⏩ Should America ditch the state-centric attorney licensing system?
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This week: Why state-bound legal jurisdictions could fade, the best analyses on the Supreme Court’s landmark LGBTQ decision and a strategy for cutting down implicit bias in the legal field.
In a stunning decision Monday, the Supreme Court held in Bostock v. Clayton County that federal law prohibits employers discriminating against LGBTQ workers. Here’s a roundup of the 5 best stories for understanding the basis and results of the decision (none of the articles are behind a paywall):
The Supreme Court’s landmark LGBTQ rights decision, explained in 5 simple sentences | Vox
“Bostock turns on a simple application of Title VII’s text. Discrimination “because of ... sex” occurs whenever an employer treats male employees differently than female employees, or vice-versa. And, because discrimination on the basis of sexual orientation or gender identity necessarily requires an employer to treat some male employees differently than some female employees, or vice-versa, such discrimination is illegal.”
The triumph of textualism: Only the written word is law | Scotus Blog
“Bostock’s textualism represents perhaps the apotheosis of judicial minimalism in statutory interpretation: Open the code, read the statute, rule. Absent linguistic ambiguity or evidence that the meaning of terms in the statute have changed over time, statutory interpretation is purely a matter of parsing the statute and analyzing its semantics and grammar. Where statutory interpretation is concerned, per Bostock, a judge should effectively set aside his or her law school education and retreat to the lessons of high school English class.”
The Supreme Court victory for transgender women is a win for all women | Slate
“In light of this, it will not be surprising to see analysis arguing that the Bostock decision undermines women’s rights or risks harm for women. Bostock, however, actuallyilluminates how transgender rights and women’s rights are aligned. This is because transgender women like Stephens, even when adopting traditionally feminine appearances or behaviors, fight stereotypes harmful to all women.”
Neil Gorsuch lays landmines throughout LGBTQ discrimination decision | Above The Law
“A Sotomayor opinion would’ve said these are all necessarily discriminations based on sex and moved on to a long treatment of historic trends in anti-LGBTQ discrimination in the country. Her opinion would set the stage for a broader understanding of equality in America. Gorsuch’s opinion sets the stage for a torrent of dictionaries explaining why we have to shut down consumer protection laws.”
The Supreme Court has given trans people reason to hope again | Vox
“For trans people, who have been told for decades to wait our turn for basic human rights, who have been spat on and laughed at and have over and over watched our sisters of color get murdered in cold blood, this was the first time the high court has seriously contended with the realities of our lives.”
Do you live in Connecticut but are only licensed to work as an attorney in New York? Crazy as it sounds, you could be breaking star bar regulations if you’re taking an extended WFH break from the office. This situation is exactly why legal experts may use the changes wrought from coronavirus to revise America’s jurisdictional practice rules, according to Law360.
A “historical accident”: That’s how Fordham Law professor Bruce Green describes the jurisdictional regulations that stipulate lawyers can only practice in the states in which they’ve gained license. In other countries, lawyers mostly practice national law. America’s system exists largely because it has always existed, dating back to when the states were British colonies.
A change from local laws to subject matter expertise: In the early 20th century, lawyers focused on learning the ins-and-outs of a local jurisdiction. That strategy has evolved over the last several decades, as most lawyers now become experts in specific legal areas who could practice anywhere with a minimal learning curve.
Big changes are unlikely
The odds of America following other countries and losing its state jurisdictional practice rules is unlikely (there are still more than a dozen states, including California, that don’t even accept the Uniform Bar Exam). But legal advocates want flexibility to be written into the rules, so lawyers know they’re in the clear to work from home, wherever that home may be.
In the meantime, don’t sweat if you’ll be working from home in a different state than where you’re licensed for the foreseeable future. Although Washington DC is the only bar that has specifically stated its approval of this arrangement, experts say other bars are unlikely to crack down during the pandemic.
The legal world’s diversity problems are no secret (LawTrades just co-hosted a panel on diversity with TechGC). One of many reasons for that is implicit bias. As attorney Jeena Cho puts it in an essay for the ABA Journal, an effective way to reduce bias is to practice loving-kindness meditation -- “to interrupt and acknowledge our own implicit bias.
Here are the steps she recommends, in her words:
1. Settling the mind through mindfulness meditation;
2. Bringing to mind someone you care about, noticing the feeling of compassion, offering words and thoughts of well-wishes;
3. Extending this sense of caring and compassion toward yourself;
4. Offering compassion toward others;
5. Bringing compassion toward all beings; and
6. Imagining taking away the suffering of others.
On top of that: Consider studying the people you follow on Twitter, the podcasts you listen to and the authors you read and find ways to cultivate a more diverse mix.
What else we’re forwarding
No such thing as a free book: Unless you go to a physical library. The Internet Archive created a repository of 1 million free e-books in what it called the National Emergency Library to serve readers during coronavirus. But publishers called it mass copyright infringement, and the Internet Archive is canceling the program.
Too big to be fair?: At what point do Amazon and Facebook become so big they can’t operate “fairly and effectively?” The NYT’s Shira Ovide writes that the way they attempt to play by America’s rules -- and how America will ask them to -- will be a central legal question for our age.
I’ll see you next week.