Volume 2020, No. 5

PDF linkTable of Contents


PDF linkA Short Treatise on Sports Gambling and the Law: How America Regulates its Most Lucrative Vice

by John T. Holden & Marc Edelman

On May 14, 2018, the U.S. Supreme Court decisively held in Murphy v. National Collegiate Athletic Association that the Professional and Amateur Sports Protection Act (PASPA) violated the Tenth Amendment of the United States Constitution. This ruling, in conjunction with other societal changes, has opened the floodgates for states to liberalize laws on sports betting. In less than two years since Murphy, eighteen U.S. states, in addition to the District of Columbia, have legalized sports betting in some form. Meanwhile, eleven states have specifically legalized online sports betting. This Article (or, perhaps more accurately stated, short treatise) is the first of its kind to provide a detailed analysis of how the United States regulates sports gambling in the aftermath of Murphy v. NCAA. The Article closely examines the history of sports gambling, seminal legal decisions involving the sports betting industry, new state regulatory systems that have emerged since the Supreme Court’s Murphy decision, newfound legal risks for companies that operate in sports gaming markets, and important matters of public policy related to regulating America’s most lucrative vice.

PDF linkMerger Breakups

by Menesh S. Patel

One of today’s most pressing antitrust questions is how antitrust should address the conduct of dominant technology companies. Once considered untouchable by antitrust law, these technology behemoths are now the subject of growing calls for antitrust breakup, including through actions by the federal antitrust agencies to challenge and unwind key mergers in the technology space. But nearly every one of the technology mergers identified for ex post challenge and breakup was previously reviewed and cleared by the antitrust agencies pursuant to the existing federal merger review scheme, even after a lengthy investigation in some instances. The calls for the antitrust breakup of these identified technology mergers therefore implicate a much more fundamental antitrust question: should the antitrust agencies more readily challenge mergers that they themselves previously reviewed and cleared pursuant to the existing federal merger review scheme? This Article offers a qualified affirmative response to that question. The antitrust agencies should increase the extent of their challenges to previously reviewed and cleared mergers but should do so in a principled way that respects the significant mitigating factors associated with an expansion in such ex post merger challenges. By conducting that principled analysis, this Article identifies important limiting conditions on the expansion of agency challenges to previously reviewed and cleared mergers.


PDF linkIn Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19

by Nizan Geslevich Packin

The COVID-19 economic crisis has brought to light something very broken in the American banking system—that banks prioritize their own profits over the interests of those they serve and over the interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.

In an effort to support the economy, the U.S. government passed numerous stimulus acts, which included, among other things, a Paycheck Protection Program (PPP) and the distribution of relief checks to consumers. To effectuate this massive distribution of liquidity on an expedited basis, the government relied on big banks. But instead of prioritizing the public welfare, the banks focused on their bottom lines and, thus, did not carry out the true intent of the stimulus. For example, with respect to the PPP, while the Small Business Administration was required to process the loans on a first-come, first-served basis, the banks were not. Absent that requirement, the banks prioritized richer and bigger customers. As a result, women- and minority- owned small businesses, as well as peripheral area-based small businesses, found themselves facing more barriers to getting loans. Similarly, with respect to the direct distribution of relief checks to consumers, banks prioritized their own interests over those of their customers. For example, in an effort to collect bank debt, banks froze and seized the funds from government relief checks that had been deposited into consumer accounts before the consumers that actually needed those funds ever received them. Consequently, various state attorney generals and courts had to intervene and mandate that the consumers be permitted to use the funds as the government had intended—for necessities like food and shelter.

There are several techniques we can employ to modify banks’ ethical behavior and cultural norms. This Essay discusses such methods, which include (i) a top-down regulatory approach; (ii) the creation of market-led initiatives; (iii) an interpretive fix, offered by the judicial system; and (iv) a public criticism and shaming semi-regulatory approach.


PDF linkA Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis

by Emily O’Brien

Wisconsin’s drug-induced homicide law was intended to prosecute for- profit drug dealers and was rarely charged for several decades after it was enacted in 1986. In recent years, prosecutors have brought hundreds of these homicide charges in response to opioid deaths. Often, these charges are brought against overdose victims’ friends and family members—people who are also mired in addiction and who shared or helped obtain the fatal drug. In contrast, Wisconsin’s Good Samaritan Overdose Law (GSOL), enacted in 2014, focuses on harm reduction. If a person calls for help when another person is overdosing, the law provides both people with some insulation from prosecution of a range of drug-related charges. These laws approach the problem of overdose death from very different angles: The drug-induced homicide law punishes addicts for their role in overdose deaths, while the GSOL offers addicts protection from prosecution to encourage calls for medical intervention in overdose situations. Unfortunately, the current implementation of the homicide law diminishes the potential of the GSOL to save lives because addicts face the possibility of a homicide charge when they summon help for an overdose victim.

With the rise of lethal synthetic opioids in Wisconsin, the criminal justice system must adjust its current laws and practices to reduce overdose deaths. The criminalization of addiction represented by the drug-induced homicide law thwarts rehabilitation efforts, miring addicts in a cycle of incarceration and drug use that ends with death in too many cases. This Comment proposes a possible solution: separating addicts from for-profit drug dealers in the eyes of the law by implementing a joint-user defense in drug-induced homicide cases. Addicts are more likely to use opioids with other addicts than alone. By removing the possibility of a homicide conviction, addicts will more readily utilize the GSOL and call for medical intervention when a fellow addict is overdosing. Additionally, separating addicts from dealers allows prosecutors to use the drug-induced homicide law as it was intended, while freeing up investigatory and prosecutorial resources for the more complex task of investigating commercial drug dealers and disrupting the drug trade. This approach would begin to align Wisconsin’s criminal laws with the state’s rehabilitation-focused public health efforts at combating opioid addiction in communities and reducing overdose deaths.

PDF linkOptimized for Addiction: Extending Product Liability Concepts to Defectively Designed Social Media Algorithms and Overcoming the Communications Decency Act

by Allison Zakon

Over the past decade, social media has gained an ever more pervasive presence in our lives. But the social connection, real-time dissemination of information, and the creative outlet it provides come with a cost that is invisible to most users: to increase site value, many platforms are designed to addict users and trap them in a cycle of dependence that can ravage their mental health and wellbeing. One of the most effective ways for platforms to maximize their value is by using recommendation systems: sophisticated software systems that utilize artificial intelligence to learn about the user and predict what kinds of content will keep them scrolling, clicking, and liking.

This Comment sketches out a legal solution for a subset of the harms caused by these algorithms by arguing that product liability concepts should extend to social media platforms, who have managed to achieve a nearly impenetrable form of immunity due to Section 230 of the Communications Decency Act (CDA). The first part of this Comment summarizes the relevant concepts, including the recommendation engines that drive social media, the mental health effects of social media use, and the origins and purpose of the CDA. Next, this Comment demonstrates that social media platforms qualify as products for the purposes of strict product liability and walks the reader through a hypothetical example of the risk-utility test. Finally, this Comment considers Section 230 of the CDA and offers two avenues for circumventing its broad grant of immunity. Instead of joining the extensive body of literature lamenting the woes of the CDA, this Comment proposes an affirmative solution that enables victims to recover while holding the multi-billion-dollar social media industry to a higher standard and incentivizing greater levels of caution in its development process.