Law Commons^™

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 …

With Biden’S Win, America, Thankfully, ‘Ain’T What We Was’, F. Michael Higginbotham

All Faculty Scholarship

No abstract provided.

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. …

Juvenile Court Interagency Agreements: Subverting Impartial Justice To Maximize Revenue From Children, Daniel L. Hatcher

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No abstract provided.

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

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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

All Faculty Scholarship

No abstract provided.

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

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 …

Preventing The Curse Of Bigness Through Conglomerate Merger Legislation, Robert H. Lande, Sandeep Vaheesan

All Faculty Scholarship

The antitrust laws, as they are presently interpreted, are incapable of blocking most of the very largest corporate mergers. They successfully blocked only 4 of the 61 largest finalized mergers and acquisitions (defined as the acquired firm being valued at more than $10 billion) that occurred between 2015 and 2018. The antitrust laws also would permit the first trillion-dollar corporation, Apple, to merge with the third largest corporation, Exxon/Mobil. In fact, today every U.S. corporation could merge until just 10 were left – so long as each owned only 10% of every relevant market.

Even though the Congresses that enacted …

Title Ix And Menstruation, Margaret E. Johnson, Emily Gold Waldman, Bridget J. Crawford

All Faculty Scholarship

“Oh no. Could I borrow a tampon or pad?” These (or similar) words are familiar to almost everyone who has ever had a period. Even for adults, menstruation can at times be a challenge. For some schoolchildren, it can be an insurmountable obstacle to receiving an education. Students are subject to constant observation by classmates and teachers; they may not have autonomous access to a bathroom during the school day; or they may not be able to afford menstrual products. They may experience menstruation-related peer harassment, restrictive school policies, a lack of access to menstrual products, and inadequate menstruation-related education. …

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

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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 boardrooms, …

The Sherman Act Is A No-Fault Monopolization Statute: A Textualist Demonstration, Robert H. Lande, Richard O. Zerbe Jr.

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The drafters of the Sherman Act originally designed Section 2 to impose

sanctions on all monopolies and attempts to monopolize, regardless whether the

firm had engaged in anticompetitive conduct. This conclusion emerges from the

first ever textualist analysis of the language in the statute, a form of interpretation

originally performed only by Justice Scalia but now increasingly used by the

Supreme Court, including in its recent Bostock decision.

Following Scalia’s methodology, this Article 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. …

From Socrates To Selfies: Legal Education And The Metacognitive Revolution, Jaime Alison Lee

All Faculty Scholarship

Metacognitive thinking, a methodology for mastering intellectually challenging material, is revolutionizing legal education. Metacognition empowers people to increase their mental capabilities by discovering and correcting flaws in their thinking processes. For decades, legal educators have employed metacognitive strategies in specialized areas of the curriculum. Today, metacognition has the potential to transform legal education curriculum-wide.

Current scholarship is rich, generous, and creative in exploring how metacognition can be used to enrich specific sectors of the law curriculum. What is missing, however, is a holistic examination of how metacognitive theory and practice have developed across these different sectors, with the purpose of …

Five Privacy Principles (From The Gdpr) The United States Should Adopt To Advance Economic Justice, Michele E. Gilman

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Algorithmic profiling technologies are impeding the economic security of low-income people in the United States. Based on their digital profiles, low- income people are targeted for predatory marketing campaigns and financial products. At the same time, algorithmic decision-making can result in their exclusion from mainstream employment, housing, financial, health care, and educational opportunities. Government agencies are turning to algorithms to apportion social services, yet these algorithms lack transparency, leaving thousands of people adrift without state support and not knowing why. Marginalized communities are also subject to disproportionately high levels of surveillance, including facial recognition technology and the use of predictive …

An Open Letter From Heaven To Donald Trump, F. Michael Higginbotham

All Faculty Scholarship

No abstract provided.