Law Commons^™

Who Cares Whether A Monopoly Is Efficient? The Sherman Act Is Supposed To Ban Them All, Robert H. Lande

All Faculty Scholarship

Section 2 of the Sherman Act was designed to impose sanctions on all firms that monopolize or attempt to monopolize regardless whether the firm engaged in anticompetitive conductor, and regardless whether the firm is efficient. This conclusion emerges from a textualist analysis of the language of Section 2. This article briefly analyzes contemporaneous dictionaries, legal treatises, and cases, and demonstrates that when the Sherman Act was passed the word “monopolize” simply meant that someone had acquired a monopoly. The term was not limited to monopolies acquired through anticompetitive conduct or monopolies that were inefficient. An attempt to monopolize also had …

The Slogans And Goals Of Antitrust Law, Herbert J. Hovenkamp

All Faculty Scholarship

This is a comparative examination of the slogans and goals most advocated for antitrust law today – namely, that antitrust should be concerned with “bigness,” that it should intervene when actions undermine the “competitive process,” or that it should be concerned about promoting some conception of welfare. “Bigness” as an antitrust concern targets firms based on absolute size rather than share of a market, as antitrust traditionally has done. The bigness approach entails that antitrust cannot be concerned about low prices, or the welfare of consumers and labor. Nondominant firms could not sustain very high prices or cause significant reductions …

Comments Of American Economic Liberties Project On 2023 Draft Merger Guidelines, Robert H. Lande, Erik Peinert

All Faculty Scholarship

The American Economic Liberties Project (“Economic Liberties”) is a nonprofit research and advocacy organization dedicated to understanding and addressing the problem of concentrated economic power in the United States. We submit this comment with Professor Robert H. Lande, the Venable Professor of Law Emeritus at the University of Baltimore School of Law, in response to the Draft Merger Guidelines proposed by the Department of Justice Antitrust Division and the Federal Trade Commission (together, “the Agencies”). Economic Liberties and Professor Lande write together in support of the Agencies’ efforts to improve the Merger Guidelines, last updated in 2010, to match the …

The Trouble With Time Served, Kimberly Ferzan

All Faculty Scholarship

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …

Cyber Borders: Exercising State Sovereignty Online, Beth Simmons, Rachel Hulvey

All Faculty Scholarship

The internet brings challenges that threaten national identities and the foundations of what it means to be a state. Well-known challenges include difficulties maintaining important national values, competition threatening local economic plans, and even the inability to maintain a meaningful informational environment for self-governance. These influences are plausibly understood as challenges to some of the basic functions of a sovereign state. Despite these challenges, we identify the social practice of establishing control over mercurial mediums. States have responded by erecting cyberborders with a collection of laws, practices, and internet architecture designed to filter digital information within the territorial jurisdiction of …

Law Without Order, Then Too Much Order, Then Not Enough?, Ronald Weich

All Faculty Scholarship

No abstract provided.

The Intersectional Origins Of Modern Feminist Legal Advocacy, Serena Mayeri

All Faculty Scholarship

Intersectionality, reproductive justice, abolitionism, LGBTQ+ liberation, and democracy defense have moved to the center of twenty-first century feminist legal thought and advocacy, with feminists of color and queer scholars and activists at the forefront. But it wasn’t always so. Or was it?

The ‘Weaponized’ First Amendment At The Marble Palace And The Firing Line: Reaction And Progressive Advocacy Before The Roberts Court And Lower Federal Courts, Seth F. Kreimer

All Faculty Scholarship

It once seemed that the First Amendment doctrine developed by the Supreme Court stood as a bulwark protecting grassroots struggles for social change. In the twenty-first century, however, particularly since the appointments of Chief Justice Roberts and Justice Alito in 2005, a number of observers have begun to view the Supreme Court’s First Amendment work as a “weaponized” redoubt of reaction.

This sense of the rightward tilt of Supreme Court decisions is rooted in reality. Examining 104 Supreme Court First Amendment cases decided during the 2005–2020 Terms, it turns out that successful litigants are four times as likely to come …

When Claims Collide: Students For Fair Admissions V. Harvard And The Meaning Of Discrimination, Cara Mcclellan

All Faculty Scholarship

This term, the Supreme Court will decide Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard), a challenge to Harvard College’s race-conscious admissions program. While litigation challenging the use of race in higher education admissions spans over five decades, previous attacks on race-conscious admissions systems were brought by white plaintiffs alleging “reverse discrimination” based on the theory that a university discriminated against them by assigning a plus factor to underrepresented minority applicants. SFFA v. Harvard is distinct from these cases because the plaintiff organization, SFFA, brought a claim alleging that Harvard engages in intentional discrimination …

