Attorney William Fitzpatrick L’76, First Assistant Public Defender for Monroe County and College of Law Adjunct Professor Erik Teifke, and Albany Times Union reporter Josh Solomon.
In Professor David Driesen’s post at the Center for Progressive Reform, he writes “Confronted with Justice Brett Kavanaugh’s argument that the dictionary definition of the term “adjacent” includes things that are nearby but not connected, Justice Samuel Alito invoked an increasingly used device to avoid following the plain language of statutes demanding broad regulation to meet public goals — a presumption against alteration of the status quo that existed before the passage of legislation.
Associate Professor Jennifer Breen received a 2022-23 Laura J. and L. Douglas Meredith Teaching Recognition Award for Early Performance in recognition of her excellence in teaching. The awards were created in 1995 to recognize and reward outstanding teaching among faculty in two categories: Early Performance and Continuing Excellence. Breen was selected for this award upon the recommendation of a committee of Meredith Professors, Teaching Recognition Awardees, and student representatives.
Breen teaches Constitutional law, administrative law, and labor law. Her interdisciplinary scholarship is centrally concerned with democratic governance in the United States and pays particular attention to the roles of gender and labor politics.
She has recently completed or is working on several new articles including “Democratic Erosion and the United States Supreme Court” (forthcoming Utah Law Review, spring 2024), “Democracy, Republicanism, and the Roberts Court” (work in progress), and “Labor Unions and Public Health Outreach” (with Gretchen Purser, Syracuse University Associate Professor of Sociology).
Professor Arlene Kanter, Director of the Disability Law and Policy Program, received a Chai Feldblum Award from the AALS Section on Law Professors with Disabilities and Allies at the American Association of Law Schools (AALS) 2023 Annual Meeting.
The award is named after Chai Feldblum J.D., an EEO and DEI consultant, Partner and Director of Workplace Culture Consulting at Morgan Lewis, and former Commissioner of the U.S. Equal Employment Opportunity Commission. This is the third year the award has been given.
Kanter’s nomination letters note that she is “an influential scholar, innovator, and leader,” and that students and colleagues often conveyed their personal thanks for her advocacy on their behalf.
Professors Emily Brown L’09 (pictured left) and Laura Lape both received honors at the 9th Annual Faculty and Staff Recognition Ceremony. Hosted by the Center for Disability Resources, the awards are presented to individuals who have exceeded expectations and embrace a culture of empowering students, inclusion, and celebrating disability as diversity.
Brown, nominated by 2L Elle Borgdorff, and Lape, nominated by Jessica Senzer L’23, said they found it moving to attend the ceremony and see how much inclusive practices mean to students across campus.
Professor Mary Helen McNeal taught her last class for the College of Law on Thursday, April 20, capping more than 30 years as a professor with the last 18 years at Syracuse Law. She founded the Elder and (later the Elder and Health Law Clinic) Law Clinic in 2008 and served as the Director of the Office of Clinical Legal Education from 2005 until 2011. Most recently, she served as the LondonEx Program Director and taught professional responsibility.
Her research and writing focus on elder law, with a particular emphasis on Medicare, clients with diminished capacity, restorative justice and elder abuse; culture and lawyering; and clinical teaching.
McNeal participates in the Syracuse area Elder Justice Task Force and the CNY Restorative Practices Working Group and was Chair of the Aging and the Law Section of the Association of American Law Schools (AALS) in 2021. She previously served on the AALS Clinical Section’s Task Force on the Status of Clinicians in the Academy, on the AALS Equal Justice Task Force, and as Chair of the Clinical Section. She also has worked extensively on equal justice issues and served as Chair of the Montana Supreme Court’s Equal Justice Task Force and as a member of the Montana State Bar’s Access to Justice Committee. McNeal also has participated as an ABA site inspection team member.
The College of Law offers a sincere thank you to Professor McNeal for her service over the years and the spectacular impact she has made on countless students for their professional lives and individuals who may otherwise not be able to obtain critical legal services.
Her well-earned retirement will enable her to pursue her many other interests, including traveling, hiking, and spending time with her family and her beloved dog Rosie.
Professor Kathleen (KC) O’Connor retired from the College of Law after more than 20 years of teaching and mentoring Syracuse Law students.
O’Connor joined the College of Law faculty as a Legal Writing Professor in 2002. She came to the College with solid practical experience in private practice and at the U.S. Attorney’s office. In 2008, she was recognized by the University with the Meredith Teaching Recognition Award for excellence in classroom teaching.
In addition to her classroom assignments, O’Connor played many leadership roles at the College of Law. She served as interim director of the Legal Communications and Research program and, from 2015 to 2018, as the faculty director of the Moot Court Honor Society. In that role, O’Connor was instrumental in reshaping the advocacy program into the Travis H.D. Lewin Advocacy Honor Society.
Her most lasting accomplishment at the College was in launching and piloting JDinteractive, first as Executive Director of Online Education alongside Professor Nina Kohn and then as Associate Dean of Online Education. With her guidance, the College of Law successfully established the program as the leading online JD program in the United States.
