This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against prospective clients because of race and sex. Yet, for all that, the exemption may be a reasonable drafting choice. With narrow exceptions, current equal protection doctrine forbids race- and sex-conscious decision making, even for the purpose of remedying inequality. In effect it makes many anti-racist policies illegal. The triumph of this “anti-classification” approach has been widely criticized. But the insidious ways it affects civil rights regulation are often overlooked. The ABA exemption is a vivid example. Through the cracked anti-classification lens, forbidding discrimination in client selection might, for instance, make prioritizing African American plaintiffs in police violence claims an ethical violation. The exemption avoids that result, but only at the cost of exposing prospective clients to discriminatory exclusion. The article proposes an alternative ethics rule that would prohibit refusing legal representation on the basis of stereotypes or stigmatic bias but allow lawyers to consider prospective clients’ race or sex in order to prioritize representing groups who have been disadvantaged in the legal system. Ironically, although that rule allows consideration of race or sex only in narrow, arguably benign, circumstances, it would face daunting constitutional challenges, while the ABA’s wide-open permission for discrimination would likely sail through judicial review. Critiques of anti-classification doctrine usually focus entirely on equal protection. In defending the proposed rule, however, the article shows that the demand for race- and sex-blind decision making also infects First Amendment analysis.
{"title":",,,Lawyers for White People?","authors":"Jessie Allen","doi":"10.17161/1808.31567","DOIUrl":"https://doi.org/10.17161/1808.31567","url":null,"abstract":"This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against prospective clients because of race and sex. Yet, for all that, the exemption may be a reasonable drafting choice. \u0000 \u0000With narrow exceptions, current equal protection doctrine forbids race- and sex-conscious decision making, even for the purpose of remedying inequality. In effect it makes many anti-racist policies illegal. The triumph of this “anti-classification” approach has been widely criticized. But the insidious ways it affects civil rights regulation are often overlooked. The ABA exemption is a vivid example. Through the cracked anti-classification lens, forbidding discrimination in client selection might, for instance, make prioritizing African American plaintiffs in police violence claims an ethical violation. The exemption avoids that result, but only at the cost of exposing prospective clients to discriminatory exclusion. \u0000 \u0000The article proposes an alternative ethics rule that would prohibit refusing legal representation on the basis of stereotypes or stigmatic bias but allow lawyers to consider prospective clients’ race or sex in order to prioritize representing groups who have been disadvantaged in the legal system. Ironically, although that rule allows consideration of race or sex only in narrow, arguably benign, circumstances, it would face daunting constitutional challenges, while the ABA’s wide-open permission for discrimination would likely sail through judicial review. Critiques of anti-classification doctrine usually focus entirely on equal protection. In defending the proposed rule, however, the article shows that the demand for race- and sex-blind decision making also infects First Amendment analysis.","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49576403","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Dressing for Success: Lawyers & Clothing in Nineteenth Century America","authors":"M. Hoeflich","doi":"10.17161/1808.31579","DOIUrl":"https://doi.org/10.17161/1808.31579","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46644779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Toxic Secrecy: Non-Disclosure Agreements and #MeToo","authors":"Emily Otte","doi":"10.17161/1808.31571","DOIUrl":"https://doi.org/10.17161/1808.31571","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46358175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Sexual Orientation and Gender Identity Discrimination Claims Under the Fair Housing Act After Bostock v. Clayton County","authors":"","doi":"10.17161/1808.31570","DOIUrl":"https://doi.org/10.17161/1808.31570","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"228 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Extensive research has shown that adherence to procedural-justice principles leads to a greater sense of an authority’s legitimacy. In courts, adherence to procedural-justice principles leads to greater compliance with court orders, greater cooperation with courts, and higher overall approval for the court system. This Article applies the lessons of procedural justice to the appellate courts. The Article first reviews public-opinion data about the courts, finding that a generally diminished trust in institutions includes the courts. The Article then reviews the research showing that the application of procedural-justice principles leads to a greater sense of court legitimacy. From that basis, the Article recommends several steps appellate courts, including the United States Supreme Court, should take to improve perceptions of fairness.