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

All Faculty Scholarship

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …

Standards And The Law, Cary Coglianese

All Faculty Scholarship

The world of standards and the world of laws are often seen as separate, but they are more closely intertwined than many professionals working with laws or standards realize. Although standards are typically considered to be voluntary and non-binding, they can intersect with and affect the law in numerous ways. They can serve as benchmarks for determine liability in tort or contract. They can facilitate domestic and international transactions. They can prompt negotiations over the licensing of patents. They can govern the development of forensic evidence admissible in criminal courts. And standards can even become binding law themselves when they …

Geography As Due Process In Immigration Court, Valeria Gomez

All Faculty Scholarship

Using the procedural due process framework set forth by the Supreme Court in Mathews v. Eldridge, I argue that the current geographic distribution of immigration courts violates respondents’ rights to procedural due process by inhibiting their ability to appear, present evidence, and secure counsel. In so doing, I highlight the detrimental effects that geography has on remote communities, such as their ability to build pipelines towards access to counsel. Finally, I weigh and propose alternative solutions that balance the government’s interests in efficiency with the respondents’ interests in having a meaningful opportunity to avoid the harsh consequences of deportation.

Allowing The Courts To Step In Where Needed: Applying The Plra's 90-Day Limit On Preliminary Relief, Catherine T. Struve

All Faculty Scholarship

The Prison Litigation Reform Act responded to two major assertions—that prison and jail inmates were swamping the courts with frivolous lawsuits and that federal-court injunctions were imposing unwarranted requirements on prison and jail systems. The first assertion led to the PLRA provisions restricting prisoner lawsuits. The second assertion gave rise to the PLRA’s limits on injunctions “in any civil action with respect to prison conditions.” These limits (1) set requirements for the entry of any injunction, (2) provide for the termination of existing permanent injunctions, and (3) constrain the entry of preliminary injunctions. As to the first of these limits, …

Commodified Inequality: Racialized Harm To Children And Families In The Injustice Enterprise, Daniel L. Hatcher

All Faculty Scholarship

This article addresses the systemic racialized harm of a vast injustice enterprise, with a focus on the symbiotic operations of agencies and justice systems monetizing vulnerable children and families, including the impact of contractual revenue schemes uncovered in my new book, Injustice, Inc. Our foundational justice systems are permeated by a history of racial injustice, and that history reverberates into factory-like operations that churn children and the poor into revenue. The revenue-generating mechanisms used by juvenile and family courts, prosecutors, probation departments, police, sheriffs, and detention facilities all draw the concerning historical connection—interlinked with the practices of child and …

Optimizing Cybersecurity Risk In Medical Cyber-Physical Devices, Christopher S. Yoo, Bethany Lee

All Faculty Scholarship

Medical devices are increasingly connected, both to cyber networks and to sensors collecting data from physical stimuli. These cyber-physical systems pose a new host of deadly security risks that traditional notions of cybersecurity struggle to take into account. Previously, we could predict how algorithms would function as they drew on defined inputs. But cyber-physical systems draw on unbounded inputs from the real world. Moreover, with wide networks of cyber-physical medical devices, a single cybersecurity breach could pose lethal dangers to masses of patients.

The U.S. Food and Drug Administration (FDA) is tasked with regulating medical devices to ensure safety and …

Demonstrating Law Library Value Through Mission-Centered Assessment, Amanda Watson, Amanda Karel, Amanda Runyon, Leslie Street

All Faculty Scholarship

This paper presents a history of evaluation in U.S. academic law libraries, shares survey results about our collective professional mindset, and offer practical steps for law libraries that are ready to abandon a pervasive culture of evaluation.

Bibb Balancing: Regulatory Mismatches Under The Dormant Commerce Clause, Michael S. Knoll

All Faculty Scholarship

Courts and commentators have long understood dormant Commerce Clause doctrine to contain two types of cases: discrimination and undue burdens. This Article argues for a more nuanced understanding that divides undue burdens into single-state burdens—which arise from the application of a single state’s law alone—and mismatch burdens, which arise from legal diversity. Although the Supreme Court purports to apply Pike balancing in all undue-burden cases, we show that the Court’s approach in mismatch cases differs substantially. Specifically, unlike in single-state cases, balancing in mismatch cases involves an implicit and potentially problematic comparison by the Court between the challenged state’s regulation …

Equal Protection In Dobbs And Beyond: How States Protect Life Inside And Outside Of The Abortion Context, Reva Siegel, Serena Mayeri, Melissa Murray

All Faculty Scholarship

In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case …

Regulating Machine Learning: The Challenge Of Heterogeneity, Cary Coglianese

All Faculty Scholarship

Machine learning, or artificial intelligence, refers to a vast array of different algorithms that are being put to highly varied uses, including in transportation, medicine, social media, marketing, and many other settings. Not only do machine-learning algorithms vary widely across their types and uses, but they are evolving constantly. Even the same algorithm can perform quite differently over time as it is fed new data. Due to the staggering heterogeneity of these algorithms, multiple regulatory agencies will be needed to regulate the use of machine learning, each within their own discrete area of specialization. Even these specialized expert agencies, though, …

Worker Welfare And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The important field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history labor has been viewed as a competitive threat, and the debate over antitrust and labor was framed around whether there should be a labor “immunity” from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct.

