D E PAUL LAW FACULTY ACADEMIC EXCELLENCE AND THOUGHT LEADERSHIP
2023 – 2024 HIGHLIGHTS
LETTER FROM THE DEANS
Throughout history, the law has played an essential role in shaping society. Current times only serve to illustrate the law’s pervasive importance. As a faculty, we strive to contribute to knowledge, influence policy and prepare the next generation of lawyers who will use the law for good.
Here, we highlight just some of the important work our faculty has done in the past year. For instance, Max Helveston writes with co-authors about the growing role of social media influencers as information sources, particularly in the spread of health misinformation, in “Influencer Speech-Torts,” forthcoming in the Georgetown Law Journal. Greg Mark explores “The New Capitalism, the Old Capitalism, and the Administrative State,” forthcoming in the University of Chicago Law Review, and Karl Lockhart describes how trademark infringement may create commercial benefit in “Ameliorative Infringement and Public Interest Damages,” forthcoming in the Washington University Law Review, which he presented at the Harvard, Stanford, Yale Junior Faculty Forum. We encourage you to read about how our faculty fosters engagement with important issues and furthers important conversations in the pages that follow.
Over this past year, we also were deeply impressed by the work of our three departing fellows. We congratulate Nathan Fleming, DePaul Law’s inaugural Racial Justice Fellow, who is now an assistant professor at Wake Forest Law. We also are thrilled to report that our two Jaharis Faculty Fellows in Health Law & Intellectual Property, Julie Campbell and Rick Weinmeyer, are now assistant professors at Louis D. Brandeis School of Law and Loyola
University Chicago School of Law, respectively. With their departures, we now enthusiastically welcome Ryan Knox, who comes to the Jaharis Fellowship from the Harvard-MIT Center for Regulatory Science and the Program on Regulation, Therapeutics, And Law (PORTAL) at Harvard Medical School and Brigham & Women’s Hospital.
Finally, DePaul Law continues its commitment to bringing important conversations to the larger legal community.
This past year, we hosted the 30th Annual Clifford Symposium on Tort Law & Social Justice and brought Seattle University Professor of Law Seth Katsuya Endo to campus as our 4th Annual Clifford Scholar-in-Residence.
We also welcomed Samuel Bagenstos, general counsel for the U.S. Department of Health & Human Services, as distinguished speaker for our annual Jaharis Symposium, and were honored to host Harvard Professor of Law Martha Minow to present our 2024 Enlund Scholarin-Residence Lecture. We look forward to hosting the Intellectual Property Scholars Conference next summer.
As always, we are interested in receiving your feedback and developing new opportunities to collaborate. Please do not hesitate to reach out.
All our best,
JULIE D. LAWTON INTERIM DEAN AND PROFESSOR OF LAW
WENDY NETTER EPSTEIN
ASSOCIATE DEAN OF RESEARCH & FACULTY DEVELOPMENT, FACULTY DIRECTOR, JAHARIS HEALTH LAW INSTITUTE AND PROFESSOR OF LAW
SELECTED LAW REVIEW AND PEER-REVIEWED PUBLICATIONS
Professor Jesse Cheng’s article, “Death Is Disparate,” forthcoming in the Southern Methodist University Law Review, explores the high stakes of capital punishment and the necessity for heightened procedural safeguards. One such safeguard is the doctrine of individualized sentencing mitigation, allowing the defense to present comprehensive evidence about a defendant’s unique life circumstances to argue for mercy during the penalty trial. Critics argue that this doctrine undermines the U.S. Supreme Court’s efforts to ensure consistency and fairness in death verdicts. Cheng’s article pushes individualized sentencing to its logical limit by considering “adversarial parity,” where the prosecution also is allowed to present open-ended aggravating evidence to argue for the death penalty. This exploration reveals a crucial, previously unexamined aspect of capital sentencing trials: Even with expanded aggravation under adversarial parity, the defense’s evidentiary burden remains substantially heavier than the prosecution’s, requiring a deep dive into the defendant’s biopsychosocial history. Cheng argues that death is not only different but also disparate, with significant constitutional implications. His article proposes a new framework to reconceptualize key tensions in the evolving Eighth Amendment capital trial doctrine.
Cheng also co-authored “An Open Letter to Law Students on the Death Penalty,” which is forthcoming in the DePaul Law Review The letter discusses the Model Penal Code’s retraction of its provisions on death penalty procedure, with an emphasis on moral implications that are relevant to all future members of the bar. His co-author, Sister Prejean, is a Catholic nun who wrote the book DEAD MAN WALKING, which was adapted into the 1995 film by the same name.
