Taking Cognizance of Cognitive Bias

Sep 20, 2010 Charles A. Sullivan

Charles A. Sullivan

It’s not that the question hasn’t been adverted to in much of the cognitive bias scholarship in the employment discrimination area, but most of the articles to date have focused on the empirical questions of the degree to which “implicit bias” exists and the extent to which it might influence real world employment decisions. As for whether truly unconscious discrimination is illegal, the analysis is often extremely truncated. The most common answer is essentially a textualist argument (often by scholars who would eschew that approach in other contexts). That is, those who would make such bias actionable, look to Title VII’s prohibition of discrimination “because of” race or sex and conclude that, where it can be proven to have resulted in an adverse employment action, unconscious bias is prohibited. Another common reaction is to look to the Court’s various condemnations of stereotyping and equate them with cognitive bias, although it is not so clear that, say, the partners in Price Waterhouse weren’t aware that they were unhappy that Ann Hopkins wasn’t conforming to views about appropriate behavior for women.

The absence of deep analyses of what Patrick Shin in Liability for Unconscious Discrimination calls the “naïve question” he addresses — “should implicit bias be a basis for disparate treatment liability” — is understandable. Before we make definitive judgments about whether certain conduct should be illegal, we probably should understand it better than we do at this point in our history. Plus, in the garden-variety employment discrimination case, the hard question is rarely reached because the jury is inferring bias from conduct, and whether the bias is conscious but covert or merely implicit doesn’t matter. Of course, one can imagine issues which force the legal question to the surface – whether to admit expert testimony on cognitive biases, for example, or whether the jury should be instructed that, if they believe the defendant’s disavowal of bias, they must find for it. But it’s not an accident that, fifteen years after Professor Krieger wrote Content of Our Categories, we still don’t have a judicial answer to the question of the legal significance of the phenomenon.

Professor Shin’s article, posted on SSRN, Liability for Unconscious Discrimination: A Thought Experiment in the Theory of Employment Discrimination Law, addresses the normative question directly. Needless to say, I can’t capture the subtleties of his article here. Indeed, the complexity of the enterprise is underscored by the lack of a consensus on what to label what Shin’s title calls “unconscious discrimination” since “cognitive bias,” “implicit bias,” and “subtle discrimination,” among others, are competing for pride of place. But his basic method is to avoid the debates that have so far consumed the literature by making two basic assumptions that take him directly to the normative question he prefers to address: (1) that unconscious discrimination is real, and (2) that it is provable. He then poses a hypothetical he calls “Work Experience I,” which involves an employer who chooses a white with greater work experience over an African American who has interviewed more effectively. Consistent with his assumptions, Shin asks whether, if we could know that experience was trumped presentation in this situation because of the decisionmaker’s unconscious bias, the law should make that illegal, even though the employer honestly believed he was making a decision on the merits of the two candidates.

As is obvious, this is a very difficult question, and Shin approaches it from a variety of perspectives.  He recognizes that Title VII already bars discrimination absent conscious intent – after all, that is the core of the disparate impact theory. He also recognizes reasons why the law might want to bar unconscious discrimination, including achieving the equality goals of the antidiscrimination project and simple fairness to victims who, after all, will be equally out of a job whether the discrimination is conscious or unconscious.  As for contrary arguments, he sets to one side those that question his two assumptions or require empirical judgments (for example, how effective any legal regime making unconscious discrimination might be).

Instead, he believes “liability for unconscious discrimination would remain controversial even if there were convincing evidence that it would in fact reduce workplace inequality overall.”  That is because we are accustomed to assessing decisions in terms of the “justificatory rationales” rather than a “causal conception.” In short, a “causal conception of actionable discrimination allows for the imposition of liability even when the employer acted on considerations that provide legitimate, adequate reasons” for the decision in question.  This “departs radically from our current conception of discrimination because it requires cleaving the causation inquiry entirely from any evaluation of the adequacy of the agent’s subjective rationale for the action in dispute.”

