Monthly Archives: March 2021

Confronting Workplace Discrimination from Automated Algorithms in Times of Racial Unrest

  • Jason R. Bent, Is Algorithmic Affirmative Action Legal?, 108 Georgetown L. J. 803 (2020).
  • Ifeoma Ajunwa, Race, Labor, and the Future of WorkThe Oxford Handbook of Race and Law, (Emily S. Houh, Khiara M. Bridges, Devon W. Carbado, eds., December 12, 2020), available at SSRN.

Jason Bent and Ifeoma Ajunwa have authored recent papers I like a lot as they help to uncover and prescribe some solutions to the potential racist treatment of workers through technology as we advance into 2021. Their suggestions on how to address this form of employment discrimination come at a crucial time for workers of color. The nature of racial discord in our society reached a crescendo in 2020 and raised many questions for workers of color. The Covid-19 pandemic placed unusual health and economic burdens on black and brown workers as the insidious nature of the virus afflicted communities of color more harshly. So-called essential workers, many of whom are vulnerable people of color, were forced to risk exposure to the virus in order to perform their work duties in-person as most other workers scurried off to their homes to perform their work duties in a virtual manner. Meanwhile, militia and white supremacist groups have taken a more active role in our society as a response to the national and international protests calling for racial justice after the senseless killing of George Floyd by a police officer in Minnesota.

With the racial consequences from Covid-19 and the George Floyd protests still looming, the country will attempt to recover from the events of 2020. As these recovery efforts proceed, we must not forget that workers of color also face another racial problem, the effects from increasing technological advances aimed at giving employers greater opportunities to capitalize on the use of big data. Both Bent and Ajunwa have authored papers that examine similar concerns related to racial problems caused by technological developments as employers attempt to use algorithms aimed at achieving greater operating efficiencies. Although their suggested resolutions to this problem offer different approaches, both authors, as discussed below, give their readers an interesting take on how workers of color may be subjected by their employers to racism through algorithms and how that form of workplace discrimination should be addressed. Continue reading "Confronting Workplace Discrimination from Automated Algorithms in Times of Racial Unrest"

A Proposal to Protect Transgender Beneficiaries

Carla Spivack, The Dilemma of the Transgender Heir, 33 Quinn. Prob. L.J. 147 (2020), available at HeinOnline.

A goal of professors is, or should be, to think about legal issues that have not yet arisen but that are likely to arise in the future. By thinking of the issues before they arise, we can work to change the law before courts are forced to deal with the issue with little guidance on a case-by-case basis.

In her thought-provoking article, Professor Carla Spivack identifies the issue of a transgender heir and a bequest that did not contemplate a gender change. Specifically, she identifies a situation in which an elderly relative leaves property to “my daughter” or to “my grandsons,” but the intended recipient no longer identifies as a female, in the case of the daughter, or a male, in the case of a grandson, at the time of the elderly testator’s death. The concern is that other beneficiaries may then seek to invalidate the gift by arguing that the testator did not have a daughter or a particular grandson at the time of death. Continue reading "A Proposal to Protect Transgender Beneficiaries"

‘Practical and effective protection’ of human rights in the era of data-driven tech: Understanding European constitutional law

In her General Principles of the European Convention on Human Rights, Janneke Gerards demonstrates how one of Europe’s two highest Courts offers ‘practical and effective’ protection to a number of human rights. These rights are at stake when governments or other big players use data-driven measures to fight e.g. international terrorism, a global pandemic or social security fraud. For those who wish to understand how the General Data Protection Regulation (GDPR) is grounded in European constitutional law, this book is an excellent point of departure, because the GDPR explicitly aims to protect the fundamental rights and freedoms of natural persons. Rather than ‘merely’ protecting the right to privacy of data subjects, the GDPR does not mention privacy at all; it is pertinent for all human rights, including non-discrimination, fair trail, presumption of innocence, privacy and freedom of expression.