Professor of Legal Practice
Michelle Brown Cue’s article, “Scapegoats,” published in the Seattle Journal of Social Justice in 2024, analyzes how a school district and police department handled a sexual assault allegation involving two high school students. Cue uses the example to illustrate overlooked complexities, including the treatment of sexual assault victims in the justice system, consent under the influence, and disciplining students for off-campus conduct. Cue examines the school district’s public statement through the lens of Kenneth Burke’s cycle of guilt, victimage and redemption. She explores how social media posts criticized high school administrators for inaction on the allegation, leading to the suspension of a student who also was barred from speaking at her commencement ceremony. Over four thousand people signed a petition for her reinstatement, creating social tension or “guilt.” To alleviate this, administrators targeted two students as scapegoats: the student who criticized the administration and the student who reported the assault. The school vilified the students, even though both had given consistent accounts of their sexual contact, with the issue being whether one was too impaired to consent. The vilification of these students restored social order, achieving “redemption,” but Cue concludes that using scapegoats for social unity exacts a heavy toll.
Professor Wendy Epstein’s article, “The effects of price transparency and debt collection policies on intentions to consume recommended health care: A randomized vignette experiment,” co-authored with Christopher Robertson and Hansoo Ko, was published in the Journal of Empirical Legal Studies in 2023. The article examines the impact of new laws promoting price transparency in health care and how the laws effect patient decision-making. According to Epstein and her co-authors, price disclosure may increase cost awareness, but with the unintended consequence of leading lower-income patients to decline recommended care, thus worsening health inequities. Whether disclosed costs of care are higher or lower than expected also influences care decisions but remains under-explored, as does the issue of whether hospitals will actually try to collect from low-income patients. Hospitals vary in their debt collection practices, with some aggressively pursuing unpaid bills and others not. Actively disclosing these policies (whether aggressive or protective) can amplify or counteract the effects of price disclosures, particularly for low-income patients. The authors conducted a full factorial, controlled experiment using a nationally representative sample of participants in a standardized clinical vignette model. Results showed that disclosing a higher-than-anticipated price significantly increases the likelihood of declining recommended care, especially among low-income individuals. Disclosure of aggressive collections policies further raises this risk. Fear of collections, combined with uncertainty about prices, leads patients to decline care most frequently. Epstein also has two articles currently under review: “Beyond Subsidies and Mandates: Testing A Simple Behavioral Mechanism to Drive Health Insurance Coverage,” with co-authors, and “Polycentric Healthcare Innovation,” with Laura Pedraza-Fariña.
Professor Patty Gerstenblith’s article, “An Introduction to Cultural Heritage Law,” published by the Grey Room in 2024, provides a brief introduction to cultural heritage law with a focus on armed conflict, the international trade in archaeological objects, and the challenge of resolving the rights of Indigenous groups to their cultural heritage.
In 2023, she published “Setting the Standard: The 1970 Standard and Ethical Codes of Archaeological Organizations” in Levant, where she analyzes the ethical codes of archaeological organizations and concludes that these codes are inadequate for compliance with current legal understandings of the legality of cultural objects. Also in 2023, she published “Disrupting the Trade: A Legal Approach to Countering Trafficking in Archaeological Artifacts in the MENA Region,” with co-author Morag M. Kersel, in the Journal of Art Crime, which provides a legal and ethnographic analysis of the looting of archaeological sites under the economic incentive of the corresponding trade in artifacts, with a primary focus on Jordan.
Professor Michael Grynberg’s article, “Trademark Free Riders,” published in the Berkeley Technology Law Journal in 2024, explains that trademark law has been shaped by the view that “free riding” by trademark defendants is wrongful.
Grynberg argues that if morality stories are to be part of trademark law, then they should be applied in a balanced manner and recognize a simple truth: Trademark holders free ride, too. As it is, trademark precedent lacks a vocabulary for describing plaintiff free riding, and this asymmetry distorts trademark doctrine. Grynberg explores the ways that trademark holders free ride on culture, competitors and consumers, and he offers suggestions for reform.
Grynberg also published, “The Jack Daniel’s Dialogues,” in the Fordham Intellectual Property, Media & Entertainment Law Journal in 2024. Jack Daniel’s Properties, Inc. v. VIP Products LLC limited the ability of defendants to resist trademark claims by arguing their activities are artistic or noncommercial speech. This important result obscures a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the target of a viable trademark infringement claim in the first place? Answering that question implicates deep questions about trademark law that were not directly before the Court. They nonetheless bubbled up during the Jack Daniel’s oral argument, giving the justices the opportunity to think out loud about them. Read in conjunction with the final opinion, the argument tells us a lot about problems
in trademark doctrine and highlights the challenges generalist judges face in ensuring that trademark law serves the interests of consumers and citizens rather than brands and corporations. Grynberg also created a video series about the case.
