Is Amazon.com a Monopoly?

Amazon.com, the preeminent online marketplace for seemingly all goods that exist, has been a lightning rod for criticism.  It experienced backlash over trying to control the e-book market and putting brick and mortar bookstores out of business.  It has also been accused of being a monopoly in violation of antitrust law.  News recently broke about Amazon potentially looking into the creation of their own delivery service in order to stop paying fees for the sue of UPS and FedEx.  With this addition, the evidence for Amazon being a monopoly may actually increase.

A monopoly has been defined by the Supreme Court to have two elements: the power to control prices and/or exclude competition in a similar market and the willful acquisition or maintenance of said power as a consequence of a superior product.  Clearly, determining the “market” that Amazon appeals to is a challenge, as they offer so many products which cover a wide spectrum of demographics.  However, if Amazon were to use their own delivery service, this would be directly attacking the market of UPS and FedEx.  The courts look to three things in determining these elements: market power, exclusionary conduct and business justification.

In using their own service (dubbed “Consume the City” by some, as a nod to Amazon’s efforts to control delivery on every street corner), Amazon would be able to control their shipping costs.  According to the Wall Street Journal, Amazon spent over $10 billion in recent years in shipping on a mere quarterly basis while boasting a quarterly income of over $30 billion.  Clearly, the market power of Amazon is staggering, especially when one considers that it began as a mere online book retailer.

By cutting out the middle man, so to speak, Amazon would essentially decide on their own terms what to charge customers while also getting packages to them faster and making an impact on Amazon sales of billions.  There appear to be 40-50 million Amazon Prime subscribers in the United States alone.  If Amazon is offering every product under the sun at their own, discounted price, why would a customer use a website that charges more for shipping?  This would directly impact UPS and FedEx and have an exclusionary impact on them.  This seems as though it fits into the first element.

The second element would be a little more difficult to prove.  If the market was gained as a result of superior products or innovation, then this is allowed.  However, exclusionary supply or refusal to deal with a merchant would apply.  The only superior product that Amazon would be offering is its delivery system but it would not be delivering products outside of Amazon; therefore, its supposed superior delivery would seem to only apply to specific products and may act as exclusionary.  This could be seen as an unlawful use of its new power under the second element.

The courts would side with Amazon if they had a proper business justification for this new service.  On its face, this certainly does seem to favor the consumer if it truly does offer a better delivery service that is both cheaper and faster.  It is well known at this point that Amazon is experimenting with the use of drones for delivery so there is a history of attempting to implement new, faster forms of delivery.

Ultimately, Amazon may very well already have a monopoly and could be expanding its monopoly to delivery companies.  If UPS and FedEx were to lose their ability to deliver Amazon packages, they would suffer great financial burdens and need to completely retool their approach to delivery.  After all, the busiest time of the year for delivery companies is the holiday season when consumers need a package to arrive as soon as possible; Amazon already offers free two-day shipping for Amazon Prime members and will sometimes even offer free overnight shipping.  Once UPS and FedEx lose their place for the holidays, it could be disastrous for these companies.  However, proving a monopoly that results in damages or an agreement to stop their own delivery service would be difficult to prove.  But companies such as UPS and FedEx must be wary of this new development.

Repealing the 1966 Cuban Adjustment Act; An Inhumane Approach to Immigration

American foreign and migration policy should reflect Cuba in 2016, and not 1966, and there is a fairer and more human way of expediting the immigration process for Cubans as well as other foreign natives. Ninety miles of water is the only thing that stands in the way of Cuban migrants from the shores of Key West, Florida. In 1966 the United States in response to Cuba’s communist political association loosened up the rules of their current immigration system and created the Cuban Adjustment Act.

This act also known as the wet foot/ dry foot policy allows a native or citizen of Cuba, who has been inspected and admitted or paroled into the United States and has been physically present in the United States for at least one year, to apply for permanent residency in the United States. In reality this law means that if a Cuban native can reach United States land they are allowed to stay. If they are captured at sea they are sent home, just to embark on the same journey the next week.

The United States Coast Guard in 2015 stopped 4,462 Cubans who attempted to illegally enter the United States by sea. Coast Guard officials in Florida are alarmed by the increasingly drastic, and violent, tactics Cuban migrants are threatening, or using, to reach freedom. This law invites Cubans to take greater risks to reach U.S. shores, and is increasingly endangering the lives of the Coast Guardsmen charged with standing in their way. Desperation has caused men and women to severely injure themselves when the United States Coast Guard approaches so they are flown to a nearby United States hospital.