Those not versed in European law may frown upon calling the European Convention of Human Rights (ECHR, “the Convention”) European constitutional law, as they may conflate ‘Europe’ with the European Union (EU). The EU has 27 Member States who are all Contracting Parties to the Convention, and at the constitutional level the EU is grounded in the various Treaties of the EU and in the Charter of Fundamental Rights of the EU (CFREU, “the Charter”). The Convention is part of a larger European jurisdiction, namely that of the Council of Europe (CoE), which has 47 Contracting Parties. The CoE is an international organisation, whereas the EU is a supranational organisation (though not a federal state). To properly understand both the GDPR and the Charter, however, one must first immerse oneself in the ‘logic’ of the Convention, because the Charter stipulates that the meaning and scope of Charter rights that overlap with Convention rights are at least the same as those of Convention rights. The reader who finds all this complex and cumbersome, may want to consider that the overlap often enhances the protection of fundamental rights and freedoms, similar to how the interrelated systems of federal and state jurisdiction in the US may increase access to justice. It is for good reason that Montesquieu observed that the complexity of the law actually protects against arbitrary rule, providing an important countervailing power against the unilateral power of a smooth, efficient and streamlined administration of ‘justice’ (The Spirits of the Laws, VI, II). Continue reading "‘Practical and effective protection’ of human rights in the era of data-driven tech: Understanding European constitutional law"

Vetting Voir Dire

John Campbell et al., An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices (Apr. 27, 2020), available at SSRN.

An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices is a provocative new paper by an all-star cast of empirical legal scholars, including John Campbell, Jessica Salerno, Hannah Phalen, Samantha Bean, Valerie Hans, Less Ross, and Daphna Spivack. In the paper, the authors start with a set of key questions: “[I]f a fair jury is the real goal, how do we ensure we have one? Which jurors should be seated, and which excluded? And how do we achieve the goal of finding the biases that pervert the jury system?” (P. 2-3).

In tackling these key questions, the authors recognize that juries sit in the center of our civil justice system; the decisions they make cast shadows that affect myriad claims. And voir dire (the process whereby questions are asked of the venire panel to identify the prospective jurors who will be excluded by peremptory challenges or for cause) is the filter that determines which individuals serve on juries and which do not. Yet, despite the process’s importance and centrality, we know remarkably little about how voir dire is conducted in the United States and how good it is at achieving its stated aims. The authors’ much-needed investigation starts to answer both questions—and, as I explain below, might also have implications far beyond the paper’s four corners. Continue reading "Vetting Voir Dire"

Your Tax Software Doesn’t Know You’re Lying

Ethan LaMothe & Donna Bobek, Are Individuals More Willing to Lie to a Computer or a Human? Evidence from a Tax Compliance Setting, 167 J. Business Ethics 157 (2020), available at ResearchGate.

Imagine your accountant asks you if you earned any income that wasn’t reported on a 1099 or W-2 this year, and you know that you have an extra $5000 of such income. Do you tell her? Probably. For starters, you might be worried that she is going to be suspicious if you lie to her. Something in your voice might give it away, or perhaps your income this year is lower than last year and she wants to know why. Further, you might have developed a rapport with your accountant, and lying to her might cause psychological discomfort.

Now imagine that you are debating whether to report the same income without an accountant’s help, using tax return preparation software. The software isn’t suspicious of your omission and doesn’t harbor any ill feelings about whether you are telling it the truth. In that case, you might be more likely to lie and not report the income. A fascinating new study by Ethan LaMothe and Donna Bobek confirms this intuition. In a survey of 211 participants, LaMothe and Bobek find that individuals may be more willing to lie to tax preparation software than they are to a human tax return preparer. Continue reading "Your Tax Software Doesn’t Know You’re Lying"

Did You Know That You’re Paying Part of the Cost of My Car?

Gregory H. Shill, Should Law Subsidize Driving?, 95 N.Y.U. L. Rev. 498 (2020).

Professor Gregory H. Shill’s recent article, Should Law Subsidize Driving?, reminds us of the hidden costs of driving that are borne, largely unrecognized, by the public.

When most people consider the costs of owning a car, they factor in typical expenses such as monthly loan or lease payments, insurance, maintenance, and gas. They probably do not consider other costs that are less directly related to their automobile ownership, including the construction and maintenance expense for public roadways, the negative effects their vehicles have on pedestrians and cyclists, and the health impacts of their tailpipe emissions. Continue reading "Did You Know That You’re Paying Part of the Cost of My Car?"

The Compliance Professional? An Interesting Puzzle

James A. Fanto, The Professionalization of Compliance: Its Progress, Impediments and Outcomes (Dec. 7, 2020), available on SSRN.

James A. Fanto’s important new work, The Professionalization of Compliance: Its Progress, Impediments and Outcomes addresses a concern that I have been thinking about for quite some time: whether it is appropriate to consider people working in the field of compliance to be “professionals.” Within compliance circles, the phrase “compliance professional” is used constantly. Yet, as Fanto highlights in his excellent work, it is not at all clear that those engaged within the compliance industry meet the traditional hallmarks one finds associated with professional activities. Fanto’s article addresses this puzzle head-on in an interesting and thoughtful manner.

