Nebraska Places in Quarter Finals at Space Law Moot Competition
31 Mar 2021
Nebraska Law students Leana Brown, ’22, Lauren Bydalek, ’22, and Martin Fischer, ’22, competed in the 2021 International Institute of Space Law Manfred Lachs Moot Court Competition March 26-27th. The competition was based on a hypothetical space law dispute before the International Court of Justice. Participating teams were required to submit a formal written argument for both the Applicant State and the Respondent State on the legal issues of the hypothetical case and to argue each side of the case before panels of judges in their respective region. Rooted in international law, this year’s competition focused on issues arising out of large satellite constellations including state responsibility, liability, and safety zones.
After an impressive two preliminary rounds the team advanced to quarter finals. There they impressed, but narrowly missed (.04 points) moving to the semi-final round, still outperforming over half of the teams in the competition. Professor Frans von der Dunk, Adam Little, ’12, and Executive Director Elsbeth Magilton, ’12, coached the team. Additionally, LL.M. alumnus Nathan Johnson, ’15, is now a regional organizer of the competition. Nebraska Law is extremely proud of its rich and continued history and involvement with this competition.
Immigration Clinic Students Hold Second Annual Naturalization Clinic at the College of Law
30 Mar 2021
On Saturday, March 27, 2021, students in the Immigration Clinic organized and ran the College of Law’s second annual naturalization clinic, through which community members were assisted in completing their applications to become U.S. citizens. Applicants were assisted primarily through remote means (Zoom), although some individuals chose to come in person.
Immigration Clinic students began community outreach this spring to publicize the clinic, including developing a flyer that was sent to Nebraska-based non-profit organizations who work with immigrants and sending flyers to local businesses that cater heavily to an immigrant clientele. As a result of these efforts, a total of 29 community members expressed interest in the services offered through the clinic.
Immigration Clinic students pre-screened all applicants to determine if there were any issues that might cause problems with their naturalization applications; 14 were determined to be good candidates for the clinic. An invitation was sent to the first 10 who applied; the remaining four people were put on a waiting list.
Immigration Clinic students Carly Burkhardt, '21, and Nick Grandgenett, '21, organized the clinic. In preparation, they recruited law students to participate, developed two different training sessions for the volunteers, conducted the trainings, and put in place the technology that allowed volunteers and applicants to complete applications remotely via Zoom. Law student volunteers and Immigration Clinic students made it possible to have interpreters on site in the following languages: Spanish, French, and Urdu.
The day of the clinic, the Hamann Auditorium at the Law College was “command central” for the operations, since it allowed all volunteers to be present in the same physical space consistent with social distancing requirements. Volunteers and applicants were divided into two groups to allow for further distancing. For those applicants who elected to participate in person, volunteers met with them in rooms at the College of Law that would accommodate the appropriate number of people.
Eight of the ten invitees participated. Those applicants who attended in person were given a packet that included their completed forms, as well as a “next steps” set of instructions about how to submit the naturalization applications. For those who attended remotely, packets were assembled and mailed to them the week following the clinic.
In the post-event de-brief, volunteers enjoyed a box lunch graciously provided by the Cline Williams law firm and participated in robust discussion on suggestions for future clinics.
Immigration Clinic students this semester are:
- Madeline Branstetter
- Carly Burkhardt (naturalization clinic organizer)
- Nick Grandgenett (naturalization clinic organizer)
- Aja Martin
- Mauricio Murga Rios
- Luciano Ramirez Guerra
- Olivia Russell
- Sara Tonjes
Several additional students participated in the naturalization clinic, including:
- Alejandra Ayotitla
- Alicia Christensen
- Hannah Cook
- Shana Drengenberg
- Emma Lindemeier
- Jena Mahin
- Jordan Mason
- Natasha Naseem
- Sarah O’Neill
- Christopher Schmidt
Murga Rios Awarded Immigrant Justice Corps Fellowship
19 Mar 2021
Mauricio Murga Rios, ’21, has been awarded an Immigrant Justice Corps (IJC) Fellowship, becoming the first Nebraska Law student to receive the highly sought-after honor. Murga Rios is one of twenty-eight law school graduates across the country to be part of the seventh class of Justice Fellows. Selected for their compassion, intellect, and commitment to immigrants’ rights, the 2021 Justice Fellows will bring their many skills to bear on the acute representation crisis in immigration.