Professor Max Helveston’s article, “Influencer Speech-Torts,” co-authored with Leah Fowler and Zoe Robinson, is forthcoming in 2024 in the Georgetown Law Journal. The article addresses the growing role of social media influencers as information sources, particularly in the spread of health misinformation, which can lead to physical harm or death. Given the foreseeability of such harms, the authors argue that negligence liability could be a viable, though under-explored, mechanism to regulate harmful health advice from influencers. The law has yet to clearly define the duties of influencers, though they likely meet even the narrowest standards for a duty of care. Determining duty involves balancing the interests of the victim’s right to physical safety against the influencer’s right to free speech. Thus, whether influencers owe a duty of care is a question of both legal doctrine and public policy. The article justifies imposing duties on influencers providing health advice and examines potential First Amendment challenges to negligence-based influencer speech-torts. Helveston and his co-authors highlight the unique nature of influencer speech and the difficulties in classifying it as commercial speech.
They propose recognizing negligent speech resulting in physical harm as a new category of unprotected speech. The article concludes by discussing the broader constitutional implications of this categorization beyond tort liability.
Professor Roberta Kwall’s essay, “The Role of Ghetto Art in Holocaust Education and Fighting Antisemitism,” published in 2023 in the DePaul Law Review, explores the educational and unifying power of artistic works created by Jewish prisoners during the Holocaust. Kwall argues that ghetto art—encompassing visual art, literature, music, theater and other creative genres—has a unique communicative power due to the extraordinary circumstances of its creation. This art form not only educates but also promotes Jewish unity and combats the rising tide of antisemitism. Ghetto art holds a special place in Holocaust education because of its ability to stimulate dialogue between the creator and the viewer, offering profound insights into the experiences and environments of the artists. Unlike other scholarly focuses on copyright law, Kwall emphasizes the significance of ghetto art in mobilizing communities and serving as a powerful tool in larger antisemitism-fighting programs. Ghetto art represents a singular type of storytelling because it is a response to a distinct, unparalleled historical event—the systematic targeting and attempted extermination of the Jewish people and their entire culture.
Professor Karl Lockhart’s article, “Ameliorative Infringement and Public Interest Damages,” forthcoming in the Washington University Law Review, applies a corporate lens to a sub-set of trademark cases and argues that, in some situations, companies who have their trademarks infringed on actually may receive commercial benefits from that infringement. The article tackles how these benefits should be accounted for and ties the concept to a broader discussion of benefits bestowed by wrongdoers. Although wrongdoers in these situations bestow benefits, allowing them to profit off their wrongdoing would be inequitable. The article therefore proposes a novel solution in which the value of the benefits bestowed on plaintiffs should be paid in full by defendants but awarded to nonprofits or other similar organizations that have a mission of helping small businesses protect their intellectual property rights. Lockhart’s article also was selected to be presented at the Chicagoland Junior Scholars Conference (October 2023); the Northeastern Junior Scholars Conference (March 2024); and the Harvard, Stanford, Yale Junior Faculty Forum (June 2024).
Professor Gregory Mark’s essay, “The New Capitalism, the Old Capitalism, and the Administrative State,” forthcoming in the University of Chicago Law Review in 2024, explores the evolving understandings of American capitalism and aspirations for a regulatory and administrative governance regime that embody democratic and egalitarian ideals. It integrates a traditional understanding of capitalism with the new histories of capitalism that have emerged after the financial crisis of the past decade and a half. The essay explores the history of the American administrative state and the beliefs of theorists of administration that democracy entails positive substantive as well procedural ends.
Professor Mark Moller’s article, “Complete Diversity: The Origin Story,” forthcoming in 2024 in the Florida Law Review, examines the much-criticized complete diversity rule in federal jurisdiction. Originating from John Marshall’s decision in Strawbridge v. Curtiss, the rule requires all adverse parties in a complaint to be citizens of different states to establish federal diversity jurisdiction. While the rule protects state control over state-law litigation, it seems inconsistent with the text of diversity statutes, leading many to criticize it as an invention of Marshall’s. Moller presents new historical evidence challenging this criticism, revealing that the complete diversity rule is based on an ancient canon of construction, the canon against jurisdictional privilege. This canon, which predates the founding of the United States, governed the interpretation of jurisdictional grants based on a litigant’s legal status and directed construing these grants against jurisdiction when a party without the requisite status was joined with someone possessing it. Moller suggests that textual cues indicate Chief Justice Marshall relied on this canon in deciding Strawbridge, aligning the rule with textualism. Moller also notes that the historical evidence raises questions about whether complete diversity is constitutionally required, as the canon might inform Article III’s original meaning. While this doesn’t necessarily invalidate statutes like the Class Action Fairness Act, it implies that an originalist defense of such statutes must identify constitutional language overcoming the canon. Moller concludes by suggesting the Necessary and Proper Clause as a potential area for future research.
Professor Bruce Ottley’s article, “New York Times v. Sullivan at 60: Where Does Defamation Law Go Now?,” co-authored with John B. Lewis, was published in 2024 in the DePaul Law Review. This marks their
third article on the New York Times v. Sullivan case since 1984. Though the decision does not appear to be in immediate threat of reversal, the actual malice standard, as the test for defamation in cases involving public officials and public figures, is being challenged more now by politicians, judges and scholars than at any time since Sullivan was decided in 1964. Accordingly, the article explores potential directions for the Sullivan decision and defamation law over the next decade.
