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Nudging Diversity: Merging Law and Behavioral Science to Reduce Workplace Discrimination and Increase Diversity
Get PDFToday’s employers find themselves in a complicated bind when it comes to workplace diversity and antidiscrimination initiatives. On one side is the lasting confluence of the #MeToo and Black Lives Matter movements, which rightly caused many organizations to reevaluate and reinvigorate their diversity and inclusion efforts. On the other side is employment law’s increasing inability to support such efforts. As workplace discrimination has moved from overt, intentional manifestations of prejudice to unconscious bias and structural discrimination, traditional employment law solutions have become less effective. The Supreme Court’s recent affirmative action decision striking down virtually all race-based considerations in college admissions—and suggesting future scrutiny of all demographic-focused workplace diversity, equity, and inclusion (DEI) programs—is poised to make things worse.
This Article provides a path forward by merging employment law with behavioral science. While the two are most often considered substitutes in the organizational context, this Article innovates by positing a complementary relationship. Recent advances in behavioral science—namely deeper understandings of how choice architecture can be used to “nudge” organizations away from discriminatory decision-making heuristics—offer an increasingly important set of tools to help effectuate workplace change. Employment law can serve as the delivery mechanism for that change, incentivizing employers to use data-driven behavioral science techniques to combat bias. This way, the law can help employers advance their DEI goals through “inclusion nudges” without requiring them to impermissibly focus on the demographics of those they seek to hire and promote. After describing the current state of employment law, identifying its limitations, and then highlighting the promise of anti-discriminatory inclusion nudges, concrete examples of how this may be accomplished across different legal, regulatory, and behavioral domains are provided. What becomes clear is that a complementary approach is the best path forward to lastingly reduce discrimination and increase diversity in our organizations. It is also critically necessary lest employment law become irrelevant during a moment in American history that will set the legal, social, and behavioral agenda for years to come
Shareholder Direct Democracy
Get PDFThis Article explores the ongoing tension between what shareholders want and what corporate management perceives as beneficial for the shareholders. Beyond the fundamental right to elect directors, federal regulation enables shareholders to engage directly with management on various issues by adding their proposals to a proxy ballot for shareholder voting. However, this unique form of shareholder direct democracy has transformed into a fierce battleground between shareholders and management, as exemplified in ExxonMobil’s litigation against its shareholders to block their proposal. Why do many companies emphasize their efforts to engage with shareholders yet resist shareholder proposals?
This Article argues that companies’ efforts to exclude proposals from the ballot undermine the value of the shareholder proposal process as a means of gathering information and better understanding preferences. To retain the benefits, while mitigating the costs associated with the shareholder proposal process, it advocates for a more permissive approach to include proposals on the ballot, and a gradual transition from an approval-based to a disclosure-based regime. Once shareholder voting occurs, in turn, companies are better positioned to interpret voting outcomes, assess the representativeness of shareholder preference, and determine when and how to implement the expressed shareholder preference. This discretion is constrained not just by the voting-centric shareholders in future director elections but also by trading-centric shareholders, who may sell stock instead of voting when dissatisfied, necessitating management to consider broader market reactions to implementation.
The Article makes three key contributions. First, it examines the interplay between the voting- and trading-centric shareholders in the context of the shareholder proposal process, offering new insights into the representativeness of the shareholder voting outcomes. Second, it employs an interdisciplinary approach, bridging legal, finance, and political science literature on direct democracy, laying the groundwork for collaboration to better calibrate the relationship between shareholder democracy and managerial discretion. Third, it offers practical implications for the Securities and Exchange Commission (SEC), courts, and corporations, addressing ongoing legal issues and contributing to the evolving discourse surrounding shareholder proposals
Assessing Design Defectiveness in the Digital Age
Get PDFModern technology is advancing at an unprecedented rate, and further advancements show no signs of slowing down. As technology rapidly evolves, so does the complexity of product designs. However, as these advancements occur, the tests employed by courts to determine whether a product design is defective remain largely unchanged. There are two main tests used by jurisdictions to determine whether a design is defective. The first is the consumer expectations test, which provides that when a product used in a reasonably foreseeable manner is more dangerous than an ordinary consumer would expect it to be, it is defective. The second test is the risk-utility test, which balances the utility and safety of a product design against the dangers and costs of the design. When the dangers of a product design outweigh its benefits, the design is defective.
