gTexts

2003-01-27T21:00:00.000-08:00

THE BIG MOVE. It's been fun here at blogspot, but further gtexts blogging is going to be at www.gtexts.com. Please come visit, change any links, etc. Of course, all your favorite old posts will still be here until Ev erases me.

2003-01-20T21:04:00.000-08:00

WELL, NOW WE KNOW. Nonetheless, I feel a great swell of pity for the poor soul who comes to that school, looking for trouble...

2003-01-20T17:06:00.000-08:00

ONE OF MY COLLEGE FRIENDS just praised me for "always [being] the first one to reply" to emails. Of course, this is because I'm always at my computer. Sometimes it feels as if college and law school have basically been one long email-writing session, punctuated by occasional breaks to do schoolwork or eat.

2003-01-19T20:00:00.000-08:00

THIS IS PRETTY WEIRD. But it is nice that William Gibson (author of Neuromancer) is gracing us with a blog.

2003-01-18T08:24:00.000-08:00

DEAN ESMAY COMMENTS regarding the implications of affirmative action policies:

I would not willingly hire a black lawyer to represent me if he or she was under about the age of 50. Nor would I willingly subject myself or my family to a black doctor under about the age of 50....Over the age of 50, and that black doctor or lawyer is, odds are, tremendously talented, especially because they probably had to be BETTER than the white students around them. The opposite is true for the young ones, and I will not willingly put my legal interests or my life in the hands of someone I have substantial reason to believe is less qualified than his or her white counterparts.

Under the reasoning Dean uses for the younger black doctor, given the obstacles the older doctor faced, Dean should have "substantial reason" to prefer the 50+ black doctor to a 50+ white doctor. Note that Dean does not quite make that jump; he does not discount 50+ white doctors. But he is quick to discount all younger black doctors along these lines. Did they not pass the same tests in medical school? Did they not work on the same cadavers? Did they not do the same internships? What about a doctor who was accepted to med school thanks to affirmative action but ends up graduating near the top of her class? Undoubtedly there are good and bad doctors of all races. There are plenty of more accurate ways to find out about a doctor's quality -- say, looking to their reputation in the community -- but Dean limits himself to broad generalizations about what their probability of having had a higher MCAT score at 22 was.

Empirical psychology has repeatedly demonstrated that people have a strong tendency to interpret ambiguous situations so as to confirm stereotypes they hold. For instance, experimental subjects interpret the same situation differently when they are told that the actor is black from when they are told the actor is white. See, e.g., Ziva Kunda, Social Cognition 317-335 (MIT Press: 2001) (collecting experiments on stereotype activation). Regardless of your view of affirmative action, I highly recommend checking out the remarkable ways experimental psychologists of the last couple decades have been quantifying just when our brains take shortcuts and when they do not. These insights about our all-too human tendency toward stereotype confirmation in mind, think of the subjective components that go into making an applicant's overall score, from high-school essays to admissions interviews. In this light, it's hard to conclude that 100% of the point disparity between an average black applicant and an average white applicant is due to a disparity in "merit."

But lest some reader should get in a huff reading this, have no fear. The Court is almost certain to strike down the Michigan program. We can all rest assured that an ideal, utopian, colorblind standard will be applied to our very non-ideal, non-utopian, non-colorblind world. The losers: the same people who always lose. God bless America.

UPDATE: Dean responds here. By the way, I'm not at all against recognizing socioeconomic disadvantages in admissions across the board. Yes, inequalities in wealth are a healthy part of a capitalist society that rewards talent, innovation, and effort, but I see nothing particularly sacred about preserving wealth advantages across generations.

UPDATE: Nate Oman with thoughts on the Michigan case.

UPDATE: Eric Muller, a new law prof blogger, offers some data "from the field" on the value of classroom diversity.

2003-01-17T14:37:00.000-08:00

GANGS OF SUCK. I have to agree with Dean, Gangs of New York was a terrible, terrible movie. Adaptation, on the other hand, now that had some merit, even if it was ultra self-indulgent. Still, both those tickets would have been better spent on going to see Two Towers for a fourth time...