Murga Rios comes to IJC with a stellar background and impressive experience. He spent his first law school summer working for an immigration attorney, where he helped immigrants fleeing violence from their home country remain in the United States. Last summer, he worked for the L.A. County Public Defender Immigration Unit, where he equipped criminal defense attorneys with the resources necessary to preserve their immigrant clients’ status and/or eligibility for future immigration relief. Now is his final semester at Nebraska Law, Murga Rios represents low-income immigrants as part of the College’s Immigration Clinic.
“Receiving this fellowship is a great honor,” says Murga Rios. “I chose IJC because I will receive unmatched training and the support necessary to provide exceptional legal advocacy for the immigrant community. The Fellowship will allow me to connect with true advocates nationwide, and I will have access to resources and the opportunity to learn from the best. I want to be the best because people without access to a lawyer need and deserve the best.” Murga Rios explained.
Murga Rios’ IJC Fellowship takes him to Catholic Charities of Central Florida, where he will provide access to lifesaving representation to immigrants on a wide range of affirmative and defensive cases. When he begins his two-year fellowship this fall, he will carry forward Nebraska Law’s proud legacy of public service and its mission of serving those in need.
IJC is the first fellowship program in the United States dedicated to providing immigrants with high-quality legal representation. IJC identifies promising lawyers and advocates passionate about immigration, places them in legal services and community-based organizations where they can make the greatest difference and supports them in training and expert insights as they directly assist immigrants in need. “I am confident that the 2021 Justice Fellows, with their impressive backgrounds and commitment to immigrants’ rights, will help IJC continue to meet the deep need for quality legal counsel which makes all the difference.” said IJC's founder, Robert A. Katzmann, Judge of the U.S. Court of Appeals for the Second Circuit.
Beard Named Editor-In-Chief of Woomera Manual
15 Mar 2021
Professor Jack Beard has been elected to serve as the editor-in-chief of the Woomera Manual on the International Law of Military Space Operations. Previously, Beard served as a core expert and will continue to serve as a member of the Manual’s editorial and governance board.
The Woomera Manual will become the definitive document on military and security law as it applies to space. The project, set for completion in early 2022, draws on the knowledge and research of dozens of legal and space operations experts from around the world. Diplomatic and military representatives from numerous foreign governments have also already contributed to the project.
Beard is the co-director of Nebraska’s space, cyber, and telecommunications law program, teaching courses in international cyber security, national security space law and arms control. His primary research interests focus on public international law and national security law, with a particular emphasis on space law, cyber capabilities, and the law of armed conflict.
The University of Nebraska College of Law is one of the four founding institutions and principal sponsors of the Woomera Manual Project. In addition to Beard, Professor Frans von der Dunk serves as a core expert on the project.
Since 2008, Nebraska Law has offered an LL.M. degree in space, cyber, and telecommunications law, and broke ground in 2013 as the only doctoral-level space law program in the United States. Students explore the law and regulations of outer space activities and work with faculty on research that leads change in the industry and government.
Lepard Publishes Article on the Responsibility to Protect Victims of Mass Atrocity Crimes
11 Mar 2021
Professor Brian Lepard has published an article entitled, “Challenges in Implementing the Responsibility to Protect: The Security Council Veto and the Need for a Common Ethical Approach,” in the Journal of Ethics.
