Published Articles
B. K. Sanders, “An Antitrust Approach to Sex Equality,” Columbia J. Gender & Law, Forthcoming Spring 2025 (nominated for 2025 Antitrust Writing Award)
This article argues that antitrust law can and should promote gender equality by prioritizing key consumer markets, namely markets for products and services complementary to women’s labor force participation. These products and services include those that facilitate efficient outsourcing of home production, such as childcare, infant formula, and labor-saving household technologies; and those that reduce or eliminate the burdens of biological reproduction, such as maternity care, contraception, and abortion care. Markets for these goods and services are often characterized by high concentration, low availability, and/or high prices. Drawing on economics, sociology, and feminist literatures, I develop a theoretical approach to antitrust that takes into account the complementarities between these key markets and women’s labor force participation. Importantly, I argue that using antitrust to promote sex equality does not require deviating from the conventional consumer welfare standard and, in fact, does not involve an equity-efficiency tradeoff. On the contrary, prioritizing these key consumer markets is conducive to the simultaneous pursuit of efficiency, sex equality, and constitutional equal protection principles.
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B. K. Sanders, A. Badas, and K. Stauffer, “The Role of Judge Gender and Ideology in Hiring Female Law Clerks,” Journal of Law and Courts, Fall 2024 (Peer Reviewed)
Federal law clerks play a vital role in the development and implementation of the law. Yet, women remain underrepresented in these positions. We suggest that one reason for this underrepresentation may be differences in hiring practices among judges in the federal judiciary. Specifically, we hypothesize that male judges and conservative judges may be less likely to hire female law clerks than female judges and liberal judges, and for two reasons. First, gender attitudes held by judges may make some judges prone to hire women and or others more resistant to these hires. Second, due to ideological asymmetries between the law clerk pool and judges in the federal judiciary, conservative judges and male judges may be less likely to hire women law clerks. Using data on clerks hired in the federal judiciary between 1995 and 2005, we find support for both mechanisms.
B. K. Sanders, “On the Basis of Childbirth: How the Federal Clerkship’s Lack of Parental Leave Fosters Gender Inequality,” UCLA J. Gender & L., vol. 30, 2023.
This Essay argues that the lack of paid parental leave for federal law clerks enables pregnancy discrimination, restricts women’s reproductive choice, and perpetuates gender inequality within the legal profession. Protections against pregnancy discrimination are hollow when clerks can be fired—or have clerkship offers rescinded—for requiring maternity leave, and the lack of leave disproportionately impacts female clerks by constraining their ability to pursue career and family simultaneously. The lack of leave also restricts (some) pregnant women’s reproductive choice by forcing them to choose between keeping their position or carrying their pregnancy to term. Such a state of affairs was intolerable in the past but has now become unconscionable in the devastating wake of Dobbs v. Jackson Women’s Health Organization. Many clerks will be serving in vast abortion deserts, cut off from medical care, and facing threats of criminal prosecution should they attempt to end their pregnancies to save their jobs. For these reasons, current congressional efforts to provide greater protections to term law clerks from discrimination and workplace misconduct, while an important step forward, must be supplemented to include guaranteed parental leave.
B. K. Sanders, “Setting the Price of Fertility: Egg Donor Compensation Following Kamakahi v. American Society for Reproductive Medicine,” Hous. J. Health L. & Pol’y, vol. 22, p. 183, 2022.
Although much ink has been spilled debating whether the United States should permit the sale and purchase of human eggs, fewer scholars have considered how we might encourage more efficient competition in this market. This article considers the market impact of a 2011 price-fixing lawsuit brought on behalf of egg donors in the United States; the plaintiffs argued that the American Society for Reproductive Medicine was artificially suppressing compensation rates by requiring its members to adhere to pricing caps. When the plaintiffs secured the removal of the guidelines, many observers expected compensation rates to increase substantially. I argue, however, that the removal of the guidelines likely had a limited impact on prices. Considerable scholarship has shown that the market for human eggs is characterized by several anticompetitive practices arising from society’s discomfort with the sale of human eggs. While the lawsuit successfully eliminated one of those anticompetitive practices, it left the others untouched. A priori then, there was little reason to think compensation would increase drastically. To support my argument, I draw upon an original dataset of compensation rates from over 500 donor programs across the United States. I find that while donor compensation has risen in the decade following the price-fixing lawsuit, most donor programs continue to offer prices in line with the old guidelines. My results suggest that antitrust law, and in particular price-fixing lawsuits, may not be the most effective tool for encouraging competition in the egg donor market.
