Volume 2009, No. 5


Institutional Inequality

By Catherine Albiston

Employment discrimination statutes generally treat inequality as the product of discriminatory animus, but this approach undertheorizes how institutions construct identities and generate inequality. Drawing on neoinstitutionalist theories in sociology, this Article develops a theory of institutional inequality that focuses on how institutions give rise to inequality by reproducing the social patterns and belief systems that existed at the time they emerged. To develop this theory, the Article examines why workplace time standards that disadvantage pregnant women have remained resistant to reform through Title VII and the Pregnancy Discrimination Act. Historical genealogy shows that workplace time standards embody cultural conceptions of gender and work that developed during the transition to modern capitalist production. Courts rely on these institutionalized conceptions of work and gender to interpret antidiscrimination statutes narrowly, reinforcing an oppositional relationship between work and gender and restricting opportunities for social change. The Article concludes by arguing that legal theories, such as the Family and Medical Leave Act, which focus on structural change rather than subordinated identities, are better suited to eradicating workplace inequality that flows from the historical development of work.


Co-Regulation of Online Consumer Personal Health Records: Breaking Through the Privacy Logjam to Increase the Adoption of a Long-Overdue Technology

By Peter S. Rank

A dramatic increase in the use of online consumer personal health records is likely since Microsoft and Google are working to market fledgling products, and state governments encourage their use. While consumers are interested in utilizing these valuable tools, overwhelming information-security and privacy concerns have consistently prevented widespread adoption. This Comment encourages the development of a coregulatory scheme with a government-enforced privacy framework that may overcome the privacy logjam impeding the adoption of online consumer personal health records. Utilizing industry standards in establishing a regulatory framework will provide an environment that encourages selfregulation and continues the market driven push to develop advancements in information security. The Federal Trade Commission’s experience and current strategies in privacy protection of online consumers best equips this agency to enforce the proposed regulatory framework. The enforcement structure suggested by this Comment will assuage consumer concerns by ensuring baseline security and privacy policies.

An Inconvenient Tooth: Forensic Odontology is an Inadmissible Junk Science When it is Used to “Match” Teeth to Bitemarks in Skin

By Adam Deitch

While the advent of DNA analysis has paved the way for wrongfully convicted individuals to contest their convictions, flaws in traditionally accepted forensic sciences are still being uncovered. Bitemark evidence has been consistently admitted in courts across the country and has formed the basis of numerous criminal convictions. However, research over the past decade demonstrates the serious fallibility of this questionable forensic science when it is used to conclusively “match” a person’s teeth to a bitemark in human skin. This Comment outlines the flaws in bitemark identification as a science and concludes that under modern evidentiary standards, including Daubert ’s application of the Federal Rules of Evidence and Wisconsin’s relevancy test, courts can and should refuse to admit bitemark-matching testimony in the courtroom.