Professor Allison Brownell Tirres’ article, “Political Representation and Economic Rights in the Shadows of Citizenship,” is forthcoming in 2024 in the University of California Law Journal. According to Tirres, the movement for the political rights of undocumented youth, known as “DREAMers,” has sparked a critical conversation about the economic rights of all non-citizens. States have amended laws in response to advocacy for this group, and her essay situates this development within a broader historical and conceptual framework, reflecting on the relationship between economic rights and political aspirations. It examines three key legal developments: anti-Asian alien land laws in the 1910s and 1920s, the equal protection revolution in non-citizen rights in the 1970s and the DREAMers’ movement. These examples demonstrate the interconnectedness of economic rights and political aspirations in immigration and citizenship history, showing that discussions about immigrant rights in various areas are deeply related.
Tirres’ 2023 article, “Exclusion from Within: Non-citizens and the Rise of Discriminatory Licensing Laws,” was published in Law & Social Inquiry. In early twentieth-century America, state and local laws discriminating based on alienage proliferated. Progressive reformers, nativist groups, state legislatures and city councils sought to restrict non-citizen access to the workplace and marketplace through licensing laws. By 1930, citizenship-based licensing restrictions were
present in every state and major city. Non-citizens challenged some of these laws, leading to court contests that redefined the relationship between non-citizens and state power. This article highlights the significant role of state and local laws in shaping the immigrant experience during the Progressive Era, enhancing our understanding of licensing power and its impact on immigrant rights. It traces the roots and spread of this exclusionary technique, which still affects non-citizens today. Her article, “The Unfinished Revolution for Immigrant Civil Rights,” 25 U. PA. J. CONST. L. 846 (2023), was reprinted in 2024 in Benders Immigration Bulletin
Professor Mark Weber’s article, “Resolving the Paradox of PayrollTax-Based Social Insurance for Disability:
Lessons from the Canada Disability Benefit Act,” is forthcoming in 2024 in the Osgoode Hall Law Journal. The article examines contributory social insurance for disability, where workers or employers pay into a government fund to provide pensions for workers who become disabled before retirement age. While these schemes, found in countries like Canada and the United States, are generally successful, they present challenges. First, they conflict with the disability rights movement’s view that disabilities should be addressed through workplace and social accommodations rather than pensions. Second, these plans typically benefit those who become disabled later in life, providing higher benefits based on earnings, while offering sub-poverty-level income to those with lifelong disabilities. This inequality is likely to persist even with the implementation of the Canadian Disability Benefit program. Weber’s paper defends social insurance while acknowledging these issues, weighing the public policy advantages and disadvantages, considering the impact of policy reforms like the Canadian Disability Benefit, and suggesting improvements inspired by it.
Weber’s other article, “Special Education Cause Lawyers,” was published in 2023 in the Case Western Reserve Law Review. It presents a study of leading U.S. lawyers who represent families in special education disputes for children with disabilities. Through structured interviews with selected attorneys, the research tests whether conclusions drawn by Waterstone, Stein and Wilkins in their study, “Disability Cause Lawyers,” apply to special education cause lawyers. The study examines attorney backgrounds, practice structure, financing, connections to social movement organizations and modes of advocacy. It concludes that special education cause lawyers, like other disability cause lawyers, face challenges with litigation financing, wary courts and a fragmented social movement. However, they avoid some criticized practices, such as focusing too much on court victories and engaging too much with legal elites. This study uniquely contributes to the literature by focusing on lawyers who view educational rights for children with disabilities as a social cause and see themselves as part of the movement for educational rights.
Professor Wendy Epstein, with Stewart Macaulay, William Whitford, Jonathan Lipson and Rachel Rebouché, published the 5th edition of C ONTRACTS: L AW IN A CTION (Carolina Academic Press 2024).
