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A Butterfly In Covid: Structural Racism And Baltimore's Pretrial Legal System, Doug Colbert, Colin Starger Nov 2022

A Butterfly In Covid: Structural Racism And Baltimore's Pretrial Legal System, Doug Colbert, Colin Starger

All Faculty Scholarship

Summer of 2020 represented a potentially pivotal moment in the movements against mass incarceration and for racial justice. The authors commenced a study of Baltimore’s pretrial legal system just as the convergence of the COVID-19 pandemic and urgent cries of Black Lives Matter appeared to present a once-in-a-generation opportunity for meaningful decarceration. Over forty-four weekdays in June and July, the team observed bail review hearings in 509 cases and collected extensive data from the arguments and recommendations offered by the pretrial agency and prosecuting and defense attorneys. Unfortunately, the hoped-for reform failed to materialize as judges held nearly 62 ...


Beyond Window Dressing: Public Participation For Marginalized Communities In The Datafied Society, Michele E. Gilman Oct 2022

Beyond Window Dressing: Public Participation For Marginalized Communities In The Datafied Society, Michele E. Gilman

All Faculty Scholarship

We live in a datafied society in which our personal data is being constantly harvested, analyzed, and sold by public and private entities, and yet we have little control over our data and little voice in how it is used. In light of the impacts of algorithmic decision-making systems—including those that run on machine learning and artificial intelligence—there are increasing calls to integrate public participation into the adoption, design, and oversight of these tech tools. Stakeholder input is particularly crucial for members of marginalized groups, who bear the disproportionate harms of data-centric technologies. Yet, recent calls for public ...


Turning Participation Into Power: A Water Justice Case Study, Jaime A. Lee Aug 2022

Turning Participation Into Power: A Water Justice Case Study, Jaime A. Lee

All Faculty Scholarship

This Article offers a revamped model of participatory governance—the Constituent Empowerment Model (CE Model)—which affirmatively shifts power to the voices of marginalized constituents so that they can influence governmental policy. The CE Model focuses on three concepts necessary to produce this shift in power to those who are traditionally unheard: operationalized (feasibly realized) participation; constituent primacy; and structural accountability. To illustrate how a CE system might be constructed, this Article examines a model recently adopted in the city of Baltimore, Maryland, that is designed to shift the balance of power between the water utility and its customers. Baltimore ...


Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele E. Gilman Jul 2022

Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele E. Gilman

All Faculty Scholarship

Low-income people suffer from digital discrimination on the basis of their socio-economic status. Automated decision-making systems, often powered by machine learning and artificial intelligence, shape the opportunities of those experiencing poverty because they serve as gatekeepers to the necessities of modern life. Yet in the existing legal regime, it is perfectly legal to discriminate against people because they are poor. Poverty is not a protected characteristic, unlike race, gender, disability, religion or certain other identities. This lack of legal protection has accelerated digital discrimination against the poor, fueled by the scope, speed, and scale of big data networks. This Article ...


Empire And Politics In Eastern And Western Civilizations, Mortimer N.S. Sellers Jun 2022

Empire And Politics In Eastern And Western Civilizations, Mortimer N.S. Sellers

All Faculty Scholarship

To speak of “empire” today is to evoke the history of China and of Rome, two great empires that vastly influenced the culture and development of half the globe. The whole world has been touched by their powerful examples, so that even someone writing, as I do, in a distant corner of North America, feels the history and influence of the Roman and Chinese empires every day. Nor are they unique. Something like “empire” has arisen wherever there was wealth and stability to support it. Rome and China had numerous rivals in the East and West who aspired to empire ...


How Algorithm-Assisted Decision Making Is Influencing Environmental Law And Climate Adaptation, Sonya Ziaja May 2022

How Algorithm-Assisted Decision Making Is Influencing Environmental Law And Climate Adaptation, Sonya Ziaja

All Faculty Scholarship

Algorithm-based decision tools in environmental law appear policy neutral
but embody bias and hidden values that affect equity and democracy. In effect,
algorithm-based tools are new fora for law and policymaking, distinct from
legislatures and courts. In turn, these tools influence the development and
implementation of environmental law and regulation. As a practical matter,
there is a pressing need to understand how these automated decision-making
tools interact with and influence law and policy. This Article begins this timely
and critical discussion.

After introducing the challenge of adapting water and energy systems to
climate change, this Article synthesizes prior multidisciplinary work ...


Me, Myself And My Digital Double: Extending Sara Greene’S Stealing (Identity) From The Poor To The Challenges Of Identity Verification, Michele E. Gilman Mar 2022

Me, Myself And My Digital Double: Extending Sara Greene’S Stealing (Identity) From The Poor To The Challenges Of Identity Verification, Michele E. Gilman

All Faculty Scholarship

Identity is an essential part of the human condition. When one’s identity is stolen or when a state rejects a citizen’s identity, the consequences can be devastating to one’s notion of selfhood as well as undermine their economic security. In Stealing (Identity) from the Poor, Sara Greene explores the serious harms suffered by low-income people who are victimized by identity theft. She explains that our plutocratic regime of identity theft laws serves the interests of wealthier Americans at the expense of those experiencing poverty.

