Faculty and Program Research Initiatives

Faculty and Program Research Initiatives

During the 2019- 2020 academic year, our Program Faculty were prolific in their scholarship and activities. Below is a summary of their work.

Roger Alford Professor of Law

Professor Alford returned to the faculty at Notre Dame Law School after serving as the Deputy Assistant Attorney General for International Affairs with the Antitrust Division of the U.S. Department of Justice from 2017-2019. In the fall of 2019, Professor Alford spoke to students alongside acting Assistant Attorney General for the Antitrust Division of the Department of Justice, Makan Delrahim, hosted at Notre Dame Law, about working for the Department of Justice and antitrust law generally. Earlier this year Professor Alford also moderated a panel discussion at Notre Dame Law School with Judge Kenneth F. Ripple, Judge Michael S. Kanne, and Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit. Professor Alford continues to be the General Editor for the Kluwer Arbitration Blog and wrote a post, “U.S. Department of Justice Uses Arbitration to Challenge Merger,” a discussion of United States v. Novelis.

Felicia Caponigri Program Director, Program on Intellectual Property & Technology Law Acting Director, International & Graduate Programs Term Teaching Professor

Felicia Caponigri joined the Program in September 2019 as its Program Director. In December 2019 she successfully defended her Ph.D. dissertation, Fashion Design Objects as Cultural Property in Italy and in the United States, at IMT School for Advanced Studies Lucca in Italy and received her Ph.D. degree. In February, Dr. Caponigri lectured to Professor Bruce Huber, Professor David Waddilove, and Professor Nicole Garnett’s first year Property Law classes on Cultural Property, examining the legal notion of cultural property from a theoretical and comparative law perspective and showcasing relevant examples of cultural heritage to students. During Fair Use Week, which Dr. Caponigri organized for the Program in partnership with The Hesburgh Library, she moderated panels on Appropriation Art, Transformativeness & Fair Use and on Digital Preservation, Archiving, & Copyright, and gave a public lecture in the Hesburgh Library’s Rare Books and Special Collections on the nature of a copy in light of tangible and intangible examples of text and copyright law. In April of this year, at the invitation of Professor Erika Doss in The Department of American Studies at Notre Dame, Dr. Caponigri guest lectured to undergraduate students in Professor Doss’ Public Art and Memory in America class on the laws which apply to public art. Her presentation, entitled Public Art: Between the Tangible and Intangible, highlighted the role of copyright law and cultural heritage law in the preservation and also impermanence of art in our public spaces. In June of this year Dr. Caponigri wrote an opinion piece in Italian for the website of the Italian research institute in Rome IRPA- Istituto di Ricerche sulla Pubblica Amministrazione (The Institute for Research on the Public Administration) entitled “Monumenti malleabili”: L’italianità tra il passato, il presente e il futuro oltre l’Atlantico (“Malleable monuments”: Italianness between the past, the present, and the future across the Atlantic). The piece explores how we might understand the complex Italian history embodied and represented through monuments from our past and the continued presence or removal of these monuments today. It uses the Italo Balbo monument in Chicago as a case study and deploys a comparative analysis of historic preservation law in the United States and cultural property law in Italy. Dr. Caponigri’s current working paper, Towards a Cultural Heritage Theory of Copyright Law?, explores how the conceptual separability test in U.S. copyright law may be understood, in light of overlapping rights and categories within the legal regimes of cultural heritage, cultural property, and copyright, as considering the possible cultural interest in certain features of designs of useful articles and, therefore, as a possible precursor of those features’ protection as cultural property. She will be presenting this work via Zoom at the 2020 Intellectual Property Scholars’ Conference hosted by Stanford on July 31st. This Fall, Dr. Caponigri will participate in an online forum with colleagues in Italy on “Trust in Public Law through Art and Cultural Heritage” and will moderate a discussion between Professor Erika Doss and Professor Joan Kee from the University of Michigan on “Who Owns Public Art?” at the Law School. Dr. Caponigri continues to be an integral part of the Organizing Committee of ICON-S The International Society of Public Law.

