Sunday, October 21, 2018
CALL FOR PAPERS 2019 Social Issues in Firms
5th Conference of the French Academy of Legal Studies in Business (Association Française Droit et Management) June 20 and 21, 2019 – emlyon - Paris Campus
Social issues and fundamental rights occupy an increasingly important space in the governance of today’s companies. Private enterprises assume an increasingly active role not only in a given economy but also in society as a whole. Firms become themselves citizens. They recognize and support civic engagement by the men and women who work for them. Historically, the role of the modern firm that resulted from the Industrial Revolution has been torn between two opposing viewpoints.
According to the first approach, a firm’s single function is to produce goods and services as result of a combination of productive factors (in particular capital and work). Shareholders and workers may fight to defend their own interests, in particular the distribution of profits. Paradoxically, this "classical" conception is held by capitalists and most liberal authors, who both stress that corporate profits are intended to be distributed to shareholders and that firms must be managed in the formers' interest, as well as by the mainstream theory of Marxism. The later did not expect to be able to reform an intrinsically contradictory and therefore condemned capitalist economic system, but relied on a political revolution instead. Consequently, the firm is a mere economic instrument and eventually will be subject to regulatory constraints (such as social security law, tax law, public health law, etc.), which is intended to preserve general and collective interests and is imposed by government authorities.
According to a competing viewpoint that emerged in the nineteenth century under the influence of rather heterodox economic and political currents (socialism and reformist trade unionism, social Catholicism/social doctrine of the Catholic Church, certain liberal authors, etc.), the firm assumes a more comprehensive role. Companies may become the place of a rich social, cultural, sporting, political or even spiritual life. Workers are welcome to campaign within firms, employers to assume social responsibility (also known as paternalism) and all parties (which will later be referred to as "stakeholders") to contribute to social progress. The firm is seen as a space of sociability, personal and collective development, and democratic expression. In this context, the State is only one among several actors who create the rules that govern and steer firms. Civil society, investors and social partners may legitimately take initiatives and coproduce economic and social rules, through legal instruments such as collective agreements, voluntary commitments, codes of conduct, self-regulation, etc.
More recently, the tension between the two viewpoints described above continues to exist, and in some respects, has been accentuated. Dominant liberal thought, expressed in particular in the analytical framework of micro-economic theory (agency theory, property rights approach, etc.) defends an approach where the firm is reduced to a nexus of contracts managed by executives whose mission is to run the firm in the interest of its shareholders who are described as its owners. According to this view, the social interest is reduced to the common interest of shareholders (shareholder doctrine of corporate governance). Conversely, various ideological movements (such as e.g., New Governance,, “School of Rennes”, “Second Left”, “Christian Democrats”, “Third Way”, “stakeholderism,” or Elionor Ostrom’s approach to “governance of the commons”) have challenged this vision of the firm. They suggest an institutionalist approach, where the firm constitutes foremost a collective project. The corporation exists independent from its owners. Hence, the social interest of the firm is not the sole interest of its shareholders but the common interest of a multitude of "stakeholders". The firm can strive not only to grow economically and maximize profits but also to mobilize the men and women who work for it, to defend and promote other than economic causes. Social transformation encompasses individual and collective claims as those represented in fundamental rights and liberties, which, therefore, are no longer limited to traditional social and trade union rights.
The intensity of challenges today (global warming, technological revolution, geo-political and inter-community tensions, increasing socio-economic inequalities, etc.), on the one hand, and the advancement of the rule of law in developed societies, on the other hand, currently seems to favor the second path. Hence, the question is how to respect and recognize fundamental rights within private firms and how to turn companies into a force of social change. Some legislators seem to accept the challenge, for example, by imposing a duty of vigilance on companies, or by attempting to redefine the corporate purpose.
These developments are prone to upset traditional balances and modes of operation within firms. The symposium to be held at the Conference of the French Academy of Legal Studies in Business proposes to examine challenges and manifestations of this transformation. We welcome theoretical and/or practical contributions from a wide variety of disciplinary perspectives (such as law, management sciences, ethics, or transdisciplinary contributions) and invite papers that provide insights into, but not limited to, the following topics
- The practice of fundamental rights and freedoms within firms, such as respect for privacy,
- personal data protection, freedom of expression (free speech), religious freedom, and nondiscrimination
- Due process and the principle that both parties should have a right to be heard in the corporate context
- Voluntary policies to protect minorities (e.g., persons with disabilities, ethnic minorities, etc.) or to support equality, such as equality between men and women, or equal rights of all employees regarding the right to strike
- The social and solidarity economy
- Changes in firm governance
- Corporate Social Responsibility (CSR), including CSR in the legal profession, Sociallyresponsible investment (SRI), green bonds, environmental norms and commitments, safety and well-being at work, Philanthropy (including pro bono work, corporate foundations, etc.)