The article focuses on the concept of a “responsibility to protect” (“R2P”) victims of mass atrocity crimes such as genocide, war crimes, and crimes against humanity, which was endorsed by the U.N. General Assembly in 2005. Despite some positive steps, the Security Council has failed to implement R2P consistently and has allowed terrible atrocities to unfold without authorizing meaningful intervention. These include the descent of Syria into brutal war with the direct targeting of civilians and safe places such as hospitals; the massacre of Yazidis by Islamic State forces in northern Iraq; the forced detention of Muslim Uighurs in “re-education camps” in China; and the mass rape and massacre of Rohingya Muslims in Myanmar. The Council has failed to reach agreement on what to do about these atrocities and has often been stymied by the exercise of the veto power by Russia and China, which are two of the five permanent Council members enjoying this power.
The article argues that a major reason for U.N. Security Council inaction has been a lack of agreement on how to reconcile the liberty of individuals and their security from mass atrocity crimes with the liberty and security of nations, including protecting them from unjustified forcible intervention. The article contends that a common ethical approach to protecting victims is required. It suggests some elements of an approach based on a principle of “unity in diversity,” and shows that these concepts find support in the U.N. Charter and international law, widely revered religious texts, and the writings of prominent ethicists. It clarifies the legal and ethical obligations of the U.N. Security Council related to a R2P in light of this approach and also investigates some reforms that ought to be implemented to limit the adverse impact of the veto on R2P action by the Council.
Professor Lepard is the Harold W. Conroy Distinguished Professor of Law at the University of Nebraska College of Law and a recognized expert on international human rights law.
Nebraska Law Named American Bar Association Pro Bono Leader
05 Mar 2021
The University of Nebraska College of Law was recognized as a 2020 Pro Bono Leader for its dedication to pro bono work and participation in the American Bar Association’s Free Legal Answers Program. Nebraska Law is receiving this recognition for the third consecutive year.
The ABA Standing Committee on Pro Bono and Public Service presents annual recognition to individual attorneys, law firms and law departments that have provided extraordinary pro bono services through the ABA Free Legal Answers program.
As part of this virtual advice clinic, users post their civil legal questions to their state’s website. Attorney volunteers who are authorized to provide pro bono assistance select questions to answer and provide legal information and advice.
“Through this virtual clinic, our faculty and students are able to provide legal advice to more of the population, especially the low-income or rural populations that lack access to justice in our state.” said Dean Richard Moberly. “I am extremely proud of Nebraska Law’s continued participation in this program.”
The Pro Bono Leader distinction recognizes organizations that have collectively answered 75 or more questions during the calendar year, and individuals who answered 50 or more questions.
The Nebraska College of Law answered 127 total questions last year. Professors Kristen Blankley, Kevin Ruser and Ryan Sullivan each participated in this initiative, as did a number of Nebraska Law students.
“Last year brought challenges that no one expected,” said clinical associate professor Ryan Sullivan. “Answering questions through the Free Legal Answers Program was one way for the clinic and our students to support our community.”
Professor Sullivan also received individual recognition as a Pro Bono Leader. In addition to dedicating his own time to answering questions, Professor Sullivan supervised law students participating in this program.
Magilton Authors Book Chapter on National Security
03 Mar 2021
Elsbeth Magilton, ’11, Executive Director of Technology, Security, and Space Law Initiatives, is a contributing author in Commercial and Military Uses of Outer Space.
The book brings together a diverse range of chapters on space related topics. The authors included in the book are drawn from the U.S., Australia, and more, for academia, government, industry, and the military. The chapters cover topics such as law, science, archaeology, defense, policy, and more, all with a focus on space.
Magilton’s chapter, “Women in Line: Space Security in the United States,” discusses diversity in national security and modern trends in encouraging underrepresented groups in the subject.
Magilton oversees the development, growth, and operations of the Nebraska Governance and Technology Center and the Space, Cyber, and Telecommunications Law program. She guest lectures and speaks internationally on military-academic partnerships, space law and security, women in technology, and technology related issues.