This Essay extends Greene’s analysis and framing to the harms of identity ...


Megacorporations Are Jacking Up Prices 'Because They Can,' Pushing Red-Hot Inflation To Historic Levels, Robert H. Lande Feb 2022

Megacorporations Are Jacking Up Prices 'Because They Can,' Pushing Red-Hot Inflation To Historic Levels, Robert H. Lande

All Faculty Scholarship

This article argues that corporations may be taking advantages of supply chain bottlenecks and shortages to collude and raise prices illegally. Although price fixing is illegal, the current levels of penalties are far too low. This gives firms an incentive to collude. Before the pandemic, when inflation was low, consumers and the antitrust enforcers would have been more likely to notice any sudden price increases and investigate whether they were caused by collusion. But using bottlenecks and shortages as cover, companies can take advantage of their years of consolidation and collude more easily with less chance of it being detected ...


Discharged And Discarded: The Collateral Consequences Of A Less-Than-Honorable Discharge, Hugh Barrett Mcclean Dec 2021

Discharged And Discarded: The Collateral Consequences Of A Less-Than-Honorable Discharge, Hugh Barrett Mcclean

All Faculty Scholarship

Between 2011 and 2015, 57,141 soldiers, sailors, and airmen were separated from service with less-than-honorable (LTH) discharges for mi­nor misconduct related to mental health problems. These discharges dis­proportionately affected servicemembers of color. These veterans and others like them face daunting reintegration challenges when they return to civilian society, as federal agencies and state governments deny them the benefits that usually facilitate a veteran’s smooth transition to civilian society. This Essay adds to the scholarly discourse on military discharges by comparing these veterans’ plight to that of persons arrested or convicted of criminal offenses, who also suffer ...


Asking The Menstruation Question To Achieve Menstrual Justice, Margaret E. Johnson Nov 2021

Asking The Menstruation Question To Achieve Menstrual Justice, Margaret E. Johnson

All Faculty Scholarship

Menstruation is a situs of discrimination, oppression, harassment, and microaggression. Employers fire workers for bleeding and experiencing period pain. Schools control menstruating students’ access to bathrooms, products, and menstrual education. Prisons control their residents’ free access to menstrual products. There are both “obvious and non-obvious relationships” between menstrual discrimination and discrimination on the basis of race, gender, class, gender identity, and disability. This Essay suggests we ask the “menstruation question” as part of our examination of all forms of intersectional oppressions and to achieve menstrual justice. For example, if we see something racist, we should ask “where is the menstrual ...


Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper Nov 2021

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

All Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through ...


Designing Nonrecognition Rules Under The Internal Revenue Code, Fred B. Brown Nov 2021

Designing Nonrecognition Rules Under The Internal Revenue Code, Fred B. Brown

All Faculty Scholarship

Nonrecognition rules are a prominent feature of the income tax laws and are a source of considerable complexity and tax planning. Included among the nonrecognition rules contained in the Internal Revenue Code are provisions applying to like kind exchanges, corporate formations, corporate reorganizations, parent-subsidiary liquidations, and partnership formations and distributions. The policies that arguably support the nonrecognition rules include the familiar trio of tax policy concerns—efficiency, equity, and tax administration. None of these policies, however, provide a strong basis for most of the nonrecognition rules as currently formulated. The efficiency case generally lacks evidentiary support. The equity case is ...


The Authoritative Text As Imperative To Comprehensibility Of Legislation, James Maxeiner Sep 2021

The Authoritative Text As Imperative To Comprehensibility Of Legislation, James Maxeiner

All Faculty Scholarship

The most understandable of texts is of little use as law if it is not clear that it is authoritative. This is the comparative lesson of this essay. American law is—Americans say—indeterminate. American law is indeterminate because American texts, clear as they may be in wording, often are not authoritative; other texts apply too and may be inconsistent. German law is rarely indeterminate in this sense.

This essay identifies in bullet-points some comparative aspects of clarity of American and German law. Why is American law indeterminate? Why is German law not? What, if anything, do these differences counsel ...


