Law Commons^™

Discredited Data, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data.

This Article contends that biased data is not the sole cause of algorithmic discrimination. Another reason pretrial algorithms produce biased results is that they are exclusively built and trained with data from carceral knowledge sources – the police, pretrial …

Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind Persad

SMU Law Review Forum

The allocation of scarce medical treatments, such as antivirals and antibody therapies for COVID-19 patients, has important legal dimensions. This Essay examines a currently debated issue: how will courts view the consideration of characteristics shielded by equal protection law, such as race, sex, age, health, and even vaccination status, in allocation? Part II explains the application of strict scrutiny to allocation criteria that consider individual race, which have been recently debated, and concludes that such criteria are unlikely to succeed under present Supreme Court precedent. Part III analyzes the use of sex-based therapy allocation criteria, which are also in current …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

The Color Of Property And Auto Insurance: Time For Change, Jennifer B. Wriggins

Faculty Publications

Insurance company executives issued statements condemning racism and urging change throughout society and in the insurance industry after the huge Black Lives Matter demonstrations in summer 2020. The time therefore is ripe for examining insurance as it relates to race and racism, including history and current regulation. Two of the most important types of personal insurance are property and automobile. Part I begins with history, focusing on property insurance, auto insurance, race, and racism in urban areas around the mid-twentieth century. Private insurers deemed large areas of cities where African Americans lived to be “blighted” and refused to insure all …

Cognitive Decline And The Workplace, Sharona Hoffman

Faculty Publications

Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age 65 and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between twenty-five and fifty percent of individuals suffer from this condition. Second, individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are fifteen percent of attorneys. The average age …

Rationing, Racism, And Justice: Advancing The Debate Around 'Colourblind' Covid-19 Ventilator Allocation, Dorothy E. Roberts, Harald Schmidt, Nwamaka D. Eneanya

All Faculty Scholarship

Withholding or withdrawing life-saving ventilators can become necessary when resources are insufficient. In the USA, such rationing has unique social justice dimensions. Structural elements of dominant allocation frameworks simultaneously advantage white communities, and disadvantage Black communities—who already experience a disproportionate burden of COVID-19-related job losses, hospitalisations and mortality. Using the example of New Jersey’s Crisis Standard of Care policy, we describe how dominant rationing guidance compounds for many Black patients prior unfair structural disadvantage, chiefly due to the way creatinine and life expectancy are typically considered.

We outline six possible policy options towards a more just approach: improving diversity in …

Recent Case Law, Disparate Impact, And Restrictive Zoning, Michael Lewyn

Touro Law Review

The Fair Housing Act (“FHA”) prohibits housing discrimination, including the refusal to sell or rent housing based on race, color, religion, sex, familial status or national origin,and any policy or conduct that “otherwise make[s] unavailable or den[ies], a dwelling [based on these impermissible factors].”In 2015, the Supreme Court interpreted the “otherwise make unavailable” language of the Act to mean that the FHA includes not only claims for intentional discrimination, but also claims for disparate impact. Under the disparate impact doctrine, a defendant may be liable for facially neutral rules or policies that disproportionately favor one racial group over another.

Zoning …

How To Compromise On Saving The Most Lives: A Commentary On Hellman And Nicholson, “Rationing And Disability”, David Wasserman

Washington and Lee Law Review Online

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much …

Rationing And Disability: The Civil Rights And Wrongs Of State Triage Protocols, Deborah Hellman, Kate M. Nicholson

Washington and Lee Law Review

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused …

The Deliberate Indifference Standard: A Broken Promise To Protect And Serve The Mentally Ill, Katherine R. Carroll

Touro Law Review

No abstract provided.

Questioning The Sacrosanct: How To Reduce Discrimination And Inefficiency In Veterans Preference Law, Craig Westergard

Seattle Journal for Social Justice

No abstract provided.

Fair Housing Enforcement In The Age Of Digital Advertising: A Closer Look At Facebook’S Marketing Algorithms, Nadiyah J. Humber, James Matthews

Law Faculty Scholarship

No abstract provided.