BOOKS AND BOOK CHAPTERS
Professor Patty Gerstenblith’s book, C ULTURAL O BJECTS AND R EPARATIVE J USTICE: A L EGAL AND HISTORICAL A NALYSIS, was published by Oxford University Press in 2023. She also published the following book chapters:
• “Returning Illegally Trafficked Cultural Objects: Civil Forfeiture at the Intersection of Private and Criminal Law,” in CULTURAL PROPERTY CRIME AND THE LAW: LEGAL APPROACHES TO P ROTECTION, R EPATRIATION, AND C OUNTERING I LLICIT T RADE (Michelle Fabiani et al. eds., Routledge 2024)
• “Article 9 of the 1970 UNESCO Convention,” co-authored with Wang Yunxia, in T HE 1970 UNESCO C ONVENTION AND 1995 U NIDROIT C ONVENTIONS ON S TOLEN OR I LLEGALLY
T RANSFERRED C ULTURAL P ROPERTY: A C OMMENTARY (Ana Filipa Vrdoljak et al.eds., Oxford University Press 2024)
• “Recognizing State Ownership of Archaeological Artifacts: The Unidroit Convention and Model Provisions,” in 25 YEARS LATER … THE 1995 UNIDROIT CONVENTION – CULTURAL OBJECTS AT THE CROSSROAD OF RIGHTS AND INTERESTS (Marina Schneider ed., Unidroit 2023)
• “Toward a Human-Rights Based Approach as an Element in Post-conflict Cultural Heritage Reconstruction,” in HERITAGE DESTRUCTION, HUMAN RIGHTS AND INTERNATIONAL LAW (Amy Strecker and Joseph Powderly eds., Brill 2023)
• “Development of the Law of Armed Conflict as Applied to Cultural Heritage,” in THE ROUTLEDGE HANDBOOK OF HERITAGE DESTRUCTION (José Antonio González Zarandona, Emma Cunliffe and Melathi Saldin eds., Routledge 2023)
Professor Michael Grynberg’s article, “Living with the Merchandising Right (Or How I Learned to Stop Worrying and Love Free-Riding Stories),” 25 YALE J.L. & TECH. 1 (2023), was selected for republication in INTELLECTUAL PROPERTY LAW REVIEW (Thomson Reuters 2023). He also released a new edition of his free casebook, T RADEMARK L AW.
FORTHCOMING BOOKS AND CHAPTERS
Assistant Professor of Law Jesse Cheng’s chapter, “Addictive Hypervigilance and Uncontrolled Police Use of Force,” is forthcoming in CHALLENGES IN CONTEMPORARY POLICING: HIGHER EDUCATION, TECHNOLOGY, AND O FFICERS’ W ELL-B EING (Vicente Riccio, Di Jia & Dilip K. Das eds., Routledge).
Professor Wendy Epstein’s edited volume, HEALTH LAW AS PRIVATE LAW: PATHOLOGY OR PATHWAY is forthcoming in 2025 by Cambridge University Press (I. Glenn Cohen, Susannah Baruch, Wendy Netter Epstein, Christopher Robertson, Carmel Shachar eds.).
Professor Roberta Kwall’s chapter, “Lawmaking in the Conservative Movement: A Balance of Law and Norms,” was published online in T HE O XFORD H ANDBOOK OF J EWISH L AW (Zev Eleff et al. eds., Oxford University Press 2024) and is forthcoming in print in 2025.
Professor Gregory Mark’s chapter, “Legal Personality,” was published in 2024 in the ELGAR ENCYCLOPEDIA OF CORPORATE C OMMUNICATION (Klement Podnar ed., Edward Elgar Publishing).
Professor Steven Resnicoff’s chapter, “Issur Arkaot and Dina DeMalkhuta Dina: Interrelationships between Jewish and Secular Legal Systems,” was published online in T HE O XFORD H ANDBOOK OF JEWISH LAW (Zev Eleff et al. eds., Oxford University Press 2024) and is forthcoming in print in 2025.
Professor Joshua Sarnoff has the following book chapters forthcoming:
• “The Right to Repair, Intellectual Property, Exhaustion, and Preemption,” in THE CAMBRIDGE HANDBOOK OF EMERGING ISSUES AT THE INTERSECTION OF COMMERCIAL LAW AND TECHNOLOGY (Stacy-Ann Elvy and Nancy S. Kim eds., Cambridge University Press, forthcoming 2024)
Professor Mark Weber’s book, U NDERSTANDING D ISABILITY L AW , 4th edition, was published by Carolina Academic Press in 2024.
• “An Introduction to, Premises of, and Problems with Patent Claim Construction,” with Edward D. Manzo, in PATENT CLAIM CONSTRUCTION IN THE FEDERAL CIRCUIT 2014-2023 EDITIONS (Thomson Reuters 20142024, 2025 forthcoming); quoted by the U.S. Supreme Court in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2128 (2014)
Professor of Legal Practice Anthony Volini’s article, “The Right to Data Privacy: Revisiting Warren and Brandeis,” 21 NW. J. TECH & INTEL. PROP. 1 (2023), was selected for inclusion in the forthcoming 2024-2025 edition of Thomson Reuters’ ENTERTAINMENT, PUBLISHING AND THE ARTS HANDBOOK.
PUBLIC ADVOCACY
Professor Patty Gerstenblith continues to serve as president of the Board of Directors of the U.S. Committee of the Blue Shield (the international symbol for protected cultural heritage) and as chair of the Blue Shield International Working Group on Countering Trafficking in Cultural Objects. In these capacities, she advocates for the protection of cultural heritage to both governmental entities and international organizations with a particular focus now on the conflict in Ukraine.