So far, so good. Shin has demonstrated that holding the employer liable in the “Work Experience I” hypo requires a shift in the concept of discrimination; but, as he recognizes, it might be more accurate to say that it’s a shift in the concept of disparate treatment discrimination. But other than being new, why is such a shift problematic? Shin has several worries. The first is that such a shift undercuts the moral objection to discrimination. “Arguably, [discrimination] ceases to have any significance at all, at least as a criticism of the actor.” Secondly, he argues that a pure causation approach renders antidiscrimination law incoherent. In what he labels “Workplace Experience II,” Shin posits an unbiased decisionmaker who prefers a white candidate with more experience to a black candidate with less. Unlike the original hypothetical, the decisionmaker is not influenced by the candidates’ races, but the black candidate’s lack of experience can be traced to his race, and a pure causation approach would seem to require the two decisions to be treated equally.

One common theme of scholarly things I like a lot is that they make me think, and Professor Shin’s piece made me think about the normative question. On the one hand, I think he overstates the significance of “justification” in the discrimination context. Indeed, the word “justificatory” suggests the presence of a legitimate reason — which in fact was at play in his “Work Experience” hypotheticals. But antidiscrimination law has pretty definitively rejected any requirement that the employer’s reason be sensible. So long as the employer’s reason is non-racial, current doctrine does not make it actionable, regardless of whether it is rational, silly, or even illegal under some other statute. “I don’t hire Capricorns” is a fine justification for not hiring a black plaintiff, so long as it was really zodiacal considerations and not race that caused the decision. To the extent current concepts privilege arbitrary actions, why is it so bad that we change our approach?

Shin’s second point, that causation sweeps too broadly, is more difficult for me. Even disparate impact discrimination is narrower than pure causation. It’s narrower, first, because it’s not enough for race to be a factor in a particular decision regarding an individual if there’s no impact on the race to which he belongs, and, second, because the business necessity defense permits some practices with a disparate impact. I guess one response is that, unlike “Work Experience II,” the employer in “Work Experience I” does have some control over his conduct, at least in the sense that he can take steps to debias himself (perhaps by deciding how important experience is before he meets any candidates). But I remain uneasy, which I guess is ultimately what I liked about the piece.

Is There An Unreasonable Accommodation? Is There A Due Hardship?

Aug 9, 2010 Alex B. Long

Alex B. Long

The ADA Amendments Act of 2008 made significant changes to the Americans with Disabilities Act’s definition of “disability.”  As a result, judges, practicing lawyers, and academics are now trying to figure out what those changes really mean in practice.  One aspect of the ADA that Congress left largely untouched, however, is the statutory language concerning the reasonable accommodation and undue hardship requirements.  Arguably, this failure to act is unfortunate in light of the fact that more individuals will now be able to claim disability status under the ADA than before, thus forcing courts and employers to consider whether these individuals are entitled to an accommodation and, if so, whether their requested accommodations are reasonable.  As it stands now, the statutory language and decisional law are hardly models of clarity.

Professor Mark C. Weber attempts to provide some clarification with his latest article Unreasonable Accommodation and Due Hardship.  Weber’s main argument is that

[r]easonable accommodation and undue hardship are two sides of the same     coin. The statutory duty is accommodation up to the limit of hardship, and     reasonable accommodation should not be a separate hurdle for claimants     to surmount apart from the undue hardship defense. There is no such thing     as “unreasonable accommodation” or “due hardship.”

Consistent with that theme, Weber argues that “[t]he duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; it is also subject to increase over time.”

To some extent, both of these arguments fly in the face of the federal courts’ current view of the accommodation requirement.  In US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Supreme Court declared that the reasonable accommodation and undue hardship concepts are distinct.  Under Barnett, the plaintiff bears the burden of showing that the accommodation is reasonable on its face, that is, ordinarily or in the run of cases.  After that, the employer bears the burden of showing “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances.”  Id. at 402.

Weber argues that, at least in this respect, Barnett is wrong.  The ADA was patterned after Section 504 of the Rehabilitation Act of 1973.  Weber reexamines the regulations and decisional law under Section 504; the ADA’s legislative history (which generally endorsed the decisional law under Section 504); the statutory text; and the EEOC’s original Enforcement Guidance and concludes that the ADA’s drafters “recognized that reasonable accommodation and undue hardship are not separate terms but two sides of the same coin.”  Thus, Weber argues, “reasonable accommodation lacks a meaning other than the absence of undue hardship. The terms should be read together, and the opposite of the one is the other.”

