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.

Super PACs, Personal Data, and Campaign Finance Loopholes

Personal data is a commodity—frequently bought, sold, and traded on the open market by for-profit and non-profit organizations alike. It is now commonplace for political campaigns to synthesize large amounts of personal information to tailor messaging to particular individuals for persuasion, turnout, and fundraising. As campaigns and other political organizations use data in increasingly sophisticated ways, they have also dramatically increased their data collection and transfer efforts. This Note explores how federal election laws and regulations have failed to keep pace with these developments, creating a loophole through which virtually unlimited money can flow to campaigns.

This Note argues that personal data should be regulated like any other campaign asset. Federal political campaigns are subject to strict contribution limits as well as a comprehensive disclosure regime. Current Federal Election Commission advisory opinions and agency inaction have allowed campaigns to receive valuable personal data at practically no cost, even from organizations like super PACs that are otherwise prohibited from making contributions to campaigns. Perhaps even more troubling is that these contributions are not subject to the disclosure requirements that form the backbone of the federal campaign finance system. The transfer of this class of assets is subject to neither meaningful restrictions nor public scrutiny. This Note details the problem and proposes several simple regulatory changes to close existing campaign finance loopholes.