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Into the Twilight Zone: Reverse Citizenship Discrimination, Damage Caps, and Escalating Incoherence
Full text linkFederal employment discrimination law has become such an asymmetrical and largely incoherent body of law that those who find themselves in its midst can feel as though they have entered another realm or dimension—the “twilight zone.” The role of Section 1981 (42 U.S.C. § 1981) in federal employment discrimination law poses some significant mysteries and problems. The statute was enacted as part of the Civil Rights Act of 1866 to ensure the rights of recently liberated slaves, and it was amended in 1870. One of the rights guaranteed by Section 1981 is the right to make and enforce contracts on the same basis as white citizens. The Supreme Court declared that the contract language supported a holding that a claim for private employment discrimination is actionable under Section 1981 in Johnson v. Railway Express Agency, Inc. Since that decision, it has been clearly established that plaintiffs could sue for race discrimination under Section 1981. Section 1981 has numerous advantages over the other principal federal employment discrimination statutes—Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1991 (ADA). Chief among those advantages are: uncapped compensatory, and, in an appropriate case, punitive, damages, a longer limitations period for filing a lawsuit, and no procedural prerequisites to filing suit. In the Civil Rights Act of 1991, Congress sought to equalize the remedies between Section 1981 on the one hand and Title VII and the ADA on the other (the ADEA has a different remedial scheme). However, the political compromise required to secure passage of the 1991 Act resulted in the imposition of several caps on compensatory and/or punitive damages, depending on the size of the employer. Thus, a Section 1981 claim remains the most favored employment discrimination claim. This asymmetry in employment discrimination law gives rise to problems, as the scope of coverage of Section 1981 is unclear. Although it clearly covers race, the definition of race is controversial, open-ended, and evolving. The problems created by the availability of employment discrimination claims under Section 1981 were highlighted by two recent cases: Rajaram v. Meta Platforms, Inc. and Harris v. FedEx Corp. Servs., Inc. In Rajaram, a divided panel of the Ninth Circuit held that a claim for reverse citizenship discrimination is actionable under Section 1981. In Harris, a Fifth Circuit panel held that a plaintiff asserting race discrimination claims under Section 1981 and Title VII, who had recovered more than 250,000, which was below the $300,000 cap applicable to Title VII. These cases highlight, respectively, the uncertainty regarding Section 1981’s coverage and the superior remedies afforded by Section 1981 in comparison with Title VII and the ADA. This Article proposes bringing employment discrimination law out of this twilight zone dimension. Congress should enact law to make Title VII the exclusive remedy for private sector race discrimination in employment. Additionally, Congress should increase the damage caps applicable to Title VII claims because the caps have been the same since 1991
Sovereign Immunity and International Arbitration in China: One Step Forward, Two Steps Back, and Three Steps Forward Again
Full text linkInvestment treaty arbitration (ITA), like any other dispute resolution regime, must guarantee the quality if its means as well as offering effective sanctioning of its ends. Thus, any obstacle with respect to post-award proceedings should be dealt with seriously. Due to sovereign immunity, the enforcement against an award-debtor State is more difficult than against a private party. Courts in various jurisdictions have battled with sovereign immunity for many years now and many issues remain outstanding nevertheless. It is for these reasons that sovereign immunity from execution has been said to represent “the last fortress, the last bastion of State immunity.” One major challenge has been the plea of sovereign immunity in the international arbitration context – both from enforcement and execution. Courts in the People’s Republic of China (the PRC) and its territories have been part of that struggle. It is the curious position of PRC that this paper deals with. PRC has been an active participant of the rules-based international world order, in general, and ITA in particular. It was, therefore, surprising that China still adhered to the absolute immunity theory. And this despite having signed the United Nations Convention on State Immunity (UNCSI). This changed on 1 September 2023 when the Foreign State Immunity Law of the People’s Republic of China (FSIL) was unveiled. The FSIL entered into force on 1 January 2024. This paper helps explain how PRC has navigated the intersection between international arbitration law and the law of sovereign immunity since becoming an active participant in international economic law. I submit that PRC, first, took a step forward by actively participating in international commerce, trade, and investment and by signing the UNCSI (“One Step Forward”), secondly, PRC took two steps back by negating the UNCSI and actively promoting absolute immunity from enforcement and execution of foreign arbitral awards (“Two Steps Back”), and finally, more recently PRC have taken three steps forward by signing the FSIL that embraces the restrictive theory of immunity from both enforcement and execution of foreign arbitral awards (“Three Steps Forward”)