I came to this part of the article with some skepticism, and I’m not sure I left persuaded.  Ultimately, I think the legislative history and decisional law Weber cites is ambiguous and mixed on the point.  Furthermore, I (like the majority in Barnett) have a hard time seeing how Weber’s interpretation would play out in practice.  That said, Weber makes some interesting arguments – and much stronger ones than I would have thought possible going in to the article – that the ADA’s text actually supports his suggested reading.  And, it’s hard to argue against the fact that at least some of the older Section 504 decisional law he cites does support his reading.  At a minimum, this part of the article challenges some longstanding assumptions about the reasonable accommodation requirement.

Weber then turns to his second point, that the accommodation requirement is not subject to a cost-benefits balance, but rather a cost-resources balance, and that the obligation on employers was intended to be a substantial one.  Here, Weber makes a convincing case.  Some courts have indeed adopted a cost-benefits approach toward deciding whether an accommodation is “reasonable,” and some have indeed shied away from requiring employers to make meaningful changes to their standard operating procedure when dealing with the accommodation requirement.  Although it pales in comparison to the amount of scholarship attacking the courts’ interpretation of the ADA’s definition of disability, there has been scholarly criticism of the courts’ treatment of the accommodation requirement.  But Weber’s contribution to the debate is his detailed and convincing discussion of the ADA’s legislative history and the historical context in which the ADA was first proposed, both of which, he argues, support a more expansive conception of the accommodation requirement than some courts currently have.

Recognizing that the Supreme Court is unlikely to reverse its ruling in Barnett that the reasonable accommodation and undue hardship concepts are distinct, Weber argues that Barnett should be read narrowly so as to impose only a minimal burden on an ADA plaintiff.  Here, Weber argues that Barnett’s easy-to-satisfy accommodation standard provides the basis for encouraging lower courts “to think of the reasonableness step as unnecessary altogether.”  Although this seems unlikely, Weber does persuasively argue that Barnett and the other authority he cites can and should be interpreted as imposing a relatively slight burden on plaintiffs.

The article discusses several other accommodation-related issues, such as the requirement’s impact on neutral workplace rules and whether the requirement should be viewed as a form of affirmative action.  All of this discussion is interesting.  However, the article’s biggest contributions are its challenge to the traditional understanding of the reasonable accommodation and undue hardship concepts and its suggestion – supported by a variety of sources — for a more faithful application of those concepts by courts.  Ultimately, Weber’s article is well-researched and thought-provoking and, hence, worth reading.

Policing the new Frontier of Workplace Discrimination

Jul 15, 2010 Kerri Lynn Stone

Kerri Lynn Stone

Professor Danielle Citron has authored an important piece that calls for the condemnation of cyber gender harassment. Often downplayed or minimized, this problem, according to Citron, is merely the most recent iteration of abuse perpetrated against women, but inadequately documented, discouraged, and combated. Like domestic violence and sexual harassment before it, cyber gender harassment is in danger of being underestimated until too much harm has already been conferred upon the personal and professional dignity, access, and safety of women everywhere. Decrying the law’s failure to identify the harms that uniquely target and affect women, Citron laments the transmission of a signal by the law that the oppression of women through this kind of abuse is somehow tolerable. Citron is one of the foremost and earliest scholars to call for a cyber civil rights agenda that would explicitly identify cyber harassment as gender discrimination. Her emphasis on the uniqueness of  the harm that flows to women from a practice that while abhorrent, might typically be regarded as gender neutral, is of particular note, and her admonition that the law ought to educate society about this harm to effect societal reform is powerful.

This piece builds on a previous work of Citron’s, Cyber Civil Rights, 89 BULR 61 (2009), which examined the ways in which the law acts to deter and penalize online abuse. Citron now calls upon the law to recognize the unique harms that cyber harassment confers on women as individuals and as a protected class, as well as to root out and to eradicate this phenomenon. As examples of online harassment directed against women, Citron discusses, among others, cyber threats, depictions of violence against women, the publication of victims’ personal information, and attacks launched against feminist blogs and websites. She recalls the disproportionate number of female victims of this harassment and the very frequent implication of female victims’ genders by their explicit mention in the taunts and threats of harassers. As to what should be done about this problem, Citron suggests that extant civil rights legislation can be employed to fill in some of the compensatory and other gaps left open by traditional criminal and tort remedies for cyber harassment. Indeed, invoking caselaw from the 1960s, she boldly posits that Title VII of the Civil Rights Act of 1964 can be invoked when attackers and harassers prevent women from making a living on the basis of their sex.

