From Memphis, with Love: A Model to Protect Protesters in the Age of Surveillance

In 1978, after two years of contentious litigation, the City of Memphis entered into a unique agreement with its citizens: it signed a consent decree, stipulating that it would halt its interference with First Amendment–protected activities. More specifically, the Consent Decree barred the City from surveilling protesters—the very conduct that triggered litigation. Fast forward forty years. In 2018, narratives of police brutality dominated the nation’s headlines. Consequently, protesters demonstrated from the streets of Ferguson, Missouri to Oakland, California. And in Memphis, Tennessee, those who protested were often met with an all-too-familiar response—surveillance by the Memphis Police Department. That is until the Western District of Tennessee found that the City had violated the terms of its own agreement. The court’s message was undeniably clear—the Memphis Consent Decree is alive and well. Memphis is by no means an outlier in police–civilian relations. After all, police departments across the country surveil protesters. But Memphis is an outlier in terms of the method it has chosen to address this issue. As the surveillance of protesters and the capacity to surveil protesters grow, the Memphis Consent Decree offers a model for future legislation that better safeguards First Amendment values. This Note accordingly narrates the story of Memphis, its successes and failures, and the lessons it holds for hundreds of cities, for decades to come

Modifying the Escalera Consent Decree: A Case Study on the Application of the Rufo Test

This Note argues that modifying the Escalera degree is appropriate under Rufo and would allow NYCHA to maintain a safe environment for its residents. It expains the standard used in modifying a consent decree, pre- and post-Rufo, as well as the difficulties in applying the Rufo test. It traces the history of the Escalera Consent Decree, outlines the arguments for and against modification, and applies Rufo to the proposed modification of Escalera, arguing that modification is appropriate because the facts have changed significantly since the Decree was signed, and the modification sought is appropriately tailored to those changed circumstances

Court-Ordered Foster Family Care Reform: A Case Study

The authors examine the implications of G. L. v. Zumwalt, a case that resulted in a far-reaching consent decree that mandates specific reforms in policy and practice to be implemented by a public social welfare agency in its delivery of services to foster children and their families

How Antitrust Enforcement Can Spur Innovation: Bell Labs and the 1956 Consent Decree

We study the 1956 consent decree against the Bell System to investigate whether patents held by a dominant firm are harmful for innovation and if so, whether compulsory licensing can provide an effective remedy. The consent decree settled an antitrust lawsuit that charged Bell with having foreclosed the market for telecommunications equipment. The decree forced Bell to license all its existing patents royalty-free. The compulsory licensing increased follow-on innovation building on Bell patents by 17%. This effect is driven mainly by young and small companies. Yet, innovation increased only outside the telecommunications equipment industry, suggesting that compulsory licensing without structural remedies is ineffective in ending market foreclosure

How Antitrust Enforcement Can Spur Innovation: Bell Labs and the 1956 Consent Decree

We study the 1956 consent decree against the Bell System to investigate whether patents held by a dominant firm are harmful for innovation and if so, whether compulsory licensing can provide an effective remedy. The consent decree settled an antitrust lawsuit that charged Bell with having foreclosed the market for telecommunications equipment. The decree forced Bell to license all its existing patents royalty-free. The compulsory licensing increased follow-on innovation building on Bell patents by 17%. This effect is driven mainly by young and small companies. Yet, innovation increased only outside the telecommunications equipment industry, suggesting that compulsory licensing without structural remedies is ineffective in ending market foreclosure

“It’s Been a Hard Day’s Night” for Songwriters: Why the ASCAP and BMI Consent Decrees Must Undergo Reform

In order to guarantee reasonable fees for songwriters, composers, and publishers, the consent decrees must undergo critical reform to account for how music is licensed in new media. Part I of this Note will provide background on the mechanics of music licensing, both traditional and through modern mediums, in order to explain why the two largest PROs initially entered into governmental consent decrees. Part II will discuss recent judicial determinations of “reasonable” licensing rates for public performances in new media and demonstrate the discrepancy in compensation between songwriters and their sound recording counterparts, namely record companies and recording artists. Finally, Part III will argue that the solution to this problem is through consent decree reform. The decrees should be modified to allow songwriters to withdraw their digital rights in order to separately license songs in new media. A new PRO should then emerge in the market place to account solely for public performance rights in new media, leaving traditional licensing to the existing PROs. Additionally, the current judicial process for setting rates, known as the “rate court” system, should be replaced with expedited, binding arbitration. Making these important changes to the music-licensing system will work towards bridging the gap in compensation inequality between songwriters and recording artists

The Yonkers Case: Separation of Powers as a Yardstick for Determining Official Immunity

The author examines the application of the official immunity doctrine to a situation where a federal district court issued contempt citations to local legislators in Yonkers who refused to pass legislation as required by a consent decree. The author argues that the function test for official immunity is by its very nature conclusory, and thus courts, in close cases, should use a separation of powers analysis to inform their application of the function test. Courts should deploy this separation of powers analysis by finding that where an official act was based on a mixture of powers, a rebuttable presumption should exist that the official was acting in an executive capacity and is only entitled to qualified immunity