Jodi Clifford Director, Intellectual Property & Entrepreneurship Clinic Clinical Professor of Law

As Director of the IP & Entrepreneurship Clinic, Professor Clifford supervised clinical interns as they practiced law, assisting clients in a variety of transactional IP issues on a pro bono basis. The clinic represented more than thirty clients this year, with over thirty PTO filings including multiple design and utility patent applications, trademark registration applications, and responses to PTO Office Actions. Additionally, clinic students counseled numerous clients on strategies for protecting their IP, conducted PTO examiner interviews, and presented to entrepreneurs on common issues in early stage protection of IP rights. This year the clinic obtained 5 issued patents, and 6 federal trademark registrations for its clients. Representative matters included obtaining patent protection for a surgical device designed to suction blood more efficiently during laparoscopic procedures, assisting a nonprofit focused on helping families dealing with epilepsy where the clinic obtained federal registration for the nonprofit’s name and logo, and providing patent counsel to Enlighten Mobility, a start-up focusing on physical rehabilitation and the subject of a “What Would You Fight For?” national ad. In addition to the preparation and prosecution of patent and trademark applications, the clinic assisted in defending a client against allegations of copyright infringement and served as co-counsel in opposing registration of a trademark that would have damaged a client’s business and reputation. Interns prepared IP license agreements and provided guidance on fair use and copyright infringement issues. Clinic II students taught undergraduate entrepreneurs in a capstone class on Innovation and Entrepreneurship. Professor Clifford worked closely with the IDEA Center last year, accepting referrals from the IDEA Center and supervising student interns in representing numerous IDEA Center clients. Clinic clients have included multiple awardwinning teams from the MCloskey Business Plan Competition as well as the ESTEEM program. Professor Clifford also participated in a panel on Patent in Practice along with Bob Hess of Ocean Tomo, Jeffrey Michael of Barnes & Thornberg and Michael Noon of Lairdtech as part of IDEA Week and clinic student presentations at the IDEA center, providing entrepreneurs with information on patent searching, basic trademark issues and patent pitfalls. The clinic is currently pursuing office space in Innovation Park to continue and expand the relationship with the IDEA Center.

Patrick Corrigan Associate Professor of Law

Professor Corrigan just finished his first year as a member of the Notre Dame Law School Faculty. His most recent article published in the Virginia Law & Business Review this past summer and titled The Seller’s Curse and the Underwriter’s Pricing Pivot: A Behavioral Theory of IPO Pricing, seeks to answer why companies undertaking initial public offerings (IPOs)—which are, on average, underpriced by 18%—utilize a transaction structure that leaves them vulnerable to foreseeable causes of IPO underpricing. Corrigan wrote a blog post in the Columbia Law School Blue Sky Blog about this latest article in October, and the article was covered in the popular “Money Stuff” newsletter by Bloomberg’s Matt Levine. Professor Corrigan’s current working papers explore the legal and contractual restrictions on the use of green shoe options by underwriters in IPOs, and empirically studies the effects of green shoe options on IPO pricing outcomes. Most recently, Professor Corrigan has presented his work at the National Business Law Scholars Conference in June of 2020 and the Winter Deals Conference hosted by Brigham Young University J. Reuben Clark Law School.

Stefania Fusco Senior Lecturer

Professor Fusco is currently working on two articles: Transfers of University Patents to PAEs and Their Impact on Academic Knowledge Diffusion and Retracing the Venetian Origins of the Patent System. Transfers of University Patents demonstrates that when universities sell their patents to Patent Assertion Entities (PAEs), practicing companies stop using the relative technology, resulting in a negative impact on innovation. This paper is the “sequel” of Monetization Strategies of University Patents Through PAEs: An Analysis of US Patent Transfers, published as an ISSI Conference Proceedings, in which Professor Fusco provides an econometric analysis on the characteristics of university patents sold to PAEs. Professor Fusco has been invited to present Transfer of University Patents and Monetization Strategies at the 2019 Edward D. Manzo Scholars in Patent Law at DePaul University College of Law, the 10th Workshop on Institution, Individual Behavior and Economic Outcomes at the University of Corsica located in Corte, Corsica, the 2nd Annual Intellectual Property Conference hosted by Suffolk University Law School in Boston, and the 5th Texas A&M Intellectual Property Scholars Roundtable at Texas A&M University School of Law. Retracing the Venetian Origins of the Patent System is instead an historical account of the true origin of our patent system based on original documents available at the Venice State Archive. It explains that our current system derives from the Venetian customary patent system and not the Venetian statutory patent system as previously believed. In May 2020, Professor Fusco published Lessons from the Venetian Republic’s Tailoring of Patent Protection to the Characteristics of the Invention in the Northwestern Journal of Technology & IP. This article, also based on original documents from the Venice State Archive, illustrates how the Venetian Republic provided tailored patent protection between the 15th and 18th century. Moreover, it discusses what we can learn from the Venetian experience to improve the operation of our USPTO. Professor Fusco will be attending the 2021 Annual Conference of European Policy for Intellectual Property - IP and the Future of Innovation - hosted by the Spanish National Research Council in Madrid, Spain. At the conference Professor Fusco will be teaching a workshop for Ph.D. students on IP and innovation.