- Definition or redefinition of the firm’s legal status, purpose or its functions, including the redefinition of its corporate object and emergence of mission enterprises
- Duty of vigilance
- Social dialogue and democracy in the firm
- Corporate ethics, organizational ethics and ethical governance, professional codes of ethics, ethics in business practices, in particular new technologies (such as artificial intelligence, blockchain, etc.)
- Romantic and family relationships in the workplace
- Non-financial ratings of firms and non-financial reporting
We plan on publishing the best papers presented at the symposium in a leading management science and law journal.
Abstract submission: December 20, 2018
Full text submission: March 7, 2018
Author Notification about paper acceptance: April 22, 2018
Proposals should be submitted in the form of an abstract in Word format (5,000 characters maximum accompanied by key words) and should indicate principal methodologies used, as well as the main issue addressed in the paper. Proposals may be in French or in English.
Full-text submissions must comply with the following guidelines:
The first page must indicate the name(s), institution(s) and position(s) of the author(s), and the title of the paper.
The second page should indicate only the title of the paper, an abstract in French and in English and four to five key words.
The manuscript should be in Word format, Times New Roman font size 12, A4 paper format, with 2.5 cm (one inch) margins, single-spaced, 15 pages to be sent by email to email@example.com
The Call for Papers can be downloaded at CallForPapersVE.pdf.
Friday, October 19, 2018
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.
The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.
First, the Court held that the power to regulate individuals and corporations fell to the states, not the federal government. Second, to the extent Congress passed the Act under its Fourteenth Amendment authority, the Court held that the Fourteenth Amendment was limited to regulating actions by states and not private actors (a doctrine that still holds today). Finally, the Court interpreted the Thirteenth Amendment, meant to remedy the badges and incidents of slavery, as only allowing Congress to abolish denials of legal rights extending from past slavery.
The Court’s underlying rationale is truly telling: accommodation of ex-slaves in present commerce is irrelevant to past slavery and the Thirteenth Amendment. African Americans complaining of such discrimination should seek state remedies or federal remedies to the extent Congress wishes to make them. This may be true as far as it goes, and by this time we already knew that the ex-Confederate states and their agents had not been aggressive in pursuing remedies for discrimination—the reason for the 1875 law. And we also know that after this act was struck down, Congress passed no other civil rights legislation for over eighty years.
Indeed, the Court denies the possibility that racism may be tied to the caste system that slavery created. Bradley claimed that to treat discrimination in public accommodations as related to bias arising from slavery is to take “the slavery argument” too far:
It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal within in other matters of intercourse or business.
This is the kind of slippery-slope argumentation that willingly denies the past of slavery and the (obvious) interconnections between white racism, racial caste, and its more immediate outcomes.
This was done despite the dissent of Justice John Marshall Harlan, who warned that without the intervention of Congress and a more fulsome interpretation of the Reconstruction Amendments, African American citizens will not be able to “take the rank of citizen” rather than subordinated class. One hundred thirty-five years later, and it is this same battle that we fight today. As Harlan put it—and it is worth reading his argument in detail:
The difficulty has been to compel a recognition of their [African American’s] legal right to take that rank [of citizen], and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, ‘for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.’ Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced [as Harlan believed they were meant to be enforced—to end racial discrimination in civil rights based on race or previous servitude] . . . there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the later to dole out to the former just such privileges as they may choose to grant.
In other words, this class tyranny betrays the values of the Constitution by interfering with the goal of Reconstruction – equality of all citizens. Class tyranny in 1883 was the weapon of those who sought to oppress on the basis of race. Class tyranny intersects with racial tyranny and can target multiple groups over time. Such class tyranny in the service of white supremacy is itself antidemocratic and against the vision of the reconstructed Constitution. And the decision narrowing the power of the national government to stand against such tyranny under the guise of narrow formalism will allow such tyranny to flourish and reinvent itself.
What of these themes do we see in 2018?
We have seen the Roberts Court deny the possibility that the larger harms of voter suppression may be tied to the historical motivations and past racially discriminatory practices of state governments. In Shelby County v. Holder, the Court relies on the claim that “the South has changed” to justify nullifying Congress’s judgment that Section 5 of the Voting Rights Act ought to be used to continue to supervise the recalcitrant ex-Confederate states in their voting practices.
We see the Court once again relying on manufactured formalism to justify hard lines between state authority and federal authority to supervise voting, immigration, education, and other racial (as well as gendered, class-based, and sexual preference-based) fault lines; and states have taken this opportunity to institute disenfranchising and discriminating practices in this space. We have seen commentators, legislatures, and judges argue that talking about race in and of itself is divisive, and that aspirations towards post-racialism should silence debate around race despite the racist actions that daily remind us about its enduring salience and power.
