Monthly Archives: May 2015

Diversity Within the International Arbitration Community

Last week my former professor Deborah Rhode published a piece in the Washington Post about the lack of diversity in the legal profession, particularly in the most “elite” or “prestigious” jobs. Now, lead author Susan Franck (Washington & Lee) and several collaborators have published an important complement examining original empirical data relating to diversity among adjudicators and counsel in international arbitration proceedings.

Although the “invisible college” of those involved in international arbitration is difficult to define, the researchers created an original data set using registrants for the International Council for Commercial Arbitration (ICCA) and examined diversity across several demographic categories. Among many interesting findings, their research revealed that only 17.6% of arbitrators were women, the average age of both counsel and adjudicators was 48,  and arbitrators  from the developed world were overrepresented relative to those from the developing world.

I particularly appreciated the article’s focus on the importance of diversity to perceived legitimacy and, ultimately, the functioning of the international arbitration system as a whole. International arbitration occurs because states consent to it, and such consent would be less likely if the identity of arbitrators led states to lose confidence in the process. As the authors explain: “States permit and honor arbitration proceedings, in part, because of their perceived utility; should those courts or legislatures believe that ICA is illegitimate or problematic, they retain the capacity to re-absorb those cases into judicial dockets.”

The article is available here. From the abstract:

As diversity can affect the perceived legitimacy of a state’s dispute resolution system and the quality of judicial decisions, diversity levels in the national bench and bar have been an area of transnational concern. By contrast, little is known about diversity of adjudicators and counsel in international arbitration. With a lack of accurate, complete, and publicly available data about international arbitrators and practitioners, speculation about membership in the “invisible college” of international arbitration abounds. Using data from a survey of attendees at the prestigious and elite biennial Congress of the International Council for Commercial Arbitration permitted one glimpse into the membership of the international arbitration community. Although defining the international arbitration community is challenging, rather than leave the “invisible college” unexamined, this Article offers one systematic glimpse into the global elites of international arbitration using data from 413 subjects who served as counsel and 262 who acted as arbitrators (including 67 investment treaty arbitrators). The median international arbitrator was a fifty-three year old man who was a national of a developed state reporting ten arbitral appointments; and the median counsel was a forty-six year old man who was a national of a developed state and had served as counsel in fifteen arbitrations.

In addition: (1) 17.6% of the arbitrators were women, and there was a significant age difference such that male arbitrators were approximately ten years older than women; (2) for those acting as international arbitrators, we could not identify a significant difference in the number of appointments women and men obtained; (3) depending upon how development status was defined, developing world arbitrators accounted for fifteen to twenty percent of arbitrators; and (4) for all measures used to analyze development status, arbitrators from the developing world received a statistically lower number of appointments than their developed world counterparts.

Recognizing the data revealed diversity in international arbitration is a complex phenomenon, the data nevertheless supported, rather than disproved, claims that international arbitration is a relatively homogenous group. Acknowledging that international arbitration may improve over time and diversity issues challenge other forms of dispute resolution, diversity levels in international arbitration were somewhat lower than in several national court systems but were generally reflective of diversity levels in other international courts and tribunals. The international arbitration community seems aware of the distortions. For all subjects, 57.5% either somewhat or strongly agreed that international arbitration experiences challenges related to gender, nationality, or age. Younger subjects and women were statistically more likely to identify such challenges as compared to older or male subjects; but subjects from states outside the Organisation for Economic Co-operation and Development (OECD) were less likely to identify challenges when compared to their OECD counterparts. Replication is necessary as the results may reflect a limited historical baseline of international arbitration global elites.

Given the self-identified concerns and the symbolic legitimacy of broader representation, the international arbitration community may wish to explore factors inhibiting full utilization of untapped talent and facilitate aims of procedural, and potentially distributive, justice. Structural and incremental strategies could then promote a sustainable international arbitration system for the future.

Anita Bernstein: “Abuse and Harassment Diminish Free Speech”

Outstanding piece by Anita Bernstein (Brooklyn) in the Pace Law Review about something that so-called free speech absolutists too often forget: that abuse and harassment actually silence speech, and that if we care about speech we ought to care about the speech that abuse silences.

The article can be downloaded here, and here is the abstract:

Owen Fiss focused on “the robustness of public debate” to conclude on his last page: “The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is rather a means to further the democratic values underlying the Bill of Rights.”

This article embraces the same values but more conservatively. Whereas Fiss defended state-sponsored coercion, I leave the government mostly outside the descriptions and arguments presented here. Scholars have sought to apply the law—of crimes, torts, intellectual property, and statutory allotments and immunities—as remedies for online abuse and harassment. A few states have modified their penal codes in this direction. I applaud many of these innovations but do not rely on them. They can be rejected for purposes of the thesis that I sketch in these pages.

Like writings that come before it, this article challenges the chestnut that freedom comes at the expense of another progressive good. Equality, to some writers; antisubordination, to others; “civil rights” also serves. In contending that free speech advances and supports these progressive goals, I step into big footprints—not just those of Owen Fiss but before him, inter alia, Harry Kalven, who argued when the sixties revolution was young that white speakers ought to thank “the Negro” and his civil rights struggle for enlargement of their First Amendment rights delivered to them by the Supreme Court. But my connection to free speech is more literal than what these great precedent-writings teach. Abuse and harassment pull valuable words out of the marketplace of ideas, I argue. They lessen the discourse.