No other immigrant community is afforded the same on-arrival treatment. A number of Governors and State Representatives have called for action, including Mark Rubio, the son of Cuban immigrants, who stated “the special treatment afforded to those fleeing Cuba must be re-examined in light of outrageous abuse of the existing law.”

The United States Immigration Service has in place a system that grants refugee status or asylum to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion. This process allows for additional security measures, such as a fingerprinting and background checks, to ensure that the United States is affording the opportunity for migration while ensuring the safety of the Country. Ultimately this process ensures that applicants across the world who are really are in need of asylum are afforded it.

Therefore, repealing the Cuban Adjustment Act is the first step to create a working, fair, and human process to an immigration policy that allows equal protection to all.

Sources:

8 U.S.C. § 1255 (2006)

http://latino.foxnews.com/latino/news/2016/04/21/fearing-end-wet-foot-dry-foot-cubans-fleeing-to-us-in-record-numbers/

https://www.uscis.gov/green-card/green-card-through-refugee-or-asylee-status

https://www.theguardian.com/us-news/2016/jan/12/marco-rubio-bill-cuban-immigrants-federal-benefits-prove-persecution

Whose Bright Stripes and Bright Stars…..

Mississippi State University and the University for Women have joined five other public universities in ceasing to fly Mississippi’s state flag that shows the Confederate battle emblem in the upper left-hand corner.

The decision comes at a time when many of Mississippi’s public universities have taken affirmative steps to distance themselves from Confederate symbols. Just last fall, two universities, Ole Miss and the University of Southern Mississippi, removed the state flag from their campuses. While those efforts should not be overlooked and certainly commended, there is definitely more work that needs to be done.

Unfortunately, the movement to abolish Mississippi’s confederate flag has not had an impact on state policies. The 2016 legislation session saw several bills intended to change the state flag die in House Committee. Currently, Mississippi law gives the state flag all the respect and ceremonious etiquette attributed the American flag.

Federal District Judge Reeves held that Mississippi’s flag is not unconstitutional and the individual bringing the suit did not have standing or a legal right to be in the court. The court found that the plaintiff did not have a “cognizable legal injury.” However, several argue that for many African Americans, the Confederate battle emblem is a symbol of slavery, lynchings, pain, and white supremacy. Justice Fred Banks noted that “the battle emblem takes no back seat to the Nazi Swastika’ in the ability to provoke a visceral reaction.”

I believe that often the judicial system is not always the correct avenue to effectuate the change that we want. As with the universities, it was the students who rallied together to demand change. I believe as a law student I am in a powerful position; a position that allows me to know the law and be a catalyst for change.

Green Police

Starting in the late 20th century, one of the biggest obstacles in reducing climate change is the inability to decrease atmospheric levels of carbon dioxide produced by fossil fuels. The continuous extraction of fossil fuels are attributable to many big oil corporations such as Rosneft, Chevron, and Conoco Phillips. After many years of failed federal acts and legislation to confront this problem, some states started taking a stand against ExxonMobil, which is one of the biggest oil companies in the United States. Massachusetts Attorney General Maura Healey, along with sixteen other state attorney generals, are investigating Exxon for consumer and securities fraud due to Exxon’s alleged misrepresentation of financial and market risks caused by climate change. Particularly, the attorney generals’ investigations of ExxonMobil are centered upon the allegation that the company “knew about the connection of fossil fuels and climate change as far back as 1977, and planned internally around its impacts, while working publicly to discredit climate science.”

Although the Massachusetts Attorney General’s office and the other  states’ attorney generals are convinced that this investigation is not based on speculation, ExxonMobil disagrees and recently sued the Massachusetts Attorney General Maura Healey. ExxonMobil states that Healey’s investigation is violating their First Amendment right of free speech, Fourth Amendment right against unreasonable search and seizures, and for violating the Massachusetts statute of limitations. ExxonMobil also argues that the Healey is unable to sue them because ExxonMobil does not conduct business in Massachusetts and cannot be hailed into a Massachusetts court. Interestingly, several other state attorney generals, including Texas, have sided with ExxonMobil and wrote to Maura Healey along with the sixteen other attorney generals, advising them to drop the investigation.

