Law Commons^™

Using Artificial Intelligence In The Law Review Submissions Process, Brenda M. Simon

Faculty Scholarship

The use of artificial intelligence to help editors examine law review submissions may provide a way to improve an overburdened system. This Article is the first to explore the promise and pitfalls of using artificial intelligence in the law review submissions process. Technology-assisted review of submissions offers many possible benefits. It can simplify preemption checks, prevent plagiarism, detect failure to comply with formatting requirements, and identify missing citations. These efficiencies may allow editors to address serious flaws in the current selection process, including the use of heuristics that may result in discriminatory outcomes and dependence on lower-ranked journals to conduct …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation: communication …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Mine The Gap: Using Racial Disparities To Expose And Eradicate Racism, James S. Liebman, Kayla C. Butler, Ian Buksunski

Faculty Scholarship

For decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment's promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court's limitation of equal protection to public actors' disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action.

For a substantial segment of the …

Betting On Climate Policy: Using Prediction Markets To Address Global Warming, Gary M. Lucas Jr, Felix Mormann

Faculty Scholarship

Global warming, sea level rise, and extreme weather events have made climate change a top priority for policymakers across the globe. But which policies are best suited to tackle the enormous challenges presented by our changing climate? This Article proposes that policymakers turn to prediction markets to answer that crucial question. Prediction markets have a strong track record of outperforming other forecasting mechanisms across a wide range of contexts — from predicting election outcomes and economic trends to guessing Oscar winners. In the context of climate change, market participants could, for example, bet on important climate outcomes conditioned on the …

The Inability To Self-Diagnose Bias, Christopher Robertson

Faculty Scholarship

The Constitution guarantees litigants an 'impartial' jury, one that bases its judgment on the evidence presented in the courtroom, untainted by affiliations with the parties, racial animus, or media coverage that may include inadmissible facts, a one-sided portrayal, and naked opinion. Problems of juror bias arise in almost every trial – state and federal, civil and criminal - and the problem is most severe in the highest profile cases, where the need for accuracy and legitimacy in outcomes is most salient.

The Supreme Court has instructed courts to use a simple method to determine whether jurors are biased: ask them. …

Gender Sidelining And The Problem Of Unactionable Discrimination, Jessica K. Fink

Faculty Scholarship

Gender dynamics suffuse virtually every workplace. Indeed, the way that employees interact with one another turns not only on their individual backgrounds, skills and personalities, but also frequently on their gender. While many employees embrace gender diversity at work and appreciate the benefits of incorporating both male and female perspectives into workplace programs and projects, this ideal does not translate into every work environment. In many workplaces, female workers continue to experience unfair (and often unlawful) treatment based upon their gender. The law has done much to outlaw overt gender discrimination at work, providing a legal framework within which female …

About Microaggressions, Ronald E. Wheeler

Faculty Scholarship

Professor Wheeler discusses the concepts of microaggressions (including micro-assaults, microinsults, and microinvalidations) specifically against LGBT individuals, and proposes some solutions for preventing microaggressions from occurring within one’s organization.

Soft Skills - The Importance Of Cultivating Emotional Intelligence, Ronald E. Wheeler

Faculty Scholarship

Organizations hire people for their hard skills, but they end up firing people for their lack of soft skills. In this brief essay, Professor Wheeler, an experienced law library director and personnel manager, discusses soft skills and their importance in the workplace. He posits that emotional intelligence is the basis of what we commonly call soft skills, and although for some these skills are innate, they can be developed and sharpened over time. Wheeler uses personal anecdotes to illustrate how emotional intelligence has enhanced his own professional life.

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton V. Massey Coal Co., Lynne H. Rambo

Faculty Scholarship

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a …

An Empirical Method For Materiality: Would Conflict Of Interest Disclosures Change Patient Decisions?, Christopher Robertson

Faculty Scholarship

The law has long been concerned with the agency problems that arise when advisors, such as attorneys or physicians, put themselves in financial relationships that create conflicts of interest. If the financial relationship is “material” to the transactions proposed by the advisor, then non-disclosure of that information may be pertinent to claims of malpractice, informed consent, and even fraud, as well as to professional discipline. In these sorts of cases, materiality is closely related to the question of causation, roughly turning on whether the withheld information might have changed the decision of a reasonable advisee (i.e., patient). The injured plaintiff …