Beyond Statutory Loopholes, Qualified Immunity, and Internal Investigations: A Comparative Analysis of Police Accountability in the United States and the United Kingdom
Full text linkWhile the landscape of policing in the United States and United Kingdom appear different today, their shared roots of enslavement and racism fostered a culture of impunity for police officers in both countries. With community skepticism and public discontent with law enforcement continuing to rise in the United States, the investigative and procedural roadblocks in the way of holding police officers accountable for misconduct must come to an end. In an effort to facilitate conversations about progressive police reform and eventual abolition, this Note compares the modern American and British police accountability systems and the avenues through which victims of police brutality may hold their persecutors accountable. Through exploring various reforms implemented in the United Kingdom at both a national and local level, this Note encourages American policymakers to take notice of which proposed solutions may be viable in the United States. With the legitimacy of policing as an institution depreciating every year, it is time for a resolve of these issues based in community, not impunity
The Dubious Role of Institutional Investors in Driving the Green Transition: Legal and Economic Constraints
Full text linkThere is a well-established trend that the process of transition to a sustainable economic growth model marked by the pursuit of environmental, social and governance (“ESG”) objectives has large companies at its center, which are considered an essential hub for this purpose given their weight in the global economy. In this context, the role of shareholders, especially institutional investors, plays an important role. Indeed, it is widely recognized that they, having an increasing prominence in the shareholder base of large, listed companies, can push these public companies to adopt more virtuous conduct in the areas of, among others, environmental protection and human rights. Accordingly, the private initiative of shareholders partly replaces state intervention in the pursuit of general interest objectives. However, there is a clear difference between the two sides of the Atlantic in terms of the emphasis placed on shareholders, and institutional investors in particular, in this regard. In the European Union there is a recognized active role for institutional investors which is, indirectly, incentivized by the legislature. The notion that institutional investors, as shareholders of listed companies, should play a relevant role in promoting ESG objectives is more controversial in the U.S. where, unlike in Europe, there is no broad consensus on ESG investing. Although some states have passed pro-ESG legislation, in the wake of the ESG backlash, several states have enacted anti-ESG investment laws that prohibit the consideration of “non-pecuniary” factors by public pension funds, state and local governments, and their investment managers, considering them to be inconsistent with the exercise of fiduciary duties. At the same time, the Securities & Exchange Commission (“SEC”) proposals to strengthen climate-related disclosure by listed companies and institutional investors are still on hold. Against this fragmented background, there is a lack of unanimity as to whether institutional investors are willing and able to play a role in promoting ESG objectives in the interests of society at large, rather than just their end clients. Particularly, it is debatable whether asset managers have a real interest (and the necessary resources) in actively monitoring the companies in which they invest to promote their improved ESG performance. An assessment in this respect cannot, of course, be limited to legal profiles alone, even though the legal framework can influence the behavior of institutional investors and, in particular, asset managers (through disclosure requirements, as will be discussed). However, the analysis of the legal framework is not sufficient to shed light on whether these actors can actually play a role in promoting a more sustainable economic development model. To this end, it is essential to assess the economic and reputational incentives that may influence the propensity of investors to pursue sustainability objectives. In order to provide a comprehensive assessment of the real ability of institutional investors to promote stewardship policies to improve the ESG performance of the companies in their portfolios, this Article will proceed as follows. Part I considers whether, and within what limits, institutional investors are legitimized to pursue ESG objectives in their investment strategies. Part II examines the incentives or economic disincentives to ESG engagement that must be considered. Part III argues that despite legal constraints and economic disincentives, institutional investors continue to engage in ESG-related activities because ESG engagement can serve to attract investors who are more attentive to sustainability profiles. Part IV examines how sustainability legislation applicable to institutional investors is likely to stimulate the implementation of ESG engagement initiatives. While it is evident that some legislation, such as the EU SHRD, is clearly aimed at stimulating institutional investor engagement, it is necessary to consider the impact in this regard of disclosure requirements in the financial services sector, which, as shown below, may lead asset managers to disinvest from the worst ESG performers, i.e. the very companies where institutional investor stewardship on ESG issues would be most useful
Redefining the Scope of Anti-discrimination Law: Illuminating Colorism as a Basis for Discrimination Claims by Black Entertainers
Full text linkThis Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for lighter-skinned individuals in leading roles and the relegation of darker-skinned actors to stereotypical and often negative portrayals. The Article also assesses the legal challenges that dark-skinned Black litigants face when asserting colorism claims under federal anti-discrimination laws, specifically Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. One of the first hurdles that any dark-skinned Black litigant that asserts a colorism claim in federal court may face is that, historically, courts have conflated colorism claims with race discrimination claims. At times, this has resulted in the dismissal of dark-skinned Black litigants’ colorism claims. In addition, dark-skinned Black litigants face significant evidentiary hurdles in asserting colorism claims. Further, in the context of the entertainment industry, casting directors may invoke the bona fide occupational qualification (BFOQ) defense, the business-necessity defense, and First Amendment protections to shield discriminatory practices. The Article proposes several solutions to combat colorism in the entertainment industry. It advocates for the introduction of implicit bias evidence to address the subtle nature of colorism and strengthen the claims of dark-skinned entertainers. Building on previous scholarship, it argues that Congress should define “color” under Title VII to provide clearer legal standards and consistency in court rulings. Further, it proposes the application of a narrowly tailored color-based BFOQ that prioritizes the hiring of dark-skinned Black individuals in the entertainment sector. The Article concludes by emphasizing the need for a comprehensive legal framework that explicitly addresses colorism within the entertainment industry
The Most Exclusive Real Estate: Breaking Through Exclusionary Zoning on Long Island
Full text linkThere is little question that New York, like many states across the country, is facing a housing crisis: too few housing units are built each year to accommodate the state’s ever-growing job market. The seemingly-obvious fix is to build more housing –– but in many of New York’s communities, adding new housing is nearly impossible due to so-called “exclusionary zoning,” which prevents anything but single-family homes from being built. In a majority of suburban localities, duplexes, triplexes, and other small apartment buildings are either illegal, shunted into a small, densely zoned corner of the town, or are met with such strong resistance that the project becomes untenable for developers. This reality leaves these communities with a compounding deficit of new housing units. Exclusionary zoning has pushed many groups out of the housing market and contributed to skyrocketing prices statewide, resulting in record high percentages of New Yorkers who are rent-burdened or cannot afford housing at all. With the legislature failing to address this crisis, the State must look to the Governor to increase housing development. This Note proposes that the Governor use her emergency authority to declare a Housing State of Emergency, taking back the authority local governments currently wield over land use regulations in order to jump-start housing growth in New York State. Doing so would give developers a chance catch up to housing demand, lowering prices and providing an opening for the legislature to take more permanent action to remedy the ongoing housing crisis
What Really is “Objectionable Conduct” in New York Co-ops? Navigating a Board Deferential Standard of Review Post-Pullman
Full text linkHome is where the heart is, and in the United States, home ownership is an integral part of the American dream. A place to call home offers emotional safety as well as financial security. Property ownership can even mark the start of generational wealth. Since a home is something that can mean so much to so many, the loss of one’s home is an unimaginable fear. The risk becomes even greater when the odds are stacked against homeowners, particularly for cooperative corporation (co-op) shareholders in New York. Co-op proprietary leases exploit the risk of loss for these owners. Most proprietary leases in New York provide co-ops the option to terminate a shareholder’s lease if he or she displays objectionable conduct. While home safety is of the utmost importance, the typically vague objectionable conduct clause enables a co-op’s board of directors to evict shareholders for behavior that may not truly be “objectionable.” A board’s decision to evict a shareholder is then judicially shielded by the business judgment rule, which defers to