Citron points to and sets about combating the trivialization of cyber harassment, noting how pernicious apathy and silence on the part of both society and the law can be. She notes women’s tendency to suffer the infliction of shame, fear, and isolation wordlessly and resignedly when it comes through cyberspace in particular, and to the sacrifice of victims’ so-called “online lives.” Lamenting the entrenchment of “gender hierarchy in cyberspace” (P. 413), Citron recounts compelling stories about women who have been targeted, harassed, demeaned, and threatened online.  These stories effectively illustrate the many ways in which gendered cyber harassment strikes at women’s “agency, livelihood, identity, dignity, and well-being.” (P. 384.) Moreover, Citron imbues her call to action with additional meaning by analogizing cyber harassment and its ability to foreclose professional opportunities to actionable sexual harassment; despite the fact that the former occurs in cyberspace, both forms of abuse confer palpable harm in the physical workplace.

By linking those acts and movements into which society now has more insight with the newer, more skepticism-inducing act of cyber harassment, Citron makes a powerful case against dismissing cyber harassment as too common or insignificant to foment any real damage to individuals or to women as a class. Citron compares that which women harassed online are forced to forgo or resort to as they alter their views, names, or personas and otherwise shrink back from attention, and those things women have been historically forced to do in the face of recognized oppression, like adopting male pseudonyms, or refusing to talk about a pregnancy at work. In other words, we’ve seen society shrink back from the recognition of gender discrimination before, and we’ve seen it do so at its peril. By trivializing online harassment, society is repeating its pattern of refusing to recognize and to stem harm that flows to women until too much irreparable damage has already been done. The refusal, she posits, often comes from men’s inability to relate to the harm conferred by certain acts and society’s subsequent inability to understand why they warrant deterrence and retribution or why women would be incapable of mitigating their own harm from them. Citron cites marital rape, sexual harassment, and spousal abuse as examples of these phenomena. Only through the vigilance Citron urges will the next great means by which women are devalued and driven out of public and professional life be discerned and combated.

Citron ably anticipates and answers what she identifies as the three arguments most commonly posited in response to cries for vigilance on this issue: 1) it is mere harmless teasing; 2) victims can combat it and mitigate their harm by themselves; and 3) it is in comportment with social norms that belong to the realm of the internet.  As Citron demonstrates, harassment is often pernicious to the point of being terror-inducing. The scope of the problem becomes intractable and nearly impossible to combat by an individual victim, who knows that the internet’s capabilities permit her tormentors to resurface continually and to morph into someone else via anonymous, ever-changing online identities. Citron effectively dispels the myth that the internet is a discrete realm whose barbs and harms are not palpable in the physical world. She also answers those who would critique her proposed cyber civil rights agenda by raising First Amendment concerns; she points to the fact that the right to free speech is not an unfettered right and to the existence of categories of speech amounting to, among other things, defamation and the intentional infliction of emotional distress, that are considered to be outside of the ambit of absolute protection. Moreover, the right to free speech does not foreclose discrimination or harassment suits in which words spoken in the physical workplace engender liability. Citron opines that when a victim’s “self-determination and ability to participate in political and social discourse”  (P. 406), are compromised or destroyed, a harasser’s right to express himself must be subordinated to society’s right and ability to redress the harm.  As she succinctly but eloquently states, “[s]elf-expression should receive little protection if its sole purpose is to extinguish the self-expression of another.” (Id.).

The article has the potential to be a great mobilizing force, and its significance to the sphere of employment discrimination law should not be underestimated.  The workplace is implicated by this problem in many ways. Examples of these ways range from women who make or at least advance their professional living on the internet being forced offline, to the self-selection of female students out of educational and promotional opportunities after feeling stalked and hunted by cyber harassment that reports on their actions and whereabouts, to the intersection of the workplace and cyberspace with respect to how co-workers recruit, perceive, and communicate with one another. Those who seek to keep pace with the state of employment discrimination should both read and heed this call for a cyber civil rights agenda; it is timely, insightful, and much-needed.