Auditing Predictive Policing, Jeremiah Scanlan

Brigham Young University Prelaw Review

Predictive policing technology has been adopted by police departments in major cities throughout the US, and while its use continues to spread, the legal implications of its use have not been thoroughly examined. Predictive policing algorithms may be biased against minorities and other vulnerable groups, which may lead police departments to pursue policing strategies that harm these groups. This article proposes that legislatures should fill the current gap in legal oversight by requiring external audits of predictive policing algorithms as used by police departments. These audits would examine the algorithms for bias using up-to-date technological tools and release the results …

No Prior Experience Desired: Villarreal V. R.J. Reynolds Tobacco Co. And The Scope Of Disparate Impact Claims Under The Adea, Nicholas Placente

St. John's Law Review

(Excerpt)

This Note argues that § 4(a)(2) of the ADEA permits disparate impact claims for job applicants, despite the revised holding of the Eleventh Circuit. First, the plain meaning of § 4(a)(2) strongly suggests that disparate impact protections lie for job seekers, in contrast to the Eleventh Circuit’s ultimate finding. This argument draws on a close textual and structural analysis of the ADEA, supplemented with a comparative analysis to Title VII. Furthermore, this Note unpacks the legal arguments surrounding the 1972 amendment to Title VII, demonstrating that the absence of the “applicants for employment” language from § 4(a)(2) does not …

Employment Discrimination And The Domino Effect, Laura T. Kessler

Utah Law Faculty Scholarship

Employment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered …

Breaking Dichotomies At The Core Of Employment Discrimination Law, William R. Corbett

Florida State University Law Review

No abstract provided.

The Prison To Homelessness Pipeline: Criminal Record Checks, Race, And Disparate Impact, Valerie Schneider

Indiana Law Journal

Study after study has shown that securing housing upon release from prison is critical to reducing the likelihood of recidivism,1 yet those with criminal records— a population that disproportionately consists of racial minorities—are routinely denied access to housing, even if their offense was minor and was shown to have no bearing on whether the applicant would be likely to be a successful renter. In April of 2016, the Office of General Counsel for the United States Department of Housing and Urban Development (HUD) issued much anticipated guidance dealing directly with the racially disparate impact of barring those with criminal records …

Mullin V. Ratheon Co.: The Threatened Vitality Of Disparate Impact Under The Adea, Miles F. Archer

Maine Law Review

Seven years after Congress enacted Title VII of the Civil Rights Act of 1964 (Title VII), and four years after the enactment of the Age Discrimination in Employment Act of 1967 (the ADEA), the Supreme Court, in Griggs v. Duke Power Co., enunciated the doctrine of disparate impact as a means of establishing liability under Title VII. Since that time, the doctrine has evolved considerably and its application and contours have been redefined by the Court as well as by Congress. Within this evolution there has been a debate among the courts and commentators as to whether the doctrine may …

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Faculty Scholarship

Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.

Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …

From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau

Holning Lau

The Bankruptcy Of Refusing To Hire Persons Who Have Filed Bankruptcy, Terrence Cain

Faculty Scholarship

In 1978, Congress made it illegal for government employers to deny employment to, terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy. In 1984, Congress extended this prohibition to private employers by making it illegal for such employers to terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy. Under the law as it currently exists, private employers can refuse to hire a person who has filed bankruptcy solely because that person has filed for bankruptcy. Meanwhile, employers have substantially increased their use of credit …

How University Title Ix Enforcement And Other Discipline Processes (Probably) Discriminate Against Minority Students, Ben Trachtenberg

Nevada Law Journal

No abstract provided.

Voting Rights And The History Of Institutionalized Racism: Criminal Disenfranchisement In The United States And South Africa, Brock A. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

The Disparate Treatment Of Race And Class In Constitutional Jurisprudence, Mario L. Barnes, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Data-Driven Discrimination At Work, Pauline T. Kim

AI-DR Collection

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

The Multifaceted Manifestations Of The Poor Door: Examining Forms Of Separation In Inclusionary Housing, Conor Arpey

American University Business Law Review

No abstract provided.

Toward Systemic Equality: Reinvigorating A Progressive Application Of The Disparate Impact Doctrine, Justin D. Cummins, Beth Belle Isle

Mitchell Hamline Law Review

No abstract provided.

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

Blowing Past Minnesota Nice: New Opportunities Arise To Utilize Disparate-Impact Theory And Practice In Twin Cities Low-Income Housing Discrimination Litigation, Anne M. Robertson

Mitchell Hamline Law Review

No abstract provided.

Lender Discrimination, Black Churches And Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

Based on my original empirical research, in this Article, I expose a disparity between the demographics of the roughly 650 religious congregations that have filed for chapter 11 bankruptcy during part of the last decade and congregations nationwide. Churches with predominately black membership — Black Churches — appeared in chapter 11 more than three times as often as they appear among churches across the country. A conservative estimate of the percentage of Black Churches among religious congregation chapter 11 debtors is 60%. The likely percentage is upward of 75%. Black Churches account for 21% of congregations nationwide.

Why are Black …