Antitrust Litigation Has Yet to Effectively Protect Small Businesses and Consumers From Modern-Day Monopolies

By: Oliver Goldman

Edited by: Alexandre Brunet and Sophia Chang

The passage of the Sherman Antitrust Act in 1890 marked the beginning of antitrust law in the United States. This law was enacted in direct response to monopolistic business practices that emerged in the late nineteenth century. As a way to solidify market control in the new industrialized world, firms within the same industry began to organize themselves into trusts –– for example, The Standard Oil Trust formed in 1882 –– wherein a single group of trustees was placed in charge of all the component companies, which then enabled one monopolistic entity, the trust, to dominate entire industries.[1]

Besides the Sherman Act, there are currently two other major federal antitrust laws: the Clayton Antitrust Act of 1914 and the Federal Trade Commission (FTC) Act of 1914. Together, these three laws are supposed to function to protect a freely competitive market and ensure that consumers have access to low prices and new and better products.[2] Today, however, these century-old regulations are failing to adequately protect small businesses and consumers from the monopolies of the twenty-first century. Big businesses, such as Amazon, Google, Meta, and AT&T, exert control over and collectively possess an outsized share of the American economy. Three companies control close to 80 percent of the mobile telecommunications industry.[3] Amazon alone controls more than 40 percent of e-commerce sales.[4] Meanwhile, Apple controls more than 50 percent of the US smartphone market share.[5]

As Nobel Prize-winning economist and Columbia University professor Joseph Stiglitz wrote in 2017, “[s]ome century and a quarter ago, America was, in some ways, at a similar juncture.” The current landscape, though, is importantly different and precarious. 

In recent decades, antitrust litigation has centered around consumer harm, “with strong presumptions that the market was in fact naturally competitive,” Stiglitz wrote. These presumptions have made it “almost impossible” to bring successful predatory pricing cases, as the theory went that new firms would inevitably enter the marketplace if existing firms attempted to raise prices above costs, thus restoring competition. In practice, this has not been the case. Big firms have been successful in concentrating their market power, as well as in raising their prices relative to costs, in turn lowering consumers’ standard of living, decreasing workers’ wages, and creating difficult terrain for new and small businesses. 

These dynamics are due to what Stiglitz describes as “new antitrust standards that made the creation, abuse, and leveraging of market power easier” in the evolving modern economy.[6] These standards can be seen by looking at the history of American antitrust policy over the course of four cycles, as explained by Maurice Stucke and Ariel Ezrachi in The Harvard Business Review. 

The first cycle was the previously-discussed period from 1900-1920, characterized by the creation of antitrust law and the promise of reform to break up and prevent future versions of monopolistic trusts like Standard Oil. 

Stucke and Ezrachi define the second cycle as the period from the 1920s to the 1930s, during the early New Deal, when “antitrust activity was rare since administrations generally preferred industry-government cooperation over robust antitrust enforcement.” In other words, the US government relaxed antitrust laws in order to facilitate industrial and commercial cooperation to serve the interest of public welfare. 

The third cycle––”the golden era of antitrust”––was marked by antitrust becoming closely associated with the ideals of economic and political freedom. In response to fascism and communism abroad, the United States believed in the power of competition in “dispersing economic and political power from the hands of a few” and creating “greater opportunities to compete, improve, and win.” During this period, between the 1940s and the late 1970s, robust antitrust policy became seen as a condition necessary for effective competition. In creating these conditions, Congress amended the Clayton Act of 1914 to enable government agencies and courts the power to break the dynamic force of concentration “before it gathered momentum.” The Supreme Court upheld this change in 1962, when it ruled in Brown Shoe Co., Inc. v. United States that the merger of two shoe companies tended to “create a monopoly in the production, distribution and sale of shoes” and stood in violation of the Clayton Act.[7]

During the third cycle, the Department of Justice (DOJ) also wielded the Sherman Act to prosecute “unreasonable restraints of trade and monopolistic abuses.” In 1958, in Northern Pacific R. Co. v. United States, a district judge ruled that the Northern Pacific Railroad Company’s “preferential routing” agreements constituted “unreasonable restraints of trade” under Section 1 of the Act.[8] These litigation efforts signaled the “shaking off [of antitrust enforcement] inactivity that had characterized the early New Deal period.” 

According to Stucke and Ezrachi, however, the fourth cycle, the period they identify as the late-1970s to the mid-2010s, saw the re-contraction of antitrust enforcement due to the emergence of the Chicago and post-Chicago Schools’ neoclassical economic theories. These theories assumed that markets would “self-correct” and concerned themselves less with antitrust enforcement as a necessary condition to make competition effective. Instead, they side-stepped historic concerns about thwarting concentration in industries in favor of the “prospect of future efficiencies and innovation.” In general, the fourth cycle was defined by the ideology of letting market forces naturally correct themselves and letting antitrust take a backseat role in regulating markets.[9]

Over the last few decades, the anti-monopoly movement has been renewed in litigation efforts, but with little success given the inefficacy of the enforcement mechanisms in place. There have been numerous cases brought to confront certain companies’ monopolistic market behavior, starting with The United States of America v. Microsoft Corporation in 1998. In the case, the DOJ and the attorneys general of 20 other states charged that Microsoft’s “bundling of additional programs into its operating system constituted monopolistic actions” and stood in violation of antitrust law.[10] The suit was brought in the aftermath of the downfall of Microsoft’s top competitor, Netscape, as well as the beginning of Microsoft giving away access to its browser services for free. In the end, after a long appeals process, Microsoft reached a settlement with the DOJ that included the DOJ abandoning their goal to break up the company. 

This case set an important precedent in antitrust litigation, showing how long, arduous, and unsuccessful lawsuits against modern-day tech monopolies can be. Since then, the DOJ has experienced bouts of success in litigating firms, such as Visa in November 2020.[11] But the problem remains that the current American antitrust framework is simply not equipped to check the structure and scope of modern-day behemoths. 

Particularly when it comes to dismantling tech firms, existing antitrust proves to be antiquated. Current statutes, even with their evolution during parts of the twentieth century, view antitrust through the narrow lens of harm to the consumer. As Zachary Karabell notes, that creates a problem for litigation efforts “because the companies give away many of their products for free and can argue in other cases they lower prices.”[12] 

It is clear that the American antitrust framework needs to be updated and expanded according to the still-evolving modern economy. For the sake of protecting small businesses and consumers, as well as protecting the general democratic ideal of free and competitive markets, the rules of the American economy need to be rewritten, starting with antitrust law. 

Notes:

1. “Our Documents - Sherman Anti-Trust Act (1890)” (U.S. Department of Justice), 6.

2. “Antitrust Enforcement and the Consumer” (Justice Department, 2021). 

3. John Mauldin, “America Has A Monopoly Problem” (2019). 

4. Blake Droesch, “Amazon Dominates US Ecommerce, Though Its Market Share Varies by Category” (2021). 

5. “US Smartphone Market Share: By Quarter” (Counterpoint Research, 2021). 

6. Joseph Stiglitz, “America Has a Monopoly Problem—and It’s Huge” (Roosevelt Institute, 2017). 

7. “Brown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962)” (Justia Law).

8. “Northern Pacific R. Co. v. United States , 356 U.S. 1 (1958)” (Justia Law). 

9. Maurice E. Stucke, and Ariel Ezrachi, “The Rise, Fall, and Rebirth of the U.S. Antitrust Movement” (Harvard Business Review, 2017). 

10. Andrew Beattie, “Why Did Microsoft Face Antitrust Charges in 1998?” (Investopedia, 2021). 

11. Kelly Anne Smith, “What’s Going On With The Facebook Antitrust Lawsuit?” (Forbes Advisor, 2021). 

12. Zachary Karabell, “What the EU Gets Right—and the US Gets Wrong—About Antitrust.” (Wired, 2020).

Bibliography:

Beattie, Andrew. 2021. “Why Did Microsoft Face Antitrust Charges in 1998?” Investopedia. October 25, 2021. https://www.investopedia.com/ask/answers/08/microsoft-antitrust.asp.

“Brown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962).” n.d. Justia Law. Accessed November 16, 2021. https://supreme.justia.com/cases/federal/us/370/294/.

Droesch, Blake. 2021. “Amazon Dominates US Ecommerce, Though Its Market Share Varies by Category.” Insider Intelligence. April 27, 2021. https://www.emarketer.com/content/amazon-dominates-us-ecommerce-though-its-market-share-varies-by-category.

Karabell, Zachary. 2020. “What the EU Gets Right—and the US Gets Wrong—About Antitrust.” Wired. November 21, 2020. https://www.wired.com/story/what-eu-gets-right-us-wrong-antitrust/.

Mauldin, John. 2019. “America Has A Monopoly Problem.” Forbes. April 11, 2019. https://www.forbes.com/sites/johnmauldin/2019/04/11/america-has-a-monopoly-problem/?sh=2eac8d212972.

“Northern Pacific R. Co. v. United States :: 356 U.S. 1 (1958).” n.d. Justia Law. Accessed November 16, 2021. https://supreme.justia.com/cases/federal/us/356/1/.

“Our Documents - Sherman Anti-Trust Act (1890).” n.d. https://www.ourdocuments.gov/doc.php?flash=false&doc=51.

Smith, Kelly Anne. 2021. “What’s Going On With The Facebook Antitrust Lawsuit?” Forbes Advisor. May 17, 2021. https://www.forbes.com/advisor/investing/update-facebook-antitrust-lawsuit/.

Stiglitz, Joseph. 2017. “America Has a Monopoly Problem—and It’s Huge.” Roosevelt Institute. October 26, 2017. http://rooseveltwec.wpengine.com/2017/10/26/america-has-a-monopoly-problem-and-its-huge/.

Stucke, Maurice E., and Ariel Ezrachi. 2017. “The Rise, Fall, and Rebirth of the U.S. Antitrust Movement.” Harvard Business Review, December 15, 2017. https://hbr.org/2017/12/the-rise-fall-and-rebirth-of-the-u-s-antitrust-movement

U.S. Department of Justice. n.d. “Antitrust Enforcement and the Consumer.”https://www.justice.gov/atr/file/800691/download.

“US Smartphone Market Share: By Quarter.” 2021. Counterpoint Research (blog). August 16, 2021. https://www.counterpointresearch.com/us-market-smartphone-share/.

The Impact of Inadequate Representation on Death Row

By: Anna Dellit

Edited by: Rayyana Hassan and Renan Dennig

The death penalty is most commonly discussed as a moral debate, and the right of the government to take a human being’s life. However, another element to be considered is the lack of procedural justice and structure in the court system for those unable to represent themselves effectively considering the labyrinth-like structure of the law and the courts. In accordance with the Sixth Amendment, all criminal defendants are guaranteed access to a defense attorney. However, the Sixth Amendment does not guarantee the qualification level of the defendant’s legal team, even for death penalty cases, resulting in discrimination based on racial, socioeconomic, and mental differences.