Shoemaker Named Recipient of Ray H. Bunger Memorial Award for Excellence
23 Feb 2021
Professor Jessica Shoemaker is the 2019-2020 recipient of the Ray H. Bunger Memorial Award for Excellence. This award is an annual award chosen on the basis of demonstrated excellence in teaching, research, academic promise, and achievement related to the fulfillment of the research and teaching mission of the University of Nebraska College of Law. The donor for this award gave this gift to commemorate the life of the donor’s father, Ray H. Bunger, who was a lifelong devoted supporter of the University of Nebraska. He sent his three sons to the University of Nebraska for varying periods and several of his grandchildren also received education at the University. He firmly believed that “a good education is something that can never be taken away from you.” He was president of the Franklin County School District #44 and Secretary of the Board of Upland COOP Credit Association.
Professor Shoemaker had an outstanding year at the College of Law. Her research productivity – two articles and a book chapter, along with significant progress on two more articles – was incredible. Her scholarship is important and recognized nationally for its quality and impact. In fact, the quality of her scholarship this year is reflected, in part, by its placement in a top law review (California Law Review), a top publication house (Cambridge University Press), and double-blind peer reviewed interdisciplinary journal (Journal of Law, Property, and Society). Professor Shoemaker also did a tremendous job ensuring that her scholarship was considered across the globe through a dozen presentations and her work for various international conferences and workshops.
As impressive as her scholarship was, equally impressive is the work Professor Shoemaker put into her teaching. She engaged new pedagogical tools in her courses, particularly Property. Her student evaluations reflected the care and concern she demonstrated throughout the fall semester. Although this course enrolled 70+ students, Professor Shoemaker was able to assign real-world experiences, experiential learning, provide consistent feedback on exercises, and facilitate small-group discussions.
Professor Shoemaker also was a part of a successful Appointments Committee, which hired three talented professors. She also engaged with the Pro Bono Committee and the Equal Justice Society. Significantly, Professor Shoemaker’s service went beyond the College of Law as she led numerous international efforts to build on the work and relationships she developed during her Fulbright year in Canada.
Medill Named Recipient of John H. Binning Award for Excellence
23 Feb 2021
Professor Colleen Medill is the 2019-2020 recipient of the John H. Binning Award for Excellence. This award is presented annually to a professor who excels in teaching, research or public service.
Professor Medill’s scholarship continued at a high pace during 2019-2010, as she published a new edition of her Contemporary Property casebook, as well as the Teacher’s Manual, slides, and teaching notes to go along with it. She also contributed to a well-received Report from the Department of Labor’s ERISA Advisory Council, on which she has served successfully during the last three years.
Professor Medill continues to be an extraordinarily successful teacher in the classroom as demonstrated by her impressive student evaluations and by her being voted the 1L Professor of the Year by Nebraska Law students. Professor Medill also was a faculty leader in the transition to remote learning through her constant willingness to experiment and develop new pedagogical techniques.
Professor Medill’s service and work as the director of the College’s undergraduate initiatives were equally as impactful. She successfully submitted a proposal to develop an undergraduate major in Law and Business and initiated a number of events with the Nebraska Honors Program. She also was a crucial member of the Long Range Planning as the College planned for a fall semester that was greatly impacted by COVID-19.
Nebraska Law Trial Team Wins Regional Competition
23 Feb 2021
Nick Grandgenett, Dana Jurgensmeier and Mauricio Murga Rios defeated a University of St. Thomas team to win the Texas Young Lawyers Association Regional Trial Competition. The team, coached by Professor Steve Schmidt, will advance to the TYLA National Trial Competition on April 7-11, 2021.
Other members of the Nebraska Law Trial Team are Ryan Brown, Emily Coffey and Keely Kleven. The team was assisted by Melissa Araiza, Matt Dreher and Brett Emanuel who served as witnesses for the team practices/dress rehearsals and during the regional competition.