{"title":",,,Getting It Right Isn’t Enough: The Appellate Court’s Role in Procedural Justice","authors":"Steve Leben","doi":"10.17161/1808.31568","DOIUrl":"https://doi.org/10.17161/1808.31568","url":null,"abstract":"Extensive research has shown that adherence to procedural-justice principles leads to a greater sense of an authority’s legitimacy. In courts, adherence to procedural-justice principles leads to greater compliance with court orders, greater cooperation with courts, and higher overall approval for the court system. This Article applies the lessons of procedural justice to the appellate courts. \u0000 \u0000The Article first reviews public-opinion data about the courts, finding that a generally diminished trust in institutions includes the courts. The Article then reviews the research showing that the application of procedural-justice principles leads to a greater sense of court legitimacy. From that basis, the Article recommends several steps appellate courts, including the United States Supreme Court, should take to improve perceptions of fairness.","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
“Tell your brother you are sorry.” There is no great dispute about whether we should teach our children to apologize. As parents, educators, and society we recognize that apologies help heal wounds. They empower the injured parties by acknowledging their hurt and their right not to be victimized in the future. They empower injuring parties to make a repair, to regain their humanness by showing that they understand and regret having been involved in a negative outcome for the injured party. We do not instruct children to engage in a calculated examination of the potential that the injured party contributed to his own harm, or to evaluate whether a child’s behavior in fact violated a rule before apologizing; when someone is affronted or harmed, an apology is in order. Yet in the world of big adult harms we have created a legal system that stifles apologies. Our system allows the admission of apologies in litigation as evidence of fault. Those apologies most likely to be effective at healing wounds are the apologies least likely to be protected and encouraged under the law: apologies that combine self-critical statements with expressions of sympathy. Because our evidentiary system allows only evidence that is actually probative of a legal issue (usually fault) to be admitted, it seems there is a misconception that these full apologies are evidence that could be used to find legal fault. Yet there are many reasons to question this assumption: psychological studies confirm that individuals feel guilt and regret when not at fault; philosophical inquiries affirm the propriety of a self-critical stance for involvement in negative outcomes; and cultural practice confirms that apologies in the absence of blameworthiness are common, well-received, and offered more frequently by some groups than others.
{"title":",,,It Is Better to Be Safe When Sorry: Advocating a Federal Rule of Evidence that Excludes Apologies","authors":"Jennifer Wimsatt Pusateri","doi":"10.17161/1808.31566","DOIUrl":"https://doi.org/10.17161/1808.31566","url":null,"abstract":"“Tell your brother you are sorry.” There is no great dispute about whether we should teach our children to apologize. As parents, educators, and society we recognize that apologies help heal wounds. They empower the injured parties by acknowledging their hurt and their right not to be victimized in the future. They empower injuring parties to make a repair, to regain their humanness by showing that they understand and regret having been involved in a negative outcome for the injured party. We do not instruct children to engage in a calculated examination of the potential that the injured party contributed to his own harm, or to evaluate whether a child’s behavior in fact violated a rule before apologizing; when someone is affronted or harmed, an apology is in order. Yet in the world of big adult harms we have created a legal system that stifles apologies. Our system allows the admission of apologies in litigation as evidence of fault. Those apologies most likely to be effective at healing wounds are the apologies least likely to be protected and encouraged under the law: apologies that combine self-critical statements with expressions of sympathy. Because our evidentiary system allows only evidence that is actually probative of a legal issue (usually fault) to be admitted, it seems there is a misconception that these full apologies are evidence that could be used to find legal fault. Yet there are many reasons to question this assumption: psychological studies confirm that individuals feel guilt and regret when not at fault; philosophical inquiries affirm the propriety of a self-critical stance for involvement in negative outcomes; and cultural practice confirms that apologies in the absence of blameworthiness are common, well-received, and offered more frequently by some groups than others.","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43319847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Crime Victims’ Rights Act imposes on federal prosecutors an affirmative duty to provide notice to crime victims about upcoming proceedings so that they can attend those proceedings and exercise other related statutory rights. If a crime victim is blocked from attending a proceeding, the CVRA provides an avenue for that victim to seek a writ of mandamus from the Court of Appeals. Notably, however, the CVRA does not appear to provide a meaningful remedy if the victim is never provided notice and does not find out until it is too late to undo the proceeding. Indeed, the CVRA specifically states that it creates no cause of action of any kind for its violations. Using the sorry saga of the decade-long litigation over the U.S. Attorney’s Office handling of the Jeffrey Epstein matter, this article argues that it is time to rewrite the CVRA to provide a cause of action for damages and for prevailing plaintiff’s attorney’s fees, not because money will truly compensate the crime victims, but rather to deter future violations.
