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FTC v. \u3cem\u3eQualcomm\u3c/em\u3e and the Need to Reboot Antitrust Goals
Get PDFThe antitrust community is facing a demanding question: Is antitrust enforcement ultimately about protecting consumers, competition, or both? This question has sparked debates about the ultimate goals of antitrust law. On one side of the debate, supporters of the consumer welfare standard; and on the other side, supporters of the Neo-Brandeisian standard of enforcement. At this crucial time in the debate of overarching antitrust goals, the Ninth Circuit’s holding in Federal Trade Commission v. Qualcomm Incorporated, one of the most important antitrust cases in the twenty-first century, poses many issues for the consumer welfare standard and antitrust enforcement in the future.
Qualcomm Incorporated (“Qualcomm”) is part of a multi-billion-dollar industry as a dominant supplier of baseband processors and a licensor of patents which enable communications in cell phones and tablets. The Federal Trade Commission brought a case against Qualcomm in response to alleged unreasonable restraints on competition and an unlawful maintenance of a monopoly. The Ninth Circuit reversed the district court’s judgment against Qualcomm, and instead found, among other things, that harm to consumers is outside the relevant market in analyzing an antitrust violation. The Ninth Circuit’s exclusion of consumers from an analysis of anticompetitive harm deviates from established precedent and has already caused a ripple effect distancing antitrust enforcement from its established goals and standards.
Qualcomm’s business practices in question in this case implicate technology present in the daily lives of most U.S. consumers. In reversing the district court’s holding, the Ninth Circuit misunderstood and misapplied fundamental principles of established antitrust law in reasoning that Qualcomm’s conduct “involves potential harm to customers, not its competitors, and thus falls outside the relevant markets.” This grave error is contrary to fundamental principles of antitrust law and could have significant implications by narrowing the interpretation of the Sherman Act for the foreseeable future.
This note addresses the current debate about the ultimate goals of antitrust law, mainly focusing on the Consumer Welfare and the Neo-Brandeisian standards of antitrust enforcement. The lack of clarity and cohesion in antitrust debates about the goals of antitrust have rendered the realm vulnerable to judicial decisions, such as FTC v. Qualcomm, that misapply and misinterpret antitrust standards. This note delineates a potential solution for the lack of clarity as a call to the courts and academics to improve discourse by viewing the protection of consumers and competition as fundamental to antitrust enforcement
Sound Familiar? Digital Sampling is Taking Center Stage
Get PDFIn 2018, Kendrick Duckworth, better known by his stage-name Kendrick Lamar, became the first non-classical or jazz musician to win the Pulitzer Prize in Music. Equally as surprising, the album contained a magnitude of digital sampling. As digital sampling has become more prevalent since the 1980’s, courts have differed on how to handle the issue. By 2016, the Sixth and Ninth Circuit Courts of Appeals established a circuit split on the issue, with one holding that unlicensed digital sampling is per se unlawful, and the other holding that a more lenient test is needed. Courts have continued to struggle with digital sampling cases. However, a growing trend of treating digital sampling cases through a de minimis lens and applying the fair use exception may mark a new and promising solution to the longstanding controversy. This note addresses the complex history and evolution of digital sampling within copyright law. Part I introduces the issue of digital sampling, while Part II dives deeper into the historical and legal background of the practice. Part III identifies and analyzes the decisions from the Sixth and Ninth circuits, which have been the keystone of digital sampling jurisprudence. Part IV analyzes the aftermath of the circuit split, and Part V identifies potential legislative, judicial, and industry solutions to the issue. While much is unclear about digital sampling within the United States legal system, one thing is certain: digital sampling is here to stay
States May Statutorily Bind Presidential Electors, the Myth of National Popular Vote, the Reality of Elector Unit Rule Voting and Old Light on Three-Fifths of Other Persons
Get PDFThis Article discusses the United States Supreme Court’s July 6, 2020 decision in Chiafalo v. Washington State as it impacts the most in-depth analysis yet published of the proposed National Popular Vote (“NPV”) Interstate Compact. NPV purports to provide for popular vote election of a President of the United States even if the winner of the popular vote did not win the Electoral College. It concludes that NPV cannot accomplish its purported purpose. The article also criticizes a recent article proposing dividing each state’s electors vote in accordance with the popular vote proportions in each such state instead of, as is the case now, unanimously, by the unit rule. Finally, the article criticizes another recent article asserting that the Electoral College is more than just an echo of slavery
Vermin of Proof: Arguments for the Admissibility of Animal Model Studies as Proof of Causation in Toxic Tort Litigation