2003-01-17T12:12:00.000-08:00

INSTAPUNDIT DECLARES IT "BOGUS" to mention preferences for legacies in a discussion of affirmative action. Writes Insta: "[R]ace discrimination [(meaning, affirmative action)] is much, much worse than merely favoring alumni." I think this is unfair -- People who mention legacies aren't making a constitutional point but are offering a reminder of how screwed up our priorities are. Given all the advantages many children whose parents attended elite colleges already have (good schools, expensive test-prep courses, vocabulary-enhancing dinnertime conversation), it seems strange that we're fine with giving them an additional preference on top of that, but we have a national freak-out session if minorities who generally have a disadvantaged starting point get a similar opportunity. While legacy preferences are obviously not worse than minority preferences from a constitutional standpoint, they are worse in terms of things like, say, fairness, a decent society, or equality of educational opportunity.

Additionally, an anonymous reader commented that:

Legacies have, probably for good reason, often been stereotyped as less capable. This is most certainly true as to Bush himself, who is always painted by lefties as an undeserving, apathetic, unintellectual loser who only got into good schools because of legacy status. So the question is, why do you want to create a situation where black students are justifiably subject to such a stereotype?

Whoa. With reasoning like that, this person must be a legacy or something. If only minority applicants could have the good fortune to be subjected to the same kind of "terrible stigma" as George W. Bush. Stigmatized all the way to the White House! If legacies are so greatly hurt by negative stereotypes from admissions preferences, why do people voluntarily list their parents' status as alumni on their application?

UPDATE: Ambivalent Imbroglio comments on this post.

UPDATE: Agonist with more on this topic.

2003-01-17T08:58:00.000-08:00

REFERRING TO THE WHITE HOUSE BRIEFS in the Michigan cases (available here and here), reader Danielle Gray emails:

[The] SG's hailing the Texas/FL plans as models is another example of the inconsistency in the right's arguments
that is similar to the one [Eugene] Volokh made on MSNBC last night -- if the state should never take race into account, then why should it be allowed to perform the functional equivalent by cloaking the policy in race-neutrality (taking advantage of deeply entrenched racial segregation in those states)? While this is consistent w/ their professed belief in facial neutrality and rejection of effects/impact, it is entirely inconsistent w/ their Equal Protection/race should not be a factor arguments. So the arguments in the White House brief seem unprincipled on both the "quota" and consideration of race points.

I completely agree, although if we're sticking with the framework set out in Washington v. Davis and its progeny, both anti-minority racial discrimination and pro-diversity affirmative action are fine, so long as the policy does not itself use a racial classification to accomplish that effect. I think it is hardly an improvement to push both racial discrimination and affirmative action under the table like this, but if it has to happen, and the Michigan policy is struck down (as seems likely), then liberals should play the conservatives' game and show that facially neutral but effectively pro-diversity policies are just as possible as facially neutral but effectively anti-minority policies. After the Michigan case, assuming it comes down as most Court-watchers expect, this will be where most of the action is going to be for the pro-diversity left: appropriating the right's regressive tools (facial neutrality is all that is required regardless of effect) for progressive ends.

2003-01-17T08:10:00.000-08:00

WHO STOLE THE PEER-REVIEW? Alice on student-run law reviews. She also gives a list of law professors problematizing student-run law reviews in (what else?) a bunch of student-run law reviews...

2003-01-16T17:01:00.000-08:00

QUOTABLE QUOTAS? President Bush and other conservative commentators are calling Michigan's affirmative action policy a racial "quota system." Now, strictly speaking, the program does not set a quota at all; it does not say "X% of the incoming class is going to be African-American." (That would be a quota) Rather, some minority applicants receive points added into their overall admissions score (made up of factors including things like high-school GPA, SAT score, extracurriculars, geographical location, and a whole range of other factors).

Now, I was just watching Eugene Volokh on MSNBC, and he made a compelling argument for why the Michigan program effectively is a quota: the size of the score boost given to minority applicants seems carefully calibrated so that the desired percentage of minorities, X%, conveniently ends up getting admitted anyway.