Bruce Huber Professor of Law

Professor Huber, along with Professor Yelderman, helped Notre Dame Law School launch the Journal on Emerging Technologies this past year and currently acts as the journal’s faculty advisor. Professor Huber continues to be at the forefront of climate change discussions, commenting earlier this year for Reuters, CNBC, Bloomberg Law, and the Washington Post in articles regarding President Trump’s review and roll back of the National Environmental Policy Act. Professor Huber is also publishing an article about small modular nuclear reactors in the Journal on Emerging Technologies inaugural volume. Professor Huber also participated in a new Q&A series called Five Questions in the Time of the Coronavirus.

Randy Kozel Associate Dean for Faculty Development and Academic Affairs Diane and M.O. Miller II Research Professor of Law

Professor Kozel most recently published a paper in the Texas Law Review titled Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, which examines the relationship between statutory interpretation and the law of stare decisis by focusing on judicial interpretation, administrative interpretation, and interpretive methodology. Professor Kozel also has several articles that will be published in 2021. The first article, The Case for Stare Decisis, will be in the Notre Dame Law Review for a Symposium on Bivens v. Six Unknown Named Agents. The second article, Leverage, analyzes how leverage has become a constitutional phenomenon and suggests a framework for determining when and why the use of leverage presents a constitutional infirmity that invalidates governmental action. Retheorizing Chevron will be published in the Duke Law Journal as part of a Symposium on the Chevron doctrine of administrative law. This past fall, Professor Kozel was named by the University’s Provost to the “Notre Dame All-Faculty Team” for his excellence in research, teaching, and service to the University. Professor Kozel was honored during the Boston College football game on November 23, 2019.

Mark P. McKenna John P. Murphy Foundation Professor of Law Director, Notre Dame Technology Ethics Center Director, Program on Intellectual Property & Technology Law

Professor McKenna’s most recent journal publication was in the Boston University Law Review and was titled Unfair Disruption (co-authored with Mark Lemley). That paper focuses on use of intellectual property and related claims for the purpose of preventing market disruption. Professors Lemley and McKenna argue that courts should allow such claims only when the threatened disruption is connected to the core purposes of the systems invoked, and they describe tools courts can use to distinguish legitimate cases of IP infringement from cases of pure market disruption. Professor McKenna also recently published Property and Equity in Trademark Law, which he delivered last spring as the Nies Lecture at Marquette University Law School. Earlier this year, Professor McKenna submitted an amicus brief (with Rebecca Tushnet) to the Supreme Court of the United States in United States Patent and Trademark Office v. Booking.com B.V. Professor McKenna is currently working on a large qualitative empirical project with Jessica Silbey (Northeastern). They have interviewed more than 25 designers working in a variety of settings and are in the early stages of a book project that will describe their findings.

Professor McKenna recently commented for an article in Input Magazine about rapper Travis Scott and the use of famous gaming logos in Scott’s new merchandise line. McKenna considers arguments for and against possible trademark claims and highlights the complexity of those claims in this artistic context. He was also quoted in The Fashion Law several times this year. One of the articles focused on a copyright dispute between Moschino and Splash New paparazzi over the use of a photo of famous celebrity/rapper Cardi B in a Moschino jacket. In another, Professor McKenna provided commentary about a lawsuit by 3M against a New Jersey company that was reselling 3M masks to New York City officials at a higher price than 3M charges. According to McKenna, 3M does not have the right to control the re-sale of genuine goods, however they do have the power to prevent others from falsely representing themselves as 3M resellers, which the New Jersey company may have been doing. Professor McKenna gave a number of presentations over the last year, including as a panelist at the Deepfake Conference hosted by the Notre Dame Technology Ethics Center in Washington D.C. in October. He also spoke at the University College London’s program titled “What is the Function of Functionality in Trademark Law?” Earlier this year, Professor McKenna became a Reporter for the Seventh Circuit Committee on Pattern Civil Jury Instructions.

