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Redliking: When Redlining Goes Online
Get PDFAirbnb’s structure, design, and algorithm create a website architecture that allows user discrimination to prevent minority hosts from realizing the same economic benefits from short-term rental platforms as White hosts, a phenomenon this Article refers to as “redliking.” For hosts with an unused home, a spare room, or an extra couch, Airbnb provides an opportunity to create new income streams and increase wealth. Airbnb encourages prospective guests to view host photographs, names, and personal information when considering potential accommodations, thereby inviting bias, both implicit and overt, to permeate transactions. This bias has financial consequences. Empirical research on host earning rates found that White hosts earn significantly more than minorities, even when controlling for location, size, and amenities. Airbnb’s algorithm augments the effects and propensity of individual user bias, creating a system wherein allegedly race-neutral variables serve as proxies for discrimination. Contemporary redliking perpetuates historic inequality related to housing wealth. In the early twentieth century, redlining maps were used to justify withholding investments from Black communities. Today, redliking continues the practice of directing wealth to White communities, reinforces systemic real property barriers by depriving minority hosts of important revenue streams, and exacerbates the racial wealth gap.
This Article examines the liability of Airbnb and similar websites for discrimination experienced by minority short-term rental hosts. The ability of the Fair Housing Act and Civil Rights Act, laws originally enacted to abolish housing discrimination and protect minority consumers, to combat redliking is complicated by the fact that sites such as Airbnb serve multiple purposes; while guests use the platform to identify and book lodging, hosts use the site to advertise available accommodations. Looking to judicial interpretation of platform liability in the context of online speech, this Article proposes two approaches—a general-function test and a fragmented-function test—to determine website liability for discrimination against short-term rental hosts. Noting the limitations of the existing antidiscrimination legal framework, this Article argues that eradicating redliking requires incorporating lessons on platform design from behavioral economics as well as eliminating opportunities for website algorithms to amplify and operationalize user discrimination
Gender-Based Violence in International Human Rights Law: Evolution Towards a Binding Post-Binary Framework
Get PDFThe present Article seeks to analyze the notion of gender-based violence, in light of the evolving gender discourse, and identify the problems associated with effectively addressing it in international human rights law. It analyzes the definitions of gender, enshrined in various human rights documents, and suggests using performative theory of gender to form a comprehensive view on gender-based violence. It also critically addresses three aspects of regulating gender-based violence: inclusivity, patriarchy, and normativity. It concludes that, in the long term, the commitment to eradicate gender-based violence should be strengthened by framing it as a binding treaty obligation on the universal human rights level, while in the short term it can continue to be strengthened through a developing body of jurisprudence and authoritative interpretations of standing instruments
Corporate Commitment to International Law
Get PDFCorporations are increasingly important actors in international law. But vital questions underlying this development have long gone unanswered: How and why do corporations commit to international law?
This article constructs a general account of business interaction with international legal obligation and suggests that a gateway to demystifying this persistent puzzle lies in corporate opinio juris.
Corporate opinio juris describes a company\u27s subscription to a rule of international law, even though the company is not technically bound by that rule. This subscription functions as a kind of pledge that, once made, has sway over the company and its peers and symbiotically enhances the authority of international law. Corporate opinio juris provides a common rubric to analyze the subfields of international law where these corporate pledges have been documented, serving as a paradigm to better understand how and why companies adhere to international law.
The article then unpacks how various structures within business law and management theory help to predict the formation of corporate commitments to international law, arguing that corporate opinio juris holds potentially sweeping implications for international law generally
A Scapegoat Theory of Bivens
Get PDFSome scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups\u27 complicity in perpetuating them--directly.
This Essay suggests that it may be productive to view the Bivens regime\u27s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more broadly. The later cases can be seen as scapegoating the earlier cases. Current Justices condemn their predecessors\u27 work as legislating from the bench while seeming to do the same in and beyond the Bivens context. The Supreme Court thus makes a convenient sacrifice of caselaw that its majority appears to oppose on ideological grounds. And it does so while arguably continuing the supposedly errant conduct depicted as justifying the ritual in the first place--and while potentially discouraging the forces of political change from pushing Congress to get involved.