On the one hand, Fanto explains that those currently working in the field of compliance are aware that they “are engaged in a special activity,” and they have “formed organizations of compliance practitioners to share their specialized knowledge and practices.” The Society of Corporate Compliance and Ethics explains that the group “supports the compliance and ethics profession with educational opportunities, certification, networking, and other resources.” Indeed, their certificates send particular signals within the industry and are a way to demonstrate increasing knowledge and expertise in compliance. And yet, it is not at all clear what the boundaries of a compliance profession would be or who would count as “in the profession” as against those who work “in support of the profession.” Continue reading "The Compliance Professional? An Interesting Puzzle"

Negotiating the Boundaries of Slavery and Freedom in the Americas

Becoming Free, Becoming Black examines the fissures in the law that enslaved people throughout the Americas used to traverse a path from enslavement to freedom. Comparative approaches to the study of law and freedom in the past had stressed a divergence between Latin America and the British Atlantic, using Louisiana as a case for contrast or continuity. As the authors of Becoming Free, Becoming Black demonstrate, the situation on the ground revealed a striking degree of similarity in Virginia, Havana, and in New Orleans, and across time. Given the absence of a robust body of slave laws, enslaved people in 17th c. Virginia advanced claims that resonated with Iberian or Cuban claims. The authors posit that legal borrowing was a plausible strategy for enslaved people bringing freedom claims, as there was a fair degree of movement of petitioners between the British and Spanish Atlantic during this time.

The book tells a clear story about what the law of slavery was and how it came about, how it functioned and why it changed over time in three different sites. A secondary title of the book could have been: “A Survey of Free People of Color,” since the presence of sizable communities of free people of color made a significant difference in the ability to sustain freedom claims or to navigate one’s way from bondage to freedom. In all three sites, slaveholders and lawmakers—in a sense one and the same—repeatedly demonstrated serious attempts to crack down on the possibilities by which black people could remain free within a slave society. Continue reading "Negotiating the Boundaries of Slavery and Freedom in the Americas"

Refashioning Copyright’s “Substantial Similarity” Infringement Test

Carys J. Craig, Transforming ‘Total Concept and Feel’: Dialogic Creativity and Copyright’s Substantial Similarity Doctrine, 38 Cardozo Arts & Ent. L. J.  __ (Forthcoming), available at SSRN.

Carys Craig is far from the first scholar to criticize copyright law’s vague “substantial similarity” test for infringement, especially when that test is based on the even vaguer “total concept and feel” standard, but the difference is that in her new article, Transforming “Total Concept and Feel”: Dialogic Creativity and Copyright’s Substantial Similarity Doctrine, Professor Craig advances an alternative approach that might get some traction.

Professor Craig centers her critique on a recent case that involves the two images below. A jury could look at these two photos and decide that an ordinary person could view the “total concept and feel” of the two images as the same. But Craig explains why that’s not the right outcome. Continue reading "Refashioning Copyright’s “Substantial Similarity” Infringement Test"

Conflict Scholarship in Partisan Times

Symeon C. Symeonides, Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey, 69 Am. J. Comp. L. 235 (2021).

As the saying goes, we live in partisan times. This makes it easy to succumb to the delicious allure of Manichean partisanship. Legal scholars are not immune from this temptation. Some identify with one side or the other, advocate for one party or the other, espouse one political agenda or the other. But this moment urges us to think about the role of legal academics in a civic discourse. What is our function? How can we contribute to make the important discussions happening around the country more productive, informed, lasting, inclusive, reasonable, and effective? At a time when the legitimacy of many other institutions is seriously questioned, what is our role in shaping how people view lawyers, courts, and the rule of law?

I thought of these themes when reading Symeon Symeonides’s Choice of Law in the American Courts in 2020. It is the 30th time that Symeonides has canvassed developments in conflict of laws doctrine and summarized the year’s developments in the field. The stated purpose is “to inform, rather than to advocate.” To do so, Symeonides casts a wide initial net, reading hundreds of cases that touch upon conflict of laws topics. Year after year. The surveys highlight key developments in the field, as well as broader trends. This is an immense amount of work and provides a significant benefit to many scholars, practitioners, and judges. The survey also represents a different model of legal scholarship than the standard law article fare, providing food for thought about the many roles of legal scholars. Continue reading "Conflict Scholarship in Partisan Times"

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