Avishalom Tor Professor of Law Director, Research Program on Law and Market Behavior

Professor Tor’s research and scholarship over the last year has included The Target Opportunity Costs of Successful Nudges, in Consumer Law and Economics, a volume edited with Klaus Mathis and currently in press, and the chapter Justifying Competition Law in the Face of Consumers’ Bounded Rationality in the co-edited volume with Mathis in New Developments in Competition Law and Economics. In 2020, Professor Tor co-authored Social Comparison Before, During, and After the Competition with Stephen M. Garcia & Zachary A. Reese in the edited volume Social Comparison, Judgement and Behavior. Professor Tor has two books under contract. The first, Regulation Law and Economics with Klaus Mathis is forthcoming in 2021 for Springer. The second, The Oxford Handbook on the Psychology of Competition with Stephen M. Garcia and Andrew S. Elliott is also forthcoming in 2021 for Oxford University Press.

Professor Tor has given a number of presentations over the last year. They include presenting The Mostly Neglected Opportunity Costs of Behavioral Policies at Copenhagen Business School in August 2019, at the Hebrew University of Jerusalem Law School in January 2020, and, most recently, at Bucerius Law School in Hamburg, Germany via Zoom in June 2020. Professor Tor also gave the following papers and presentations at academic institutions around the world: Nudges That Should Fail? at the 36th Annual Meeting of the European Association of Law and Economics (EALE) in Tel Aviv in September 2019; The Mostly Neglected Opportunity Costs of Behavioral Policies at the Notre Dame Law School’s Faculty Workshop in October 2019; The Mostly Neglected Opportunity Costs of Behavioral Policies at the Annual Meeting of the Israel Law and Society Association (ILSA) in Ramat Gan, Israel in December 2019; and an address Behavioral Lessons for Antitrust Enforcement as an invited lecture to the U.S. Department of Justice Antitrust Division via Zoom in June 2020. Professor Tor also serves as a commentator in November 2019 at the Experimental Law and Economics Conference at George Mason University School of Law.

Professor Tor has also been present at our Notre Dame locations abroad and with our international partners. In December 2019 Professor Tor presented The Psychology of Competition: An Oxford Handbook Conference at the Notre Dame Program on Law and Market Behavior Conference at our London Global Gateway. During the next academic year, Professor Tor will present The Law and Economics of the 2020 Coronavirus Epidemic in April 2021 at the Notre Dame Program on Law and Market Behavior hosted by University of Lucerne in Lucerne, Switzerland. He will also be a Visiting Professor of Law at The Buchmann Faculty of Law at Tel Aviv University in May 2021. Additionally, Professor Tor will be a visiting professor at The Hebrew University of Jerusalem Faculty of Law this December 2020 and will also be a 2021-2022 fellow at The Israel Institute for Advanced Studies. Professor Tor continues to serve as the Director of Notre Dame’s Research Program on Law and Market Behavior.

Stephen Yelderman Professor of Law

Professor Yelderman has spent the last year serving as a Law Clerk for Justice Neil M. Gorsuch of the Supreme Court of the United States. In 2019 he published an article in the Notre Dame Law Review, Prior Art in the District Court, which is an empirical study of the evidence that district courts rely on when invalidating a patent. He also published in the Iowa Law Review, Prior Art in Inter Partes Review, another empirical study on evidence the Patent Trial and Appeal Board relies upon when canceling patents in inter partes review. Professor Yelderman is currently working on two research projects for future publication: Causing Profits and Damages for Privileged Harm, the latter of which is forthcoming in the Virginia Law Review. Professor Yelderman presented in June 2019 at the Notre Dame Remedies Roundtable where he discussed Causing Profits. He also spoke at the Federalist Society Junior Scholars Colloquium on Damages for Privileged Harm.

In addition to the Program Faculty scholarship listed above, our Program is researching novel IP issues related to the coronavirus with the help of our summer research assistant, rising second-year law student Jake Landreth, and is adding further resources to Notre Dame’s IP website to support our students’ knowledge of potential IP career paths.