For the past academic year, Gerstenblith has held the Archaeological Institute of America’s most prestigious endowed lectureship, the Charles Eliot Norton Lectureship and, in that capacity, has spoken throughout the country at colleges and universities. She also has continued to work with the Archaeological Institute of America, the Society for American Archaeology and the American Anthropological Association on litigation to protect the Bears Ears and Grand Staircase-Escalante national monuments. She also serves on the Archaeological Institute of America’s Cultural Heritage Policy Committee.
Professor Joshua Sarnoff’s advocacy work for the past year includes the following:
• Co-author, Brief of Amici Curiae Patent Law Professors, the Repair Association, Securepairs, iFixit, and US PIRG in support of Appellants on En Banc Rehearing, LKQ Corp. v. GM Global Technology Operations LLC, No. 2022-2348 (Fed. Cir.) (filed August 28, 2023), decision at 102 F.4th 1280 (Fed. Cir. 2024) (en banc)
• Comments of Professor David S. Levine and Joshua D. Sarnoff for the Office for Global Affairs, Office of the Secretary, HHS on The Implications of Access and Benefit Sharing (ABS) Commitments/Regimes and Other Proposed Commitments Being Considered Under a WHO Convention, Agreement, or Other International Instrument on Pandemic Prevention, Preparedness & Response (January 31, 2024)
• Comments of Professor Joshua D. Sarnoff in response to U.S. Patent and Trademark Office Request for Comment on Text-Based Negotiations before the World Intellectual Property Organization (WIPO) Intergovernmental Committee (IGC) on Intellectual
Property and Genetic Resources, Traditional Knowledge, and Folklore (Traditional Cultural Expressions), Docket number PTO–C–2023–0019 (February 28, 2024)
• Comments of Professor Joshua D Sarnoff on RFC on AI Assisted Inventions Guidance, Docket Number PTO-P-2023-0043
U.S. Patent and Trademark Office Guidance on AI-Assisted Inventions (June 20, 2024)
Professor Mark Weber assisted with the brief of amicus curiae in support of petition for rehearing en banc in A.J.T. v. Osseo Area Schs. Indep. Dist. No. 279, 96 F.4th 1058 (8th Cir. 2024). In this case, a student with severe epilepsy, who successfully established that the school district’s failure to provide her sufficient instructional time violated the Individuals with Disabilities Education Act, sought to show that the conduct of the school district also violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The court held that the ADA and Rehabilitation Act claims failed because the student did not prove that the school district acted in bad faith or with gross misjudgment, even though its actions might be considered deliberately indifferent to the student’s rights under the ADA and Rehabilitation Act. The brief supporting rehearing argued that proof of bad faith or gross misjudgment should not be required to establish a violation of the two laws.
OP-EDS, BLOG POSTS, OTHER POPULAR WRITING AND MEDIA
OP-EDS, BLOG POSTS AND OTHER POPULAR WRITING
Professor Monu Bedi’s op-ed, “Crumbly verdicts expand parent’s legal duties,” was published by The Detroit News (May 5, 2024).
Professor Wendy Epstein’s opinion piece with Christopher Robertson, “The best way to convince healthy people to get insurance is not ‘because it’s in your financial interest’,” was published by STATNews (November 3, 2023).
Professor David Franklin’s article, “This Supreme Court Has Betrayed Antonin Scalia’s Legacy,” was published by Slate (June 28, 2024).
Professor Roberta Kwall’s article, “I thought the law school where I teach had my back. Then came the Hamas attacks on Israel,” was published by the Jewish Telegraphic Agency (October 18, 2023).
Professor Joshua Sarnoff’s article, “Supreme Court Confirms Judicial Supremacy Over Democracy and Expertise,” was published by Notice & Comment, a blog from the Yale Journal on Regulation and ABA Section of Administrative Law & Regulatory Practice (June 30, 2024).
Professor Allison Brownell Tirres’ article, “Immigrant Civil Rights and the Continuing Struggle for Inclusion,” is forthcoming in 2024 in Discern Magazine, and her other article, “Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives,” reviewing Gregory Ablavsky and W. Tanner Allread, “We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution,” 123 C OLUMBIA L. R EV. 243 (2023), was published by Jotwell (July 13, 2023).
Professor Mark Weber’s article, “Abandoning Metaphors and Reclaiming Impairment,” reviewing Doron Dorfman, “Disability as Metaphor in American Law,” 170 U. PA. L. REV. 1757 (2022), was published by Jotwell (November 7, 2023).
MEDIA
Professor Monu Bedi was quoted in “Highland Park shooting suspect expected to change his plea,” Chicago Sun Times (June 25, 2024).
Professor Alberto Coll was interviewed by Spanish National Radio, “An Analysis on Current International Affairs” (June 29, 2024), and he also appeared a number of times on TV Polonia (Poland National Television):
MEDIA
(cont.)
