Law & Society: Private Law - Discrimination Law eJournal最新文献

{"title":"What Is Normal","authors":"C. Sunstein","doi":"10.2139/ssrn.3865681","DOIUrl":"https://doi.org/10.2139/ssrn.3865681","url":null,"abstract":"Some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. There are plausible evolutionary explanations for these findings. As behavior in general regresses, actions that were previously seen as bad or as terrible may come to be seen as fine or mildly bad. Call this “opprobrium contraction.” As behavior in general improves, actions that were previously seen as fine or as mildly bad may come to seem bad or terrible. Call this “opprobrium expansion.” Because law has a signaling function, it can heighten or diminish these phenomena.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125480192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adjudicating Business and Commercial Disputes: Fixing Failures","authors":"S. Schwarcz, N. Phillips","doi":"10.2139/ssrn.3834427","DOIUrl":"https://doi.org/10.2139/ssrn.3834427","url":null,"abstract":"Adjudicating business and commercial disputes often requires judges to interpret complex and intersecting specialized bodies of law. In the United States, for example, these disputes frequently involve intersecting provisions of the Uniform Commercial Code (“UCC”) and the Bankruptcy Code. Courts of general jurisdiction sometimes err in deciding these disputes. This article presents conspicuous examples of these errors, cautioning parties to be aware of this heightened potential for failure and examining possible remedies, including utilizing specialized business courts and/or creatively involving specialized business-law counsel.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131731734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Machine Learning Mitigates Racial Bias in the U.S. Housing Market","authors":"G. Lu","doi":"10.2139/ssrn.3489519","DOIUrl":"https://doi.org/10.2139/ssrn.3489519","url":null,"abstract":"I examine racial bias in the most popular home valuation algorithm and study the algorithm’s impact on racial bias in transaction prices. I find statistically significant but economically small racial bias in the algorithm. For example, while Black buyers overpay by 9.3% in prices relative to White buyers for similar homes, the algorithm only overvalues the same transactions by 1.1%. The algorithm inadvertently learns racial bias from patterns in historical transaction prices. The algorithmic racial bias is small because the algorithm is designed to be insensitive to transitory pricing factors related to behavioral biases, sellers’ liquidity conditions, and buyer or seller race. Exploiting the staggered rollout of the algorithm in a neighboring ZIP Code setting, I find that if the algorithmic valuation is available for all the homes in an area, it reduces the overpayment of Black buyers relative to White buyers by 4.8%. The results suggest that the application of slightly biased machine learning algorithms can mitigate social bias if they are less biased than humans.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123772804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Do Minorities Pay More for Mortgages?","authors":"Neil Bhutta, Aurel Hizmo","doi":"10.2139/ssrn.3352876","DOIUrl":"https://doi.org/10.2139/ssrn.3352876","url":null,"abstract":"\u0000 We test for racial discrimination in the prices charged by mortgage lenders. We construct a unique data set from which we observe the three dimensions of a mortgage’s price: the interest rate, discount points, and fees. Although we find statistically significant gaps by race and ethnicity in interest rates, these gaps are offset by differences in discount points. We trace out point-rate schedules and show that minorities and whites face identical schedules, but sort to different locations on the schedule. Such sorting may reflect systematic differences in liquidity or preferences. Finally, we find no differences in total fees by race or ethnicity.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121998465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules for Cases of Chronic Hiring Aversion","authors":"S. Estreicher","doi":"10.2139/SSRN.2831149","DOIUrl":"https://doi.org/10.2139/SSRN.2831149","url":null,"abstract":"This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern. There are three principal objections to the safe-harbor approach. The first is that the standard may be set too low – that employers will be given a safe harbor when reliance on conventional antidiscrimination activities would yield the same employment outcomes for the workers in question. Stating the point in the somewhat different way, the concern is that the safe harbor will increase the incentive for noncompliance.This kind of objection has less force in the present context because the safe harbor, under this proposal, would be available only for chronically unemployed or underemployed individuals in high-risk groups. Promulgation would occur only after considerable experience with conventional antidiscrimination enforcement. The second objection is a moral objection – that a safe-harbor approach recognizes and legitimates discrimination against individuals in the high-risk group. There is, of course, some force to this point but it ignores the fact that the underlying objective of the law is to promote the employment of individuals from discriminated-against groups. In addition, after the probationary period, the full force of the antidiscrimination laws will be restored.The third objection is based on the projected inutility of the safe-harbo","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117160114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dynamic Reserves in Matching Markets","authors":"Orhan Aygün, Bertan Turhan","doi":"10.2139/ssrn.2743000","DOIUrl":"https://doi.org/10.2139/ssrn.2743000","url":null,"abstract":"Indian Engineering school admissions, which draws more than 300,000 applications per year, suffers from an important market failure: Through their affirmative action program certain number of seats are reserved for different lower castes and tribes. However, when some of these seats are unfilled they are not offered to other groups, and the system is vastly wasteful. Moreover, since students care not only about the school they are assigned to but also whether they are assigned through reserves or not, they may strategically manipulate the system by both not revealing their privilege type and changing their preferences over schools. In this paper, we propose a new matching model with contracts with the ability to release vacant seats to the use of other students by respecting certain affirmative action objectives. We design a new choice function for schools that respects affirmative action objectives, avoids waste, and increases efficiency. We propose a mechanism that is stable, strategy proof, and respects test score improvements with respect to these choice functions. Moreover, we show that some distributional objectives that can be achieved by capacity transfers cannot be achieved by slot-specific priorities (i.e., lexicographic choice