The 2021 National Trial Competition is being presented virtually.
Berger's Article Published in Ohio State Law Journal
28 Jan 2021
Von der Dunk's Article Published in International Law Studies
14 Jan 2021
Professor Fran von der Dunk's article, Armed Conflicts in Outer Space: Which Law Applies?, was published in International Law Studies, a journal for international law published by the U.S. Naval War College.
Professor von der Dunk is the Harvey & Susan Perlman Alumni and Othmer Professor of Space Law. As an international space law expert, von der Dunk has given presentations at international meetings and academic institutions, organized international symposia and workshops, and served as adviser to numerous government space agenices, private companies and advisory groups.
The abstract for this latest article is below:
So far, outer space has merely become involved in terrestrial armed conflicts as part of the supportive infrastructure for military activities. Unfortunately, the risk that this changes is considerably growing, and it can no longer be excluded that (armed) force will become used in outer space, either directed towards Earth or within outer space itself.
This raises serious issues in the legal context, where space law so far has been premised on the hope that armed conflicts in outer space could be avoided whereas the law of armed conflict was not required so far to deal with the use of force in outer space. For the same reason, there is hardly any relevant State practice that could provide guidance here. While both legal regimes can loosely claim to constitute leges speciales as compared to the lex generalis of general public international law, and hence are doctrinally superior to the latter, this does not solve the issue of hierarchy in application as between those two leges speciales.
The current article presents a comprehensive effort to provide legal tools to determine where the law of outer space would overrule any incompatible law of armed conflict rules and vice versa, principally by constructing a matrix of prioritization. While too many different activities, events, scenarios, and developments could be envisaged for such a matrix to come up with easy and comprehensive answers, it nevertheless purports to provide initial guidance on how to address each particular possible activity, event, scenario, or development.
Moberly Joins Law Deans in Rare Joint Statement
13 Jan 2021
Dean Richard Moberly joined 156 other law school deans to release a joint statement on the 2020 election and events at the U.S. Capitol Building. The statement marks a rare occasion. It is unusual for such a diverse group of law deans to come together to speaker as one on an issue that falls outside the ambit of legal education.
“The violent attack on the Capitol was an assault on our democracy and the rule of law,” reads the statement. “The effort to disrupt the certification of a free and fair election was a betrayal of the core values that undergird our Constitution. Lives were lost, the seat of our democracy was desecrated, and our country was shamed.”
The joint statement goes on to reflect upon the roles that lawyers played in recent events and affirm the deans’ commitment to working together to repair the damage to democratic institutions and rebuild faith in the rule of law.
“Many lawyers and judges worked honestly and in good faith, often in the face of considerable political pressure, to ensure the 2020 election was free and fair. However, we recognize with dismay and sorrow that some lawyers challenged the outcome of the election with claims that they did not support with facts or evidence. This betrayed the values of our profession.”
The deans conclude with a call to action. “As legal educators and lawyers ourselves, we must redouble our efforts to restore faith in the rule of law and the ideals of the legal profession. We have enormous faith in the law’s enduring values and in our students, who will soon lead this profession. We call upon all members of the legal profession to join us in the vital work ahead.”
Read the full statement and see the list of signatories.
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Last week, Dean Moberly sent his own statement about these events to the College of Law community. In that statement he underscored that Nebraska Law students are learning how to disagree respectfully, to listen thoughtfully, and to speak graciously, and that they can help rebuild our country by protecting the rule of law and defending the Constitution. Read Dean Moberly's full statement.
Barry, '00, named managing partner with Ballard Spahr in Denver
06 Jan 2021
DENVER (January 4, 2020) – Business and Transactions Partner Damon O. Barry has been named Office Managing Partner for Ballard Spahr’s Denver location.
