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Panel Discussion: Mindfulness in the Law School Environment
No full textA 2016 study of 13,000 lawyers conducted by American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation found that approximately 28 percent struggle with depression, 19 percent anxiety and 23 percent stress.12 The study found “younger lawyers in the first ten years of practice and those working in private firms experience the highest rates of problem drinking and depression.”13 At least one study suggests that 40-70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance abuse or depression.
According to a 2016 Survey of Law Student Well-Being including over 3,300 law students from 15 different law schools, 43 percent of law students surveyed reported binge drinking at least once in the prior two weeks and one-quarter were deemed at risk for alcoholism.15 The study found that 23 percent of law students surveyed had mild to moderate anxiety and 17 percent reported experiencing some level of depression.16 Among other things, lawyers identified “a narrowing of values so that profit predominates,” incivility, social alienation, sleep deprivation, job dissatisfaction, and work-life imbalance as problems in the profession.17 Put simply, many lawyers and law students are not well.
Problems of incivility, social alienation and work-life imbalance are perhaps compounded for people of color in the legal community. Racism remains a reality in the legal system and in law schools.18 Not only are people of color on the receiving end of intentional and explicit racist comments and conduct, implicit bias and ostensibly neutral policies and practices frequently can result in unintentional racial discrimination.19 Moreover, innocuous mistakes that are incessant—such as confusing people of color for one another—an irritant overtime can prove injurious.20 These discriminatory instances, statements or actions that are regarded as indirect, subtle, or unintentional are called micro-aggressions and they can impair relationships or result in “racial battle fatigue.”21 People of color are disproportionately more likely to experience race-based trauma and even post-traumatic stress disorder from experiencing racism.22 Stereotypes that celebrate the resilience of people of color who persist and are professionally successful despite bias and barriers—such as a “strong black woman” or a “model minority Asian”—can serve to minimize the adverse mental-health effects of exclusion and micro-aggressions overtime.
It doesn’t have to be this way. We can do better and we would be much better off professionally and personally were the legal community to appreciate wellbeing as a priority. The National Task Force on Lawyer Well-Being has urged leaders in the legal profession to act. Our panel at the 2019 National People of Color Legal Scholarship Conference considered the potential contribution of “mindfulness” and contemplative practices to solving some of the problems confronting the profession concerning lawyer well-being
Legislative Speech & Decorum
No full textDecorum requires legislators to self-limit their free speech rights as citizens; things that may be said and done in the public square would violate legislative decorum rules. In 2023, two legislatures made headlines by using decorum rules to silence young legislators with minority views. In Tennessee, the House expelled two representatives after they walked into the House well and led protestors in the galleries in several chants demanding the House take up gun control legislation. In Montana, the House excluded a representative from the House Floor after she spoke against a bill to forbid minors access to gender affirming care.
This Article examines the various benefits of free speech as it has evolved from the Founders’ understanding into the 21st century. From those purposes, and considering that only legislators themselves can protect free speech rights of other members, the Article identifies seven principles to guide how legislatures may balance decorum and speech: all members are equal, the business of the state must be done, speech has several legitimate legislative functions, speech rules should ensure more speech and the opportunity to be heard, the legislature should spend time and energy educating new members, uncomfortable speech has its place in debate, and the quality of debate should bring honor to the legislature. Based on these principles, the Article proposes several new rules for inclusion in Mason’s Manual of Legislative Procedure, which is used by many legislatures, to hopefully prevent legislatures from misusing decorum rules to silence minority voices in the future
Chapter 4: Unfair and Deceptive Robots
No full textRobots, like household helpers, personal digital assistants, automated cars, and personal drones, are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety, and finances. Robots also raise new consumer protection issues. Yet, it is unclear what consumer protection rules for robots should look like.
The thesis of the chapter is that the FTC\u27s grant of authority and existing jurisprudence make it the preferable regulatory agency for protecting consumers who buy and interact with robots. The FTC has proven to be a capable regulator of communications, organizational procedures, and design, which are the three crucial concepts for safe consumer robots. Consumer robotics is an expansive field with great potential. A robust response by the FTC will allow the consumer robotics industry to thrive while preserving consumer trust and keeping consumers safe from harm
United States v Skrmetti—Testing the Transition to Politicized Regulation of Medicine
No full textOn December 4, 2024, the US Supreme Court heard oral arguments in United States v Skrmetti,1 in which the Biden administration asked the Court to decide how to evaluate the constitutionality of laws such as Tennessee’s ban on gender-affirming care for people younger than 18 years (called Senate Bill 1 [SB1]). This decision has potential to reach beyond the population of patients directly affected by SB1, implicating not only constitutional protection against government discrimination, but also state regulation of the practice of medicine more broadly
The Resurgence of Private Law in American Health Care
No full textAs the regulatory landscape of American health care undergoes a transformation, private law is poised to play an increasingly central role in the health care system. Public law — the work of legislatures and administrative agencies — has long governed health care access, quality, and accountability in the United States. But recent deregulatory moves by the Trump administration have diminished its reach. Even if a future administration seeks to restore regulatory capacity, structural and political constraints will limit how quickly and thoroughly these changes can be reversed.
State-level public law — which includes insurance mandates and consumer-protection laws that apply to state-regulated health plans — remains operative, but private law is already being used to fill governance gaps in a system under strain. This body of law, which includes provisions that are typically established by courts or negotiated by individual actors and corporations and enforced by courts, governs relationships between private parties. Private law encompasses contracts, torts, and fiduciary duties, among other mechanisms.1 Increased reliance on private law both presents opportunities for reform and raises concerns about the erosion of vital safeguards.