The case of Walter “Johnny D'' McMillian exemplifies the effects of neglected procedure and racial inequity within the system. Mr. McMillian was born and raised in a majority-Black settlement on the outskirts of Monroeville, Alabama. After the death of a young white woman, Ronda Morrison, in 1986, Monroeville detectives arrested a Black man by the name of Walter McMillian. A local law enforcement officer, Sheriff Tate, stopped Mr. McMillian on the road, accused him of the murder, and promptly confined him to a cell on death row for 15 months prior to his trial. The jury then deemed Mr. McMillian guilty of capital murder, even with dozens of members of his community willing to testify to his whereabouts at the time the crime occurred. Due to a mix of witness perjury, falsified information, coercion of witnesses by law enforcement, and inadequate support for his legal team, Mr. McMillian served an additional six years for a crime he did not commit, witnessed seven executions, developed early onset dementia, and remains traumatized by his experience. Mr. Mcmillian’s conviction was overturned by the Alabama Court of Criminal Appeals in 1993 with the help of the Equal Justice Initiative. Still, Sheriff Tate, who did not act in accordance with legal procedure, was granted immunity and retired decades later in 2019.[1] While Mr. McMillan was exonerated, meaning absolved from their blame or previous convicted crime, he lost years of his life and still faces serious health ramifications. In response to the increasing rate of exonerations of death penalty sentencing, the legal system needs to reform its careless treatment of death row cases, as preventative action is the only way to save the innocent from a corrupt system. 

Since 1989, with the start of the Equal Justice Initiative, there have been over 2,500 exonerations throughout the entire legal system, 367 of them being exonerated through existing DNA evidence.[2] Unfortunately, illegal and unprofessional behavior by attorneys and officials of the law, exemplified in the case of Walter McMillian, is common. In the case of Mississippi citizen Curtis Flower, the prosecutor was found to have intentionally stricken Black jurors from the panel to create an all-white jury.[3]

The current public defender infrastructure lacks incentive and the foundation to fully represent the accused due to the overwhelming number of cases assigned to competent lawyers. Public defenders lack the motivation to win when the government and court system encourage fast-moving cases. For example, the Texas Defender Service found that judges often appoint defense attorneys based on reputation for speed rather than competency or experience.[4] Late Supreme Court Justice Ruth Bader Ginsberg corroborates this claim, asserting, "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty.”[4] This detrimental issue of inadequate representation also manifests itself in a defendant facing the alarming possibility of only meeting in person with their attorneys once or twice briefly before entering the trial. This was the reality in the case of Landon Quinn, a Black man convicted in New Orleans of robbery and murder in 2011. While there was no forensic evidence linking him to the case, the conviction was based on cross-racial eyewitness identification and resulted in a life sentence. He was granted the legal minimum of two defense attorneys, but both lawyers each had over 500 other felony cases and an additional critical death penalty case to manage simultaneously. This directly violates the recommendations of the National Advisory Commission on Criminal Justice Standards and Goals, which state that public defense attorneys are to take a maximum of 150 cases per year.[5] Furthermore, without proper funding for public defense attorneys, many death row cases are put on hold or indicted without ever being given a proper defense team. This is a “warning that the chronic underfunding of public defense was causing unmanageable caseloads to the point of abrogating the Sixth Amendment rights of defendants.''[5] There are a multitude of issues that result in the violation of the Sixth Amendment's intent: underfunding, overworking lawyers, and a lack of attorney competency. Ben Cohen, an attorney for The Promise of Justice Initiative, agrees with the claims and describes the system with an analogy: “Imagine a conveyer belt of [murder cases], and we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.”[6]

The burden of addressing wrongful convictions does not rely solely on the defense attorneys. It can equally be placed on Conviction Integrity Units (CIU), specialized offices within some prosecution or state attorney general offices, that have the goal of preventing and identifying false convictions and evidence, and moreover to hold prosecution teams and law enforcement accountable. Unfortunately, their effectiveness is up for debate. Supporters of the current CIU system believe they add an overall benefit to the community, as seen by leaders of the organization Fair and Just Prosecution urging Kansas City Board of Commissioners to allow the foundation of a CIU office; “victims are safer—and we prevent further victimization—when communities trust that their law enforcement officials seek the truth rather than a ‘win.’ This essential starting point of trust encourages community members to come forward and cooperate when crimes occur. And in cases of actual innocence, communities are clearly safer when we focus on identifying and prosecuting the actual culprit, and when our justice system can recognize and learn from past mistakes.”[7] Furthermore, proponents of CIUs find the offices' independence uninhibited by close connection with fellow prosecutors and law enforcement. Brandon Hamburg, a researcher and analyzer of the effectiveness of post-conviction review units, further elaborates on the importance and efficiency of CIU offices by determining that they have “a much easier time accessing files from prosecutors outside their jurisdiction, in case an innocence claim, for example, involves a similar case in a neighboring county. Prosecutors also enjoy a close working relationship with experienced police officers; these seasoned investigators possess the skills and information networks necessary to investigate claims.”[8] 

However, critics of CIUs claim the offices are merely a device to win public support and are internally dissuaded from seeking real justice. The Equal Justice Initiative found that out of all of the CIU offices, four units account for 85% of all CIU exonerations and CIU offices only secure 40% of all exonerations.[2] To explain this low success rate of the majority of current CIU offices, Josie Duffy Rice, the President of The Appeal, a news publication that publishes original journalism about the criminal justice system, writes that “because CIUs are part of the DA’s office, they are often incentivized to protect their own. Most of these units are staffed by career prosecutors, who are given the task of investigating their colleagues and their superiors — so even when they do identify misconduct, they may be hesitant to accuse those around them of wrongdoing.”[9] Rachel Barkow, a law professor and member of the United States Sentencing Commission, corroborates this assertion. She believes the units function merely to claim pursuit of justice and equity; “For a fair number of offices, they are often no more than cosmetics.”[10]

