Combating Silence in the Profession

Members of the legal profession have recently taken a public stance against a wave of oppressive policies and practices. From helping immigrants stranded in airports to protesting in the face of white nationalists, lawyers are advocating for equality within and throughout American society each and every day. Yet as these lawyers go out into the world on behalf of others, they do so while their very profession continues to struggle with its own discriminatory past.

For decades, the legal profession purposefully excluded women, religious minorities, and people of color from its ranks, while instilling a select group of individuals with the privilege of power and prestige. And while the profession often attempts to take concrete steps to address its history of exclusionary conduct—most recently through the passage of Model Rule 8.4(g)—the vestiges of its discriminatory past continue to affect all corners of the profession, particularly for communities of color. When one looks at the partnership ranks of large law firms, the clerks who work for Supreme Court Justices, the faculties that educate law students, and even the members of law review editorial boards, the continued challenge of creating an inclusive and diverse profession remains apparent. These challenges, at least in part, are related to the covert discrimination that confronts women and people of color each and every day both within and outside the legal profession.

And yet, there are steps that the profession can take to address the most insidious forms of discrimination that remain within its ranks today. Drawing on scholarship from the fields of professional responsibility, employment discrimination, and organizational behavior and management, this Article argues that members of the legal profession should adopt policies and practices that (i) address covert discrimination throughout the profession and (ii) encourage individual attorneys to stop remaining silent and instead give voice to their experiences of discrimination, harassment, and bias. Research suggests that traditionally unrepresented groups within the profession often exist within a shroud of silence. They are often forced to silence themselves, their opinions, their views, and their experiences for fear of being labeled angry, troublesome, sensitive, or unwilling to be a “team player.” That silence, it turns out, is quite damaging. As such, the profession should adopt policies targeted at “Combating Silence in the Profession” that will encourage underrepresented groups to voice their concerns and experiences, so that a more inclusive profession finally comes into being. 

“Standing” and Remedial Rights in Administrative Law

Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has “standing” to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) “whether the plaintiff alleges that the challenged action has caused him injury in fact” and (2) “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee” that the challenged action allegedly violated.

Partly because of intervening scholarship, modern courts and commentators have translated Data Processing’s discussion of “standing” into the language of remedial rights (or “rights of action”). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing’s test for “standing.” That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing’s concept of “standing” was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only “arguably” within a protected zone as upon plaintiffs whose interests are actually protected.

Congress as Elephant

Congress, considered in its entirety, seldom is an object of legal study. Scholars tend to concentrate on discrete features—its Commerce Clause authority, its power to declare war, or the impeachment functions of its chambers. This inclination toward a narrow focus reflects the fact that Congress is so multifaceted that even fathoming its complexity is rather daunting. So intimidating, in fact, that it has caused most scholars to shy away from a comprehensive treatment. This Essay attempts to fill that gap. The Constitution’s text and context suggest that the Founders envisioned Congress playing multiple constitutional functions. After comparing our Congress with its predecessor, the Continental Congress, this Essay describes six roles for Congress, only a few of which are familiar: Chief Lawmaker, Secondary Executive, Chief Facilitator and Overseer of the Magisterial Branches, State Overseer, and Enforcer of Constitutional Rights and Duties. Only when we appreciate Congress in all its complexity can we appreciate why Congress, as an institution, is more than the first branch amongst equals.