The Trump administration has aimed to stimulate innovation and economic growth in the United States by reducing regulatory burdens and increasing the reliance on markets in various domains. In January 2025, President Donald Trump signed an executive order mandating that federal agencies identify at least 10 existing regulations that can be repealed for every new regulation they introduce. The administration has also slashed the workforce at the Department of Health and Human Services, which will make it difficult to enforce health regulations that survive.2 These moves are in keeping with a trend seen in Supreme Court decisions in recent years that has lessened the power of — and reliance on — agencies. Together, these changes are causing a seismic shift in health care governance. In the context of public law’s decreasing influence, we expect the role of private-law mechanisms to be elevated in several ways
Digital Servitude
No full textThis Article addresses the phenomenon of digital servitude—forced labor practices facilitated by information and communications technology (ICT). With advances in technology and the internet, scholars and advocates have observed the rise of technology-facilitated human trafficking. Yet, disproportionate focus has remained on online sex trafficking, including commercial sex websites and online recruitment, despite ample research on work, technology, and digital surveillance. This Article seeks to fill this gap by shedding light on how technology intersects with involuntary servitude and forced labor claims in the United States. By analyzing federal pleadings in civil and criminal labor trafficking cases, it provides new insights about how technology can facilitate forced labor and how trafficking law can evolve to take into account the modern realities of servitude.
In particular, this Article posits that federal labor trafficking statutes, with modest interventions, can play an important role in addressing technology-facilitated labor trafficking in the United States. Since the enactment of the Thirteenth Amendment, U.S. federal courts have interpreted labor trafficking to include a wider range of coercive conduct. Congress also has imbued federal remedies with key features, like extraterritorial jurisdiction and third-party liability, that permit a potentially expansive reach. Additionally, trafficking claims, unlike other employment and contract remedies, do not require an employee-employer relationship and, thus, can apply to a broad range of workers, including independent contractors and temporary workers. For these reasons, this Article argues that federal human trafficking statutes can provide an important legal remedy and a powerful expressive tool to combat technology-facilitated forced labor
Anticompetitive Directors
No full textAntitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite such “interlocking directorates” being illegal under antitrust law. Many of these individuals are senior directors at private equity, venture capital, and other firms investing in the competing firms on whose boards they sit. We rely on a proprietary dataset used by investment firms that identifies actual competitors, rather than just adjacent firms in the same industry.
But the same individual sitting on two competing boards isn’t the only problem. We are the first to show the prevalence across public and private companies of a related problem—two different individuals sitting on competitors’ boards while simultaneously working at the same investment fund. We show that such investor-level interlocks are more common than individual interlocks, yet their prevalence was, until now, unknown. About 13% of the companies for which we have the best board data had either an individual or investor-level interlocking board.
Individual and investor-level interlocking boards can harm competition and innovation. We propose either applying existing antitrust laws more vigorously or reforming the law to reach these investor interlocks
Against AI Half Measures
No full textSo far, U.S. policy for artificial intelligence has largely consisted of industry-led approaches like encouraging transparency, mitigating bias, promoting principles of ethics, and empowering people. These approaches are vital, but they are only half measures. To bring AI within the rule of law, lawmakers must start drawing substantive lines.
In this essay, we identify four AI regulatory approaches as half measures. First, transparency does not produce accountability on its own. Next, while mitigating bias in AI systems is critical, even unbiased systems are a threat to the vulnerable. Third, while “AI ethics” are important, they are a poor substitute for laws. Finally, empowering people in their individual choices misses the larger questions about the distribution of power and collective wellbeing.
Instead of these half measures, we recommend that lawmakers reject the idea that AI systems are neutral and inevitable. When lawmakers go straight to putting up half-hearted guardrails, they fail to ask the existential question about whether some AI systems should exist at all. To avoid the mistakes of the past, lawmakers must make the hard calls. And AI half measures will certainly not be enough
The Perverse Effects of Mandatory Judicial Reporting to Bar Authorities of Ineffective Assistance of Counsel Determinations
No full textCalifornia Business & Professions Code § 6086.7(a)(2) provides that a court shall notify the State Bar “[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.” Some California judges now interpret this provision as mandating referral to the State Bar in any case in which a new trial or withdrawal of a plea is granted due to ineffective assistance of counsel. This interpretation directly conflicts with an attorney’s continuing duty to her former client. It is unnecessary and has profoundly deleterious consequences to the integrity of the criminal process
Brief Amicus Curiae of Professor Jed Hanelsman Shugerman in Support of Respondents
No full textAmicus Curiae Jed Handelsman Shugerman is a Professor of Law at Boston University. He holds a JD and a PHD is History. Shugerman subscribes to the interpretation of the Constitution based on original public meaning (i.e. originalism). He has written extensively on the history of presidential power and the original public meaning of Article II.
Shugerman and Gary Lawson have co-written Presidential Removal as Article I, not Article II, offering originalist alternatives to limit Congress\u27s power to restrict presidential removal power, while allowing good-cause conditions in traditional exceptional cases. This amicus brief summarizes these alternatives and shows how they are consistent with the Court\u27s holdings in Myers, Free Enterprise, and Seila Law: Tenure protections and agency structures must be necessary and proper for executing federal power....The Necessary and Proper Clause is a stronger originalist basis to replace Humphrey\u27s Executor, to limit congressional power, and to confirm narrow traditional exceptions for the FTC and the Federal Reserve