{"title":",,,Learning from the Jeffrey Epstein Mess: It’s Time to Add a Cause of Action for Damages to the Crime Victims’ Rights Act","authors":"Tung Yin","doi":"10.17161/1808.31574","DOIUrl":"https://doi.org/10.17161/1808.31574","url":null,"abstract":"The Crime Victims’ Rights Act imposes on federal prosecutors an affirmative duty to provide notice to crime victims about upcoming proceedings so that they can attend those proceedings and exercise other related statutory rights. If a crime victim is blocked from attending a proceeding, the CVRA provides an avenue for that victim to seek a writ of mandamus from the Court of Appeals. Notably, however, the CVRA does not appear to provide a meaningful remedy if the victim is never provided notice and does not find out until it is too late to undo the proceeding. Indeed, the CVRA specifically states that it creates no cause of action of any kind for its violations. Using the sorry saga of the decade-long litigation over the U.S. Attorney’s Office handling of the Jeffrey Epstein matter, this article argues that it is time to rewrite the CVRA to provide a cause of action for damages and for prevailing plaintiff’s attorney’s fees, not because money will truly compensate the crime victims, but rather to deter future violations.","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44306082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The dominant issue in the law of wills for much of last half century has been how much formality the law should require before giving effect to a party’s testamentary intent. The traditionalists favor: (1) the maintaining the prevailing approach to the Wills Act formalities; (2) strict enforcement of those formalities; and (3) courts having the power to construe but not reform a will. The intent-oriented advocates favor: (1) reducing the Wills Act formalities to a minimum; (2) granting courts the power to dispense with those formalities under the harmless error doctrine; and (3) granting courts the power to reform a will, even if there is no ambiguity in the will. The problem is the underlying variables inherent in the debate are so indeterminate (what is the value of testamentary intent; how much increased costs of administration and potential for fraud is there in the harmless error and/or power-to-reform doctrines), it is tough to imagine much movement in the debate. Recent developments, however, shed a new light on the debate. The debate has overlooked a variable – charitable gifts – that offers a common ground where the two sides should agree. The public benefits associated with saving failed charitable testamentary gifts more than offset the increased administrative costs and potential for fraud associated with the harmless error and power-to-reform doctrines. That conclusion, however, also reframes the issue with respect to the remaining universe of failed testamentary gifts. Do the benefits derived from saving failed noncharitable testamentary gifts exceed the increased administrative costs and potential for fraud associated with the harmless error and power-to-reform doctrines?
{"title":",,,Testamentary Transfers and the Intent Versus Formalities Debate: The Case for a ‘Charitable’ Common Ground","authors":"Peter T. Wendel","doi":"10.17161/1808.31569","DOIUrl":"https://doi.org/10.17161/1808.31569","url":null,"abstract":"The dominant issue in the law of wills for much of last half century has been how much formality the law should require before giving effect to a party’s testamentary intent. The traditionalists favor: (1) the maintaining the prevailing approach to the Wills Act formalities; (2) strict enforcement of those formalities; and (3) courts having the power to construe but not reform a will. The intent-oriented advocates favor: (1) reducing the Wills Act formalities to a minimum; (2) granting courts the power to dispense with those formalities under the harmless error doctrine; and (3) granting courts the power to reform a will, even if there is no ambiguity in the will. The problem is the underlying variables inherent in the debate are so indeterminate (what is the value of testamentary intent; how much increased costs of administration and potential for fraud is there in the harmless error and/or power-to-reform doctrines), it is tough to imagine much movement in the debate. Recent developments, however, shed a new light on the debate. The debate has overlooked a variable – charitable gifts – that offers a common ground where the two sides should agree. The public benefits associated with saving failed charitable testamentary gifts more than offset the increased administrative costs and potential for fraud associated with the harmless error and power-to-reform doctrines. That conclusion, however, also reframes the issue with respect to the remaining universe of failed testamentary gifts. Do the benefits derived from saving failed noncharitable testamentary gifts exceed the increased administrative costs and potential for fraud associated with the harmless error and power-to-reform doctrines?","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44883523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Use and Abuse of Bargaining Models in Antitrust","authors":"","doi":"10.17161/1808.30529","DOIUrl":"https://doi.org/10.17161/1808.30529","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Context to Overcome Definition: How the Supreme Court Used Statutory Interpretation to Define “Person” and “Sex”","authors":"","doi":"10.17161/1808.31580","DOIUrl":"https://doi.org/10.17161/1808.31580","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"50 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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