B. K. Sanders and D.M. Thomsen, “Gender Differences in Legislator Responsiveness,” Perspectives on Politics, vol. 18, no. 4, pp. 1017–1030, 2020. (Peer Reviewed)
A growing body of research shows that women legislators outperform their male counterparts in the legislative arena, but scholars have yet to examine whether this pattern emerges in non-policy aspects of representation. We conducted an audit study of 6,000 U.S. state legislators to analyze whether women outperform or underperform men on constituency service in light of the extra effort they spend on policy. We find that women are more likely to respond to constituent requests than men, even after accounting for their heightened level of policy activity. Female legislators are the most responsive in conservative districts, where women may see the barriers to their election as especially high. We then demonstrate that our findings are not a function of staff responsiveness, legislator ideology, or responsiveness to female constituents or gender issues. The results provide additional evidence that women perform better than their male counterparts across a range of representational activities.
B. K. Sanders and J.R. Wettach, “Insights into Due Process Reform: A Nationwide Survey of Special Education Attorneys,” Conn. Pub. Int. LJ, vol. 20, p. 239, 2020.
In addition to cataloging various features of the due process system that differ from state to state, this article reports data from a nationwide survey of practicing special education lawyers that elicited their views about the effectiveness of the due process system. The most salient observation obtained from the survey is that the attorney’s client—be it the parents or the school district—strongly shapes the attorney’s perceptions of the system’s flaws and targets for change. Yet the results also suggest a number of reforms that could improve and streamline the system while garnering support from both parents and school districts. Recommendations include (1) more rigorous training of hearing officers, both in terms of case management and substantive special education law; (2) publication at the state level of more comprehensive and uniform standards for procedure, discovery, and admission of evidence; (3) development of additional funding sources for parent attorneys and expert witnesses; and (4) state review of rules with an eye toward greater procedural simplicity.
B. K. Sanders, “Partisan Bridges to Bipartisanship: The Case of Contraceptive Coverage,” Legislative Studies Quarterly, vol. 43, no. 3, pp. 521–546, 2018. (Peer Reviewed)
The negative consequences of polarization have been pointed to by scholars and politicians alike as evidence of a need for a renewal of bipartisanship. However, scholarship on bipartisanship remains limited. This article develops a theory of partisan bridging that predicts when and why certain legislators might be willing to cross the partisan aisle. I argue that personal preferences can lead some legislators to cross the aisle in search of consensus, in effect serving as “partisan bridges.” I test my theory by examining the role of Republican women in the diffusion of contraceptive coverage at the state level. Through an individual-level analysis of sponsorship and vote choice and an aggregate-level analysis of policy diffusion, I find that moderate Republican women at times served as critical actors in the policy process.
Books
J. Aldrich, S. Bae, and B. Sanders, The Fundamental Voter: American Electorcal Democracy, 1952-2020. Oxford Press, 2024.
Industry Publications
J. Dubrow, S. Wu, M. Evola, and B. Sanders, “The Fix is In - Key Learnings From Vertical Merger Challenges,” Thomson Reuters Westlaw, Feb. 2024.
L. Rumin and B. Sanders, “Court Finds Red Cross Has Antitrust Immunity, Rejecting Broad Interpretation of the Sherman Act,” Antitrust Alert, Feb. 2024.
Works In Progress
The Market Limits of Free Exercise
Market Power, Home Production Substitutes and Female Labor Supply, with Stanislav Rabinovich & William Jungerman
Decisive Acts of Party Disloyalty and Legislator Gender
Conferences and Speaking Events
Upcoming
Will Antitrust Fix the Wage Gap?, American Bar Association Antitrust Spring 2025 Meeting, Panelist
Fall 2024
USC-Cambridge Virtual Antitrust Workshop, December 5, 2024, Paper Presenter (An Antitrust Approach to Sex Equality)
Why Antitrust? Antitrust and Reproductive Choice, George Washington Law School, Panel Organizer & Moderator
Women in Legislative Studies Conference, University of Madison Wisconsin, Conference Presenter (Decisive Acts of Party Disloyalty & Legislator Gender)
Summer 2024
Feminist Law Podcast, Invited Guest (On The Basis of Childbirth: How the FederalClerkship’s Lack of Parental Leave Fosters Gender Inequality)
Fall 2023
American Political Science Association, Conference Presenter (The Role of Judge Gender and Ideology in Hiring Female Law Clerks)
Fall 2021
Taboo Trades, Seminar Course, University of Virginia Law School, Invited Speaker (Setting the Price of Fertility: Egg Donor Compensation Following Kamakahi v. American Society for Reproductive Medicine)