By: Adam Eckart
Legal Writing Matters Blog

Earlier this month, I had the pleasure of being invited to participate in a Discussion Group at the 2024 Biennial Conference of the Legal Writing Institute on the topic of Diversity, Equity and Inclusion (“DEI”) in higher education. While much of the discussion focused on ways to a) incorporate DEI into the legal writing classroom, and b) ensure that law school admissions and hiring remain equitable and continue to foster diversity in light of the recent U.S. Supreme Court decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and c) promote cross-cultural competency and “cultural humility” in the fabric of today’s law schools, my prepared remarks focused instead on how transactional lawyers are already working to advance DEI through private contract.
Let me set the stage. In varying degrees, and especially in the last decade, businesses have increasingly spoken out and offered assistance to employees, community members, and the public with respect to advancing social issues. For example:

• Prior to the U.S. Supreme Court’s decisions in United States v. Windsor and Obergefell v. Hodges—the marriage equality cases which eventually led to the decision on protecting marriage equality—private companies stepped in to provide equal footing for same-sex couples. At the time, since marriages performed under state law were not recognized federally, same-sex couples paid more in taxes than similarly-situated opposite-sex couples (because same-sex couples could not avail themselves of the “married, filing jointly” deductions). Recognizing that this was unfair, companies stepped in and provided what was called a “gay gross-up”—a payment designed to pay the difference in taxes for same-sex couples so that their marriage did not result in a tax penalty.
• In 2016, upon passage of the HB2 “bathroom bill” in North Carolina, which targeted the LGBTQ+ community and specifically transgender people wishing to access the bathroom consistent with their gender identity, the National Basketball Association (“NBA”) took issue with the bill and relocated their NBA All-Star game from its planned location in Charlotte North Carolina to another city outside of the state. As a result, North Carolina lost an estimated $3 billion in economic revenue from the event. The North Carolina legislature passed a subsequent bill—which, some argued, was an improvement over the HB2 bill—in order to respond to public pressure, and the NBA re-awarded the All Star game in a subsequent year.
• Finally, in the wake of the U.S. Supreme Court case of Dobbs v. Jackson Women’s Health Organization in 2022, dozens of companies came out to offer women compensation or time off to travel to get abortions or other related care that subsequently became unavailable in their home state. In addition, other companies allowed women employees to transfer into another state, if desired.

In addition to the above examples, with respect to hiring in particular, private contract has the ability to influence diverse hiring and transactional attorneys have used it to help advance efforts to advance diverse hiring practices.

• Several companies, including Amazon and Facebook, have implemented “Rooney Rule”-styled rules (named after the National Football League’s “Rooney Rule”) to mandate the consideration of diverse candidates in hiring. Under the NFL’s Rooney Rule, NFL teams are mandated to interview at least two “minority” candidates (which the NFL defines as racial minorities or women) for head coach and coordinator hiring). By implementing such rules, “diverse” candidates are not mandated to be hired, but instead must be considered in the hiring process.
• In Hollywood, the implementation of Inclusion Riders has worked to effectuate the same goal. Inclusion Riders mandate that, for example, a certain percentage of the cast or crew of a production—such as a television show or movie—are diverse.

What is likely, but may not be, obvious, is that lawyers implement these changes, and transactional lawyers to be exact, draft the documents, policies, and contracts—these private agreements between the parties—to help effectuate change. In order to understand how private contracts are used to implement such social goals, students in my drafting courses, including a 1L legal writing course and an upper-level transactional drafting or “contract drafting” course, learn the value that transactional lawyers can bring to social issues through drafting choices. These choices and considerations include, but are not limited to, 1) understanding how private law can fill gaps in public law, and 2) how narrative and storytelling in transactional documents can help drive social change, and 3) how transactional lawyers of today are already tackling this initiative.
By preparing the law students of today to address the challenges of addressing equity issues and effort, private contract can serve as a vehicle to preserve and protect advances promoted by well-defined DEI policies in the private sector, even if such policies are dismantled in the public sector.