This post-racialism argument is the modern-day version of the “running the slavery argument into the ground.” The holders of these views (on the right and on the left) decontextualize discrimination, rely on admitted intent rather than see discriminatory actions in and through context, and rest comfortably within deep denial about how subornationist structures still dominate our society.
We can see these things in The Civil Rights Cases. It is a mirror to our 2018 society. This opinion reflects the structures and habits of mind bent towards continued white supremacy today.
(First published at atibaellis.com)
Monday, October 8, 2018
Why Research on Sexual Violence & Toxic Masculinity Supports Kavanaugh's Accusers (Nancy Chi Cantalupo)
No “Farce”: Why Research on Sexual Violence & Toxic Masculinity Supports Kavanaugh’s Accusers
By Nancy Chi Cantalupo
In 1985, just a few years after the sexual assaults alleged by Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick, the Washington Post published an article entitled, “Campus Gang-Rape Report.” In it, Dr. Bernice Sandler, known commonly as the “Godmother of Title IX,” discusses how, just from traveling to college campuses for her work with the Project on the Status and Education of Women for the Association of American Colleges, “without too much trouble, I gathered a list of about 50 of them where this had happened.”
In 1990, University of Pennsylvania anthropologist, Peggy Reeves Sanday, published Fraternity Gang Rape: Sex, Brotherhood & Privilege on Campus, which meticulously and nauseatingly details the 1980s campus party culture and the fraternity control of that culture, on diverse campuses throughout the United States. In 1998, Bernard Lefkowitz published Our Guys: the Glenridge Rape & the Secret Life of the Perfect Suburb, a comprehensive study of four high school athletes’ gang-rape of a younger girl with intellectual and developmental disabilities in 1989.
My own research gathers insights not only from these studies, but more recent works like Dr. Michael Kimmel’s Guyland and journalistic accounts of sexual violence directed at girls and boys, young women and young men in both college and high schools. Although researchers like Drs. Sandler and Sanday focused on campus party culture, journalistic accounts show a very similar party culture at prep schools and among other privileged groups of teenage boys throughout the 1980s and beyond. In particular, it seems like competitions where high school boys sexually assault high school (and sometimes middle and elementary school) girls to “score” “points” with the other boys in the group come to light every decade.
After the documented commonness of gang rape in the 1980s, there was the Spur Posse in the 1990s, the Landon School (a big competitor to Kavanaugh’s alma mater, Georgetown Prep) “slampigs” contest in the 2000s, and, in this decade, St. Paul’s School’s “senior salutes.” And no one who follows the Title IX civil rights movement will forget the viral youtube footage of Brett Kavanaugh’s fraternity at Yale, DKE, marching around the campus Women’s Center chanting “No Means Yes! Yes Means Anal!”
Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick’s accounts of being assaulted by Brett Kavanaugh or while Kavanaugh was present are completely consistent with the rape culture among highly-privileged high school boys and college men who belong to the kind of all-male groups to which Kavanaugh has belonged throughout his life. In his September 27th testimony, Kavanaugh dismissed these accounts, particularly Julie Swetnick’s, as a “farce.” Far from a farce, the culture of toxic masculinity and sexual violence in which Dr. Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick’s accounts place Brett Kavanaugh has been well-documented by social scientists and journalists. Indeed the accounts of all three accusers could appear as case studies in this research.
The “farce” is the expectation that, in the era of #MeToo, people will just forget about all of this evidence.
Time’s Up on that, too!
Thursday, October 4, 2018
Law professors are not known for their activism. Many prefer to sit in a quiet office delving into opaque topics of law and write law review articles that few members of the public read. Some present in forums for the general public, though most prefer the wonky legal academic conferences where the audience is comprised mostly of other law professors and some law students. Focus on process and deliberation results in events and publications being planned over the course of months, if not years.
Hence, when over 2400 (and counting) law professors from all over the country sign a letter opposing Senate confirmation of Judge Kavanaugh to the U.S. Supreme Court, loud alarms are going off from within the legal academy. Only grave reservations about the Supreme Court's legitimacy could cause such a rare outcry.
That such a large number of professors from across the country were moved within a matter of days to sign a single letter is no small feat. These legal scholars and trainers of the next generation of judges, lawyers, and leaders are clearly shaken by Judge Kavanaugh's behavior last week before the Senate. They worry he "exhibited a lack of commitment to judicious inquiry," "was repeatedly aggressive with questioners," and responded to Senators' questions "in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to senators." And he was especially disrespectful of the female senators.
More than anyone, law professors have a deep appreciation for the importance of judicial temperament of a Supreme Court Justice whose vote affects the lives, liberty, and property of hundreds of millions of Americans. For the sake of preserving the legitimacy of the U.S. Supreme Court, let's hope the Senators realize the momentous significance of this collective action.
The full text of the letter is available here and below.
Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires “a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist 78, titled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”
We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.
The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.
We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.