• ”The Importance of the G7 Summit in Puglia” (June 18, 2024)
• “UN General Assembly Calling on Security Council to Admit Palestine as Member” (May 12, 2024)
• “Pro-Palestinian Protests on Campuses” (May 3, 2024)
• “Zelensky Reacts to Scholz Holding Back Taurus Missiles” (April 26, 2024)
• “The End of War in Ukraine” (March 30, 2024)
Professor David Franklin was interviewed by WTTW, “From the Second Amendment to OxyContin Settlements, Here Are the Major Supreme Court Cases to Watch” (October 2, 2023).
Professor Patty Gerstenblith was interviewed by WBEZ, “Artworks alleged to have been stolen during the Holocaust seized from Art Institute of Chicago” (September 25, 2023). She also was quoted in the following articles:
• “Editorial: A Less-than-pretty picture at the Art Institute,” Crain’s Chicago Business (March 29, 2024)
• “In this legal fight, the Art Institute stands to lose more than an artwork,” Crain’s Chicago Business (March 28, 2024)
• “Don’t Try This on Vacation: Learning from Other Travelers’ Mistakes,” New York Times (November 23, 2023)
• “Prove It: Cleveland Museum of Art lawsuit challenges New York DA to prove bronze sculpture was stolen – Analysis,” Cleveland.com (October 22, 2023)
• “Provenance of a Museum’s Greek Exhibit Is Questioned, Fueling a Debate,” New York Times (September 17, 2023)
• Artifacts meant for a White House party ended up at Mar-a-Lago. Awkwardness Ensued.” The Washington Post (July 21, 2023)
• “At the Met, She Holds Court. At Home, She Held 71 Looted Antiquities.” New York Times (July 18, 2023)
Professor Michael Grynberg created a video about the trademark implications of Steamboat Willie’s entry into the public domain.
Professor Max Helveston discussed purchasing car insurance and state car insurance laws on Wallethub (June 17, 2024).
Interim Dean Julie Lawton was interviewed by CBS News Chicago, “Cash deal’ offered to homeowners in Illinois draws numerous consumer complaints” (July 21, 2023).
Professor Karl Lockhart was quoted in “Here’s the dilemma facing Guaranteed Rate’s investors,” Crain’s Chicago Business (June 21, 2024).
Professor Gregory Mark was quoted in “Investor sues Wirtz company over short-form merger,” Crain’s Chicago Business (August 29, 2023).
Professor Joshua Sarnoff was quoted in New Design Patent Test Creates Uncertainty Over What’s Obvious,” Bloomberg Law (May 23, 2024).
Professor Allison Brownell Tirres was quoted in “Houston-area development has become a right-wing lightning rod on immigration,” The Texas Tribune (September 23, 2023).
FELLOWSHIP PROGRAMS
Jaharis Faculty Fellows in Health Law & Intellectual Property
The DePaul Law Jaharis Faculty Fellows Program provides scholars interested in pursuing careers in legal academia with an avenue for creating and disseminating their scholarship and teaching courses where two dynamic legal fields increasingly intersect— health law and intellectual property/information technology, broadly construed. Jaharis Fellows work with and are mentored by faculty from DePaul Law’s nationally ranked Mary and Michael Jaharis Health Law Institute and Center for Intellectual Property Law & Information Technology
The Jaharis Faculty Fellow Program has an exceptional track record for enabling new scholars to develop their academic voice and connecting them with long-term academic positions.
2024-2025 Jaharis Faculty Fellow
In July, DePaul Law welcomed RYAN KNOX in as it’s 2024-2025 Jaharis Faculty Fellow in Health Law & Intellectual Property. Knox’s research focuses on FDA regulation and access to medicines, including drug approval, competition and pricing. Prior to joining DePaul, he was a postdoctoral fellow at the Harvard-MIT Center for Regulatory Science and a research collaborator with the Program on Regulation, Therapeutics, And Law (PORTAL) at Harvard Medical School and Brigham & Women’s Hospital.
Knox’s recent research has been published or is forthcoming in the UC Law Journal, Oklahoma Law Review, Journal of Law & the Biosciences, JAMA, JAMA Health Forum and Nature Biotechnology. He earned his BS, magna cum laude, in Health Science from Boston University and his JD from New York University.
Former Jaharis Fellows currently have tenure-track positions at the following law schools:
• Julie Campbell
Assistant Professor of Law University of Louisville
• Valerie Gutmann Koch
Assistant Professor of Law University of Houston
• Ana Santos Rutschman
Professor of Law Villanova University
• Theodosia Stavroulaki
Assistant Professor of Law Saint Louis University
• Charlotte Tschider
Associate Professor of Law Loyola University Chicago
• Richard Weinmeyer
Assistant Professor of Law Loyola University Chicago
DePaul Law’s Racial Justice Initiative (RJI) Fellowship provides scholars interested in pursuing careers in legal academia with an avenue for creating and disseminating their scholarship in areas where public policy and the legal system intersect, such as policing, housing, economic opportunity, education, health and voting rights, among others.
