We live in the #MeToo era.An era defined by changing norms-a moral shift catalyzed by the #MeToo movement.The movement's goal is lofty: to end sexual harassment and sexual assault.The movement has faced backlash and criticism, but its impact is undeniable: brave survivors 1 came forward, powerful men were toppled, and laws were passed. 2 Many articles refer to the #MeToo movement "shining a light" on the widespread problem of sexual misconduct. 3This phrase-"shining a light"-begs the question: where did the darkness come from?Archvillain Harvey Weinstein's predatory behavior was obscured from public view for decades, despite being an open secret in Hollywood. 4 Survivors and reporters faced a "wall of sheer force and immovable power" surrounding Weinstein, who would undoubtedly try to destroy
When I arrived at the Cravath law firm as a new associate in the autumn of 1979, I was surprised to discover at orientation that the firm would provide each new associate with a fairly sizeable credit at Brooks Brothers to assist us in purchasing a suitable professional wardrobe. 1 We did not have great discretion in our choices; the firm had instructed Brooks Brothers that we were to purchase clothing from an approved list that set out what we should buy.For male associates there was a set number of suits of particular colors and material-a blue sport coat, a leather briefcase, etc. Female associates had a similar list with gender-appropriate differences.Thus, we were all to dress in the appropriate Cravath manner. 2 Today, very few firms explicitly dictate the type or style of clothing their lawyers should wear.Many firms, particularly those outside the East Coast, even permit their lawyers a degree of flexibility in their dress so long as it is respectable (I would imagine that no firm, even today, would be happy if one of their lawyers appeared in a speedo, even on the hottest day).Indeed, this flexibility in expectations about dress may increase in the wake of the extensive telework that has been embraced in the midst of the current pandemic.However, many law firms still expect their lawyers to look "professional," but the origins of what is considered appropriate dress for lawyers has been lost in the mists of time and very little is written about the subject today.
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.
As a result of this concealment, Epstein's accusers missed their opportunity to speak at his state court sentencing hearing, not to mention to provide input to federal prosecutors about the non-prosecution agreement.It would take a year of litigation, spearheaded by lawyers Paul Cassell and Bradley Edwards working pro bono, 15 before the accusers would even learn the terms of the non-prosecution agreement. 16Cassell and Edwards would spend more than the next decade arguing that the United States Attorney's Office had violated the CVRA, trying to undo Epstein's state court guilty plea and the federal non-prosecution agreement so that the accusers would be able to speak at any resentencing hearing.Finally, on February 21, 2019-over 10 years later-U.S. District Judge Kenneth Marra found that the United States Attorney's Office had indeed violated the CVRA. 17Moreover, this was not a violation stemming from negligence or an oversight, but rather a "decision to conceal the existence of the NPA [non-prosecution agreement] and mislead the victims to believe that federal prosecution was still a possibility." 18 The judge, however, limited the ruling to the violation, calling for the parties to meet and confer about "how they wish [ed] to proceed on determining the issue of what remedy, if any, should be applied." 19 The proceeding before Judge Marra was still awaiting resolution of the appropriate remedy for the CVRA violation when federal agents arrested Epstein in New Jersey in July 2019; two days later, federal prosecutors in New York indicted him on new sex trafficking charges. 20While in pre-trial detention, Epstein tried to kill himself twice, succeeding the second time on August 10. 21Upon Epstein's death, the New York federal prosecutors moved
This Article explores the implications of transactional script smart contracts used in situations where there is less than total trust between the parties. In particular, this Article asks the question of how parties to these next generation transactional scripts can seek redress and remedies in the event that the transactional script does not perform according to the parties’ intent. Until parties feel safe that any errors can be corrected, large-scale implementation of transactional scripts will be hobbled. Part II of this Article articulates why the term “transactional scripts” is preferable to “smart contracts” and describes the utility and potential of transactional scripts. Part III identifies several factors that hinder greater expansion of the use of transactional scripts. It goes on to identify uncertainty of enforcement as the most important barrier to transactional script innovation, finding that parties will be reluctant to entrust bigger and more complex transactions to transactional scripts until the parties are comfortable that an external mechanism is capable of correcting errors in the execution of the transaction. This lack of reliable enforcement mechanisms is a problem exacerbated by the characteristic of distributed ledger technology, which is to move only forward, preventing revisions or reversals of preexisting entries. Part IV explores and critiques possible mechanisms that may be able to provide error correction, including statutory law, private law, online dispute resolution, public/private regulatory partnership, and common law. Part V concludes the Article, noting that the expansion of transactional scripts’ utility will be tethered to the security provided by available error-correction mechanisms. Only as contracting parties become assured that the integrity of their transactional intent will be effectuated will transactional scripts be adopted for use.