Antitrust interest in labor markets is properly focused on two things. The smaller …

Antitrust Interoperability Remedies, Herbert J. Hovenkamp

All Faculty Scholarship

Compelled interoperability can be a useful remedy for dominant firms, including large digital platforms, who violate the antitrust laws. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.

Given the wide variety of structures and business models for big tech, “interoperability” must be defined broadly. It can realistically include everything from “dynamic” interoperability that requires real time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real time interactions. Also included are the compelled sharing of intellectual property or …

The Right To Migrate, Matthew J. Lindsay

All Faculty Scholarship

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the long-standing premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate.

During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding …

Menstrual Justice: A Human Rights Vision For Australia, Mike Armour, Dani Barrington, Helen Connolly, Beth Goldblatt, Elizabeth Hill, Danielle Howe, Margaret E. Johnson, Minnie King, Nina Lansbury, Meredith Nash, Linda Steele, Jane M. Ussher

All Faculty Scholarship

In the past year alone, news reports have shown how menstrual injustice is linked to gender inequality, a lack of economic opportunity, poor health outcomes, and human rights violations. Here is a small sampling of the unjust treatment of women and other people who menstruate: locked bathrooms at schools, inadequate supply of free period products, harmful menstruation-avoidance options for athletes, the human and economic costs of the lack of menstruation and menopause employment leave policies, and the mistreatment of people imprisoned who menstruate.

To improve women’s equality, we need menstrual justice. Menstrual justice is the achievement of dignity, liberty and …

Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha

All Faculty Scholarship

In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …

Unbundling Social Security From The Payroll Tax, Henry Ordower

All Faculty Scholarship

To preserve social security as a welfare program primarily for older individuals and to ameliorate the distributional inequity of funding social security across income and wealth levels, this article recommends unbundling the benefit side of social security from its longstanding payroll tax funding mechanism. The article recommends replacing the payroll tax revenue with a budget allocation from general revenues accompanied by both revenue raisers and benefit limitations. Income tax rate increases linked to repeal of the FICA tax and tax expenditure limitations would enhance income tax revenue. Modifying social security benefits from their current overinclusive, entitlement structure for all to …

Human Rights And Lawyer’S Oaths, Lauren E. Bartlett

All Faculty Scholarship

Each lawyer in the United States must take an oath to be licensed to practice law. The first time a lawyer takes this oath is usually a momentous occasion in their career, marked by ceremony and celebration. Yet, many lawyer’s oaths today are unremarkable and irrelevant to modern law practice at best, and at worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state survey of lawyer’s oaths in the United States, this article argues that it is past time to update lawyer’s oaths in the United States and suggests drawing on human rights to make lawyer’s oaths more accessible and …

The Psychology Of Science Denialism And Lessons For Public Health Authorities, Brenna Moreno, Molly J. Walker Wilson

All Faculty Scholarship

As it wreaked tragedy on the world, the outbreak of COVID-19 helped expose a pandemic of a different kind, one steeped in distrust and contrarianism. This movement, termed science denialism, has been lurking and undermining public health efforts for decades. Specifically, it is “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.” Unlike skepticism, which is “doubt as to the truth of something” and works to progress both science and society, denialism is characterized by individuals’ …

Protecting A Real Or Imagined Past: Justice Samuel Alito And The First Amendment, Derigan Silver, Dan V. Kozlowski

All Faculty Scholarship

This article examines the First Amendment jurisprudence of Justice Samuel Alito. In this article, we argue that the principles behind his decision-making are not always necessarily traditional methods of constitutional analysis, and litigants should understand the frames and lenses Alito uses to make decisions when making their arguments to him. The article concludes with a discussion of Alito’s overall approach to the law and some thoughts on how he is attempting to reshape the First Amendment. We write that, above all, it is clear he is seeking to protect a real or imagined past that, in his mind, is under …

Re-Regulating Dietary Supplements, Jessie L. Bekker, Alex Flores, Michael S. Sinha

All Faculty Scholarship

In 1994, Congress introduced the Dietary Supplement Health and Education Act (DSHEA) to create a regulatory framework for the dietary supplement industry. Since the passage of DSHEA nearly thirty years ago, U.S. adults have steadily increased their annual consumption of dietary supplements. The once $4 billion industry comprising approximately 4,000 products has swelled to a $40 billion trade with anywhere from 50,000 to 80,000 dietary supplements available over-the-counter.

Despite the increased market size of dietary supplements, the Food and Drug Administration’s (FDA) pre-market authority to regulate the introduction of dietary supplements into the stream of commerce has remained subdued. Under …

Outsourcing Self-Regulation, Marsha Griggs

All Faculty Scholarship

Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private corporate interest. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense …