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Constraining and Licensing Arbitrariness: The Stakes in Debates about Substantive-Procedural Due Process"Due process," unmodified by the words "substantive" or "procedural," has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment. Thus, on occasion, the Supreme Court has concluded that court fees had to be waived, subsets of litigants needed to be provided with lawyers, and failures to pay fines or child support could not result in detention unless judges inquired into the "ability to pay." Judges also assessed the "fairness" of procedures in courts and agencies and at times required revamping modes of decision making. Moreover, due process was the touchstone of the "fairness" of state courts' exercise of jurisdiction over absent litigants and application of their law to out-of-state parties. Thus, in various contexts, and at times in conjunction with other constitutional and common law provisions, due process had come to denote the relationship between government and individuals that entails respect for people expressed through procedures and decision making that are fundamentally "fair." Due process has thus been adaptive, pluralistic, and Janusfaced--looking to protect individuals in their encounters with government while shoring up the authority of governments to enforce their laws. The Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, rejecting the federal constitutional right to an abortion, raises concerns about this account of due process. Our contribution to this Symposium is to sketch the elaboration of due-process principles that, built in earlier eras, came to apply to people who had been denied these protections. We analyze how the Supreme Court has, through the interaction of due process and equal protection, begun to address inadequate litigation resources and asymmetries between individuals and their adversaries in courts and agencies. We sketch the intersection of due-process norms with other constitutional provisions and the embeddedness of aspirations for non-arbitrary and fair treatment across diverse doctrinal categories including family, criminal, banking, and administrative law, as well as in other common and civil law systems. Yet, as Dobbs makes plain, commitments to due process and equality can be undermined. Through clarifying the stakes in debates about due process in a variety of its forms, we hope to encourage mobilization across the political spectrum to reject the potential for a frightening arbitrariness that members of the current Supreme Court seem poised to countenance. Renewed commitments are needed to insist on practices of bounded lawfulness, equality, and fairness that due process has encoded and should continue to promote.
Valuing ESGCorporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once non-pecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise. To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at $100 in its charter. The company would use that valuation as a metric in its assessment of projects, pursuing only those projects that would remain "profitable" after adjusting its forecasted cashflows by subtracting $100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than $100 per ton of carbon saved. Similarly, the fund might pick stocks for investment based on potential profitability at a carbon price of $100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing.
An Empirical Investigation of Arbitrator Race and Gender in U.S. ArbitrationFor decades, the United States system of arbitration has been subject to nearly constant public criticism. Calling arbitration a rigged judicial system, consumer and employee rights groups have voiced opposition to the practice of “forced arbitration” whereby millions of Americans are contractually required to resolve disputes in arbitration rather than in litigation. On top of the concerns over the unfairness of forced arbitration itself, recent attention has been drawn to the lack of racial and gender diversity within the arbitrator profession. When women and racially marginalized plaintiffs are forced to arbitrate their employment discrimination or consumer-based claims in the arbitral forum, that they may have no meaningful access to arbitrators that look like them seems additionally problematic. Scholars in the field have argued back and forth about the root of the diversity problem. Is it a labor supply problem? In other words, are parties to arbitration open to hiring marginalized arbitrators but there are just not enough to choose from? Or is it a labor demand problem? In other words, when women and arbitrators of color are available, are they chosen at rates consistent with their white male counterparts? Or, are both supply and demand problems at work? Because much of the scholarly diversity conversation has been based on anecdotal information and survey data which don’t cover the full population of U.S. arbitrators, these basic questions are still unanswered. This paper contributes to the literature by using an originally-collected data set of arbitrator race, ethnicity and gender from the two largest arbitration firms in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the American Arbitration Association (“AAA”). The data were collected using public data sources and cutting-edge machine learning techniques. This is the first-ever scholarly effort to empirically estimate the race and ethnicity of arbitrators for both the JAMS and AAA populations. The analysis presents estimates of the demographic profile of the supply of U.S. arbitrators and the demographic profile of the subset of arbitrators that are actually selected to arbitrate—with a special focus on the extent to which under-selection is happening. The study has four main findings. First, along the supply dimension, women and people of color are underrepresented amongst JAMS arbitrators, both relative to the U.S. population and relative to the population of American lawyers and judges. The extent of the underrepresentation for both groups is significant, though it is more severe for arbitrators of color than for female arbitrators. For AAA arbitrators, I find an even greater degree of underrepresentation for Black arbitrators. Second, along the demand dimension, I find different results for JAMS and AAA. For JAMS, I find that, conditional on being selected to arbitrate at least once in the sample period, Asian and Black arbitrators receive fewer cases than their proportional share, and female arbitrators receive slightly more cases than their proportional share. Moreover, arbitrators that were formerly judges receive more cases than their proportional share. For AAA, the selection analysis is hampered by limited data availability. However, the data that I do have suggest that diverse neutrals are selected for cases at a rate that is at or above their proportional share. Third, given the first two results, my data suggest that diversity issues exist both along the labor supply dimension and the labor demand dimension within U.S. arbitration. Fourth and finally, I find that future empirical diversity work in arbitration will be severely hindered unless more and better data are available to researchers. The study concludes by offering concrete and specific recommendations for how and why better data should be collected and made available to the public.
Sex/Gender Segregation: A Human Rights Violation, Not a ProtectionThis Article argues that human rights law should be interpreted to prohibit sex/gender segregation in all contexts, including education, employment, bathrooms, prisons, and sports, because of the gendered harms it produces. Prohibiting sex/gender segregation would constitute a departure from the current approach of international and regional human rights mechanisms, which has been to discourage sex/gender segregation in education and employment, require it in bathrooms and prisons, and devote little attention to it in other contexts, such as sports. This departure is needed because sex/gender segregation, no matter the context, perpetuates and reinforces gender stereotypes to the detriment of everyone, especially women and LGBTI persons. Since international law requires States to modify harmful gender stereotypes and eliminate wrongful gender stereotyping, States have an international obligation to eliminate sex/gender segregation regardless of the context in which it occurs. Common arguments in favor of sex/gender segregation, arising out of protection, choice, and culture, do not prevent human rights mechanisms from finding that international law prohibits sex/gender segregation, but these concerns should be taken into consideration when proceeding toward the elimination of sex/gender segregation. Implementation of this prohibition on sex/gender segregation will need to be gradual and context-specific.
Removing the Bias of Criminal Convictions from Family LawWhat happens when a legal system reduces a person to a record of arrests and prosecutions and prioritizes that information in family court? And what are the implications when this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors? The Black Lives Matter movement brought attention to the need to expose racial injustice in areas that scholars often overlook. This Article is the first legal scholarship to examine judicial reliance on convictions in family law and domestic violence proceedings. Judges are currently provided with entire criminal histories, and statutes explicitly allow for or require family court judges to consider past criminal convictions and the probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence, as revealed by the research and fifty-state survey conducted for this Article. Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants' lives, relationships, families, and communities. Judges' implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, further affect adjudication and pressure parties to accept plea offers or settlements. This Article also addresses survivors' advocates' potential objections to decreasing judicial reliance on criminal convictions and the imperative to avoid minimizing harms experienced by people of color. The Article concludes by offering a statutory framework to reform the role of criminal convictions in domestic violence and family court proceedings. The recommended statutory reforms are positioned alongside emerging expungement and vacatur laws. Without the remedy recommended in this Article, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.