Kaiser Family Foundation, 34% of gay and lesbian respondents reported that they or someone they knew had experienced discrimination when seeking to rent or buy a house. 10 Research studies, including matched pair testing, also indicate discrimination against LGBTQ individuals, although the extent of the discrimination they measure varies based on the form of the test performed.A 2013 study that relied on email contacts found that samesex couples were significantly less likely to receive responses to email inquiries than heterosexual couples. 11Studies that relied on telephone or in-person testing report higher rates of discrimination, even in states with legal prohibitions against such behavior.For example, testing conducted by four fair housing centers in Michigan found that 27% of the tests showed a disparity in treatment based on sexual orientation, including differences in rental rates, level of encouragement, and application fees, all favoring the heterosexual test teams. 12 The researchers also observed "behavior bordering on sexual harassment directed toward testers posing as same-sex couples." 13 In 2017, the Urban Institute conducted a multi-state, in-person testing project, the most significant such project to date. 14 The researchers found that gay men posing as housing-seekers were told about fewer units and quoted higher rental fees than straight testers. 15 Transgender testers were less likely to be told about available units, or were told about fewer units, 10.Inside-OUT: A Report on the Experiences of Lesbians, Gays and Bisexuals in America and the Public's Views on Issues and Policies Related to Sexual Orientation, KAISER FAM.FOUND.Chart 4 (Nov.2001), https://www.kff.org/wp-content/uploads/2013/01/new-surveys-on-experiences-of-lesbians-gays-and-bisexuals-and-the-public-sviews-related-to-sexual-orientation-chart-pack.pdf[https://perma.cc/EA7C-PTQG].Interestingly, in the same survey, 74% of the general public surveyed expressed support for "[l]aws to protect gays and lesbians from prejudice and discrimination in housing."Id. at Chart 17.11.
In the spring of 1974, University of Kansas School of Law Professors Malcolm and Louise Wheeler announced that they would be leaving the faculty at the end of the semester to return to Los Angeles, where they practiced law before joining KU Law in the fall of 1971.For each of his three academic years on the KU Law faculty, Mal taught antitrust law, a hot topic at the time.He also committed to teach the course during the upcoming 1974 summer school term and the course schedule had been printed and relied on by students for several months.To help the law school fill the gap his departure would create, Mal recommended it hire a young lawyer he befriended while they were both
defamation lawsuit against Mr. Winchester and his daughter. 6 Bigfoot on the Strip's lawsuit against Mr. Winchester is the prototypical strategic lawsuit against public participation (SLAPP). 7SLAPPs are (1) "based on the exercise of certain First Amendment petitioning rights" and ( 2) "unlikely to succeed on the merits." 8SLAPPs, as described by the Ninth Circuit, are lawsuits "defined by a particular strategy: obtaining an economic advantage over a defendant, and not necessarily the vindication of a cognizable legal right." 9In response to the rising use of SLAPP suits, many states have enacted anti-SLAPP laws to "root out and end frivolous cases-those brought only to harass or punish one's critics-before the costs of litigation escalate and prevent a defendant from mounting a defense." 10 Many anti-SLAPP statutes accomplish this by (1) giving defendants the ability to file motions to dismiss or strike early in the litigation; (2) requiring expedited hearings for these motions and imposing a discovery stay until the motions are heard; (3) requiring the plaintiff to show the case has a substantial probability of success on the merits; and (4) imposing sanctions awarding attorney's fees and costs when the plaintiff fails to meet its burden. 11Approximately thirty states have enacted anti-SLAPP statutes that provide for some form of an expedited motion to dismiss. 12Because anti-SLAPP laws advance their substantive policy goals by imposing procedural requirements that may conflict with the Federal Rules, federal courts have struggled to determine whether anti-SLAPP laws apply in federal diversity cases, where federal courts must apply state substantive law and federal procedural law. 13A quick review of Federal Rules of Civil Procedure 8, 12, and 56 helps focus the Erie problem that anti-SLAPP laws pose.Rule 8 requires that a complaint contain "a short and plain statement
Like many people, books have been a joy and a solace to me for much of my life.An unhappy and solitary childhood led me to libraries and bookstores from an early age.Throughout high school, I spent much of my spare time in the public library reading a vast array of novels and nonfiction books, often simply wandering up and down the stacks looking for something to catch my attention.I spent far less time in bookstores because books were expensive, and I had limited financial resources.During my senior year in high school, I managed to make periodic trips to Book Row, the stretch of secondhand bookstores on Fourth Avenue in Manhattan (New York City, not Kansas). 1 I haunted one bookshop in particular, Dauber & Pine-now long gone-because the basement was full of "specials," books so badly used or out of date that they were priced under one dollar.It was a dusty bibliophilic heaven.At the age of seventeen I went off to Haverford College, a small Quaker liberal arts school on Philadelphia's Main Line.The four years I spent at Haverford transformed my life in a multitude of ways, both in the classroom and out.One of the most important ways, however, was in turning my interest in books generally into an obsession with antiquarian books.This came about through the intervention of one professor and two bookshops.Richard Luman came to Haverford at the same time as I: the fall of 1969. 2 He came to Haverford from teaching at the University of Chicago Divinity School. 3I first met him during orientation week when professors teaching freshman seminars met with prospective students.