1955–2023
Professor of Law, Associate Dean for Clinical and Experiential Education Syracuse University College of Law
Our College of Law Community mourns the passing of Professor Deborah Kenn on April 20, 2023. Professor Kenn served as the Associate Dean for Clinical and Experiential Education and the Director of the Community Development Law Clinic for many years. She will be remembered as a passionate educator and mentor to hundreds of students and a relentless advocate for our community.
Deborah (Orah) Kenn, 67, of Nelson, NY died at home in the presence of family and friends on April 20, after a courageous seven-year journey with leukemia. Born in NYC and raised in Fort Lee NJ, she spent her adult life in Syracuse and Nelson. She obtained a B.A. from Eisenhower College, and a J.D. degree from SUNY Buffalo. Initially practicing environmental and animal rights law in NYC, she then worked in poverty law with Legal Services in Syracuse. Subsequently, Deborah was employed at Syracuse University starting in 1989, initially as a law professor to direct the Community Develop Law Clinic. She was then appointed as Director of Clinical Legal Education Office, and most recently served as Associate Dean of Clinical and Experiential Education at the Law School. She also led three student trips to South Africa to study the post-Apartheid legal system in that country. Throughout her legal and academic career, Deborah was a passionate advocate for social, environmental and economic justice, for animal rights, and for compassionate lawyering. She is the author of Lawyering from the Heart, and co-author of Community Economic Development Law. Deborah also served the Nelson community as a member of the Town of Nelson Town Board.
Her energy and dedication for living was shared with her family, a wide circle of friends, her animals, her students and her colleagues. Her interests included gardening, word puzzles, hiking, traveling, reading, cooking and dining out. She also found comfort, wisdom and strength from the natural world.
On Friday, May 5, the College of Law held Commencement for its 182 J.D. and 22 LL.M. Class of 2023 graduates.
Senior Vice President, General Counsel and Corporate Secretary at Micron Technology Rob Beard delivered the 2023 commencement address. Class President Ryan Ockenden offered remarks to the Class of 2023, followed by Ludmilla Evelin de Faria Sant’Ana Cardoso as the LL.M. SBA representative.
Professor Todd Berger received this year’s Res Ipsa Loquitur Award, given to a faculty member for “service, scholarship, and stewardship” to the students. Professor Antonio Gidi was voted by the LL.M. class of 2023 as the recipient of the Lucet Lex Mundum Award for his significant impact on the successes and experiences of the LL.M. students during their studies.
Beard offered words of advice and wisdom to graduates, inspiring them to make their own luck and be the best and most genuine version of themselves. He emphasized the importance of teamwork and relationships as a key component of a successful career, explaining, “Relationships have been central to each major step in my career. They were the introductions to new opportunities that broadened and shaped my path. And many times, these people were great coaches — they emphasized and highlighted qualities I had and encouraged me to have the confidence to step into the next role. Relationships are central to everything in life.”
The College of Law proudly celebrates its Advocacy Program’s National Trial League (NTL) as among the top-scoring entries in the Student Development category of Bloomberg Law’s Law School Innovation Program.
The College of Law created and launched the NTL in 2021 as a new trial competition that brings together 12 top national law school trial teams to compete in a season-long format resembling a traditional sports league. The bi-weekly matches are conducted virtually using short fact patterns.
The NTL is composed of two conferences of six teams. The teams compete in bi-weekly matches through seven rounds in their conference and in one cross-conference match. The top two teams from each conference advance to the playoffs. This year, the championship match was held in person at Syracuse University College of Law.
“The College of Law is honored to be recognized by Bloomberg Law in the Student Development category for our nationally ranked Advocacy Program’s National Trial League,” says Dean Craig M. Boise. “At its heart, the NTL is a dynamic experiential opportunity for aspiring trial lawyers across the country to hone their advocacy skills in the courtroom, under conditions that simulate the pressure of appearing before a bench of judges.”
Explains NTL organizer Professor Todd Berger, Director of Advocacy Programs, “Before the NTL, inter-collegiate trial competitions occurred over the course of a few days and featured long, complex fact patterns. Most real-world trials involve much shorter fact patterns and are conducted over a few hours, particularly bench trials.”
The College of Law’s Innovation Law Center also received recognition from Bloomberg Law as a high-scoring program in the Innovation and Experience category (see article on page 14.)
Bloomberg Law’s Law School Innovation Program identifies, recognizes, and connects law school faculty, staff, and administrators who are pioneering educational innovations that benefit their students, their schools, and the legal field. Through the Law School Innovation Program, Bloomberg Law seeks to acknowledge these innovators while raising overall awareness of innovation in legal education.