Enforcement and Institutions

Jun 17, 2010 Marcia L. McCormick

Marcia L. McCormick

Discrimination in employment on the basis of race, color, national origin, sex, and religion has been against the law since 1964, and while norms have certainly changed in that time, the number of allegations of discrimination in the workplace grows every year, suggesting that something is still not right. Figuring out what is a messy question, which is why studies of enforcement and interpretations of Title VII are so welcome to those of us interested in this area.

Margaret Lemos’s current article is no exception. Although the paper focuses mostly on an important gap in the administrative law literature—that is, even though there has been much written on why Congress delegates and how it chooses to delegate at all, very little has been written on how Congress chooses what institution to delegate power to and how to shape that delegation—it also reveals important data about enforcing Title VII, in large part because that statute provides her case study. Moreover, to the extent that so much of the employment discrimination literature focuses on issues concerning the substance of the law or lack thereof, a study of who is making that law fills an important gap in this literature as well.

Lemos’s main thesis has two parts: 1. we need to understand that Congress chooses to delegate power to the courts in addition to or as an alternative to delegating to agencies; and 2. as a consequence, we also need to understand how those delegates act in order to understand what Congress does or should consider in deciding between them. As Lemos points out, delegation is likely inevitable and often desirable, from institutional, pragmatic, and functional perspectives. And the lessons she draws from her study are insightful and somewhat surprising.

The bulk of Lemos’s article describes conclusions reached by analysis of every case involving an interpretation or application of Title VII decided by the Supreme Court after oral argument up through the 2007 term. While both the EEOC and the Supreme Court have adopted expansive interpretations of Title VII, or the Court has generally followed the agency’s lead in doing so, the two institutions have diverged about one-third of the time, with the EEOC interpreting the statute more protectively of traditionally disempowered groups more often than has the Court. Interpretations by both institutions have been surprisingly stable over time, despite concerns over agency control by the political branches. Also surprisingly, courts have not been uniform across jurisdictions, creating a greater divergence of interpretation than has the EEOC.

Lemos identifies a couple of institutional causes of the difference. The first concerns the methodology of each. Courts have focused on evidence of congressional intent while the EEOC has focused on the purpose of the statute more as a conceptual matter. The second cause is related to the institutional nature of each. The courts are acting in a more limited remedial manner in the context of an individual case, where the EEOC views itself as an advocate for victims of discrimination precisely because it lacks enforcement authority.

Based on this analysis, Lemos offers a couple of important lessons to be drawn. First, courts are best suited for enforcing statutes that fit the model of righting wrongs or awarding a remedy in a particular instance. Second, an agency will be better at regulation that is not tied to wrongdoing. And third, courts are not as stable as might think, while agencies can be significantly more stable than we would expect.

Title VII is a great case study because it so clearly delegates interpretive power by failing to define such key terms as “employee,” “race,” sex,” and “discriminate,” and because the statute encompasses some delegation to an agency as well as primary delegation to the courts. At the same time, as she acknowledges, studying this primary/secondary delegation has limitations. It doesn’t tell us much about how an agency might act if it alone had enforcement power or how the courts might act if they alone had enforcement power.

Title VII is also a good case study because it was enacted in the context of much disagreement about both the goals Congress should pursue and the means by which it should reach them. Moreover, we have significantly developed legislative history that deals explicitly with this choice of delegation. From the late 1960s and early 1970s, there was significant debate in Congress, surrounding whether to give the EEOC cease and desist authority or to leave the remedial aspects of the statute to court enforcement.

Lemos’s article is a must-read for anyone thinking about how to end discrimination through law, and a great starting point for further study about how Congress might choose to delegate enforcement depending on its goals.