The Effect Of Blinded Experts On Jurors’ Verdicts, Christopher Robertson

Faculty Scholarship

“Blind expertise” has been proposed as an institutional solution to the problem of bias in expert witness testimony in litigation, as a way to improve litigation outcomes. At the request of a litigant, an intermediary selects a qualified expert and pays the expert to review a case without knowing which side requested the opinion. This paper reports an experiment that tests the hypothesis that, compared to traditional experts, such “blinded experts” will be more persuasive to jurors. A national sample of mock jurors (N = 275) watched an online video of a staged medical malpractice trial, including testimony from two …

Effect Of Financial Relationships On The Behaviors Of Health Care Professionals: A Review Of The Evidence, Christopher Robertson, Susannah Rose, Aaron Kesselheim

Faculty Scholarship

This symposium paper explores the empirical evidence regarding the impact of financial relationships on the behavior of health care providers, specifically, physicians. We identify and synthesize peer-reviewed data addressing whether financial incentives are causally related to patient outcomes and health care costs. We cover three main areas where financial conflicts of interest arise and may have an observable relationship to health care practices: physicians’ roles as self-referrers, insurance reimbursement schemes that create incentives for certain clinical choices over others, and financial relationships between physicians and the drug and device industries. We found a well-developed scientific literature consisting of dozens of …

The Money Blind: How To Stop Industry Bias In Biomedical Science, Without Violating The First Amendment, Christopher Robertson

Faculty Scholarship

The pharmaceutical and medical device industries use billions of dollars to support the biomedical science that physicians, regulators, and patients use to make healthcare decisions—the decisions that drive an increasingly large portion of the American economy. Compelling evidence suggests that this industry money buys favorable results, biasing the outcomes of scientific research. Current efforts to manage the problem, including disclosure mandates and peer reviews, are ineffective. A blinding mechanism, operating through an intermediary such as the National Institutes of Health, could instead be developed to allow industry support of science without allowing undue influence. If the editors of biomedical journals …

Biased Advice, Christopher Robertson

Faculty Scholarship

The modern capitalist society, characterized by decentralized decision making and increasingly sophisticated products and services, turns on relationships of epistemic reliance, where laypersons depend upon advisors to guide their most important decisions. Yet many of those advisors lack real expertise and may be biased by conflicting interests. In such situations, laypersons are likely to make suboptimal decisions that sometimes aggregate into systematic failures, from soaring health care costs to market crashes. Regulators can attempt to manage the symptoms and worst abuses, but the fundamental problem of biased advice will remain. There are many potential policy solutions, from outright bans on …

Another Hair Piece: Exploring New Strands Of Analysis Under Title Vii, Angela Onwuachi-Willig

Faculty Scholarship

This Essay re-examines antidiscrimination case law that allows employers to enforce hair grooming policies that prohibit natural hairstyles for black women, such as braids, locks, and twists. In so doing, this Essay sets forth an intersectional, biological - as opposed to cultural - argument for why such bans are discriminatory under Title VII. Specifically, this Essay argues that antidiscrimination law fails to address intersectional race and gender discrimination against black women through such grooming restrictions because it does not recognize braided, twisted, and locked hairstyles as black-female equivalents of Afros, which are protected as racial characteristics under existing law. The …

In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman

Faculty Scholarship

In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …

Blind Expertise, Christopher Robertson

Faculty Scholarship

The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction …

Complimentary And Complementary Discrimination In Faculty Hiring, Angela Onwuachi-Willig

Faculty Scholarship

This Article focuses on one form of discrimination in faculty hiring. Specifically, this Article concentrates on discrimination against the "overqualified" minority faculty candidate, the candidate who is presumed to have too many opportunities and thus gets excluded from faculty interview lists and consideration. In so doing, this Article poses and answers the question: "Can exclusion from interviewing pools and selection based upon the notion that one is just 'too good' to recruit to a particular department constitute an actionable form of discrimination?" Part I of this Article begins by briefly reviewing the changes in faculty diversity and inclusion at colleges …

Disparity Rules, Olatunde C.A. Johnson

Faculty Scholarship

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial …

By Any Other Name?: On Being “Regarded As” Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario Barnes

Faculty Scholarship

Forty years after the passage of Title VII, scholars Marianne Bertrand and Sendhil Mullainathan reported the results of their groundbreaking study, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. Their study revealed that simply having an African American-sounding name significantly decreased one's opportunity to receive a job interview, regardless of occupation or industry. The results of Bertrand and Mullainathan's investigation raise critical questions about the effectiveness of Title VII as a remedy for race discrimination in the hiring market today, especially as employment discrimination has evolved into different forms. As shown …

Tools, Not Rules: The Heuristic Nature Of Statutory Interpretation, Morell E. Mullins Sr.

Faculty Scholarship

No abstract provided.