Non-determinative Discrimination, Mixed Motives, and the Inner Boundary of Discrimination Law

This Article describes a form of discrimination – called non-determinative discrimination – that involves types of conduct that are not covered by current doctrine but that should be protected in order to serve the purposes of the laws against discrimination. It addresses the issue of mixed-motive discrimination and anticipates (and provides a framework for) the hostile environment claims of the 1990s

Lawyer Discrimination Against Clients: Outright Rejection--No; Limitations on Issues and Arguments-Yes

The issue of lawyer discrimination brings new perspectives to traditional topics like the practice of law, the role of the lawyer and the relationship with, and rights of, the client. It forces us to examine the nature of lawyer discretion, the limits of that discretion and the consequences of trying to regulate that discretion. The examinationis a daunting task. This essay offers an approach that attempts to protect both the prohibition against discrimination and the practice of law and to accommodate the tension that necessarily accompanies this effort. It suggests that the best solution is to prohibit lawyers from discriminating in client selection but to permit attorneys to use reasonable professional judgment in selecting the issues and arguments that they are willing to raise on behalf of a client. It discusses the concept of conditional representation inherent in the proposal and concludes that the problems associated with this concept are far preferable to the problems associated with any other alternative. With the new California rule, the requirements of the Americans with Disability Act and the recent MCAD decision, this issue will be increasingly before courts, legislators, bar associations, civil rights agencies and, ultimately, the public. The Author offers his proposal as a contribution to the ongoing debate

Affordable Housing in Suburbia: The Importance But Limited Power and Effectiveness of the State Override Tool

Through this Article the Author offers a brief comparative overview and critique of the four statutes explored at the Western New England College School of Law hosted conference, titled Increasing Affordable Housing and Mobility in Three New England States and New Jersey: Comparative Perspectives on the Occasion of the Thirtieth Anniversary of the Massachusetts Comprehensive Permit Law. The Author discusses these statutes, which address such major themes as urban decline and suburban growth, racial and economic segregation, and localism versus regionalism. The four state statutes are intertwined with these themes and with other statutes and programs that have helped to shape post-World War II development of America\u27s cities and suburbs

Electronic Real Estate Documents: Context, Unresolved Cost-Benefit Issues and a Recommended Decisional Process

This essay begins with a prediction: that electronic real estate documents will soon begin to replace paper documents in many, if not all, phases of residential real estate transactions. It describes the costs and benefits of electronic documents, and the many forces supporting and impeding their widespread adoption. It concludes by urging all those participating in the process to use their best efforts to address the obstacles and to work towards a successful transition to a world of electronic real estate transactions and electronic recording

Rule 801(d)\u27s Oxymoronic \u27Not Hearsay\u27 Classification: The Untold Backstory and a Suggested Amendment

This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay. The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, appropriately labeled category. The oxymoronic treatment has its roots in a longstanding debate between Wigmore and Morgan over the proper classification of admissions. The three codes that preceded the Federal Rules of Evidence -- the Model Code, the Uniform Rules and the California Evidence Code – resolved that debate in favor of the Morgan view that admissions should be treated as a hearsay exception. However, Reporter Edward Cleary rejected Morgan’s view and came up with his own idiosyncratic and unfortunately oxymoronic formulation, which was uncritically accepted by the Advisory Committee and then adopted by Congress and 37 of the 44 states that have adopted the Federal Rules of Evidence. Because admissions and prior statements are hearsay evidence, they should be classified as hearsay exceptions. However, because they are distinctively different than the other hearsay exceptions, they should not be placed in either the Rule 803 or Rule 804 categories but in their own distinct categories. Drawing on the examples of several state evidence codes that rejected the FRE Rule 801(d) classification, the Article develops a more appropriate alternative treatment for admissions and prior statements and presents the case for amending Rule 801(d)

Non-determinative Discrimination, Mixed Motives, and the Inner Boundary of Discrimination Law

This Article describes a form of discrimination – called non-determinative discrimination – that involves types of conduct that are not covered by current doctrine but that should be protected in order to serve the purposes of the laws against discrimination. It addresses the issue of mixed-motive discrimination and anticipates (and provides a framework for) the hostile environment claims of the 1990s