Even with CIU offices, proper procedure must be followed by appealing a case in hopes of an exoneration verdict. The current legal system fails to address the importance of the appeals process by providing insufficient support to defendants after their conviction. To have a verdict overturned or a retrial given, an appeal must be filed by a defense attorney with new evidence for consideration, meaning the defense lawyer must continue work past conviction and be familiar with the depth of each case. An incompetant original public defense lawyer violates the accused’s constitutional right to effective counsel. According to the California Supreme Court’s automatic appeals monitor, Robert Reichman, out of California’s 600 inmates on death row, over 160 have no lawyers to handle their mandatory direct appeals, and 72 inmates have no new counsel for their habeas corpus petitions, which directly violates the Sixth Amendment.[11] This leads to blockage in the system and directly explains why some inmates from the 1990’s have yet to even start their rightful appeal process. Not only is the system not improving, but Alabama took a step backwards in 2017 with the passage of the Fair Justice Act. Governor Kay Ivey claimed that the bill would expedite the appeal process and continue to be thorough, but Birmingham civil-rights attorney Lisa Borden believes it does the opposite. She asserts that prior to the act, Alabama’s handling of cases usually lacked “detailed investigation” and cutting the time for post-conviction investigation would only create more injustice; “You are going to have people whose valid claims, whose important claims [are] cut off forever and people are going to die[...] If Alabama really wants to fix the process [it should] … provide competent representation and resources to people from the beginning.”[12] American Bar Association President Linda Klein further condemns the passage of the bill by stating, “While the ABA respects the importance of finality and judicial efficiency, quicker resolution of cases where a life is at stake should not take priority over ensuring the fundamental fairness and accuracy of those convictions.”[13] 

Opponents of mandatory appeals argue that inmates who waive their rights to due process act of their own accord and have the right to do so. John Blume, Associate Professor of Law at Cornell Law School and director of the Cornell Death Penalty Project, concedes that “[The] decision [is one] that a client is entitled to make for himself, regardless of the opinion of his lawyer.”[14] This belief is the one adopted by the federal legal system by their allowance of “volunteers” on death row. “Volunteers” consist of inmates who willingly waive their right to ordinary appeals or who terminate further proceedings resulting in a definitive date of execution for them. In her research paper about the topic, Kristen M. Dama, lawyer and research expert, continually compares death row “volunteerism” to the act of assisted suicide as she believes both should continue to be legal.[15] To counter this claim, Blume conducted an audit on past volunteers and questioned their mental fitness. Blume found that most inmates had significant histories of mental illness and substance abuse, and “that 39% of [Blume’s] respondents cited hopelessness as a factor in the volunteers’ decision to abandon appeals.”[16] As highlighted by the Equal Justice Initiative, executing people with mental illness is cruel and inhumane, and 75% of all “volunteers” document mental illness.[17] The evidence and outcry amongst experts demonstrate the need for mental competency screenings to be required before an inmate waives their appeals rights to protect the lives of the mentally vulnerable.

The issue of mental competency emerges in the case of Ford v Wainwright when Alvin Ford’s attorneys pleaded he was mentally incompetant. Following the case, the Supreme Court ruled that inmates are not competent to be executed if they are “unaware of the punishment they are about to suffer and why they are to suffer it,”[18] which refers to their competency at the time of execution after years of imprisonment and not at the time of original trial. The Equal Justice Initiative found that approximately 20% of all inmates on death row exhibit significant mental illness, 10% are military veterans with trauma disorders, and out of all the prisoners who have waived their right to due process, 75% have documented mental illness.[17] Moreover, it is not only attorneys who find that the current system completely neglects human rights and dignity. Mental Health America (MHA), a non-profit organization dedicated to protecting and addressing the needs of Americans affected by mental illness, has adopted the stance of a death penalty moratorium until the system is corrected. They assert that “individuals with serious mental illness are threatened and coerced into false confessions, have difficulty understanding their rights, and have less access, because of their mental illness, to safeguards designed to protect fundamental rights, including the right to effective assistance of legal counsel. The criminal justice system’s failure to guarantee due process for people with mental illnesses makes discriminatory application of the death penalty more likely.”[19] Attorneys and the judicial system are not equipped to understand the complexity of the medical field. This leads to the mentally ill being taken advantage of as highlighted by the MHA. Furthermore, many states, unaware of the implications of mental illness, use the vague verdict of “Guilty but Mentally Ill” to account for mental insanity. But MHA found these verdicts do little to protect the rights of the mentally insane and fail to place the mentally ill in equitable, appropriate conditions; “[Guilty but Mentally Ill] verdict provides no benefit to society or to criminal defendants because it has the same consequences as a guilty verdict.[...] Virtually every person found GBMI is sent to prison. Persons found GBMI are entitled to mental health services while imprisoned.”[20] 

Intentionally taking a life requires considerate deliberation, and holds both tremendous responsibility and consequence. This process, if continued, must be meticulous and concrete in its procedure to prevent any infringement upon the rights of the innocent. Of the 2,500 exonerations of death penalty charges or lesser crimes, each person averaged nine years imprisoned for a crime they did not commit.[2] This amounts to roughly 22,500 years lost or over 260 lifetimes. Between overwhelmed public defense attorneys, partial CIU offices, inadequate mental support or evaluations, and unrepresented racial groups positions of legal power, the margin of error is too great to ignore. With the current system, a defendant’s verdict does not solely come down to the most just outcome, but is influenced by outside factors beyond their control. To fail on such a drastic and flagrant scale only furthers the dire need for reform.

Notes:

1. Walter McMillian (Equal Justice Initiative, 2020)

2. Wrongful Convictions (Equal Justice Initiative, 2021) 

3. Mississippi Judge Frees Curtis Flowers on Bail after Six Trials and 23 Years in Jail (Death Penalty Information Center, 2019) 

4. Inadequate Representation (American Civil Liberties Union) 

5. Radley Balko, Opinion | How Two Overworked Public Defenders and Six Judges Left a New Orleans Man with a Life Sentence (The Washington Post, 2019)

6. Eli Hager, Where the Poor Face the Death Penalty without a Lawyer (The Marshall Project, 2017) 

7. The Value and Importance of Conviction Integrity Units (Fair and Just Prosecution, 2018) 

8. Brandon Hamburg, Legally Guilty, Factually Innocent: An Analysis of Post Conviction Review Units (University of Southern California Gould School of Law, 2016) 