Deconstructing Stock Options

May 26, 2010 Matt Bodie

Matt Bodie

In “The Non-Option,” David Walker expertly dissects one of the puzzles of employee stock option compensation: why stock options are always granted at the then-current market price for the stock, resulting in “at-the-money” options.  If parties could tailor their compensation packages to individual needs and desires, one would expect that at least some firms would agree to give their employees stock options that had an exercise price lower than market price (known as “in-the money” options).  Indeed, the desire for in-the-money options was so strong that hundreds of companies essentially created them through illegal option backdating.  Recent changes to accounting rules were thought to have dampened the disparity in regulatory treatment between at-the-money and in-the-money options.  Walker’s article, however, explains how tax law has stepped in to continue this familiar bifurcation in treatment.

The narrative of the rise and fall of stock options begins in the early 1990s.  In order to encourage shareholder primacy and efficient corporate management, scholars and policymakers set upon a course of promoting incentive-based executive compensation.  This programme found its instantiation in IRC § 162(m), which allowed companies to take unlimited tax deductions for compensation earned “solely on account of the attainment of one or more performance goals.”  Since the deduction for other pay (such as salary) was limited to $1 million, this gave substantial corporate tax savings to performance-based pay.  Stock options became a natural way to provide this kind of pay.  Longstanding accounting rules took a “face-value” approach to the valuation of options because of the difficulty in calculating their value.  Under these rules, a company incurred no expense (for accounting purposes) when issuing at-the-money options; the options only needed to be expensed when the employee exercised them.  As a result, “costless” and deductible stock options fueled the Internet boom and the late-1990s stock surge.  However, increasing pressure to account for the real value of options led the Financial Accounting Standards Board (FASB) to change its rules in 2005.  FASB now requires that at-the-money options be expensed.  This change, along with the stock market bust in the early 2000s, cooled companies on options and led to more of a mix between options and restricted stock (as Walker describes in this article).

FASB’s change in its rules regarding stock options was expected to level the playing field between at-the-money options and in-the-money options, since both would have to be valued and expensed.  However, companies continue to avoid the in-the-money option in their compensation packages.  The reason, according to Walker, is no longer accounting but tax.  In 2004 Congress enacted IRC § 409A to deter certain kinds of deferred compensation strategies.  Section 409A’s provisions are fairly complicated, but at-the-money options are given a safe harbor under the Treasury regulations.  In-the-money options, on the other hand, are taxed as income at vesting, rather than exercise, and subject to an additional twenty percent penalty tax.  Section 409A essentially obliterates any incentive for companies to provide in-the-money options.

Why does § 409A continue this artificial divide between at-the-money and in-the-money?  After all, the dichotomy under the old accounting rules was generally blamed for the backdating scandal; companies and executives wanted to game the system to provide the most compensation at the least acknowledged cost.  FASB was applauded for eliminating this differential treatment in 2005, but § 409A perpetuates it.  What’s the justification?  Walker argues that in-the-money options can be problematic for tax purposes.  Options are not taxed until they are exercised, while restricted shares are taxed when they vest.  For this reason, tax policy prefers restricted stock over options.  And ultimately, Walker argues, this policy may not be all that harmful to actual compensation practices.  Although a world without in-the-money options may not provide an optimal level of contracting flexibility, a mix of at-the-money options and restricted stock can approximate in-the-money options while avoiding the negative tax consequences.

Walker’s article continues his fascinating work on executive compensation, particularly equity compensation.  He skillfully cuts across doctrinal categories to get to the heart of the compensation issues he examines.  Walker is adept at mixing discussions of corporate law, securities regulation, tax policy, accounting rules, and law and economics theory in his analysis, and his diagnosis is thereby much more tethered to reality than a view limited to one subject area.  Indeed, Walker’s work challenges all who work on compensation and governance issues to move beyond doctrinal categories to look more holistically at the interaction of law and business.

Under Jotwell’s categorization scheme, Walker’s article could easily be characterized as a tax law article or a corporate law article.  And that is part of my point in singing its praises in the labor and employment category.  Employee compensation is a labor and employment concern.  Yet stock options tend to be considered only under corporate law or securities regulation.  As Walker’s article demonstrates, tax law plays a huge role in corporate behavior related to options – a role that has generally been understudied.  (Others doing great work in the area include Gregg Polsky and Ethan Yale.)  Moreover, stock options tend to be lumped into discussions of executive compensation more generally, rather than being singled out for their unique attributes and effects.  Options are more than just a tool of CEO pay packages; they are often granted to wide swaths of a company’s workforce, and they are seen as a way for “ordinary” employees to participate in corporate success.  In fact, much of the lax treatment that stock options received around the turn of the century was justified by the opportunities that options afforded to lower-level workers.  The heightened concern for excessive compensation – and the role of the option in inflating that compensation – has dimmed the emphasis on this rationale.  But some scholars still see the option as a way of encouraging employee “ownership” without the expense and lack of diversification afforded by ESOPs and other traditional ownership vehicles.  (See, for example, In the Company of Owners, by Blasi, Kruse & Bernstein.)