functions).","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126607611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategic Gains from Labor Market Discrimination","authors":"J. Lagerlöf","doi":"10.2139/ssrn.2733516","DOIUrl":"https://doi.org/10.2139/ssrn.2733516","url":null,"abstract":"According to a classical argument, an employer handicaps herself if she bases hiring decisions on factors unrelated to productivity; therefore, discrimination is undermined by competition. The present paper, in contrast, argues that being discriminatory can be a commitment device that helps an employer and its rivals to partially segment the labor market, which leads to lower wages and higher profits. Discrimination can thus be an endogenous response to (changes in) competition. Indeed, the relationship between discrimination and competition can be non-monotone. Moreover, a ban on wage discrimination (which may be feasible, as such discrimination is easily detectable) may lead to discrimination in hiring (which cannot be banned because it is harder to observe).","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"16 46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116595775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Causation in Context","authors":"Leora F. Eisenstadt","doi":"10.15779/Z387K34","DOIUrl":"https://doi.org/10.15779/Z387K34","url":null,"abstract":"Causation in Context examines and critiques the Supreme Court’s January 2014 decision in Burrage v. United States and the false equivalency drawn between factual causation standards in criminal law and employment discrimination law. In nearly all of its opinions on factual causation, the Court has looked to the “ordinary meaning” of statutory language, cautioning, in some form or another, that “text may not be divorced from its context.” Nonetheless, the Court continues to do just that, applying linguistic meaning across statutes without consideration of its context, the type of statute in which the language is found, the policy goals at issue in its creation, and the overall functioning of causation in the relevant area of law. That was certainly the case in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the Court’s recent factual causation employment cases. In Burrage, however, the Court takes this acontextual approach one step further by drawing an equivalency between criminal law and employment discrimination that is not only illogical but also potentially detrimental to future employment discrimination jurisprudence.This article draws on the existing scholarly critique of “but-for” causation in disparate treatment cases and argues that the Burrage Court’s false equivalency between criminal law and employment discrimination law is as damaging as the Court’s decisions in Gross and Nassar. Causation in Context examines the history of “but-for” causation in employment cases, explores the four major problems with the Burrage approach, and details the ways in which it is likely to negatively impact discrimination doctrine into the future.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127152137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Relationship between Disparate Impact Case Law and Empirical Research in the Behavioral Sciences","authors":"Palmer Morrel-Samuels","doi":"10.2139/ssrn.2628354","DOIUrl":"https://doi.org/10.2139/ssrn.2628354","url":null,"abstract":"Disparate impact litigation is unique, in part because outcomes often depend on statistical analysis from expert witnesses who are research psychologists. Accordingly, it is surprising that psychologists serving the court as expert witnesses in disparate impact (DI) cases often take one of two divergent roads, either focusing on case law, as Gutman et al. do in their helpful book, or on published peer-reviewed research in the behavioral sciences as Outtz does with similar effectiveness in his edited volume. Although there are prominent writers in both law and psychology who do address DI from an interdisciplinary perspective, knowledge transfer between experimental psychology and law is surprisingly meagre, even in exemplary texts such as Rutherglen and Donohue’s recent book Employment Discrimination; Law and Theory, (2012) which is comprehensive in virtually every other respect. This paper seeks to expand that important interdisciplinary exchange by examining the concordance — or lack thereof — between empirical findings in the behavioral sciences and important DI decisions. To compile an informative set of reliable empirical studies I followed (and adapted) conventional procedures for a meta-analysis by surveying empirical studies published in peer-reviewed journals, and by applying a filter to exclude studies where statistical significance, research methodology, or effect size fell below the standards articulated both in Rosenthal’s original work on meta-analysis and in the American Psychological Association’s article on standards for peer reviewed research. In the interests of enhancing the quality of expert reports and the legal decisions that rely upon them, this paper begins to build an interdisciplinary cross-reference linking DI case law and published empirical research in the behavioral sciences. I use two classic texts — Rosenthal and Rosnow’s Essentials of Behavioral Research: Methods and Data Analysis (2007), and Abelson’s Statistics as Principled Argument (1995) — to provide a theoretical foundation for evaluating empirical research so that this interdisciplinary effort can proceed judiciously. I cover two issues in depth: 1) Data Aggregation and the Omnibus Null Test; and 2) Multiple Regression and the Use of Covariates. I’ll close by briefly addressing causation — a pressing issue that deserves future consideration in a similar interdisciplinary analysis that bridges law and empirical research in experimental psychology.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"196 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131889525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Scrutinizing Strict Scrutiny","authors":"R. Spece, D. Yokum","doi":"10.2139/ssrn.2568800","DOIUrl":"https://doi.org/10.2139/ssrn.2568800","url":null,"abstract":"Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case – Fisher v. University of Texas at Austin -- could return to the Court next term.We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its “ends question” about compellingness from its “means question” about interest advancement. Then state interests are compelling only if of a special nature, analogous to requiring fundamental rights to have special attributes irrespective of any intrusion.The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the university program by severing it from the law. It is contrarian because most authorities - whether invoking an anti-subjugation, anti-classification, or antibalkanization perspective -- accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of antibalkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.","PeriodicalId":215866,"journal":{"name":"Law & Society: Private Law - Discrimination Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121359331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}