9. Jose D. Rice, Do Conviction Integrity Units Work? (The Appeal, 2018) 

10. Richard A. Oppel and Farah Stockman, Prosecutors Usually Send People to Prison. These Are Getting Them Out (New York Times, 2019) 

11. Crystal N. Hines, Lack of Lawyers Hinders Appeals in Capital Cases (New York Times, 2001) 

12. Alabama Governor Signs Law Shortening Death-Penalty Appeals (Death Penalty Information Center, 2017) 

13. Brian Lyman, Alabama Speeds Death Penalty Appeals Process (2017) 

14. John H. Blume Killing the Willing: “Volunteers,” Suicide and Competency (Cornell Law Library, Cornell Law Faculty Publications, 2004) 

15. Kristen M. Dama, Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death Row Inmates From Volunteering to be put to Death (University of Pennsylvania Law School, 2007) 

16. Meredith M. Rountree, Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures (Northwestern University School of Law, 2014) 

17. Death Penalty (Equal Justice Initiative, 2021)

18. Shaila Dewan, Does the U.S. Execute People with Mental Illness? It's Complicated (The New York Times, 2017) 

19. Death Penalty and People With Mental Illnesses (Mental Health America 2016) 

20. In Support of the Insanity Defense (Mental Health America, 2019)  

Bibliography:

Balko, Radley. “Opinion | How Two Overworked Public Defenders and Six Judges Left a New Orleans Man with a Life Sentence.” The Washington Post, WP Company, 29 Aug. 2019, http://www.washingtonpost.com/opinions/2019/08/28/how-two-overworked-public-defenders-six-judges-left-new-orleans-man-with-life-sentence/. 

Blume, John H. "Killing the Willing: “Volunteers,” Suicide and Competency." Cornell Law Library, Cornell Law Faculty Publications, 15 Sept. 2004, scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1015&context=lsrp_papers.

Dama, Kristen M. "Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death Row Inmates From Volunteering to be put to Death." University of Pennsylvania Law School, 2007, scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1258&context=jcl.

Death Penalty Information Center. "Alabama Governor Signs Law Shortening Death-Penalty Appeals." DPIC, 30 May 2017, deathpenaltyinfo.org/news/alabama-governor-signs-law-shortening-death-penalty-appeal,deathpenaltyinfo.org/news/alabama-governor-signs-law-shortening-death-penalty-appeals

Dewan, Shaila. “Does the U.S. Execute People with Mental Illness? It's Complicated.” The New York Times. The New York Times, March 21, 2017. https://www.nytimes.com/interactive/2017/us/mental-illness-death-penalty.html. 

Equal Justice Initiative. "Death Penalty." EJI, eji.org/issues/death-penalty/. Accessed 4 Nov. 2021.

Hager, Eli. “Where the Poor Face the Death Penalty without a Lawyer.” The Marshall Project. The Marshall Project, November 29, 2017. http://www.themarshallproject.org/2017/11/28/where-the-poor-face-the-death-penalty-without-a-lawyer. 

Hamburg, Brandon. "Legally Guilty, Factually Innocent: An Analysis of Post Conviction Review Units." University of Southern California Gould School of Law, 20 Apr. 2016, gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume25/Spring2016/2.Hamburg.pdf.

Hines,Crystal N. "Lack of Lawyers Hinders Appeals in Capital Cases." New York Times, 5 July 2001, www.nytimes.com/2001/07/05/us/lack-of-lawyers-hinders-appeals-in-capital-cases .html.

“Inadequate Representation.” American Civil Liberties Union, http://www.aclu.org/other/inadequate-representation. 

Mental Health America. "Death Penalty and People With Mental Illnesses." Mental Health America, 14 June 2016, www.mhanational.org/issues/position-statement-54-death-penalty-and-people-mental-illnesses.

Mental Health America. "In Support of the Insanity Defense." Mental Health America, 13 June 2019, www.mhanational.org/issues/position-statement-57-support-insanity-defense#_edn1.

 “Mississippi Judge Frees Curtis Flowers on Bail after Six Trials and 23 Years in Jail.” Death Penalty Information Center, 16 Dec. 2019, https://deathpenaltyinfo.org/news/mississippi-judge-frees-curtis-flowers-on-bail-after-six-trials-and-23-years-in-jail. 

Lyman, Brian. "Alabama Speeds Death Penalty Appeals Process." Governing, 31 May 2017, www.governing.com/topics/public-justice-safety/tns-alabama-death-penalty-ivey.html.

Oppel, Richard A., and Farah Stockman. "Prosecutors Usually Send People to Prison. These Are Getting Them Out." New York Times, 28 Nov. 2019, www.nytimes.com/2019/11/28/us/conviction-integrity-unit-innocence.html. 

Rice, Josie D. "Do Conviction Integrity Units Work?" The Appeal, 22 Mar. 2018, theappeal.org/do-conviction-integrity-units-work-a718bbc75bc7/.

Rountree, Meredith M. "Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures." Northwestern University School of Law, 2014, files.deathpenaltyinfo.org/legacy/documents/VolunteersForExecution.pdf.

“The Value and Importance of Conviction Integrity Units ...” Fair and Just Prosecution, August 8, 2018. https://fairandjustprosecution.org/wp-content/uploads/2018/08/KCK-CIU-SIGN-ON-LETTER-FINAL.pdf. 

Walter McMillian, Equal Justice Initiative, 23 Jan. 2020, https://eji.org/cases/walter-mcmillian/. 

“Wrongful Convictions.” Equal Justice Initiative, 23 Feb. 2021, https://eji.org/issues/wrongful-convictions/.

