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A Continental Rift? The United States and European Union\u27s Contrasting Approaches to Regulating the Monopolistic Behavior of Gatekeeper Platforms
Get PDFOver the past decade, gatekeeper platforms, such as Amazon.com, Inc. (Amazon), have created highly monopolistic business models to benefit themselves while undermining third-party merchants on digital marketplaces. To illustrate, Amazon collects third-party merchant and consumer data on its marketplace to improve its private-label brands while simultaneously selling them alongside third-party merchant products, creating a significant conflict of interest business model. To address this anticompetitive behavior, the United States (U.S.) and the European Union (E.U.) have proposed contrasting approaches. The U.S., through the Ending Platform Monopolies Act, offers a structural separation remedy, giving the Department of Justice and Federal Trade Commission the statutory tools needed to sue and structurally split gatekeeper platforms that have conflict of interest business models. Contrastingly, the E.U., through the Digital Markets Act, proposes that gatekeeper platforms share their data with third-party merchants, allowing both parties to benefit while operating on a gatekeeper platform’s digital marketplace. Although strict and uncompromising, this Note proposes that the U.S. approach would be more effective in addressing the monopolistic behavior of gatekeeper platforms
Navigating a Multi-Billion Dollar Industry: Protecting Drug-Related Inventions to Further Research and Development
Get PDFEven with advancements in science and technology, pharmaceuticals continue to find themselves tethered to patent protection guidelines that once ensured revenue would continue to flow and provide funding for the next blockbuster drug or antibodies. However, as the Federal Circuit appears to inch towards unpredictability in the realm of patent validity, challenges involving patenting are imminent. In fact, gaps are forming in the ability of pharmaceuticals to further research and develop drugs. This Note proposes a solution that encapsulates a more precise standard supported by economic and policy rationales to determine patent validity. It begins with the general requirements of patenting and reasons why trade secrecy may be more effective as investments in research and development increase. Next, policy rationales of patent protection versus trade secrecy will be explained using the Juno case. Lastly, a solution will be proposed for how courts may consider patent validity cases to protect innovation. Overall, this Note aims to highlight the difficulties between choosing patent protection versus trade secrecy and how investment incentives may contribute to the decision, leaning towards the trade secrecy route
A Civil Shame: The Failure to Protect Due Process in Discretionary Immigration Bond Hearings
Get PDFOver the last four years, the US Supreme Court has granted certiorari in four immigration bond review cases. The sheer number of cases the Court has recently considered underscores the significance of this area of immigration law. Each case centers on whether the Immigration and Nationality Act or the Constitution mandates a bond review hearing after prolonged detention. Yet these cases leave unresolved the issue of whether initial bond hearings themselves meet the due process threshold required of civil confinement proceedings. Federal circuit and district courts have addressed aspects of this question and found procedural due process violations. However, most jurisdictions continue to adhere to these arguably unconstitutional practices. Until 2017, the Department of Homeland Security (DHS) implemented enforcement guidelines prioritizing certain categories of individuals for arrest and detention. Those with serious criminal convictions were targeted whereas legal permanent residents or undocumented individuals with families were not unless they had serious criminal convictions. On January 25, 2017, President Trump signed an executive order abolishing these enforcement priorities and instituting sweeping enforcement guidance instructing DHS to arrest and remove noncitizens with any criminal conviction, as well as individuals with pending charges or those who committed an act that could be chargeable as a criminal offense such as crossing the border without documentation. The numbers of noncitizens arrested and detained increased exponentially and many of those detained from 2017 – 2020 either had no criminal record or had arrests or pending charges but no convictions. At the same time, Immigration and Customs Enforcement began routinely denying bond rather than setting reasonable bonds or conditionally releasing noncitizens even though effective alternative methods for ensuring return to court existed. The case backlog in immigration courts increased as a result. These policy changes and practices laid bare the due process deficiencies inherent in the current civil immigration bail system. They also revealed the dangers of granting DHS unfettered discretion to detain as well as the dire consequences of civil imprisonment for noncitizens. This article analyzes the state of procedural due process in the immigration bail system and compares initial immigration bond hearings to involuntary mental health commitment and child support contempt hearings – two proceedings in which civil court judges have limited authority to temporarily confine litigants. The comparison reveals the danger of using administrative law standards to govern immigration bond proceedings when questions of fundamental liberty interests are at stake. Courts and legislatures have required trial court judges to exercise great care and caution before taking the extreme step, in a civil proceeding, of involuntarily committing or incarcerating an individual to induce compliance with a court order or to protect the individual or community from harm. Yet that same level of protection is not required when determining whether to continue to detain noncitizens or release them on bond. This article proposes statutory, regulatory, and court rules reforms to ensure fundamental fairness in initial immigration bond proceedings
Who’s the Fairest of Them All: Circuit Split Over Landlord Liability for Tenant-On-Tenant Discrimination Under the Fair Housing Act
Get PDFThis note explores a circuit split between the Second and Seventh Circuits regarding whether landlords and property owners can be held liable for postacquisition, tenant-on-tenant discrimination. This issue is one of first impression in recent years, resulting in divergent holdings. To address conflicting judicial approaches to an increasingly prevalent civil claim, this note argues for the necessity of a Congressional amendment to the Fair Housing Act (FHA), the law which generally governs housing discrimination. Specifically, the proposed amendment would recognize postacquisition discrimination as an actionable claim and append a test to the FHA for postacquisition liability as employed by the Seventh Circuit in Wetzel v. Glen St. Andrew Living Community. By amending the FHA, Congress will not only resolve this judicial conflict, but, more importantly, will define a property manager’s duty to tenants experiencing discrimination or harassment in their homes and provide them with a clear avenue for legal recourse
