TRIBUTE
Steven G. Gey
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ARE WOMEN MORE ETHICAL LAWYERS? AN EMPIRICAL STUDY
Patricia W. Hatamyar & Kevin M. Simmons
We first noticed a possible “gender gap” in attorney discipline when we ran across the Oklahoma Disciplinary Commission’s annual report for the year 2000. Women currently constitute 27% of Oklahoma attorneys, but 0% of the disciplined attorneys—none of the seventeen named—were women. Wondering whether the Oklahoma figures were aberrational, we attempted to locate research concerning gender and attorney discipline. But there have been few such studies, although “[p]robably no issue in the social sciences receives more attention than the difference between men and women.”
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PRICE-FIXING: REFINING THE PRICE WATERHOUSE STANDARD AND INDIVIDUAL DISPARATE TREATMENT LAW
Kenneth R. Davis
Employment discrimination law has befuddled most of those who have attempted to master it. Confusion arises when one attempts to reconcile the two frameworks that govern individual treatment cases: the McDonnell Douglas approach and the Price Waterhouse approach. McDonnell Douglas provides an elaborate, three-step, burden-shifting framework, in which the plaintiff must ultimately prove that the defendant’s alleged nondiscriminatory reason for the adverse employment action was a pretext for discrimination. The assumption of this approach is that either the discriminatory reason or a nondiscriminatory reason—but not both—motivated the adverse employment action. In contrast to McDonnell Douglas, which applies to “single-motive” cases, Price Waterhouse applies to “mixed-motive” cases. Under the Price Waterhouse approach, a plaintiff prevails if he can prove that discriminatory intent was a motivating factor leading to the adverse employment action. Once the plaintiff meets this burden, the defendant may avoid having to pay damages by establishing a partial affirmative defense: the defendant must show that it would have taken the adverse action based on the nondiscriminatory reason alone. Thus, these approaches differ on who bears the burden of proving or disproving the defendant’s nondiscriminatory justification for the challenged decision: under McDonnell Douglas the plaintiff must disprove the defendant’s alleged nondiscriminatory reason, while under Price Waterhouse the defendant must prove that its alleged nondiscriminatory reason was a determinative cause for the adverse employment decision.
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THE MARKET FOR ELITE LAW FIRM ASSOCIATES
Tom Ginsburg & Jeffrey A. Wolf
By the fall of the second year of law school, the vast majority of law students at top schools have entered a process that will determine their initial career assignments. For the upper end of the market, this involves interviewing at elite law firms for summer associate positions. During the recruiting process, firms expend substantial resources to narrow a large pool of law students to a few potential candidates to whom they extend offers. The war to attract this talent results in stiff competition. We argue, first, that much of this war can be usefully characterized as risk-averse firm behavior in response to market-imposed uncertainty; and second, that this market structure is itself caused by the industrial organization of the elite law firm and the market for elite legal services.
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THE INHERENT FLAWS IN THE INHERENT AUTHORITY POSITION: WHY INVITING LOCAL ENFORCEMENT OF IMMIGRATION LAWS VIOLATES THE CONSTITUTION
Huyen Pham
In the fanfare that surrounded the announcement of the National Security Entry-Exit Registration System, Attorney General John Ashcroft’s comment that the Department of Justice (DOJ) would ask state and local police to enforce both civil and criminal immigration laws seemed like an afterthought. State authorities, DOJ concluded, have “inherent authority” as sovereign entities to enforce these laws, though Ashcroft was careful to limit this invitation to local participation only to “our narrow anti-terrorism mission.”
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NECESSITY NEVER MADE A GOOD BARGAIN: WHEN CONSUMER ARBITRATION AGREEMENTS PROHIBIT CLASS RELIEF
Thomas Burch
The American system of arbitration is constantly evolving. From the first formal arbitration tribunal in 1786—established by the New York Chamber of Commerce—to the creation of the Federal Arbitration Act in 1925—passed to suppress judicial hostility towards arbitration—the system has continuously adapted to accommodate changing business practices and rising judicial concerns over the legitimacy of the institution. In fact, the system’s adaptation has been so effective that the Supreme Court now recognizes a “national policy favoring arbitration.”
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BETWEEN “MERIT INQUIRY” AND “RIGOROUS ANALYSIS”: USING DAUBERT TO NAVIGATE THE GRAY AREAS OF FEDERAL CLASS ACTION CERTIFICATION
L. Elizabeth Chamblee
In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions.
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THE SUPERIORITY OF PARTIAL DISCHARGE FOR STUDENT LOANS UNDER 11 U.S.C. § 523(A)(8): ENSURING A MEANINGFUL EXISTENCE FOR THE UNDUE HARDSHIP EXCEPTION
Frank T. Bayuk
Student loans are an increasingly big business in the United States today. During fiscal year 2002 alone, approximately 5.8 million students borrowed $37.8 billion in federally guaranteed loan money, representing a more than threefold increase from the $11.7 billion borrowed in 1990. This marked increase highly correlates with, and is likely the result of, a temporal increase in the cost of postsecondary education. The mean individual undergraduate student loan debt in 2002 was $18,900, a 66% increase from $11,400 in 1997. Factoring in the use of loans to finance graduate studies understandably increases these numbers, as well as expectedly increases the number of student borrowers because of the higher relative cost of graduate programs.
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