the board’s decision as long as the board did not act in bad faith, in a way that failed to further the co-op’s corporate purpose, or in a way that exceeded the board’s authority. Notably, in Levandusky v. One Fifth Avenue Apartment Corporation, the New York Court of Appeals held that the judicial standard of review for corporate board decisions, the business judgment rule, also extends to co-op board decisions. Following this decision, in 40 West 67th Street v. Pullman, the New York Court of Appeals additionally held that this judicial review applies to a board’s decision regarding objectionable conduct evictions. In conjunction with these judicial decisions, many co-op proprietary leases lack a definition for objectionable conduct, giving boards ample discretion to define “objectionable” as whatever the board wants it to be. Shareholders are therefore vulnerable to power hungry boards who can evict shareholders for any reason the board deems “objectionable.” In response to this inequitable shareholder vulnerability, this Note proposes two solutions: (1) for shareholders to amend their proprietary leases to define objectionable conduct as conduct that constitutes a nuisance; or (2) for the New York Court of Appeals to overturn the decision in Pullman because it erroneously applies a corporate rule, the business judgment rule, to a housing issue, eviction
Uptier Debt Exchange Transactions: A Winner-Take-All Battle in the Leveraged Loan Market
Full text linkThis Note explores the legal implications of uptier debt exchange transactions (UDETs) in the syndicated loan market. These transactions are restructuring strategies that allow distressed companies to exchange existing debt for “superpriority” debt, often to the detriment of excluded creditors. The Bankruptcy Code aims to balance debtor relief with creditor rights, but, as this Note demonstrates, UDETs exploit ambiguities in credit agreements to shift priorities in favor of certain lenders. This Note examines the pivotal case of In re Serta Simmons Bedding, LLC, a decision which highlighted the need for creditors to reassess whether the flexibility of their credit agreements comes at the cost of a high risk of subordination. This Note reviews the evolution of UDETs, particularly in the face of the economic fallout following the COVID-19 pandemic, analyzes key judicial responses prior to Serta, and proposes both statutory and contractual reforms to better protect excluded creditors and address loopholes in credit agreements
AMERICA’S RAMPANT GUN EPIDEMIC: HOW 3D PRINTERS ARE ONLY ADDING FUEL TO THE FIRE
Full text linkThe assassination of the United Healthcare CEO in December of 2024 captivated national attention, specifically over the killer’s use of a homemade three dimensional (“3D”) printed gun. The use of 3D printing poses a breadth of opportunity for useful and valuable innovation across a variety of fields, such as allowing advancements in medical technology. However, with technology expansion comes associated risk and, in this case, that risk is the potential for increased presence of illegal firearms. Anyone with access to a 3D printer can download the necessary files and print weapon parts to create their own unregistered, untraceable firearms, including machine guns. The absence of laws governing the capabilities and usage of 3D printers in the context of home manufactured illegal firearms can exacerbate our national gun violence epidemic. This Note explores how federal regulation could help ameliorate the risks associated with this increasingly accessible and inexpensive means of creating illegal firearms. Specifically, it proposes how one possible uniform regulation has the potential to disrupt the deadly exploitation of 3D printing technology. The United surpasses any other developed country in the sheer volume of gun violence. 3D printing technology essentially pours gasoline on already rampant flames, creating another access point for those wanting to create or obtain illegal firearms
Regulating Misdemeanors in China
Full text linkChina has arguably entered an era of misdemeanors. Perceived as offenses punishable by a sentence of three years’ imprisonment or less, misdemeanors have reportedly taken up the majority of criminality in China over the past two decades. This shift in criminal dynamics has precipitated a pressing need for structural changes in the state’s criminal legal system, with calls for reform oriented toward decriminalization as a tailored dispositional channel for petty offenders showing a lower level of criminal culpability. This Article offers a critical scrutiny of China’s prevailing decriminalization initiatives for reducing the penalties and collateral consequences of misdemeanors. Situating these initiatives in the state’s broader criminal justice policy, this Article calls into question their enforceability, effectiveness, and prospects of success. It goes on to advance a different path of decriminalization by recommending a pragmatic misdemeanor system that is truly benevolent and free from stigmas associated with incarceration, conviction, and records. Conceptually predicated on the exclusive ideal of leniency, this new model of decriminalization is bound to break away from the present criminal process and run on its own by revolving around two strands of practice: no detention and no prosecution