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Abstract:
Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore not unusual. In addition, those who use these words may not be intentionally harmful. Complaining about their use may even be criticized as a trivial activity or an overly sensitive reaction.

Given this social science research, there is a surprising absence of awareness on the use and effect of these words among lawyers, law faculty, law student, and judges. Based on our original empirical analysis of hundreds of legal documents (judicial opinions, legal briefs, and law review articles), we find that the legal community continues to use male-gendered words even though gender-neutral alternatives exist. Thus, while some judges, lawyers, and legal scholars may not intend to be sexist, they are being subtly sexist. The research reveals a strong general pattern of the dominant use of the male-gendered option in a number of word pairs (four out of the nine word pairs) and substantial use in three other word pairs. In contrast, there is the dominant use of the gender-neutral word option in two word pairs.

Finally, the article offers some proactive suggestions. While the legal community is reluctant to change, it did shift from using the male-gendered option of reasonable man to the gender-neutral reasonable person. We suggest that this change occurred because of the legal community's heightened awareness of the sexist nature of the use of reasonable man, and that a heightened awareness of the subtle sexism of all male-gendered generics could prompt further changes. The article ends with a useful guide on gender neutral language that can be duplicated for distribution in the legal community and elsewhere.

gender and the law, sex discrimination, language and law, legal profession, empirical research, courts, subtle sexism

Abstract:
This empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges' race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group perceive racial harassment differently. These findings counter the traditional myth of judicial decision-making that the race of a judge would not make a difference, since the decision-making process is presumed to be rational and objective.

Given the underrepresentation of minority judges on the federal bench, the growing minority population in the U.S., and minority skepticism of judicial fairness, this article offers empirical support for a more racially-diverse judiciary. Having more judges of color promises to increase diverse perspectives in the judicial system and to unveil the complex reality of racial dynamics in the workplace.

civil rights, racial harassment, race discrimination, empirical research, employment practice, courts, judges

Abstract:
The West believes that without formal legal rules (the rule of law), how society operates is not transparent. This opaqueness in how things get done discourages trade, including foreign investment, which in turn makes overall economic development more difficult. Instead of predictable legal rules, the fear is that the void will be filled with unpredictable and arbitrary human indiscretions. Furthermore, the West believes that the absence of the rule of law makes the basic protection of human and civil rights problematic.

However, the Western view of the rule of law is not the only model. Alternative cultural assumptions about the rule of law exist. In particular, this Article draws on China's historical and contemporary perspective on the rule of law. In contrast to the Western view, China historically and contemporaneously views the rule of law with skepticism.

As this Article explores in Part II, China has for many years analyzed the comparative merits of legal formalism (rule of law) and of cultural norms (rule of people). The Chinese have traditionally framed this issue as a debate between two schools of thought: the Legalists and the Confucians. China's own history and its observations of the West's experience with the rule of law further inform its perennial struggle between these two approaches. Moreover, China's skepticism of the rule of law continues today.

Part III of this article studies two contemporary situations: the protection (or lack of protection) of intellectual property and disputes over the use of land. Both situations offer a window into how the rule of law and the rule of people coexist and often conflict. In Part IV, the implications of the analysis in Parts II and ill are discussed. In particular, the uneasy relationship between the rule of law and the rule of people, prompted both by China's skepticism of the rule of law and by China's comfort with the rule of people is explored.

rule of law, rule of man, rule of the people, skepticism, Chinese law, enforcement, Western law, culture.

Abstract:
Law faculty and scholars are increasingly cognizant of the role of culture in dispute resolution. This essay offers a beginning roadmap for exploring the cultural context of conflict. It begins by considering how to assess our own cultural profiles, highlighting some useful social science constructs for this purpose. It then discusses how our interactive perception of others' cultural profiles makes a difference. The essay also explores the tensions between, on one hand, the pervasiveness of culture in conflict and, on the other hand, American legal traditions that appear contrary to the incorporation of culture into dispute resolution processes.

dispute resolution, cultural context, culture in conflict, American legal traditions

Abstract:
This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise.

Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants, the nature of the claims, who wins and loses, and what factors affect those outcomes. We consider dozens of characteristics of the parties, the nature of the harassment, and litigation characteristics (such as the forum, type of proceedings, and legal issues). While it reveals that individuals in all kinds of occupations, in all parts of the country, of all races, and of both genders complain about racial harassment-it also shows that African Americans are disproportionately likely to be plaintiffs. While Whites are the most likely harassers, minority individuals also are defendants. The data also discloses that the most typical legal proceeding is the court's consideration of the defendants' motion for summary judgment where the judges end up terminating most plaintiffs' cases. In fact, the judicial opinions in this study find in the plaintiffs' favor only 21.5% of the time. (In contrast, an earlier study revealed that judges in sexual harassment cases find in the plaintiffs' favor 48% of the time - more than twice as often as in racial harassment cases.) As it turns out in racial harassment cases, the race of the plaintiff and of the alleged harasser makes a difference in the parties' success rates, but the gender of the plaintiff does not. Judges are a bit more likely to find racial harassment when plaintiffs allege blatant racist behavior rather than more subtle and contextual racism. Results vary depending on the location of the case. Part IV provides an integrated analysis of the data, including a look at how racial harassment litigation has evolved over time. It also offers explanations and implications of the study's results.

This article contributes detailed baseline data for litigants, judges, and legislators. Each group can draw upon the totality of racial harassment cases to guide their decision-making. The article also offers a sound basis for creating a new racial harassment jurisprudence that should be distinct from both sexual harassment and racial discrimination jurisprudence.

civil rights, Employment practice, employment discrimination, racial discrimination, racial harassment, sexual harassment, jurisprudence, empirical research, courts, civil procedure

Abstract:
Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.

This Article, however, questions the assumption that there should be a monolithic model for discriminatory workplace harassment. In particular, it questions whether the currently dominant sexual harassment model should be used automatically as the paradigm in racial harassment disputes. Part I begins by acknowledging and explaining why the legal community analogizes racial harassment claims and jurisprudence to sexual harassment claims and jurisprudence. Part II posits that this analogy is problematic given the fundamental differences between racial harassment and sexual harassment. While empirical evidence of these differences is currently limited, Part II identifies and discusses two pioneering examples. The first documents important dissimilarities between racial harassment litigation and sexual harassment litigation; the second chronicles the differences between the dynamics and theoretical explanations for racial harassment and sexual harassment in the law firm context.

Given the dominance of the sexual harassment model and the presumption of its applicability to other harassment disputes, including racial harassment, it is not surprising that comparatively little research and study of racial harassment and other forms of harassment have been done. The discussion and analysis here contributes to the research on the topic. Finally, Part III explores the implications of freeing racial harassment from the sexual harassment model.

civil rights, Employment Practice, employment discrimination, sexual harassment, racial harassment, race discrimination, jurisprudence, women, empirical research