As a society we must think of the implications of this investigation into fossil fuel companies. One significant repercussion of this investigation is the further divide between big business and environmentalists. Nevertheless, this further political rift between the two is very small compared to what is at stake for our environment. We can no longer sit idly by as corporate greed destroys our Earth. It is time for those companies that are responsible for climate change be held accountable because money isn’t the only green thing that is important.

Mary Serreze, ExxonMobil Sues Attorney General Maura Healey Over Climate Fraud Probe, MassLive.com, http://www.masslive.com/politics/index.ssf/2016/06/exxonmobil_sues_ag_maura_heale.html.

David Hasemyer, Exxon Sues a Second Attorney General To Fight Off Climate Fraud Probe, Insideclimatenews.org, https://insideclimatenews.org/news/16062016/exxon-sues-massachusetts-attorney-general-climate-change-fraud-investigation.

Is it Finally Time for Reform in College Football? Are Scholarships Enough?

With the college football season underway, a lot of people are becoming familiar with names like Lamar Jackson, Deshaun Watson, JT Barrett, and Christian McCaffrey. These young men share a lot in common. They are the faces of their universities’ football teams; Heisman Trophy hopefuls, the center of Sports Center debates, and the reason thousands of fans buy tickets to games. What else do they have in common?  They don’t receive a dime of the profits that the NCAA and its affiliated universities and colleges receive. A lot of you are probably thinking that these athletes are on scholarship; they receive a free education at some of the most prestigious schools across the country in order to play the sport they love. Well this is true, but is a scholarship really enough, considering that the NCAA is annually raking in over a billion dollars annually?

The truth of the matter is that colleges, universities, and the NCAA do exactly what they aim to protect their student athletes from. The NCAA was created in order to protect the integrity of college sports and protect its athletes from exploitation of their athletic prowess for the financial gain of others. The truth of the matter is the NCAA and its colleges and universities are using these kids to obtain billion dollar television contracts, sell tickets, sell apparel, and receive endorsements from the likes of Nike, Under Armor and Adidas. Every Saturday, these young men take the field and fans gather in order to see them. They want the highlight catches by the standout wide receiver, they want the late game winning drive by the Heisman hopeful quarterback, and they want the glory of being involved in something that is bigger than themselves. Let me tell you, these kids flat out deliver. College football players deliver because they put in the work, work that totally devours their lives. Under the law, these kids should be considered employees and should be offered compensation and the protections that come with employment.

Football is a dangerous sport; at any given time a player’s career could be over in the blink of an eye. They deserve to make a little money that they can use however they see fit. Today these student-athletes often struggle to afford to eat and buy clothes. In extreme cases players have been left homeless. For schools making a profit off of their college football programs, something should be done to compensate these employees who are putting in countless hours each day to bring a profit to their employer.

The NCAA and its affiliated colleges and universities have complete control over these athletes. In order to remain eligible to play football in college, the students must attend classes, maintain a certain GPA, and not receive any sort of financial compensation for their athletic prowess. In order for their coaches to actually let them play, they have to attend practice, go to weightlifting sessions, study periods, and team meetings. The test for employment is one of control. It looks to determine how much control an employer has over an employee in their everyday life. Here, it is quite obvious the NCAA is very much in control of these players’ daily lives.

There is no clear way on how this can be done especially when the vast majority of athletic programs run at a deficit. But for the NCAA and its affiliated colleges and universities to control the exclusive rights to profit off of the students is wrong. Why not let them gain a little celebrity by making some extra cash doing off season appearances, such as signing autographs and starring in commercials?  The fact of the matter is action needs to be taken because the student-athletes are being exploited for their athleticism by the one entity they depend on to protect them. There is no easy solution and any reform would most likely throw off the system completely but something has to be done because the system in place now is not just.

The Future of SEO: Impact Google May Have on Future Online Advertising

Advertising has greatly evolved with the expansion of the internet. Years ago, advertising consisted of taking out a billboard, calling the local newspaper, taking out a section or a page, the yellow pages, etc. However, advertising has recently expanded to the internet with the use of websites, search engines, and even social media.

When we are interested in a specific product, we might go online, open google, and give them a quick search. We look for websites, google places page, reviews, and maybe even look at websites such as Yelp if we’re really looking for something.

