Author: Danielle Citron


Gifford and Jones on Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law

My colleague Donald Gifford (whose book we featured here) and his co-author sociologist Brian Jones have an important new piece up on SSRN entitled “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.” The piece is provocative and original: it may the first paper to use cross-state comparisons in an empirical study of the impact of race, income inequality, regional variations, and political ideologies on tort law.

Here is the abstract:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.


From Our Friends at University of Alabama Law School: Position Announcements

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. They also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. They are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. For interest, contact Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email:

The University of Alabama School of Law also seeks nominations and applications for a University-level Chairholder. The law school welcomes nominations and applications in all fields of law. Interested candidates should apply online at Nominations should be e-mailed to Dean Mark E. Brandon at


AALS Section on Poverty Law Call for Papers

AALS Section on Poverty Law

Call for Papers for 2016 AALS Annual Meeting

The AALS Section on Poverty Law is seeking abstracts or drafts of papers to be presented at the 2016 Annual Meeting in New York, NY.  This year’s program is entitled “New Directions in Poverty Law,” and it will be held on Friday, January 8, from 10:30 a.m. to 12:15 p.m. Read More


Online Symposium: Ertman’s Love’s Promises, How Formal and Informal Contracts Shape All Kinds of Families

It’s an honor to introduce Professor Martha Ertman and the participants in our online symposium on Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families (Beacon Press). This week, we will be discussing Ertman’s important book, which tells the compelling story of how contracts shape and sustain families. As Professor Vivian Zelizer remarked, “At a time of dramatic transformations in Americans’ family lives, Love’s Promises offers unique insights into how to manage diverse intimate relationships. Ertman makes a compelling case for why, when, and how contracts can enhance loving relationships. A pioneering book that should be read by all those concerned with current and future families.

Love’s Promises raises a host of fascinating and timely questions. Can and should private contracts substitute for formal marriage? Does putting a price tag on familial relationships change the nature of those relationships? Should we get state lawmakers out of the family business? Does it matter if those issues involve children or adults?

To consider these and many other issues, we have invited an all-star cast of thinkers: Jana SingerKimberly MutchersonCarlos BallMichele GoodwinDoug NeJaimeNaomi Cahn, Solangel MaldonadoZvi TrigerHillary BerkRobin LenhardtRosanna Hertz, and Judith Stacey.

We are excited for the discussion to begin!



Boston University Law Review’s Symposium on the Civil Rights Act at 50



MAY 2015


Editors’ Foreword


The Long Civil Rights Act and Criminal Justice— Margaret Burnham

Intersectionality and Title VII: A Brief (Pre-)History— Serena Mayeri

Private Rights and Private Actions: The Legacy of Civil Rights in the Enforcement of Title VIIGeorge Rutherglen

The Regional Economic Impact of the Civil Rights Act of 1964Gavin Wright


Reading Amendments and Expansions of Title VII Narrowly— Henry L. Chambers, Jr.

Marital Status Discrimination 2.0Courtney G. Joslin

Backlash, Courts, and Disability RightsMichael Waterstone


Can’t We Be Your Neighbor?: Trayvon Martin, George Zimmerman and the Resistance to Blacks as NeighborsJeannine Bell

Model Neighborhoods Through Mayors’ Eyes Fifty Years After the Civil Rights Act— Katherine Levine Einstein & David M. Glick

The Civil Rights Act of 1964 and “Legislating Morality”: On Conscience, Prejudice, and Whether “Stateways” Can Change “Folkways”Linda C. McClain

We Don’t Serve Your Kind Here: Public Accommodations and the Mark of SodomJoseph William Singer

 Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT RightsRobin Fretwell Wilson


On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy

Litigation Under Title VIIDeborah L. Brake

 Right to Serve or Responsibility to Protect? Civil Rights Framing and the DADT RepealCatherine Connell

Moving Forward, Looking Back: A Retrospective on Sexual Harassment LawJoanna L. Grossman

Reactive to Proactive: Title IX’s Unrealized Capacity to Prevent Campus Sexual AssaultKatharine Silbaugh


On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the “Monell Analogue”Tristin K. Green

 Class-Based Adjudication of Title VII Claims in the Age of the Roberts CourtMichael C. Harper

Addressing Systemic Discrimination: Public Enforcement and the Role of the EEOCPauline T. Kim

Special Treatment Everywhere, Special Treatment NowhereNoah D. Zatz


The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constitution and the Constitution of South AfricaSonu Bedi