Climate And Transportation Policy Sequencing In California And Quebec, Sonya Ziaja, Mark Purdon, Julie Witcover, Colin Murphy, Mark Winfield, Genevieve Giuliano, Charles Séguin, Colleen Kaiser, Jacques Papy, Lewis Fulton Aug 2021

Climate And Transportation Policy Sequencing In California And Quebec, Sonya Ziaja, Mark Purdon, Julie Witcover, Colin Murphy, Mark Winfield, Genevieve Giuliano, Charles Séguin, Colleen Kaiser, Jacques Papy, Lewis Fulton

All Faculty Scholarship

We compare flexible low-carbon regulations in the transportation sector and their interaction and sequencing with greenhouse gas emissions trading systems in California and Quebec. As momentum builds for greater climate action, it is necessary to better understand how carbon markets and other low-carbon transportation policies influence one another. First, we demonstrate that emissions trading between California and Quebec has been asymmetric, with linking having little influence on carbon prices from California's perspective but leading to a considerable cost reduction from the point of view of Quebec. Second, we present evidence that Quebec has replicated many of California's low-carbon ...


A More Just, Inclusive Future For Sports, Dionne L. Koller Aug 2021

A More Just, Inclusive Future For Sports, Dionne L. Koller

All Faculty Scholarship

This issue of the Journal of Legal Aspects of Sport (JLAS) was dedicated to women in sports law, with a specific emphasis on inclusiveness and new ideas. For decades, the central focus of the law and policy directed to women and sports was Title IX enforcement and securing opportunities for participation. As we approach Title IX’s 50th anniversary, it is clear that the law has greatly expanded participation opportunities for women and powerfully altered the norms around women and sports. Nevertheless, much work remains. Women and girls still do not enjoy the full measure of equality that Title IX ...


My Family Belongs To Me: A Child’S Constitutional Right To Family Integrity, Shanta Trivedi Jul 2021

My Family Belongs To Me: A Child’S Constitutional Right To Family Integrity, Shanta Trivedi

All Faculty Scholarship

Every day in the United States, the government separates children from their parents based on their parents’ immigration status, incarceration, or involvement in the child welfare system—and the children have no say in the matter. The majority of these families are racial minorities and economically underprivileged.

Under current law, children’s ability to assert a constitutional right to keep their families free from government intrusion is not always apparent. This is in part because a single piece of Supreme Court dicta has muddied an otherwise clear family integrity doctrine, and many federal circuits are silent on the issue. Further ...


Student Demands: How Should Law Schools And Their Deans Respond?, Ronald Weich Jul 2021

Student Demands: How Should Law Schools And Their Deans Respond?, Ronald Weich

All Faculty Scholarship

Law students are sometimes caricatured as money-hungry careerists, merely punching their ticket to an outsized law firm salary. Those of us in legal education know that stereotype is entirely invalid. In fact, most students come to law school because they want to make the world a better place.

The death of George Floyd in police custody on a Minneapolis street corner in May 2020 shocked the conscience of the nation. Unsurprisingly, many law students were moved to action and inspired to put their nascent legal skills to work in support of racial justice. Much of their advocacy focused on campaigns ...


Republicanism: Philosophical Aspects | Republicanismo: Aspectos Filosóficos, Mortimer N.S. Sellers Jul 2021

Republicanism: Philosophical Aspects | Republicanismo: Aspectos Filosóficos, Mortimer N.S. Sellers

All Faculty Scholarship

Republicanism is the doctrine that public power should always serve the common good of all those subject to its rule. This raises the question how to do so most effectively, either through particular policies or through constitutional structure (“the republican form of government”). The republican philosophical tradition began with Plato and Aristotle, flowered in the writings of Marcus Tullius Cicero, and reappeared with the revival of learning in such authors as Machiavelli, James Harrington, John Adams, and Immanuel Kant. More recently Philip Pettit, Jürgen Habermas, and others have returned to the republican conception of liberty as nondomination, and how to ...


The Rule Of Law: A Necessary Pillar Of Free And Democratic Societies For Protecting Human Rights, John Bessler Jun 2021

The Rule Of Law: A Necessary Pillar Of Free And Democratic Societies For Protecting Human Rights, John Bessler

All Faculty Scholarship

This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in ...


Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman Apr 2021

Periods For Profit And The Rise Of Menstrual Surveillance, Michele E. Gilman

All Faculty Scholarship

Menstruation is being monetized and surveilled, with the voluntary participation of millions of women. Thousands of downloadable apps promise to help women monitor their periods and manage their fertility. These apps are part of the broader, multi-billion dollar, Femtech industry, which sells technology to help women understand and improve their health. Femtech is marketed with the language of female autonomy and feminist empowerment. Despite this rhetoric, Femtech is part of a broader business strategy of data extraction, in which companies are extracting people’s personal data for profit, typically without their knowledge or meaningful consent. Femtech can oppress menstruators in ...


Turning Participation Into Power: A Water Justice Case Study, Jaime Alison Lee Jan 2021

Turning Participation Into Power: A Water Justice Case Study, Jaime Alison Lee

All Faculty Scholarship

No abstract provided.