Opponents of Michigan's admissions program have a perfectly decent argument against the Michigan program (race should never be taken into account by a state actor) but for some reason they feel they have to go further and make the Michigan program sound as bad as possible ("quota" sounds worse than "one of several factors"). Unfortunately, this approach violates the right's long-held principle that the real-world effect, such as a facially neutral progam having a disparate impact, is irrelevant to constitutional analysis. (i.e., Washington v. Davis). With respect to the Michigan admissions program, the reality is probably something like a quota, but I don't think conservatives should get to deny the facial terms of the policy and look for some underlying reality when doing so is convenient for them, because that is exactly the sort of reasoning they vigorously rejected in the disparate impact context. Otherwise, minorities get the short end of the stick on both sides, and to me, this shows a disconcerting unprincipledness about whether facial terms or real-world effects are what matters. In the end, this unprincipled thinking leaves us wondering what the real principle on the right is.

UPDATE: Although missing some of the nuance of this post, John Rosenberg makes a characteristically admirable reply on his blog, Discriminations. In response, let me re-emphasize that I don't think the Michigan program is facially neutral with respect to race, merely that it is facially not a quota. This post was about an inconsistency in the right's logic and argumention style, and not about whether the Michigan program should be upheld or struck down.

2003-01-15T21:08:00.000-08:00

BUSH SPEAKS OUT AGAINST Michigan's admission program. It seems hard to imagine a more inappropriate critic of some people being given a boost in their chances of admission than someone who undoubtedly benefited from preferences due to his "legacy" status in gaining admission to Yale. While there is much to be said for a true meritocracy, so long as we are comfortable giving those lucky enough to be born in the right womb admission preferences, it hardly seems "fundamentally flawed" to give preferences to minority groups that have historically been subject to overt discrimination. Indeed, because of the educational advantages parents who attended elite colleges can often confer -- from the 92nd Street Y preschool on -- giving additional admission advantages to their children is doubly problematic. It is interesting where we look for flaws in the system these days...

2003-01-12T20:52:00.000-08:00

SIR JOSIAH STAMP, whoever that was, once said:

The government are very keen on amassing statistics. They collect them, add them, raise them to the n-th power, take the cube root and prepare wonderful diagrams. But you must never forget that every one of these figures comes in the first instance from the village watchman, who just puts down what he damn pleases.

Sir Josiah Stamp, Some Economic Matters in Modern Life 258-59 (1929). Note the British treatment of "government" as plural, requiring "the government are."

2003-01-10T17:48:00.000-08:00

LIFE CYCLE OF A NINJA :

The Early Years. Born to doting parents in Kamakura during Warring States period. Father encourages son to develop ninja skills through games like “Hide-And-Go-Seek Master’s Honorable Slippers”, “Peek-A-Boo”, and “This Little Piggy Went to Market, Assassinate Him.”

Schooling. The young ninja-in-training waves a tearful goodbye to mom as he leaves for Ninja Boarding School at age six. Makes friends quickly, but Bushido code of honor prevents him from allowing them to live. Shows skill with sword by parting silk with his katana; uses circular saw to construct spice rack in shop. Also, he is a standout on the cross-country team, leading his squad to victory over arch-rivals Samurai Prep.

Enters Workforce. Begins as entry-level associate at Ronin & Ronin. Pulls 80-assassination weeks. Rises through the ranks quickly and is assigned a corner dojo. At office party, colleague advises him, “slow down, you’ll have a heart attack.” Ninja promptly pulls out own heart. “This will preempt future aggression,” he says, hurricane-kicking his aorta. For good measure, kidney-punches his kidney.

Romance. Falls in love at first sight when he meets the Warlord Takahashi’s daughter. Assassinates her. Sighs when he remembers her lovely face for rest of ninja life.

Vacation. Looks forward to relaxing vacation for months. But when the Spice Road is closed for repairs and the Murasaki ferry sinks, the “relaxing vacation” becomes a nightmare. Even the ninja’s deadly vacationing skills are no match for an unfortunate series of delays and transfers.