As Walker notes in his article, options granted to executives are much easier to study than those given to lower-level employees, thanks to the disclosures mandated by federal securities laws.  But just because they are not disclosed does not mean they don’t exist.  I hope that Walker’s careful exegesis of these issues will encourage scholars from many fields, but particularly labor and employment law, to consider stock options and other compensation instruments as part of their research.  And I hope his example encourages scholars to cut across academic categories in order to more fully understand the law and its consequences.

Conceptualizing Disability Discrimination

May 17, 2010 Michael C. Harper

Michael C. Harper

In a series of law review articles written over the past decade, Professor Bagenstos has established himself as the preeminent academic voice on disability discrimination law. Indeed, the transferable utility of the conceptual insights developed and applied in these articles, in my view, warrants a claim for Bagenstos as the most important scholar of the decade in the general field of employment discrimination law. Anyone with a serious intellectual interest in discrimination law who has not read Bagenstos’s articles should take the occasion of the publication of this pithy and trenchant little volume to familiarize themselves with Bagenstos’s analysis of the political and intellectual assumptions underlying disability law. Those who have read Bagenstos’s work will find the book not redundant, but rather a rewarding reminder and synthesis of his developing view.

The book’s principal project is to highlight how the highly pluralistic disability rights movement’s sometimes divergent contradictory goals and assumptions have been reflected in discrimination law.  In my view, the most important tension within the movement highlighted by Bagenstos derives from a disagreement about the meaning of the social model of disability. Bagenstos notes the general agreement among disability rights advocates that disability is socially rather than medically or physically defined. There is a broad, and appropriate, understanding among these advocates that no physical or mental traits can be defined as abnormal without reference to standards dependent upon social values. These values and accompanying attitudes and the physical environment they create or at least tolerate are what pose special difficulties for some disfavored individuals. The critical intellectual divergence in the movement is over the meaning of this social model for social policy. For some, Bagenstos notes, the model supports a universalism recognizing that all of us are different in ways that warrant legal protection from discrimination. Others, however, use the model to stress the importance of special interventions to create equal opportunities for the stigmatized minority disfavored by social assumptions about what is normal. Such interventions at least in part find support from policy makers wanting to avoid what might otherwise be the social dependency of a part of the population.

Bagenstos uses this analysis in a provocative chapter on the judicial interpretation of the definition of disability in the Americans with Disabilities Act. He explains the Supreme Court’s analysis in cases like Sutton v. United Airlines and Toyota Motor Mfg. v. Williams, as more consistent with the latter minority-rights than the former universalistic interpretation of the social model. He argues, for instance, that a concern only for the stigmatized minority can explain the generally maligned holding in Sutton that those whose life limitations are successfully mitigated are not protected by the ADA. Bagenstos’s explanation does not equate to his acceptance, however. He critiques the Court’s analysis in the ADA disability definition cases, and stresses the limitations of the minority-rights model for those, like the learning disabled, perhaps not stigmatized but still prevented from fulfilling their human potential by unnecessary social assumptions and institutions.

