Centuries-old economic and racial injustices have molded our federal housing
assistance. From the way we construct public housing whether it has access to high-
quality amenities or is built segregated from opportunities to the stringent policies
that dictate eligibility, the federal government dictates who deserves housing
assistance along racial and class lines. The result is the policing of housing projects
through two mechanisms. First, police forces perpetuate the criminalization of Black
and Latinx people, further fueling our carceral system.
A Batson violation—racially discriminatory jury selection—is a structural error,
“not amenable” to harmless error review on direct appeal. By definition, structural
errors evade traditional prejudice analysis. But, when a petitioner argues on
collateral review that their trial counsel provided ineﬀective assistance by failing to
object to a Batson violation, a number of circuits require a showing of Strickland
prejudice. As some of these courts recognize, they demand the impossible.
Private merger enforcement is a thorny corner of antitrust law. Private merger challenges pose considerable potential financial downside for industry because in many cases, the motivations of private plaintiffs in initiating a challenge do not align with the purposes of antitrust law. These actions are risky for plaintiffs as well because they are difficult to win. Plaintiff successes have been so uncommon that in a Fourth Circuit case decided in February of 2021, the court stated, “private suits seeking divestiture are rare and, to our knowledge, no court had ever ordered divestiture in a private suit before this case.”1 While claims brought under section 16 of the Clayton Antitrust Act of 1914 (Clayton Act)2 have been historically underdiscussed, the Fourth Circuit’s grant of divestiture to a private plaintiff in early 2021 affords us an opportunity to evaluate this oft overlooked corner of antitrust law. Should private plaintiffs be able to mold the shape of industries to such a degree?
The prison abolition movement, building on a long history of abolition in the United States, is articulating a vision of democracy that centers the lived experiences of people, particularly marginalized communities. Requiring more than legal standing and a secure right to vote, the abolitionist view of democracy calls for economic and civic standing, community self-determination, and equality. This view starkly contrasts with the dominant concept of democracy in the legal field most attentive to democratic concerns—the law of democracy, which defines democracy largely according to electoral rules and processes. This Comment presents an initial comparison of these two visions of democracy. When considered together, the abolitionist concept of democracy reveals the insufficiency of formalistic approaches to build a democracy that is deep, just, and experienced as legitimate by the governed. Looking to abolitionists’ concepts of state can deepen public law scholarship and inform the choices of democracy practitioners by enriching their advocacy in the electoral realm and widening their focus beyond elections.