I am pleased to share that my article “Identity Entrepreneurs,” which is forthcoming in the California Law Review later this year, was selected for presentation the Yale/Stanford/Harvard Junior Faculty Forum. This year the Forum will take place in at Yale Law School on June 26-27. I’m excited to attend and to share my work with top scholars in my field, as well as to meet the other junior scholars whose papers were selected. You can find more information about the Forum here.
My latest article is now out in the Southern California Law Review! You can download the final version here.
The piece is about identities defined by the absence of something that much of society thinks is important — for example, lack of religion, sexual desire, partnership, and children. I consider the existing protection that federal and state laws provide for atheists, asexuals, single people, and people with no children. I then consider whether such antidiscrimination protection is warranted, and whether it should be expanded.
This is not a post about Rachel Dolezal, the president of the Spokane NAACP whose story has received a great deal of attention in the media over the last few days. For anyone who is not entirely familiar with the story, the claim in a nutshell is that Dolezal has presented herself as black to the community for the past decade or so via her appearance and behavior, but was recently described by her parents in an interview as entirely “of Caucasian and European descent.”
A great deal of interesting commentary has examined Rachel Dolezal’s behavior. I recommend this Washington Post piece by Professor Osamudia James (Miami Law), this piece in Slate by Jamelle Bouie, and this interesting exchange between Latoya Peterson and Danielle Henderson on Fusion. For scholarly work discussing people who pass from white to black or who attempt to choose a racial identity, I recommend “Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification,” by Professor Camille Gear Rich (USC Law), and this fascinating article by Professor Robin Kelley (UCLA History) about Grace Halsell. Continue reading
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.
My latest article, “Identity Entrepreneurs,” is forthcoming in the California Law Review. I’m thrilled to be working with a journal that has published so many of the seminal works relating to identity and discrimination. The abstract to the piece is available after the jump: Continue reading
I really learned a lot from recording and editing this week’s episode of The RightsCast. I interview Professor Khaled Beydoun (Barry) about the way the legal system — both historically and today — constructs Arab American identity. In particular, we talk about the conflation of “Arab American” and “Muslim American” — a highly misleading conflation given that about two thirds of Arab Americans are Christian. Continue reading
I really enjoyed my guest stint on the Reappropriate video podcast, hosted by Jenn of Reappropriate.com. You can view the podcast on YouTube to hear my thoughts on the Supreme Court, judges and technology, free speech, online threats, subjective intent, the reasonable person, rap music, and much more.
I have a piece in Salon today about racial bias in the sharing economy. How can we prevent the race discrimination that affects businesses in the traditional economy from infecting the new sharing economy as well? The Salon piece gestures at a larger project I’m currently working on that will probably take the form of a law review article, tentatively titled “The New Public Accommodations,” that will look at how we can prevent private-actor race discrimination on within the sharing economy. Continue reading