Bagenstos is pessimistic about an anti-discrimination law like the ADA being able to overcome the latter limitations. Perhaps this pessimism should be qualified a bit by the ADA Amendments Act of 2009 (ADAAA), however. Because of the publication date of the book, Bagenstos unfortunately was not able to adapt his analysis fully to the new amendments, which he acknowledges over turn most of the holdings in the Court’s decisions on the definition of disability, including the Sutton holding on mitigation. More importantly, in my view, the ADAAA takes a step toward the universalistic model by eliminating the requirement that an impairment substantially limit a major life activity in order to constitute a disability protecting a qualified individual from discrimination. The substantial limitation requirement, to be sure, remains for a claim requiring reasonable accommodation, and Bagenstos makes a strong argument that the reasonable accommodation mandate in the ADA is not economically distinct from the general condemnation of rational statistical discrimination by the anti-discrimination laws. Nevertheless, claims against disparate treatment on the basis of disability are conceptually distinct from claims for reasonable accommodation, and the former claims more easily resonate with politically favored civil rights rhetoric. Bagenstos is probably correct that judges will continue to limit those protected from discrimination by restrictive interpretations of the meaning of impairment, but those limitations cannot be as severe as those imposed even after the ADAAA on the substantial limitation on a major life activity definition.

There is much more in Bagenstos’s rich book, some of it not directly addressed to employment law. A chapter examining the disability rights’ community’s stance on abortion rights, assisted suicide, and prenatal testing, for instance, connects the debates within the disability rights community to broader themes. And a final comprehensive chapter on a future agenda for the movement reminds us that employment law is only part of a political puzzle, which must fit with other important pieces – including the kind of expansion of health insurance that is promised by current legislation. Bagenstos’s analytic acumen and balanced political sense can illuminate all on which they shine.

Meet the Editors

Jan 6, 2010 Michael Froomkin

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.

Professor Samuel Estreicher
Dwight D. Opperman Professor of Law; Co-Director, Dwight D. Opperman Institute of Judicial Administration; Director, Center for Labor and Employment Law, New York University School of Law

Professor Jeffrey Hirsch
University of Tennessee College of Law

Contributing Editors

Contributing Editors agree to write at least one jot for Jotwell each year.

Professor Matthew T. Bodie
St. Louis University School of Law

Professor Henry L. Chambers, Jr
Richmond School of Law

Professor Cynthia Estlund
Catherine A. Rein Professor of Law, New York University School of Law

Professor Richard Michael Fischl
University of Connecticut School of Law

Professor Michael C. Harper
Barreca Labor Relations Scholar Professor of Law, Boston University School of Law

Professor Martin J. Katz
Dean, Sturm College of Law, University of Denver

Professor Anne Marie Lofaso
West Virginia University College of Law

Professor Alex B. Long
University of Tennessee College of Law

Professor Martin H. Malin
Professor of Law and Director of the Institute for Law and the Workplace, Chicago-Kent College of Law

Professor Marcia L. McCormick
St. Louis University School of Law

Professor Angela Onwuachi-Willig
Professor of Law and Charles M. and Marion J. Kierscht Scholar, University of Iowa School of Law

Professor Paul Secunda
Marquette University Law School

Professor Joseph Seiner
University of South Carolina School of Law

Professor Joseph Slater
Eugene N. Balk Professor of Law and Values, University of Toledo College of Law

Professor Kerri L. Stone
Florida International University College of Law

Professor Charles A.  Sullivan
Seton Hall University School of Law

Professor Michael J. Zimmer
Loyola University, Chicago, School of Law

Call for Papers

Jan 6, 2010 Michael Froomkin

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details.

Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.

Ordinarily, a Jotwell contribution will

• be between 500-1000 words;
• focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
• begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.

Initially, Jotwell particularly seeks contributions relating to:

• Administrative Law
• Constitutional Law
• Corporate Law
• Criminal Law
• Cyberlaw
• Intellectual Property Law
• Jurisprudence
• Legal Profession
• Tax Law
• Trusts & Estates
• Worklaw

We intend to add more sections in the coming months.

References

Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.

• Please keep citations to a minimum.
• Please include a hyperlink, if possible, to any works referenced.
• Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
• Authors are welcome to follow The Bluebook: A Uniform System of Citation (18th ed. 2005), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.

Technical

Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.

Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to ed.jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.

Jotwell Mission Statement

Jan 6, 2010 Michael Froomkin

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.

Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.

A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.

The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.

Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.

Tell us what we ought to read!

How It Works

Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.

For the legal omnivore, the ‘front page’ at Jotwell.com will contain the first part of every essay appearing elsewhere on the site. Links will take you to the full version in the individual sections. There, articles will be open to comments from readers.

The Details

Learn more about Jotwell:

• Style guide
• Acceptable use policy
• Copyright Policy
• Privacy policy