The Legality of Sanctuary Cities

By: Mia Xia

Edited By: Iris Lin and Tess Ballis

         Undocumented immigrants in America have long faced the fear of displacement. The United States has responded to citizen-hopefuls with deliberate exclusionary rhetoric, showing an unwillingness to support those seeking refuge in a country meant to harbor ideals of equality and acceptance. However, various cities, counties, and states across America have opted to declare themselves “sanctuary cities” in response to the federal-level policies. As sanctuary cities, these locations seek to limit encounters with federal-level immigration agencies, protecting low-priority undocumented immigrants while still cooperating to turn in serious crime offenders.[1] For example, if ICE agents were to enter a city with the intent to search for undocumented immigrants, local municipalities would not have an obligation to comply with or actively aid in federal processes. Rather, they can deny or disallow the agency from pursuing actions like jailing or detaining undocumented immigrants and requiring local officials to join in searching for undocumented immigrants. Many states have chosen to legally challenge the notion of sanctuary cities under pretenses of unconstitutionality. Nevertheless, Miami federal judge Beth Bloom’s blocking of Florida’s sanctuary city ban this September reflects the wider belief in a city’s right to protect undocumented immigrants.[2] This paper analyzes the legality of sanctuary cities under federal law, and how states can ultimately work within the legal confines to admit themselves as a sanctuary city.

         In reality, the term ‘sanctuary city’ holds no legal weight, and the federal government has not officially recognized it as such.[3] Cities and states are not allowed to pass legislation that can limit cooperation with federal agencies, as it would be against federal law to do so.[4] This legal constraint appears in US Code Chapter 8, Section 1373: federal law prevents state or local governments from passing policy to prohibit federal agencies from sharing the legal status of an immigrant.[5] Even so, Section 1373 does not necessarily require state and local law to disclose collected information concerning an immigrant’s status and even allows for denial to comply with federal immigration agencies.[6]

         Following the supremacy clause of the Tenth Amendment, federal law becomes the supreme law of the land which would allow for this declaration to persist over state jurisdiction. However, under the Tenth Amendment, federal governments are not permitted to “issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”[7] In Arizona et al v. the United States, the Supreme Court has abided by this interpretation, delegating the duty of immigration enforcement to the federal government, with state and local law enforcement only obligated to carry out enforcement if authorized by federal orders.[8]

         Even though sanctuary cities are technically legal, challenges have still arisen. They began in 2012 with the Obama administration contesting Cook County, Illinois’ refusal to cooperate with ICE. These challenges have only continued, as during the early stages of Trump’s presidency, the president began to question the legality of sanctuary cities using executive actions and judicial decisions.[9] Most notoriously, Executive Order 13767 of January 2017 imposed federal law to require state cooperation in the detaining and deportation of undocumented immigrants with threats of cutting federal funding.[10] However, as Section 1373 is the only real federal mandate that can be applied to state and local municipalities, many states and cities took proactive measures to refuse to abide by this executive order. Evanston officials answered by reaffirming their status as a sanctuary city, and even denouncing the denial of federal funds as unconstitutional.[11] California answered by passing their own policy, SB 54, or the California Values Act/the “sanctuary” law, which prevents jail officials from informing ICE when an undocumented immigrant prisoner is released unless warrants are presented.[12] As ICE would violate the Fourth Amendment when imposing unreasonable search and seizure without warrants, California ensured that they remained within the bounds of constitutionality and even used the wording of the Fourth Amendment to further guarantee the protection of undocumented immigrants from federal agencies.[13]

         Even after constant legal challenges and threats of cutting federal funding, sanctuary jurisdiction still remains strong in the protection of undocumented immigrants. As of now, seven states have declared themselves sanctuary cities, and 24 states hold counties that also define themselves as such.[14] Contrary to Trump’s rhetoric of sanctuary cities as “hotbeds for crime,” these regions find lower rates of all crimes compared to non-sanctuary counties.[15] This is because a mutual level of trust and accountability between undocumented immigrants and state/local agencies occurs when both parties acknowledge the stakes at hand. If an undocumented immigrant commits a serious crime, there poses a serious risk to their ability to remain in America and likewise, if cities seek to comply with federal immigration officials, undocumented immigrants are less likely to report crime and assist investigations in fear of deportation.[16] In the end, an easier path to citizenship is key to allowing every person to find refuge and pursue economic opportunities in America. For now, however, sanctuary cities are the best answer in protecting a population that the federal government unjustly targets.

Notes:

1. Dara Lind, Sanctuary Cities, Explained, (Vox, 8 March 2018). https://www.vox.com/policy-and-politics/2018/3/8/17091984/sanctuary-cities-city-state-illegal-immigration-sessions.

2. Ana Ceballos, Miami federal judge blocks Florida from enforcing ban on ‘sanctuary cities,’ (Miami Herald, 21 September 2021) https://www.miamiherald.com/news/local/immigration/article254422638.html

3. Lind, Sanctuary Cities, Explained. 

4. 8 U.S. Code § 1373 - Communication between Government Agencies and the Immigration and Naturalization Service, (LII / Legal Information Institute) www.law.cornell.edu/uscode/text/8/1373.

5. Sanctuary Policies: An Overview, (American Immigration Council, 21 October 2020). https://www.americanimmigrationcouncil.org/research/sanctuary-policies-overview.

6. Sanctuary Policies: An Overview.

7. Arizona et al. v. United States, (US Supreme Court, October 2011), https://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf.

8. Grace Benton, The Legality of Sanctuary Cities, (Georgetown Immigration Law Journal, 2019), https://www.law.georgetown.edu/immigration-law-journal/in-print/the-legality-of-sanctuary-cities/.

9. Executive Order 13767, (Federal Register, 25 January 2017), https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration-enforcement-improvements.

10. Mariana Alfaro, Evanston Chicago vow to uphold immigration policies amid U.S. Justice Department threats, (The Daily Northwestern, 29 March 2017), https://dailynorthwestern.com/2017/03/29/city/evanston-chicago-vow-to-uphold-immigration-policies-amid-u-s-justice-department-threats/.

11. Lind, Sanctuary Cities, Explained. 

12. The Current State of Sanctuary Law, (Southern Poverty Law Center, 8 March 2018), https://www.splcenter.org/20180308/current-state-sanctuary-law.