Because this Article analyzes the implications of the Hodes & Nauser decision, it focuses on the per curiam opinion of the court and will not attempt to summarize the differing views expressed 10. See infra Section II.A.1.It was this framework that produced Roe v
Writing a conventional tribute to George Coggins is like trying to fit a square peg into a round hole.George was not big on convention."Refreshingly irreverent" is the way one of his fellow public lands scholars described him.Another called him "one in a million, in a million different ways."As Professor Jim May recalled in the days following George's passing, the file cabinet in his office was adorned with a sticker urging
I would like to thank the staff and the editorial board of the Kansas Law Review, including Andi Leuszler and Sarah Buchanan, for their time and effort in editing this piece, and especially my good friend Joy Merklen for her rigorous edits and suggestions.I would also like to thank my husband, Edward Raab, who continually supports me in all my endeavors, my daughter, Edith Raab, who inspires me each and every day, and all my other family members and friends for their continued support./7676-TXTN] (noting that all but four states have a higher number of CPCs than
now sponsored by the Religious Freedom Center of the Newseum Institute, which for nearly sixty years has convened meetings of lawyers from numerous religious denominations across the political spectrum to discuss issues on multiple church-state topics and to create opportunities for collaboration in many areas of public policy.
addressed by the tort or criminal systems, filling a justice gap in the legal system.And apologies provide litigation efficiencies-key for an oftenoverwhelmed court system. A. Apologies Humanize Victims and Wrongdoers, IncreasingConnection, Civility, and the Likelihood of Healing.Apologies "function to regulate and maintain social interactions" including by acknowledging the harmed party's injury, vindicating the victim, and demonstrating that "the transgression is not tied to an internal trait of the offender thus facilitating acceptance and forgiveness." 2 As such, apologies "tend to provide positive psychological, emotional, and legal outcomes for both the apologizer and person receiving the apology." 3 Apologies may "help the injured party to feel less angry and the injurer to feel less guilty" in certain situations. 4And, as we teach our children, apologies are polite, helpful, and satisfying for the injured party. 5They are the expected response whenever a person is harmed. 61. Apologies provide benefits to injured parties.Academic studies on apologies tend to focus on two kinds of beneficial effects to the injured party.First, apologies have been shown to have positive effects on physical and mental health.Second, apologies restore self-esteem and dignity to injured parties.Both of these benefits
In an almost circadian rhythm, the American public has become accustomed to waking up each morning with breaking news of the Trump administration's changes to the immigration system in the United States. 1 Whether Lilliputian changes or Himalayan overhauls, each policy enacted by the administration fundamentally changes what due process means in immigration courts. 2 In response to President Trump's efforts to increase deportations of migrants 3 in this country, many localities have instituted
In recent months, commentators and policymakers have called for expanded antitrust enforcement to address a number of novel harms. As Judge Frank Easterbrook famously observed in 1984, however, antitrust is an inherently limited enterprise, and improvident antitrust enforcement can create greater harm than benefit. To optimize antitrust’s effectiveness, Easterbrook proposed a set of screening mechanisms that would constrain the law’s reach. This Article examines Easterbrook’s prescriptions in light of recent economic learning and market developments. It concludes that Easterbrook’s overarching prescription—that antitrust policies should be calibrated to minimize the sum of error and decision costs—remains fundamentally sound. However, his assertion that false convictions are systematically worse than false acquittals is questionable, and several of his specific screening mechanisms appear unwarranted. As courts and enforcers respond to calls for a bigger and bolder antitrust, they should embrace a revised version of Easterbrook’s approach and supplement it with four additional screening mechanisms. They should intervene only (1) to address consumer harm (2) stemming from behavior that extends market power, where (3) the harm is unlikely to be addressed in a less distortive manner by another body of law or by private ordering, and (4) the intervention does not require extensive knowledge by central planners or confer a great deal of discretionary authority on government officials.
This paper proceeds as follows. First, we examine the academic calls for stronger presumptions against vertical mergers based on, among other things, the alleged substitutability of contract for merger as a means of vertical integration, and the alleged equivalence of harms that arise from vertical and horizontal mergers. We analyze these claims on their own terms before proceeding in the next part to survey the economic literature that undermines the foundation of these arguments. We then proceed to analyze the critical differences between horizontal and vertical mergers that makes conflation of these two distinct methods of business combination impossible to truly treat as analytically equivalent. Next, we discuss the mistake of substituting static analysis for a more thorough dynamic analysis, particularly in industries marked by fluid product cycles and flexible business models.
Mounting public concern with the exercise of market power in concentrated markets demands a response. While modern antitrust emphasizes the prevention of market power over reaction to its exercise, it does contain one indirect but potentially important tool for addressing problems with already existing concentration and market power: the often-overlooked theory of resistance to anticompetitive entrenchment in merger enforcement. This article explores how traditional concerns with the entrenchment of market power might be updated and reintroduced to serve as a vehicle for addressing problematic markets in the modern antitrust framework. The article explains this theory of anticompetitive entrenchment, its limits, and appropriate conditions for its use, in the context of two specific applications: (1) tacit collusion among oligopolists, and (2) the exploitation of market power by a dominant firm in a protected position.