The College of Law welcomed a cohort of undergraduate students from the Atlanta University Consortium Center (AUC) for the Orange Advance Summer Residency program in May. These students interested in pursuing a law degree spent the week learning about the legal profession and how to prepare for law school with a full slate of academic, social, and cultural events.
by Michael Kiklis L’93
When studying Artificial Intelligence (AI) in the 1980s, I never thought it would become such a mainstream, hot topic as it is today. Its promising advances are being discussed everywhere, even at the kitchen table. The promotion of AI is important to our society, and such promotion is perhaps best accomplished by the U.S. patent system. This article discusses the case law governing the patentability of AI inventions. In short, AI inventions are patent eligible, but they must overcome several hurdles.
AI has been the focus of research since the 1950s.2 There are many definitions for AI, but most include simulating human activity (such as robotics) and providing decision support (such as suggesting an optimal network configuration based on network activity). This article focuses on the patentability of decision support systems, which include machine learning. Decision support systems usually analyze data, which could be a static data set or dynamically derived data, like network activity. They then provide recommendations by, for example, displaying them or even automatically implementing those changes. Neural networks are a common tool for use in such systems.
The statute governing patentable subject matter is very broad, for it states “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”3 The Supreme Court has recognized several judicial exceptions that limit patent eligibility: “Excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas.”4 The rationale for these exclusions is that “these exceptions are ‘part of the storehouse of knowledge of all men … free to all men and reserved exclusively to none.’”5 When and how these exceptions are applied are perhaps the most challenging part of a § 101 analysis.
The Supreme Court first dealt with computer-related inventions in a trilogy of cases. First, in Benson, the Supreme Court struck down a binary-coded decimal to pure binary conversion program, leaving it up to Congress to decide whether to patent these inventions.6 Next, Flook dealt with a method for updating alarm limits using a mathematical formula and again struck down the invention because the only difference “between the conventional methods of changing alarm limits and that described in respondent’s application rests in the second step—the mathematical algorithm or formula.”7 In this “point-of-novelty” test, the formula (a law of nature) is ignored and the rest of the claim must be novel.8 The last in the trilogy of cases was Diehr, where the Court rejected the point-of-novelty test, stating that “The ‘novelty’ of any element or steps in a process, or even the process itself, is of no relevance” in a § 101 inquiry.9 Then, decades later, the Supreme Court in Mayo seemingly resurrected the point-of-novelty test but left Diehr intact.10 This is the cause of much difficulty today.11
The current § 101 analysis—as explained by the Supreme Court in Alice—is a two-part test: (1) determine if the claims are directed to one of the judicial exclusions, such as an abstract idea; and if so, (2) “consider the elements of each claim both individually and as an ordered combination to determine whether the additional elements transform the claim into a patent-eligible application” by reciting an inventive concept, which must be more than a generic computer.12 This test caused much concern for software patents because the novelty in those inventions is found in the processing of the software itself, rather than in the hardware. Luckily, in Enfish, the Federal Circuit clarified that software is not “inherently abstract” and can be patent eligible.13
As the Federal Circuit’s case law evolved after Alice, it generated yet another hurdle for decision support systems in the Electric Power Group line of cases.14 In Electric Power Group, the Federal Circuit held that collecting information, analyzing that information, and presenting the results is an abstract idea.15 This means that many decision support systems may fail step one in the § 101 analysis, requiring that such systems recite an inventive concept—more than a generic computer—to be patent eligible. Electric Power Group is therefore dangerous for AI inventions. Although this line of cases is evolving and expanding, other cases provide help.
The courts have found patent eligibility in a number of situations potentially applicable to AI inventions. First, both the Supreme Court and the Federal Circuit have found patent eligibility where the invention improves the functioning of the computer itself. 16 Second, the Federal Circuit has found patent eligibility when the claimed invention provides a technical improvement over the prior art.17 Third, the Federal Circuit has found patent eligibility where the claims recite a technical solution to a technical problem,18 and fourth, the Federal Circuit has found patent eligibility when conventional elements are arranged in a non-conventional way.19 Should an AI invention fit into one of these categories, it will likely be found patent eligible as long as those features are both described in the patent specification and claimed.
There are other concerns beyond the Electric Power Group line of cases for AI inventions. For example, the Federal Circuit is very willing to strike down functionally drafted claims regardless of their subject matter.20 Also, the Federal Circuit has found no business method patents after Alice satisfy § 101.
The Federal Circuit § 101 cases post Alice can be somewhat confusing to reconcile. However, when viewed based on claim analysis and the invention’s subject matter, a pattern emerges as shown in the following graph. The y-axis shows patent eligibility based on the patent’s claims, with those drafted functionally faring the worst, those drafted with technical details faring better, and those reciting a technological improvement faring the best. The x-axis shows patent eligibility based on the claim’s subject matter. Claims directed to business methods fare the worst, claims directed to user interfaces fare better, claims directed to applications fare better still, and claims directed to system hardware and software fare the best.
AI inventions may face more patent-eligibility difficulties than other technologies based on the Electric Power Group line of cases. But where the specification and claims describe the technological advantages and other features that the Federal Circuit equates with patent eligibility, AI inventions should pass § 101 muster.
