Wednesday, February 13, 2013

What Workplace Law Scholarship Do You Like Lots?

I wanted to conclude my guest blogging stint here at Workplace Prof Blog by opening up a thread I’ve always been interested in seeing here: specifically, a chance for contributors and readers of the blog to list particular workplace/anti-discrimination/labor law articles or books that they’ve particularly enjoyed (or that they think are particularly worthy of a read).  As a scholar who is relatively new to academia, I am acutely aware that there is much excellent scholarship that I have not yet read (because it is outside of my specific focus, or older, or not in the databases I ordinarily search), and I thought the collection of readers and contributors here would make for a particularly good crowdsourcing of good work. 

Think of it as JOTWELL lite – An opportunity to say what we like lots, without all of the work of writing an essay. 

To get us started, after the jump I list a few of my own all-time favorites (with the caveat that this is a dramatically under-inclusive list):

Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics and Racial Inequality, 58 Emory L. J. 1053 (2009), available  at http://www.law.emory.edu/fileadmin/journals/elj/58/58.5/Banks_Ford.pdf.

Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev. 701 (2006), available at http://ssrn.com/abstract=881606.

Samuel Bagenstos, The Structural Turn and the Limits of Anti-Discrimination Law, 94 Cal. L. Rev. 1 (2006), available at http://ssrn.com/abstract=701265

What I like lots: All three of the above articles I think provide really profound critiques (from a civil rights-advancing perspective) of doctrinal or theoretical developments that have been largely embraced by most of the liberal academic community as cornerstones of solutions to contemporary anti-discrimination law.  In some cases (albeit not all) the pieces go further than I personally would endorse, but I do think that any scholar writing in any of the areas these authors address should take seriously the challenge of responding to the array of very serious concerns they raise.

Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161 (1995), available at http://www.law.berkeley.edu/faculty/krieger/publications.htm.

Russell Robinson, Perceptual Segregation, 108 Colum. L. Rev. 1093 (2008), available at http://ssrn.com/abstract=1106483.

What I like lots: Both of these pieces do a wonderful job of opening up a conversation about a world of discrimination law-relevant psychology research.  There are certainly others in this vein as well that provide fantastic insights—and I think there are many other areas of psychology research that could benefit from this type of treatment—but these are two I thought were emblematic of the value of this type of research.

And finally:

Sandra Sperino, Rethinking Discrimination Law, 110 Mich. L. Rev. 69 (2011), available at http://www.michiganlawreview.org/assets/pdfs/110/1/sperino.pdf.

What I like lots: With a title like “Rethinking Discrimination Law” it would be easy for an article to fall short.  But this piece delivers—it illustrates the ways that discrimination doctrine as it is currently formulated obscures rather than illuminates the core issues of anti-discrimination law, and causes profound distortions in the process.   And the solution it gives us—abandoning the existing frameworks in favor of first principles—takes us outside our usual frames of thinking.  Whether or not one agrees, it is surely thought provoking. 

So, what workplace/anti-discrimination/labor scholarship do you like lots? Why?

And thanks to all for the wonderful welcome here at the Blog!  It’s been a pleasure blogging here.

Katie Eyer

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