13. Sanctuary Cities, (Aspan Law Offices), http://www.apsanlaw.com/law-246.list-of-sanctuary-cities.html.

14. Christopher Ingrahm, Trump says sanctuary cities are hotbeds of crime. Data say the opposite, (The Washington Post, 27 January 2017), https://www.washingtonpost.com/news/wonk/wp/2017/01/27/trump-says-sanctuary-cities-are-hotbeds-of-crime-data-say-the-opposite/.

15. Ingrahm, Trump says sanctuary cities are hotbeds of crime. Data say the opposite. 

16. Ibid.

Bibliography:

“8 U.S. Code § 1373 - Communication between Government Agencies and the Immigration and Naturalization Service.” LII / Legal Information Institute, www.law.cornell.edu/uscode/text/8/1373. Accessed 6 Nov. 2021.

Alfaro, Mariana. “Evanston Chicago vow to uphold immigration policies amid U.S. Justice Department threats.” The Daily Northwestern, 29 March 2017. https://dailynorthwestern.com/2017/03/29/city/evanston-chicago-vow-to-uphold-immigration-policies-amid-u-s-justice-department-threats/

“Arizona et al. v. United States,” US Supreme Court, October 2011. https://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

Benton, Grace. “The Legality of Sanctuary Cities,” Georgetown Immigration Law Journal, 2019. https://www.law.georgetown.edu/immigration-law-journal/in-print/the-legality-of-sanctuary-cities/

Ceballos, Ana. “Miami federal judge blocks Florida from enforcing ban on ‘sanctuary cities.’” Miami Herald, 21 September 2021. https://www.miamiherald.com/news/local/immigration/article254422638.html

“Executive Order 13767.” Federal Register, 25 January 2017.  https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration-enforcement-improvements

Ingraham, Christopher. “Trump says sanctuary cities are hotbeds of crime. Data say the opposite.” The Washington Post, 27 January 2017. https://www.washingtonpost.com/news/wonk/wp/2017/01/27/trump-says-sanctuary-cities-are-hotbeds-of-crime-data-say-the-opposite/

Lind, Dara. “Sanctuary Cities, Explained.” Vox, 8 March 2018. https://www.vox.com/policy-and-politics/2018/3/8/17091984/sanctuary-cities-city-state-illegal-immigration-sessions

“Sanctuary Cities.” Aspan Law Offices. http://www.apsanlaw.com/law-246.list-of-sanctuary-cities.html

“Sanctuary Policies: An Overview.” American Immigration Council, 21 October 2020. https://www.americanimmigrationcouncil.org/research/sanctuary-policies-overview

“The Current State of Sanctuary Law.” Southern Poverty Law Center, 8 March 2018. https://www.splcenter.org/20180308/current-state-sanctuary-law

The Information Space Race

By: Ian Park

Edited By: Luke Vredenburg and Tess Ballis

In a November 1 press release, Amazon announced that the company was making progress on its Kuiper Project, an ambitious, decade-long plan that would release 3,236 telecommunications satellites in hopes of providing fast and affordable broadband coverage to underserved parts of the world.[1] Yet, in order to launch the satellites, Amazon had to file an experimental license application with the Federal Communications Commission. Despite satellites of all kinds being in orbit for decades now, uncertainty surrounding private enterprises' use of space has grown. This uncertainty has led to legal debate surrounding the considerations involved in launching commercial telecommunications satellites and the future of the industry as a whole.

From the moment the U.S.S.R. successfully launched Sputnik 1, the first satellite in orbit, in 1957, the world has been working to solidify an understanding of each nation’s rights in outer space. To truly understand space law, we first have to go back to the 1967 Outer Space Treaty, the first international treaty of its kind concerning the activities of different sovereign nations in the exploration and use of outer space.[2] Since then, the Rescue Agreement, the Liability Convention, and the Registration Convention have all elaborated on the Outer Space Treaty, while the United Nations General Assembly has detailed five declarations and legal principles that further complement these treaties. Among these principles and declarations is the 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting.[3] This UN principle dictates that “activities should promote the free dissemination and mutual exchange of information and knowledge in cultural and scientific fields, assist in educational, social and economic development, particularly in the developing countries.” 

Under the broad umbrella of space law is international satellite law, which governs the usage and oversight of satellites. However, navigating the maze of which laws to comply with gets even more complicated when we consider that the launching and use of satellites by sovereign nations or private corporations fall under two separate standards — the first is the universally agreed-upon international law, and the second is the more specific telecommunications law of each nation. For the purposes of companies such as Amazon and Starlink launching satellites in the United States, we will focus on the laws America has in place regulating commercial space activities. 

Beginning with the Communications Act of 1934, the federal government has laid the groundwork for telephone, telegraph, and radio communications.[4] Since its ratification, the Act has been occasionally amended to add provisions governing satellite television and other media forms. The Communications Satellite Act of 1962 was one of the first attempts by the Kennedy administration to address the growing private and commercial interest in space.[5] Many view the Act as unpolished and incomplete but necessary in setting the groundwork for future telecommunications law. The Act established the Communications Satellite Corporation, which would later become the first global telecommunications company in the world. The first major overhaul of telecommunications law, however, came with the Telecommunications Act of 1996.[6] The Act’s purpose was to encourage fair competition and to remove barriers preventing entry into the communications business. As such, an entire section of the Act specifies actions to ensure pro-competitive privatization.[6] Furthermore, Section 303 of the Act stipulated that the Federal Communications Committee would have exclusive jurisdiction to regulate the provision of direct-to-home satellite services, including broadband.[6]

More recently, the U.S. Commercial Space Launch Competitiveness Act of 2015 (CSLCA) was passed to encourage competition between various private aerospace companies.[7] While CSLCA specifically targets commercial spaceflight instead of satellite launches, the act solidifies America’s commitment toward innovation and fair competition in the growing commercial space race. However, legal scholars have raised concerns about CSLCA’s potential conflict with Article II of the aforementioned UN Outer Space Treaty on the exploitation and use of space resources.[8] They argue that the CSLCA violates a conservative interpretation of Article II that allows for the free use of space, prohibiting the appropriation of space by use or occupation by any one entity.  