Companies use ‘search engine optimization,’ or SEO, to increase their appearance in search engine results. These searches pick up a company’s website, social media profiles and channels, articles, and news articles. One way to increase visibility online is by the use of a Google product known as AdWords. AdWords is a pay-per-click program which allows a company to advertise on Google search results using specific keywords related to their business. When someone searches for that keyword in a local area, the company website appears first in the results. The company, however, only ‘pays for the click’ if the website is clicked on. Seems simple. Well it is, but could be expensive for the company owner.

SEO companies specializing in expanding their clients’ presence online have found ways to optimize while using non-ad Google search results. e-ventures Worldwide, LLC, an SEO company doing just this, however, has filed a lawsuit against Google for manually removing a total of 365 websites belonging to their clients from search results. By going around the algorithm and not advertising with AdWords itself, e-ventures Worldwide was able to save money for their client while still enhancing the company’s name online. Google, as you can imagine, was not happy.

According to their complaint, e-ventures Worldwide claims Google had an anti-competitive, economic reason for manually banning their clients’ websites from appearing in Google searches. Such claim was plausible enough to prevail in a Motion to Dismiss filed by the plaintiffs. Google claims that their ban is because e-ventures Worldwide violated guidelines set in place to prevent manipulations of the search rankings. However, Google claims that they have a right to remove any website at their own discretion. Under Google’s broad power of removal, “any website owner that attempts to cause its website to rank higher, in any manner, could be guilty of ‘pure spam’ and blocked from Google’s search results, without explanation or redress.”

Such discretion given to Google seems too broad. Google could have discriminatory reasons to remove a company from search results, without the company being aware or given notice of such removal. This decision could have a great impact on small, local businesses trying to make a name for themselves. e-ventures Worldwide may not be the only company manipulating the algorithm to increase their presence online in order to avoid paying AdWords. Google, if successful in this suit, could control the future of advertising.

The Ballad of a 4L: What Doesn’t Kill You Makes You More Efficient

It was a muggy August evening in 2013 when I hustled into the lobby of UMass Law School for my first day of orientation. I was sweating, running late due to traffic coming up Route 195 from my office. After hurrying up the stairs two at a time, I slid into a seat in the large lecture hall, surrounded by 80 other 1Ls.  While waiting anxiously for the session to start, I fidgeted with the brief I had prepared. When Dean Bilek stood up to address our newest class of UMass Law students, she looked around at all of us and smiled. “You’re all getting just a small taste of what your classmates going to school at night will go through…”

Working full time and going to law school part-time at night and on the weekends is nothing short of grueling. It requires us to wear many different hats simultaneously. Not only are we employees, bosses, and co-workers, but we are also parents, partners, and friends. Somewhere in all of that, we are also students.  Night student life requires us to work an eight hour day, drive to school, and sit in class until 9:30 at night before returning to whatever far flung corners of the state from which we come. In order to fulfill scholarship requirements and pro bono obligations, we use up vacation time, or give up our one day off a week, because Saturdays have been sacrificed to early morning classes and afternoons studying in the library. When asked what our plans are for the summer, we either “take a break” by only working our day jobs, or we punish ourselves even further by taking summer classes in an effort to complete our degrees in a shorter period of time. I cannot count the number of times I’ve arrived home at 10:00PM after class, dropped my heavy backpack on the floor and burst into tears, because the thought of having to pack a lunch and get ready for work the next day was almost too much to bear amid the overwhelming exhaustion of the daily night student grind. More often than not, I’ve felt like a ship passing in the night to both roommates and classmates, tenuously connected to campus when the reality of life beyond school reemerges well after sunset. A professor once asked a group of us if we’d attended the ABA accreditation open meeting, an opportunity for students to interact with the site team and exemplify the diversity of the UMass Law student body. We all looked around at each other. “It started at 4:30? I don’t get out of work until 5:00.”

And yet, we night students contribute a wealth of professional experiences to this law school community, carefully developed before we even had the opportunity to step on campus. We are taskmasters and we are efficient-mostly because we don’t have a choice.  And yet, we excel. We are Public Interest Law Fellows and Law Review Editors. We are TAs and interns and 3:03 student attorneys. For four or five years, we wear many different hats. But when we walk across that stage to accept our degree, we are all wearing the same hat: graduate. Attending law school at night while working full-time may have almost killed us, but when we come out of it alive, it is with the confidence that we really can do anything.