Mr. Barry—an experienced deal and government affairs attorney—solves problems for his clients and assists companies with complex business and legal transactions. He advises and represents both buyers and sellers in mergers and acquisitions, recapitalizations, and sophisticated commercial transactions. Mr. Barry’s clients include directors and executives of public companies, owners of closely held companies, executives and directors of government agencies and others in a wide range of industries including software and technology, retail, hospitality, food and beverage, real estate, cannabis, financial services, government and manufacturing. A former in-house counsel, Mr. Barry routinely advises corporate legal departments as well as serves as outside general counsel for middle-market companies.
“Our Denver attorneys are leaders in their fields and work with many of the most dynamic businesses and organizations in the state, region, and beyond,” said Mr. Barry. “I’m looking forward to building on our previous success and continuing to deliver first-rate service to our clients, both existing and new, while simultaneously driving and increasing our commitment to the Denver community.”
The Denver office of Ballard Spahr is home to attorneys who represent local, regional, and national clients in litigation, regulatory, and transactional matters. It is the epicenter of the firm’s Labor and Employment, Public Finance Data Privacy, and Cybersecurity practices in the western United States. Several Colorado attorneys are members of Ballard Spahr’s Media and Entertainment Law Group, which has been recognized by U.S. News & World Report-Best Lawyers as Law Firm of the Year for Litigation-First Amendment.
Herrmann, '08, Named Federal Relations Director at the Office of Research and Economic Development
06 Jan 2021
Jessica “Jessie” Herrmann is the new director of federal relations for the Office of Research and Economic Development, effective Jan. 4. The role is responsible for maintaining and building the University of Nebraska–Lincoln’s relationship with Nebraska’s congressional delegation, congressional staff, federal funding agencies and government officials.
Herrmann’s position is housed in the Office of Research and Economic Development and will coordinate closely with the Office of the Chancellor. She also joins and will collaborate with the University of Nebraska’s federal relations team.
“Our partnerships with federal funding agencies and our relationships with our congressional delegation are essential to the research and creative activity we conduct,” said Bob Wilhelm, vice chancellor of research and economic development. “Jessica’s background will serve the university very well in furthering these critical, already strong relationships.”
Herrmann formerly served as director of legislative outreach and research for the Platte Institute and legislative assistant for Sen. Mike Crapo (R-Idaho). Most recently, she was vice president of legal and government affairs for the Nebraska Cattlemen.
Herrmann received a bachelor’s degree in journalism from the University of Kansas and law degree from the Nebraska College of Law.
Among other duties, Herrmann will serve as the primary liaison between the University of Nebraska–Lincoln and congressional members and staff, as well as federal agencies on issues important to the university; communicate University of Nebraska–Lincoln’s position on federal and state issues of importance to policymakers; and promote University of Nebraska–Lincoln’s research growth and policy agenda with federal agencies and congressional members.
Hurwitz Speaks on Robocalls
05 Jan 2021
Professor Gus Hurwitz was recently featured in a variety of outlets, in which he shares his expertise on the topic of robocalls.
Jan. 2, Hurwitz's research was featured in an article for The Regulatory Review, a publication of the Penn Program on Regulation. His article in the Brooklyn Law Review, where he explores constitutinal scrutiny of the Telephone Consumer Protection Act of 1991, how it bans robocalls, and how the TCPA isn't enough to get a handle on robocalling in modern times.
Read the full article here.
Jan. 4, Hurwitz was a featured guest on the Legal Talk Today podcast with host Laurence Colletti, where he "explains the out-dated regulatory framework at the center of litigation and calls fro reform to address the scourge of robocalls."
Listen to the full episode here.
Sullivan Discusses Evictions in Documentary
04 Jan 2021
Professor Ryan Sullivan discusses evictions and the Tenants Assistance Project in Behind on Rent, a short film by Lincoln filmmaker Gabriella Parsons.
The documentary shares the stories of housing-insecure Nebraskans and their families amid the COVID-19 pandemic. Behind on Rent highlights the human toll of our burgeoning eviction crisis and features those who are working to protect the state's most vulnerable populations.