Get PDFToxic torts is a body of law that aims to compensate individuals for harms they suffer from exposure to hazardous substances. To successfully bring a toxic tort claim, a plaintiff must prove the main elements of a general tort cause of action: duty, breach, causation, and damages. Causation in a toxic tort case is particularly challenging to prove given the nature of toxic substances. To prove the toxicant in question caused the damages alleged, plaintiffs often present expert testimony based on scientific studies. Animal model studies, in particular, can help factfinders understand the health implications of the toxicants at issue. However, judges, scholars, and other legal professionals are skeptical of the use of animal studies because of scientific and legal concerns, which range from interspecies disparities to prejudice of juries. These concerns are either unfounded or exaggerated. Animal model studies can be both reliable and relevant in toxic tort cases. Given the Federal Rules of Evidence, case law relevant to scientific evidence, and one of the goals of tort law-justice-judges should more readily admit these types of studies as evidence to help plaintiffs meet the burden of proof in toxic tort litigation
LatCrit at Twenty-Five and beyond - Organized Academic Activism and the Long Haul: Designing Hybridized Advocacy Projects for an Age of Global Disruption, Systemic Injustice, and Bottom-up Progress
Get PDFOn the monumental occasion of the twenty-fifth anniversary celebration of LatCrit (Latina and Latino Critical Legal Theory, Inc.) as a still thriving and persevering community of critical scholars and activists, this Article offers some reflections on where we have been, where we are now, and where we might go next together as academics and organizers of long-term collective action. Against the current disruptions of a global pandemic, aggravated by planetary climate collapse, disinformation campaigns, and the organized top-down sabotage of U.S. democracy itself, our community responses going forward must be both more democratic and decentralized than ever, as well as more coordinated and coalitional, utilizing the innovations of critical hybridized praxis and of systemic advocacy projects of social and academic activism. If we act in the ways and values this Afterword outlines, now and for the long haul, we can achieve tactical, operational, and structural gains long imagined and sought by our community and allies
The Promise and The Peril: Artificial Intelligence and Employment Discrimination
Get PDFArtificial intelligence (“AI”) is undeniably transforming the workplace, though many implications remain unknown. Employers increasingly rely on algorithms to determine who gets interviewed, hired, promoted, developed, disciplined, or fired. If appropriately designed and applied, AI promises to help workers find their most rewarding jobs, match companies with their most valuable and productive employees, and advance diversity, inclusion, and accessibility in the work- place. Notwithstanding its positive impacts, however, AI poses new perils for employment discrimination, especially when designed or used improperly.
This Article examines the interaction between AI and federal employment antidiscrimination law. This Article explores the legal landscape including responses taken at the federal level, as well as state, local, and global legislation. Next, this Article examines a few legislative proposals designed to further regulate AI as well as several non-legislative proposals. In the absence of a comprehensive federal framework, this Article outlines and advances a deregulatory approach to using AI in the context of employment antidiscrimination that will maintain and spur further innovation. Against the backdrop of the deregulatory approach, this Article concludes by discussing best practices to guide employers in using AI for employment decisions
TikTok, CFIUS, And The Splinternet
Get PDFThis note will discuss the role that the Committee on Foreign Investment in the United States (“CFIUS” or “the Committee”) has played in foreign relations and how it contributes to the balkanization of the internet today. The Committee is an interagency body that reviews foreign investments for potential national security threats. Recently, CFIUS has been in the spotlight for its role in the sale of TikTok, a cellphone app owned by a popular Chinese corporation, ByteDance. While much of CFIUS’ review in the past has been focused on Chinese-owned corporations, there is much debate about whether or not countries should opt to sever the internet due to political, social, or economic pressures. Through the example of TikTok, this note will analyze what the right balance is between protecting national security and maintaining a united interne
Big Data, Both Friend And Foe: The Intersection Of Privacy And Trade On The Transatlantic Stage
Get PDFThis Note analyzes the data privacy protection initiatives implemented by the European Union and the United States and their effects on international trade. As technology develops, the feasibility of data collection increases, allowing for the collecting of inconceivable amounts of data information. Consequently, this data includes personal information, thus implicating privacy concerns and the need for data privacy protection regulations. Data privacy focuses on the use and governance of personal data and how the data is gathered, collected, and stored. In 2018, the European Union enacted the General Data Protection Regulation (GDPR), which sets out highly stringent standards for how organizations conducting business with European Union citizens may handle their data. While the United States lacks an all-encompassing data-protection law similar to the GDPR, the likelihood of federal implementation of such regulation is growing. Due to the tech industry’s exponential growth, data privacy regulations have had trouble keeping pace. Nevertheless, data privacy protection is more necessary than ever. The discrepancies in data privacy regulations gravely affect international business relationships governed by the different regulations. This Note discusses the affects, benefits, and possible solutions to these issues