Both the consumer expectations test and the risk-utility test are inadequate to address complex product designs. The consumer expectations test is not adequate because technologically advanced products are simply too complex for consumers to have a real expectation of how the product should perform in every type of situation. Similarly, the risk-utility test is not sufficient because it often requires a showing of an alternative reasonable design to prove a design is defective. Complex and cutting-edge products will often not have an alternative design because the products are so new, and therefore cannot be assessed by the risk-utility test. In response to these shortcomings, some jurisdictions employ hybrid formulations of these tests, yet even the hybrid tests are insufficient to address the growing complexity of product designs. As more and more complex products enter the market, there needs to be a design defect test that is better suited to address these concerns. Therefore, as an alternative to the tests currently employed, this Comment argues for the adoption of a new design defect test.
This Comment proposes a two-part balancing test, called the dual risk-utility test. The dual risk-utility test separates the alternative design question from other factors considered in the traditional risk-utility test. Under the first prong, the availability of a reasonable alternative design is determined by identifying an alternative design and then balancing the benefits of implementing such a design against the feasibility of adopting it. If on balance there is no reasonable alternative design, or if no reasonable alternative design can initially be identified, then the second prong of the test balances the costs of the current design against the benefits of the current design. Under this prong, if the current design’s risks outweigh its benefits, the design is defective. The two-prong nature of this test is best suited to address complex products because numerous complex products do not have a feasible alternative design and therefore need another mechanism, such as this test’s second prong, to determine if there is a design defect
Clearing the Path: Improving Implementation of Georgia’s Pathways to Coverage Program
Get PDFGeorgia’s Medicaid program is in flux. The State recently launched Pathways to Coverage, a partial Medicaid expansion program for non-disabled adults in households under 100% of the Federal Poverty Line, with eligibility contingent on reporting 80 hours of work per month. Pathways’ rollout coincides with Medicaid “unwinding,” an ongoing post-COVID redetermination process in which thousands of Georgians have already lost coverage. As such, Pathways could play an important role in offsetting the unwinding’s disenrollment effects. But Pathways may also serve as a test case for conservative lawmakers hoping to institute (or reinstitute) work requirements to restrict Medicaid coverage in their States.
Accordingly, understanding and improving the program’s implementation is an important task. To that end, this Paper will first provide background on the Medicaid program; discuss the Temporary Assistance for Needy Families program, the Supplemental Nutrition Assistance Program, and the Pathways program; and then survey some key issues with Pathways’ implementation, touching on enrollment and reporting, and highlighting lessons from TANF and SNAP along the way. It will conclude by returning to the personal and political stakes and briefly noting some recent legislative action on the topic
The Forty-Seven Years’ War: Identifying the Cold War as an Armed Conflict as a Matter of International Law
Get PDFThe Missing Millions: Cy Pres in Federal Securities Class Actions
Get PDFUnder prevailing cy pres doctrine, class-action-settlement residuals that cannot efficiently or fairly be distributed to the class may be distributed to a third party that represents the “next best” recipient consistent with class interests. Judges embrace cy pres despite theoretical concerns over inattention, conflicts, and abuse. We shed empirical light on the cy pres debate by examining an original, hand-collected dataset of 373 class-action settlements entered between 2010 and 2018. We document that the theoretical concerns have empirical merit. More than 57% of the settlements lack any evidence in the public record of the identity or court approval of cy pres recipients. At an average cy pres award of around 25 million. Among identified cy pres recipients, most have little or no relationship to interests of the class, and we find some evidence of conflicts of interest. These findings raise concerns about potential breaches of fiduciary duty and noncompliance with Federal Rules of Civil Procedure. We suggest that these deficiencies are caused by a combination of self-interest and inattention on the part of plaintiff’s counsel, lead plaintiffs, and the courts. We also offer solutions to remediate these deficiencies. Prospectively, we propose presumptions for the selection of appropriate recipients of the residual, mandatory disclosure of conflicts, and prior judicial approval of cy pres distributions. Retrospectively, we urge courts to order disclosure of missing information and to consider appropriate disciplinary measures, contingent on the information disclosed
When Is Legal Methodology Binding?
Get PDFCommon-law interpretive methodologies are mostly nonbinding, but some interpretive methodologies are seen as binding precedent. This Article offers an explanation for this state of affairs. Whereas the extant scholarship on common-law interpretive methodologies offers descriptive accounts (often assuming that common-law methodologies are per se nonbinding) and normative analysis, this Article fills a gap in the literature by providing a realist explanation for the legal landscape of binding interpretive methodologies. It identifies whether a methodology is rule-like, and whether it increases judicial legitimacy and/or court power as “pull factors”—that is, incentives that might attract judges to recognize interpretive methodologies as binding. It also identifies high stakes (i.e., broad methodological scope) and constitutional argumentation over methodologies as “push factors”—that is, obstacles to finding methodologies to be binding. This approach explains the current landscape of interpretive methodologies and also enables predictions about the stability of existing binding interpretive methodologies