Blaming Mothers: A Disability PerspectiveRuth Colker


Now We Must Cross a Sea: Remarks on Transformational Leadership and the Civil Rights Movement— Walter Earl Fluker


Upcoming Online Symposium on Martha Ertman’s Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families

During the week of June 22, 2015, we will be hosting on online symposium on Professor Martha Ertman’s ground-breaking new book Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families (Beacon Press). Most people think of love and contracts as strange bedfellows, or even opposites. Professor Ertman’s Love’s Promises shows that far from cold and calculating, contracts shape and sustain families. Insightful, accessible, and revelatory, Love’s Promises lets readers in on the power of contracts and deals to support love in its various forms and to honor the different ways that individuals contribute to our daily lives.

To discuss Love’s Promises, we will be joined by an exciting group of scholars (including Martha Ertman): Jana SingerKimberly MutchersonCarlos BallMichele GoodwinDoug NeJaimeNaomi Cahn, Solangel MaldonadoZvi TrigerHillary BerkRobin LenhardtRosanna Hertz, and Judith Stacey

For D.C./Maryland residents, you can catch Professor Ertman doing a reading from the book today at 3 p.m. at Politics & Prose.




The Legacy of Ruth Bader Ginsburg

Edited by esteemed civil procedure scholar Scott Dodson, the newly released book “The Legacy of Ruth Bader Ginsburg” is a significant contribution. The release is beautifully timed: the public is rightfully taken with Justice Ginsburg’s insights. Hopefully, I will have Professor Dodson back to the blog to talk about the book in detail but for now here is a description.

Ruth Bader Ginsburg is a legal icon. In more than fifty years as a lawyer, professor, appellate judge, and associate justice of the U.S. Supreme Court, Ginsburg has influenced the law and society in real and permanent ways. Her impact on the law cannot be overstated. Yet no book on Ginsburg’s legacy exists. This book fills that gaping void by chronicling and evaluating the remarkable achievements Ginsburg has made over the past half century. Including chapters written by prominent court watchers and leading scholars from law, political science, and history, it offers diverse perspectives on an array of doctrinal areas and on different time periods in Ginsburg’s career. Together, these perspectives document the impressive – and continuing – legacy of one of the most important figures in modern law.

The book’s contributors include Nina Totenberg of NPR fame, Chief Judge Robert Katzmann (Second Circuit), Reva Siegel (Yale) and Neil Siegel (Duke), Lani Guinier (Harvard), Herma Hill Kay (Berkeley), Dahlia Lithwick (Slate), Aziz Huq (Chicago), Cary Franklin (Texas), and Tom Goldstein (SCOTUSblog), among others. Jacket reviews are by Trevor Morrison (NYU) and Ginsburg’s two biographers, Wendy Williams (Georgetown) and Jane De Hart (UCSB). Readers can download a free e-copy of the Preface, Table of Contents, and Coda from SSRN.

The book’s already gotten some good press. My co-blogger and First Amendment guru Ron Collins has a write up of the book on SCOTUSblog (along with some other recommended books). Civil rights scholar Nancy Leong of Denver University School of Law has a podcast interview of Scott Dodson on the book for her inaugural episode of RightsCast. Above the Law’s David Lat has been Tweeting about it. And Justice Ginsburg herself mentioned it to a huge crowd at the AALS Conference earlier this month and said that she would make sure it was available for purchase in the Supreme Court gift shop.


Introducing Guest Blogger Michael Coenen

I am thrilled to welcome aboard Professor Michael Coenen as a guest blogger. Professor Coenen joined the LSU Law Center faculty in 2013, having previously served as a Climenko Fellow and Lecturer on Law at Harvard Law School. He holds an A.B. in Music froheadshot2m Princeton University, and a J.D. from Yale Law School, where he was an Articles Editor for the Yale Law Journal. After graduating from law school, he clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit.

Michael teaches and writes in the areas of constitutional law, federal courts, criminal procedure, and administrative law.

His recent publications include:

Of Speech and Sanctions: Toward A Penalty-Sensitive Approach to the First Amendment, 112 Colum. L. Rev. 991 (2012)

Constitutional Privileging, 99 Va. L. Rev. 683 (2013)

Spillover Across Remedies, 98 Minn. L. Rev. 1211 (2014)

Rules Against Rulification, 124 Yale L.J. (forthcoming 2015).