Reshaping the Narrative Debate

In Reshaping the Work-Family Debate: Why Men and Class Matter, Joan Williams sets out to alter the terms of the public discussion about working, caregiving, and work-family conflicts. Other participants in this Colloquy discuss the ways in which she does a tremendous job of accomplishing this objective. Whether she intends it or not, Williams does something else that is extremely significant: she reframes part of the conversation about the use of narratives in legal analysis and policy-making. Part I of this Essay describes the history of the debate about the value of narrative as legal scholarship. Part II examines the explosion of stories and attention to storytelling both inside and outside the legal academy. It also reviews emerging evidence from cognitive neuroscience about the importance of stories to the ways humans understand the world. In Part III, the Essay centers on media-created narratives and focuses on Joan Williams’s instructive methodology for interrogating press-constructed myths. Moving from dismantling to reconstruction, Part IV circles back to the importance of stories—and the ways academics can develop counternarratives that can help reshape public understandings about work, families, and fairness

A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Strategies in Gay Legal Theory

Gay legal theory is at a crossroads reminiscent of the sameness/difference debate in feminist circles and the integrationist debate in critical race theory. Formal equality theorists take the heterosexual model as the norm and then seek to show that gays, lesbians, bisexuals, and transsexuals - except for their choice of partners - are just like heterosexuals. Antisubordination theorists attack the heterosexual model itself and seek to show that a society that insists on such a model is unjust. Neither of these strategies is wholly satisfactory. The formal equality model will fail to bring about fundamental reforms as long as sexual minorities are perceived as different from straights, while the outsider model feeds perceptions of difference. In A Different Kind of Sameness, Professor Nancy Levit explores the development of tolerance for sexual minorities, looking at both cultural signifiers and law. The grudging acceptance that is developing, both culturally and legally, is one of the hallmarks of the formation of an underclass group. The article suggests that the challenges for gay legal theory are twofold: to move away from the frailties of both formal equality and antisubordination theories, and to develop ways of representing sexual minorities that will make them more acceptable, if not valuable, in a broader cultural context. Professor Levit proposes changing the rhetoric and doctrine of equality theory by developing a theory of respect for the common humanity of all people. Unlike antisubordination theory, shared humanity seeks assimilation into the dominant culture, while still resisting many of the culture\u27s traditional institutions and interpretations. Unlike formal equality, a theory of shared humanity does not rest on the heterosexual norm. Instead, it draws on knowledge in anthropology, sociology, philosophy and psychology in the search for those qualities, characteristics, needs, and desires that make us - all of us - the same as people

Reshaping the Narrative Debate

In Reshaping the Work-Family Debate: Why Men and Class Matter, Joan Williams sets out to alter the terms of the public discussion about working, caregiving, and work-family conflicts. Other participants in this Colloquy discuss the ways in which she does a tremendous job of accomplishing this objective. Whether she intends it or not, Williams does something else that is extremely significant: she reframes part of the conversation about the use of narratives in legal analysis and policy-making. Part I of this Essay describes the history of the debate about the value of narrative as legal scholarship. Part II examines the explosion of stories and attention to storytelling both inside and outside the legal academy. It also reviews emerging evidence from cognitive neuroscience about the importance of stories to the ways humans understand the world. In Part III, the Essay centers on media-created narratives and focuses on Joan Williams’s instructive methodology for interrogating press-constructed myths. Moving from dismantling to reconstruction, Part IV circles back to the importance of stories—and the ways academics can develop counternarratives that can help reshape public understandings about work, families, and fairness

The Instrumental Case for Corporate Diversity

The moral case for diversity in businesses is compelling. The business case for diversity (that “diverse companies do better”) is mixed: studies in the business literature do not prove that simply adding diversity causes the improvement; instead, they posit that the improvement is likely to be “endogenous,” that is, the factors that encourage and sustain diversity, such as greater transparency, also improve financial performance. In this article, we make what we call “the instrumental case for diversity.” If the same factors that correlate with greater diversity also correlate with improved performance, then greater diversity can be a benchmark for better corporate management. It can make diversity metrics a tool (though not necessarily an exclusive or necessary tool) in measuring the reform of dysfunctional corporate cultures. Diversity might then become part of an iterative process; maintaining diversity will require management reforms such as greater transparency that will in turn fuel transformations in management cultures that further both greater diversity and better overall performance

Gender and the Tournament: Reinventing Antidiscrimination Law in an Age of Inequality

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises ofantidiscrimination law. The Article draws on a pending case challenging the “rank and yank” evaluation system at Microsoft, as well as social science literature regarding narcissism and stereotype expectations, to illustrate how consideration of the legitimacy of competitive pay for performance schemes is essential to combating the intrinsically gendered nature of advancement in the new economy

Discrimination by Design?

Platform world is speeding the redesign of employment. Bricks-and-mortar firms once hired through narrow portals and then invested in the workers they hired, providing job security and predictable career ladders. Platform world flings the doors wide open to income-generating efforts, providing new opportunities but also offering security and predictable advancement to almost no one.Other legal scholars have mined these same data for gender disparities; they have found disparities in the platform economy arising from customer biases and individual preferences, and manifested in men’s and women’s different experiences in everything from pricing plumbing services to fraud prevention. Neutral-appearing algorithms may then amplify the impact on wages and opportunities. Because the outcomes are not equal, other scholars argue that these disparities should be actionable. Accordingly, they suggest various ways to adapt existing laws to remedy gender disparities.This Article is the first to develop an analysis of the multiple types of gender disparities in platform world. Rather than focus on the fact that disparities exist, this Article asks the question when—and even more provocatively, whether—they should matter.First, the Article documents the various sources and forms of gender disparities, setting up the argument that no one legal approach fits. Second, while some of those disparities are already actionable under existing antidiscrimination laws, even antidiscrimination law today rarely provides a viable cause of action simply because the results produce statistical disparities. In platform world, it’s not clear that the disparities are morally questionable, actionable under existing law, or appropriate subjects for regulation. The real issues in this new economy concern the lack of benefits, stability, and promotion opportunities. Antidiscrimination law can help those employed by platform companies, but not the gig workers who need health benefits and protection against harassment, nor the algorithms that need oversight. Consequently, existing antidiscrimination law is all but irrelevant except to address the most glaring discrepancies, and the real need is for a wholesale rethinking of the legal infrastructure necessary to realize the benefits of the platform economy for more than a few platform creators