Also following in the path of other writings, this article notes a few higher stakes present in online speech as contrasted with its lower-tech antecedents. Electronic discourse adds anonymity, amplification, and permanence; within this medium, these conditions reinforce each other. Think of a rock thick and opaque enough to hide behind, durable enough to intimidate, heavy enough to inflict a real blow.

Don’t stop there. Think also of a rock’s majesty and beauty. Opacity, durability, and weight are strengths as well as dangers. In this article, I advocate measures against abuse and harassment because (not “even though”) I cherish free speech.

Project for a future post, or perhaps an article: why the term “free speech absolutist” is incoherent, and misleading, and also just kind of dumb. I’m with Martha Nussbaum that no one is really a free speech absolutist. So at a minimum we need a more accurate description of those who call themselves free speech absolutists.

The RightsCast: Osamudia James Next Week

The RightsCast will return next week with a conversation with Osamudia James (Miami) about white identity and affirmative action.

ETA May 25, 2015: I forgot that this week is the Law & Society Association’s annual conference which a lot of law professors tend to attend (although not me this year).  So in the interest once again of releasing new episodes when large segments of my colleagues are not otherwise occupied, I will postpone this episode one more week. It is excellent and so is Osamudia’s article, “White Like Me,” which is published in the NYU Law Review.

Employment Discrimination Against Bisexuals

I highly recommend this recent article by Ann E. Tweedy and Karen Yescavage, “Employment Discrimination Against Bisexuals: An Empirical Study,” which is out this year in the William & Mary Journal of Women & Law. Among many other interesting, provocative, and troubling findings, the authors’ research found that 51.7% of bisexual people had experienced workplace discrimination, but only a small percentage (3%) had sought internal recourse, and none had sued.

In my own experience looking at the rates of lawsuits by multiracial people, one reason that targets of discrimination seldom seek recourse is that their claims don’t fit comfortably into the litigation narratives established by plaintiffs conventionally perceived as “monoracial.” Perhaps part of the story for bisexual targets of discrimination is a similar one.The piece demonstrates the importance of empirical research to doctrinal analysis and is well worth a read.

More on Wyoming’s Bullshit Law

The Washington Post has some useful coverage by Jeff Guo of Wyoming’s law that makes it a crime to collect data from both private and public lands for purposes of providing those data to the federal government. The article builds on a Slate piece that my University of Denver colleague Justin Pidot published last week and quotes Justin in the article. An excerpt:

“Government shouldn’t be in the business of concealing wrongdoing. When you have a state government creating a law criminalizing people revealing truthful information about illegal conduct, then something’s gone horribly astray in our democracy.”

The law is unconstitutional in a number of ways, and the chilling effect on citizens’ First Amendment rights — both the right to free speech and the right to petition the government — is particularly troubling.

“Identity Entrepreneurs” Reviewed on JOTWELL

Ruthann Robson (CUNY) has a generous and very helpful review of my article “Identity Entrepreneurs,” forthcoming in the California Law Review, out in JOTWELL today. I appreciate the feedback and invite comments from others.

Adriane Peralta, “The Underrepresentation of Women of Color in Law Review Leadership Positions”

Law students and law review advisors should check out Adriane Peralta’s excellent article in the Berkeley La Raza Law Journal about the underrepresentation of women of color in board positions on law review. Peralta makes a compelling case that a lack of women of color in leadership positions changes law review culture and function, and not for the better.

Justin Pidot on Wyoming’s Law Against Data Collection

My colleague Justin Pidot has a piece in Slate about a new law passed in Wyoming with troubling First Amendment implications, as well as many other constitutional problems. The law criminalizes collecting data on both public and private lands and providing it to the government. An excerpt from the piece: Continue reading

The RightsCast, Episode 10, Part 2: Professor César García Hernández, “Naturalizing Immigration Imprisonment”

Episode 10 of The RightsCast features César García Hernández, one of my wonderful colleagues at the University of Denver School of Law and an expert on the growing intersection of criminal and immigration law. This week’s episode is Part 2 of a two-part interview with César.

In the interview as a whole, César discusses his article “Naturalizing Immigration Imprisonment,” which is forthcoming in the California Law Review.  He is the author of many highly regarded articles about the intersection of criminal and immigration law, and also runs the blog, an award-winning blog about the intersection of criminal law and immigration law that is widely read among both professors and practitioners. To keep up with recent developments, you can find César on Twitter under the handle @crimmigration.

Immigration-related imprisonment has become an increasingly prominent feature of both criminal and civil immigration law enforcement and understanding why this is and the consequences for the justice system and for migrants is a critical step in immigration reform. Here’s an excerpt from César’s eloquent interview:

“Is it morally justifiable to confine children? Is it morally justifiable to confine people who are mentally incapacitated? Is it even morally justifiable to confine people who have violated a law that says they need the federal government’s permission to come here when there’s no indication those individuals are a danger to society? They don’t pose a threat to you or to me or our communities. . . . The fact of the matter is that if you give people a legitimate shot at getting right with immigration law, most of them are going to take it.”

Watch the rest here.


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Aurora Theater Shooting Trial Begins

The Aurora theater shooting trial is big news in Colorado right now. Everything about this trial is unusual, from the 9000-person jury pool to the fact that one of the 24 jurors and alternates is a survivor of the Columbine school shooting who was childhood friends with the shooters and had gone to prom with one of the victims. I spoke with CBS Evening News, the Wall Street Journal, and CCTV about some of the issues in the case.