Sullivan, Civil Clinic students and numerous community and alumni volunteers provide free legal advice and representation to tenant defendants in Lancaster County Court through the Tenants Assistance Project.
Behind on Rent debuted on December 18, 2020. The film, commissioned by History Nebraska, The South of Downtown Community Development Organization, and the Nebraska Housing Developers Association, premiered as part of Speak Up For Housing Rights, a campaign powered by more than a dozen educational, civic, and arts groups in Lincoln and Nebraska. The coalition aims to rally its community to comprehensively confront the deepening eviction crisis.
Koohmaraie, '14, Named Chief Counsel of House Energy and Commerce Committee
04 Jan 2021
Congresswoman Cathy McMorris Rodgers (R-WA), incoming Republican Leader of the House Energy and Commerce Committee, announced senior staff for the Committee.
Bijan (BJ) Koohmaraie, '14, will serve as Chief Counsel of the Committee, which will include advising McMorris Rodgers on all technology related policy matters across the Enery and Commerce Committee's jurisdiction. He most recently served as the Deputy Chief Counsel to the Consumer Protection and Commerce Subcommittee and the Director of Coalitions. Prior to joining the Committee in 2017, Koohmaraie served as an Assistant Attorney General in the Nebraska Attorney General’s Office.
“The Energy and Commerce Committee is at the very center of our mission for America to win the future. I’m excited to announce members of my senior staff who are uniquely qualified to support this mission,” said McMorris Rodgers. “They are top-notch talents who have invaluable expertise. I’m grateful for their service and commitment to embracing value-based leadership on the Energy and Commerce Committee so every member shines and delivers results to restore, rebuild, and renew the American Dream.”
Marshfield Receives Honorable Mention for AALS Section Award
17 Dec 2020
Professor Jonathan Marshfield will receive honorable mention for the Association of American Law Schools (AALS) Section on Comparative Law Mark Tushnet Prize. This award is part of the AALS 2021 section awards for excellence in legal education.
Marshfield will be recognized during the online awards ceremony at the 2021 AALS Annual Meeting on January 5.
Also being recognized by the Comparative Law Section are Pamela Bookman, Fordham University School of Law (winner); and Yuraj Joshi, Yale Law School (honorable mention).
Hurwitz Publishes Chapter Global Antitrust Institute Report
12 Dec 2020
Professor Gus Hurwitz's chapter, Digital Duty to Deal, Data Portability and Interoperability, was published Nov. 11 in the Global Antitrust Institute's Report on the Digital Economy.
Part of Hurwitz's introduction is featured below:
"A “duty to deal” is a remedy commonly supported by advocates of more aggressive antitrust enforcement in the digital economy. The basic concept of a duty to deal is disclosed in its name: a duty to deal would subject dominant firms to a regulatory requirement to do business with a competitor. For example, a monopolist subject to a duty to deal may be required to sell outputs to or purchase inputs from its rivals. The idea of a duty to deal has a long history in industries that are characterized by network effects and economies of scale, such as telecommunications and railroads. For instance, the Kingsbury Commitment was a 1913 antitrust settlement that required AT&T to interconnect its telephone network with those of its rivals;[1] and the 1912 Terminal Railroad case required the operators of a railroad “essential facility” to allow competing railroad companies access to that facility.[2] The purported need for such duties to deal is that industries such as these—and such as the contemporary tech industry—may operate most efficiently (for producers and consumers alike) when organized as monopolies or oligopolies, which limits the viability of competitive entry and margins along which competition is possible. The appeal of an antitrust duty to deal is that the benefits of a dominant firm’s efficient structure may be preserved, and competition facilitated, by allowing competitors to offer their own services while making use of that dominant firm’s infrastructure. This outcome can be hard to realize in practice, however, as the potential of an antitrust duty to deal can create negative incentives for both dominant firms and their actual and potential competitors."