But how do the complicated intersections of space, satellite, and telecommunications law affect the way American companies approach commercial satellites and space activity today? As mentioned earlier, companies looking to launch satellites have to adhere to both international andAmerican laws on telecommunications. Amazon, for instance, is launching Project Kuiper partly as a way to explore the infant commercial space industry and to have the operational knowledge necessary to establish future operations.[9] Elon Musk’s Starlink has already secured more than $885 million in grant funding from the FCC and launched 1,740 satellites to date, offering affordable Internet rates in 14 countries.[10] Many believe that thanks to CSLCA and the Telecommunications Act, increased competition in broadband services is going to drive down prices for consumers while expanding coverage. As the larger debate over property rights and commercial entities in space continues to grow, space law is naturally going to be the basis for settling disputes. 

Ultimately, the future of our connected world (and in this case, what lies just outside of it) depends on the telecommunication laws in place at different levels of legislature. While we may take satellites and the critical information transfers they facilitate for granted, their prevalence and necessity in our highly interconnected 21st-century lives are hard to overlook. In their current state, America’s telecommunications laws are pushing the country and, in turn, the world in the right direction to encourage innovation and improve access to a basic human right.

Notes:

1. Amazon Staff, “Project Kuiper Announces Plans…,” Amazon. 

2. Stephen Garber, “Outer Space Treaty of 1967,” NASA, https://history.nasa.gov/1967treaty.html. 

3. UN Office for Outer Space Affairs, “United Nations Office for Outer Space Affairs,” UN Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/dbs-principles.html.  

4. Bureau of Justice Assistance, “The Communications Act of 1934,” Bureau of Justice Assistance, https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1288. 

5. Legal Information Institute, “U.S. Code: Title 47. Telecommunications,” Legal Information Institute, https://www.law.cornell.edu/uscode/text/47.

6. “76 Stat,” USCODE.HOUSE.GOV, http://uscode.house.gov/statutes/pl/87/624.pdf. 

7. “U.S. Commercial Space Launch Competitiveness Act - Congress,” Congress, https://congress.gov/114/plaws/publ90/PLAW-114publ90.pdf. 

8. P.J. Blount and Christian Robinson, “One Small Step: the Impact of the U.S. Commercial Space Launch Competitiveness Act of 2015 on the Exploration of Resources in Outer Space,” UNC School of Law, https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1324&context=ncjolt. 

9. Adam Clark Estes, “The Complicated Promise of Amazon’s Space Internet,” Vox, https://www.vox.com/recode/2021/11/3/22761345/project-kuiper-satellite-amazon-space-internet. 

10. Ry Crist, “Starlink Explained: Everything You Should Know about Elon Musk’s Satellite Internet Venture,” https://www.cnet.com/home/internet/starlink-satellite-internet-explained/. 

Bibliography:

Amazon Staff. “Project Kuiper Announces Plans and Launch Provider for Prototype Satellites.” About Amazon. Amazon, November 1, 2021. https://www.aboutamazon.com/news/innovation-at-amazon/project-kuiper-announces-plans-and-launch-provider-for-prototype-satellites?asc_campaign=commerce-pra&asc_refurl=https%3A%2F%2Fwww.businessinsider.com%2Famazon-project-kuiper-launch-spacex-starlink-competitor-satellite-internet-broadband-2021-11%3Futm_source%3Dfeedburner%26utm_medium%3Dfeed%26utm_campaign%3DFeed%253A%2Btypepad%252Falleyinsider%252Fsilicon_alley_insider%2B%2528Silicon%2BAlley%2BInsider%2529&asc_source=browser&tag=thebusiinsi-20&utm_source=Sailthru&utm_medium=email&utm_campaign=Recode+11.02.2021&utm_term=Recode. 

Blount, P.J., and Christian Robinson. “UNC Scholarship - University of North Carolina School of ...” One Small Step: the Impact of the U.S. Commercial Space Launch Competitiveness Act of 2015 on the Exploration of Resources in Outer Space. UNC School of Law, December 1, 2016. https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1324&context=ncjolt. 

Bureau of Justice Assistance. The Communications Act of 1934. Bureau of Justice Assistance. https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1288. 

Crist, Ry. “Starlink Explained: Everything You Should Know about Elon Musk's Satellite Internet Venture.” CNET, 2021. https://www.cnet.com/home/internet/starlink-satellite-internet-explained/. 

Estes, Adam Clark. “The Complicated Promise of Amazon's Space Internet.” Vox. Vox, November 3, 2021. https://www.vox.com/recode/2021/11/3/22761345/project-kuiper-satellite-amazon-space-internet.

Garber, Stephen. “Outer Space Treaty of 1967.” NASA. NASA, October 26, 2006. https://history.nasa.gov/1967treaty.html. 

United Nations Office for Outer Space Affairs. “United Nations Office for Outer Space Affairs.” DBS Principles. United Nations Office for Outer Space Affairs. Accessed https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/dbs-principles.html.  

“U.S. Code: Title 47. Telecommunications.” Legal Information Institute. Legal Information Institute. https://www.law.cornell.edu/uscode/text/47. 

“U.S. Commercial Space Launch Competitiveness Act - Congress.” U.S. COMMERCIAL SPACE LAUNCH COMPETITIVENESS ACT. https://congress.gov/114/plaws/publ90/PLAW-114publ90.pdf. 

“76 Stat.” Public Law 87-624-AUG. 31, 1961. USCODE.HOUSE.GOV. http://uscode.house.gov/statutes/pl/87/624.pdf.