WHAT COUNTS AS ‘RACIST ENOUGH?’: A CLEARER STANDARD FOR NEW TRIALS WHEN JURORS DEMONSTRATE RACIAL BIAS
Get PDFThe no-impeachment rule, Federal Rule of Evidence 606(b), necessitates that jurors keep their deliberations secret. However, in the 2017 Supreme Court case Peña-Rodriguez v. Colorado, the Court created a racial bias exception to the no-impeachment rule. This exception allows jurors to notify the court when “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” This Note argues that this standard is too narrow because it fails to consider several situations of racial bias, like implicit bias. The ineffectiveness of this exception is demonstrated by the fact that there are only two instances where a defendant met this standard and was granted a new trial. This Note proposes that all courts follow a different standard. First, whenever there is an instance of racial bias during jury deliberations, courts must hold an evidentiary hearing to interview the jurors. Second, courts must evaluate the evidence by using a totality of factors test to determine whether a new trial should be granted. The factors proposed by this Note have been pulled from courts across the country who have faced juror racial bias. By using this standardized approach, courts will have a clearer methodology to evaluate whether a juror’s racial bias compromised a person’s right to an impartial trial
UNENDING REFORM: POLICE RESISTANCE TO CONSENT DECREES AND FEDERAL MONITORS
Get PDFThe murder of George Floyd and the subsequent protests that engulfed the United States in 2020 reignited public attention towards the violent and discriminatory practices of police departments across the country. While methods of reforming these institutions were debated with new vigor, the federal courts have been quietly overseeing efforts to obtain constitutionally compliant policing in numerous cities for decades. Using legal tools such as consent decrees and monitors, the Department of Justice has enlisted the assistance of federal courts to ensure that police practices are in congruence with the Constitution. As pervasive police violence against black and brown people continues unabated—and these lengthy consent decrees show no resolution in sight—it appears that these court-overseen efforts have not been successful. This Note explores the Department of Justice’s practice of entering consent decrees with aberrant police institutions and the work of the federal monitors appointed as overseers of such reform efforts. In reviewing the near-decade long consent decrees governing police departments in Seattle and New York City, this Note utilizes monitor reports to identify why these institutions have eluded constitutional compliance. Ultimately, this Note argues that the Department of Justice, or the governing court, must take a proactive role in the enforcement of these consent decrees and must coerce constitutional compliance with the use of civil contempt sanctions against the respective municipalities. Such contempt creates a downward pressure upon police departments and will spur the municipal legislatures to take greater interest into reaching compliance with these reform efforts
Keeping Guns in the Hands of Abusive Partners: Prosecutorial and Judicial Subversion of Federal Firearms Laws
Get PDFState actors are imbued with the power of the government to enforce and apply the law. When they use that power to instead inhibit a law’s enforcement, they are engaging in subversion. Subversion is problematic on its face: it frustrates legislative intent, creates confusion, and destabilizes the separation of powers foundational to our democracy. But subversion is particularly insidious when it is done to the detriment of vulnerable individuals. That is the case when state prosecutors and judges purposefully undermine federal law intended to keep firearms out of the hands of abusive partners. Guns and domestic violence can be a lethal combination. In the 1990s, Congress recognized this danger and passed two important pieces of legislation: one barring individuals subject to a protection order from possessing firearms, and one prohibiting the same from individuals convicted of domestic violence. While these laws passed through Congress with bipartisan support, and while their constitutionality has been continually upheld in court, there are state prosecutors and judges who use their position to subvert the legislation. Some prosecutors undercharge crimes of domestic violence to avoid triggering the gun ban, and some judges cross out mandatory gun prohibition language in protection orders. These officials have abdicated their responsibility to enforce and uphold the law, instead relying upon their own judgment about the importance of abusive partners continuing to have access to firearms. This article discusses examples of subversion compiled from interviews with practitioners, newspaper articles, and several statewide studies. After uncovering this harmful practice, this article proposes several practical, client-centered solutions to (1) determine the prevalence of this subversion nationwide; and (2) limit its scope—and potential harm—for victims of domestic violence
No Pact with the Devil: Defending & Strengthening New York City’s Permanent Affordability Commitment Together (PACT) - P3
Get PDFFaced with the dual threats of a federal receivership and a growing deficit of federal appropriations, in 2018, New York City Mayor Bill DeBlasio enrolled the New York City Housing Authority (“NYCHA”) into the Permanent Affordability Commitment Together (“PACT”). PACT would allow NYCHA to convert its federal Section 9 funding streams into federal Section 8 vouchers and permit the local public housing authority to enter public-private partnerships with private developers. This move would infuse NYCHA with an additional 31.8 billion deficit. However, immediately after the mayor unveiled his plans to pursue PACT, tenant advocates and residents vocalized their concerns that the program would completely privatize NYCHA, dramatically reduce its affordability, and ultimately lead to resident displacement. This Note responds to popular anxiety over NYCHA’s future and evaluates PACT’s likelihood of meeting its stated objectives by using the six-prong “success factor” test derived from public management and engineering literature on public-private partnerships (“P3s”). This Note finds that PACT possesses most of the infrastructure industry’s leading success factors for P3s and does more to shore up NYCHA’s future viability than to jeopardize it. However, it identifies two vulnerabilities: (1) moderate Section 8 subsidy interruption risk; and (2) moderate tenant and local elected official opposition. This Note offers two recommendations to strengthen the program: (1) creation of municipal capital and operational reserve funds for each converted NYCHA development and (2) a scaling of the Chelsea Working Group model across all converted developments to ensure added resident and local representative engagement. Together, these recommendations will reduce resident displacement risk and increase the likelihood that NYCHA tenants will capture greater shares of the city and state budget to further stave off the authority’s future obsolescence