Formal And Informal Constitutional Amendment, Mortimer N.S. Sellers Dec 2020

Formal And Informal Constitutional Amendment, Mortimer N.S. Sellers

All Faculty Scholarship

The constitutional search for greater justice is the animating principle that guides or should guide constitutional amendment and constitutional change whenever and wherever it occurs. Almost all states and governments formally declare their constitutional commitment to justice, liberty, and the rule of law. Yet reports on constitutional amendment from nations throughout the world remind us that we live at a moment of constitutional peril. The general trend of constitutional government in many states has been towards greater corruption, violence, and arbitrary action. This illustrates the dual and parallel importance of constitutional principles and constitutional structures in securing the rule of ...


Responding Effectively To Trauma Manifestations In Child Welfare Cases, Rebecca Stahl Oct 2020

Responding Effectively To Trauma Manifestations In Child Welfare Cases, Rebecca Stahl

All Faculty Scholarship

This article defines trauma and how it manifests in the dependency court system. Trauma is prevalent in child welfare cases and all of the professionals on these cases can respond to the trauma they see and experience more effectively through a better understanding of how to regulate the nervous system and the body. Trauma often manifests as difficult behaviors in the dependency court world, but there is a lack of information for effective strategies to deal with it. This article discusses how families and professionals experience trauma in dependency court and provides tools rooted in a physiological understanding of trauma ...


Poverty Lawgorithms A Poverty Lawyer’S Guide To Fighting Automated Decision-Making Harms On Low-Income Communities, Michele E. Gilman Sep 2020

Poverty Lawgorithms A Poverty Lawyer’S Guide To Fighting Automated Decision-Making Harms On Low-Income Communities, Michele E. Gilman

All Faculty Scholarship

Automated decision-making systems make decisions about our lives, and those with low-socioeconomic status often bear the brunt of the harms these systems cause. Poverty Lawgorithms: A Poverty Lawyers Guide to Fighting Automated Decision-Making Harms on Low-Income Communities is a guide by Data & Society Faculty Fellow Michele Gilman to familiarize fellow poverty and civil legal services lawyers with the ins and outs of data-centric and automated-decision making systems, so that they can clearly understand the sources of the problems their clients are facing and effectively advocate on their behalf.


Lessons On Race And Place-Based Participation From Environmental Justice And Geography, Sonya Ziaja Aug 2020

Lessons On Race And Place-Based Participation From Environmental Justice And Geography, Sonya Ziaja

All Faculty Scholarship

As scholars grapple with racism in Administrative Law, it is important to consider place-based scholarship from the perspectives of Environmental Justice and Geography. Both provide important insights into how administrative agencies can be instruments of strategic-structural racism and how administrative law can facilitate equity in regulation.


Lessons Learned From The Suffrage Movement, Margaret E. Johnson Jun 2020

Lessons Learned From The Suffrage Movement, Margaret E. Johnson

All Faculty Scholarship

No abstract provided.


Can Covid-19 Get Congress To Finally Strengthen U.S. Antitrust Law?, Robert H. Lande, Sandeep Vaheesan May 2020

Can Covid-19 Get Congress To Finally Strengthen U.S. Antitrust Law?, Robert H. Lande, Sandeep Vaheesan

All Faculty Scholarship

The COVID-19 pandemic could cause Congress to strengthen our merger laws. The authors of this short article strongly urge Congress to do this, but to do this in a manner that ignores 5 myths that underpin current merger policy:

Myth 1: Mergers Eliminate Wasteful Redundancies and Produce More Efficient Businesses
Myth 2: Current Merger Enforcement Protects Consumers
Myth 3: Merger Remedies Preserve Competition
Myth 4: The Current Merger Review System Offers Transparency and Guidance to Businesses and the Public
Myth 5: Corporations Need Mergers to Grow


Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande Apr 2020

Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande

All Faculty Scholarship

The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:

1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My ...


The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld, Emily Gold Waldman Jan 2020

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld, Emily Gold Waldman

All Faculty Scholarship

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist, or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis. This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal ...


Dalliances, Defenses, And Due Process: Prosecuting Sexual Harassment In The Me Too Era, Kenneth Lasson Jan 2020

Dalliances, Defenses, And Due Process: Prosecuting Sexual Harassment In The Me Too Era, Kenneth Lasson

All Faculty Scholarship

While the heightened awareness of sexual predation in the workplace is, in many ways, a welcome development, the new norms currently being promulgated and implemented have already fallen prey to the law of unintended consequences, not to mention the limitations of law itself. Perhaps the most remarkable result of the plethora of prosecutions—especially those taking place on American campuses— is that, despite widespread recognition of their lack of rudimentary due process, so little has been done to correct the failures. Just as cultural attitudes have changed toward politics, entertainment, and literature, so too have perspectives on relationships in corporate ...