Our inaugural RJI fellow, NATHAN FLEMING, completed his fellowship in Spring 2024 and has been hired as an assistant professor of law at Wake Forest University.
SYMPOSIA AND SCHOLARS-IN-RESIDENCE
30th Annual Clifford Symposium on Tort Law & Social Justice
The Legacy of Industrywide Deadly Conduct
At least three times in the past hundred years, entire American industries have united in a coordinated and sustained effort to advance their financial interests by knowingly promoting products that have deadly consequences for enormous numbers of individuals exposed to them. The three industries involved in these activities have been the asbestos manufacturers, the tobacco sellers and the opioid purveyors. There have been striking parallels both in their conduct and the inadequate societal response to the harm done. Accordingly, this year’s Symposium faculty explored the historical legacy of these events; the ethical questions raised by the legal representation offered the industries; the behavior of those who enabled widespread harm; the American industries that appear to be following the same deadly roadmap; and the procedures we might adopt to address these activities.
In 1994, Robert A. Clifford (’76) endowed a faculty chair in tort law and social policy at DePaul College of Law. In addition to providing support for faculty research and teaching, the endowment makes possible an annual symposium addressing a timely issue in civil justice.
2024 Jaharis Symposium on Health Law & Intellectual Property Law
Artificial Intelligence in Health Care: Existential Challenges for Law & Ethics Law
This year’s Jaharis Symposium explored the role and impact of large language model artificial intelligence technologies and the radical changes they are making to medical innovation and practices. Symposium faculty explored AI developments and medical applications; data and algorithmic access, privacy, bias and discrimination; diagnostics, therapeutics, and vaccine discovery and development; ethics of health care, informed consent, tele-medicine and liability concerns; and the future of health AI regulation and the federal executive order.
The annual Jaharis Symposium on Health Law & Intellectual Property, co-sponsored by the Mary and Michael Jaharis Health Law Institute and the Center for Intellectual Property Law & Information Technology, offers a day-long multidisciplinary event where scholars, practitioners and other professionals convene to share insights from experts from various sectors on the challenges and innovations that come from navigating this rapidly evolving area of law.
4th Annual Clifford Scholar-in-Residence
Professional Conduct Rules as Procedural Gap Filler
Seth Katsuya Endo, Associate Professor of Law, Seattle University
The Federal Rules of Civil Procedure are silent about many key management problems faced by federal judges in complex multi-district (MDL) litigation. Judges treat these “gaps” in the Federal Rules as invitations to invent ad hoc solutions.
Professor Seth Endo argued that judges have failed to appreciate the degree to which the rules of legal ethics speak to these judicial management problems. Properly understood, these rules, he reasoned, place important guardrails around judicial discretion when federal procedure is silent—guardrails that too many judges ignore. Professor Endo demonstrated this claim using one of the most hotly contested questions in Multi-District Litigation (MDL)—courts’ award of lucrative common benefit fees to the lead lawyers in MDL—as a case study.
The Clifford Scholar-in-Residence Program annually recognizes a talented rising star in the field of civil justice. The program complements the annual Clifford Symposium on Tort Law & Social Policy, which, for over a quarter century, has brought together civil justice scholars to share their ideas and publish their work. The Clifford Scholar-inResidence Program continues this proud tradition of developing up-and-coming leaders in the civil justice field.
2024 Enlund Lecture
Not Born a Democracy: How to Reclaim the Preconditions for Constitutional Self-Governance
Martha Minow, 300th Anniversary
University Professor,
Harvard Law School
Beneath growing perceptions of constitutional crisis and democratic fragility in the United States lies a fundamental difficulty. Critical preconditions for effective self-government are either weak or missing in action, and our constitutional system seems to prevent actions to strengthen or build those preconditions. Some of the most essential predicates for constitutional democracy that face jeopardy include education, reliable news, security against lethal violence and sufficient respect for government institutions, as well as an appreciation of the shared dignity and the differences among people to participate in and live by the results of collective self-governance.
As basic as these elements may be, none are ensured in the United States in 2024. According to Professor Martha Minow, efforts to secure a federal constitutional right to education have failed in the courts. Once vibrant newspapers and magazines in the United States are disappearing, and instead, news is shared through social media, enabling misinformation and amplifying outrage. Deaths and injuries due to guns mount yearly, and courts block reform efforts to advance human safety. Political polarizing is mounting, along with distrust of elections and basic social institutions. Accordingly, her lecture explored preconditions for self-government, the obstacles hindering their reinforcement, and promising policies and actions individuals can pursue to overcome challenges.
Established in 1988, thanks to a gift from the late E. Stanley Enlund (JD ’42), the Enlund Scholar-in-Residence program brings the nation’s foremost legal minds to the DePaul campus, providing the College of Law community with differing perspectives on law, lawyering and social justice.
