Volume 2021, No. 3

PDF link Table of Contents


PDF link Missing Immigrants in the Rhetoric of Sanctuary

by Ava Ayers

The idea of sanctuary for undocumented immigrants started among activists and was soon adopted by governments. In this process, the idea changed. This Article follows sanctuary’s changing moral content by studying the reasons that states and localities give when they adopt “sanctuary” policies limiting their cooperation with federal immigration enforcement. One might expect policymakers’ statements to imply concern for the well-being of noncitizens, particularly those who face deportation. We might even expect sanctuaries’ rhetoric to imply that undocumented people should be welcomed as members of the communities in which they reside. In fact, many jurisdictions carefully avoid saying either of those things. This Article examines the implications of these unexpected silences.

PDF link Colluding Against a Patent

by W. Michael Schuster & Gregory Day

The patent system fosters innovation by granting the right to exclude. Since a rightsholder can legally suppress competition and charge monopoly prices, a patent provides a type of antitrust immunity. Even when firms allegedly abuse their exclusive rights through the creation of patent thickets, meritless infringement litigation, or breaching one’s FRAND commitment, courts and federal agencies have concluded that antitrust is ill-equipped to discipline patent practices. Without antitrust remedies, firms have banded together against rightsholders to negotiate for better terms. Their strategies have included boycotting abusive patentees, as well as collectively negotiating against them. By using self-help remedies, they seek to pay fair rates for only the patents needed for their technology. This type of cooperation may ideally foster competition and innovation where patent abuses undermine both goals. The problem is, ironically, that combining against a monopolist is likely anticompetitive. Antitrust condemns collusion to manipulate prices—here, licensing rates—even when done against a monopolist. This renders a troubling outcome where “Big Pharma,” “Big Tech,” and others can insulate their monopoly power using the very laws meant to condemn monopolies. While debate has emerged about patent abuses, an equally salient issue involves whether antitrust should condemn firms who collude against patent holders and monopolists.

Using economic and historical evidence, this Article argues that antitrust law should allow firms to defend an antitrust claim by citing their rival’s market power. Our models show that powerful rightsholders do, in fact, harm competition and innovation in ways not meant to protect original technology. We then find that the benefits of collusion among smaller firms were advanced by the Sherman Act’s drafters, whose comments are critical to shaping and understanding modern antitrust. Support even comes from the labor arena: Congress excluded workers from antitrust law—as labor unions were once considered a form of collusion—so that workers could counterbalance their employers’ dominance with their own market power. As such, given the practical and theoretical difficulties of remedying anticompetitive abuses of patent rights under the antitrust laws, we assert that taking antitrust out of patent law would allow competition to flourish in dynamic markets while enhancing the patent system’s incentives to innovate.

PDF link The Invisible Rules That Govern Use of Force

by Ion Meyn

Police departments reject the idea that use of force can be governed by hard and fast rules. Under this rule-resistant view, using rules to regulate use of force would be dangerous and in practice impossible, as officers must retain broad discretion to respond to ever-changing conditions in the field. Despite the prevalence of this view, the Article finds that, behind closed doors, departments are constructing hard and fast rules that limit officer discretion.

This disconnect between the rule-resistant narrative and the rule-bound reality has important implications for use-of-force reform. Acceptance of the rule-resistant narrative tends to deflect public attempts to exert influence over use-of-force practices, limiting community input to the proposal of aspirational standards. At the same time, departments are internally adopting hard and fast rules, some of which require officers to engage in violence. If communities had access to these rules, they could closely interrogate, disagree with, and amend them. Ultimately, departmental efforts to convince the public that it is impossible to do what the department actually does are at the center of a struggle over who wields control over use-of-force reform—the police or the communities they serve.

This Article’s findings are based on extensive interviews of command- level officers across the country, in addition to the transcription and examination of a comprehensive set of training videos. These sources provide rich insights that reveal the strong departmental belief in the rule-resistant narrative that departments, however unknowingly, undermine behind closed doors.