The Essay closes by contending that legislative intervention could break the scapegoating cycle and by discussing some steps the legal community could take to advance that aim
A Strange Land and a Peculiar Problem: Using Local Knowledge to Resolve Ambiguous Property Descriptions in Appalachia
Get PDFConveying property in Appalachia can be somewhat like a box of chocolates: “You never know what you’re gonna get.” Carved by ancient rivers and winding streams, the seemingly never-ending “hollers” and hills of Appalachia can disorient even the best navigator. Couple the region’s rugged topography with an already ambiguous demarcation system, and properties once mapped by metes and bounds descriptions become impossible to re-create with any sort of certainty. Thus, though rooted in a desire for clarity, the combination of mountainous terrain and imperfect demarcation results in a property system riddled with ambiguity. Due to this inherent definitional problem in Appalachian land, the lines on a map do not always align with widespread local knowledge. The result is even further uncertainty, as variances between local understandings of place and federally standardized definitions of property cause confusion over which definition is correct, a problem this Note defines as “vertical ambiguity.” When such variances find their way into property descriptions, one’s answer—local or federal—can determine whether entire parcels of land are transferred. The question then becomes how to properly make that choice. This Note offers a clear answer: when such conflicts arise, there should be a presumption in favor of localknowledge
Who and What Is a City For ? Municipal Associational Standing Reexamined
Get PDFCities nationwide increasingly engage in affirmative, plaintiff-side litigation to protect their residents. But despite this trend, standing remains a persistent challenge in municipal affirmative litigation—particularly in federal court, and particularly in impact litigation. I have previously proposed one way to give cities standing in federal court more in line with that of states, and with the role that cities play in their residents’ lives: extending to municipalities the doctrineof associational standing, which nonprofits and associations use to speak for their members in court. Recent works have both amplified and critiqued that initial proposal. With these additional considerations in hand, we are well positioned to briefly revisit whether cities should be able to rely on a theory of associational standing to protect their residents, and what that tells us about standing law and local power more broadly. I argue that associational standing should still be a viable option for municipal standing in federal court. More broadly, I contend that a stable, reliable form of standing for cities to represent the interests of their constituents in federal court would be good for both the doctrine and the cities
The Supreme Court\u27s Reticent Qualified Immunity Retreat
Get PDFThe recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.
The Essay traces idealistic, pessimistic, and optimistic impressions of these cases\u27 importance from the perspective of a qualified-immunity critic. The Essay argues that the optimistic view probably gets things right in that the Court is taking tentative steps forward by precluding some of the doctrine\u27s most extreme consequences. The Essay then contends that this modest move nevertheless demonstrates why those concerned about qualified immunity should focus not only on the courts, but also on the other branches of government--and not only on one doctrine, but also on constitutional-tort law as a whole. In and beyond the recent reform-minded moment, we should think big about how to improve constitutional enforcement: bigger than the judiciary and bigger than qualified immunity
Working While Mothering During the Pandemic and Beyond
Get PDFAlthough combining work and family has never been easy for women, working while mothering during the pandemic was close to impossible. When COVID-19 caused most workplaces to shut down, many women were laid off. But many women were forced to work from home alongside their children, who could not attend daycare or school. Mothers tried valiantly to combine a full day’s work on top of caring for young children and helping school-aged children with remote school. But many found this balance difficult, leading to women’s lowest workforce participation rate in over forty years. And even women who did not quit nevertheless suffered workplace consequences from logging many fewer work hours than before the pandemic. The exact magnitude of this toll, in terms of costs and careers, will not be known for years, if ever. This Article explores the challenges working mothers faced during the pandemic and sketches an outline of what solutions might have mitigated the difficulties during the pandemic and could make a difference in the lives of working mothers moving forward