Mid-Life. Comfortably successful, the ninja’s simple world is thrown into a tailspin when he notices a gray hair. When the appearance of firearms renders martial arts obsolete, a full-scale mid-life crisis ensues. Suddenly unemployed, the ninja tries hand at bonsai, metalworking, calligraphy, Go, and intermediate bonsai. Finally ends up as cross-country coach.

Retirement. Watches as country Westernizes, reminisces about bygone days. Sips iced tea, ninja-style. “Will we fight again, old friend?” he asks his trusty katana. The question echoes. Will the ninja strike again? No.

2003-01-08T07:19:00.000-08:00

WHAT THE ...? Larry Summers busts a move to Nelly's "Hot in Herre".

2003-01-07T17:33:00.000-08:00

AN ESPECIALLY ERUDITE critique of The Two Towers film.

2003-01-06T07:32:00.000-08:00

BLAST FROM THE PAST. Turner Buford alerts me to the following interesting passage from 1 Harv. L. Rev. 35 (1887):

In publishing the first number of the Harvard Law Review the editors feel it necessary to offer a few words of explanation. The Review is not intended to enter into competition with established law journals, which are managed by lawyers of experience, and have already a firm footing with the profession.

Our object, primarily, is to set forth the work done in the school with which we are connected....Yet we are not without hopes that the Review may be serviceable to the profession at large....

It will be our aim to develop the Review on the lines we have indicated, in the hope of deserving the support which we have already received. If we succeed, we shall endeavor to enlarge our field as much as is consistent with our plan. If we fail, we shall at least have the satisfaction of believing that our work has been honestly done in the interests of the Law School and of its alumni.

While I think much of the self-effacing humility seen in nineteenth century American writing is more art than heart, it is a decidedly different tone from today's law reviews. Of course, Volume 1 was facing considerable uncertainty -- unlike Volume 1, today's Review is firmly established as well as, quite fortunately, solvent.

2003-01-03T17:00:00.000-08:00

TOLKIEN BLOGBURST. Today would have been old J.R.R.'s eleventy-first birthday, and in honor of the occasion, Meryl Yourish has collected a number of links to Tolkien-related posts.

2003-01-02T15:23:00.000-08:00

POSSIBLE MISTAKE IN THE TWO TOWERS? Michael Scoville perceptively notes that in the scene where Frodo, Sam, and Gollum are on a hill watching some of Sauron's troops march through the Black Gates, the troops approach from the west, when, according to the book, they are the Easterlings, who should approach from the east. (Yeah, yeah, there could be a mountain pass that causes them to hook around, but still...)

2003-01-02T06:54:00.000-08:00

ALTERNATIVE TAKE ON THE TWO TOWERS MOVIE? A female friend writes: "[T]he thing I don't understand is how come Legolas doesn't get any fair maidens. He's not exactly roadkill, so how come Aragorn gets all the action? I mean, are they implying that he's... you know, 'elfish'?"

2002-12-29T18:20:00.000-08:00

ECO-TERRORISM AT THE MOVIES. During a recent trip to the theater, I watched as the property of a budding industrialist was savagely destroyed by a group of radical environmentalists. These rabble-rousers marched in, smashed the machines, and even broke a dam (generally recognized as violating the law in war) in order to flood factories. Why? Because the owner of the land had decided to convert idyllic (but unproductive) forestland into a foundry and defense contracting business.

That's right. I'm talking about the Ents, and their march on Saruman in The Two Towers.

Now, if you're like most audience members, you probably cheered the Ents as they razed Isengard, the walled area where the sorcerer Saruman had for generations lived in his tower, Orthanc. Apparently I'm in the minority, but this widespread support for the Ents surprised me, because Saruman was a budding industrialist, a captain of Middle Earth's economy who supplied work for thousands of orcs, from the foundry workers to the cooks. After all, maggoty bread doesn't make itself. The Ents, on the other hand -- now talk about total tree-huggers.

While I'm sure Treebeard and his Entish friends thought they were doing good, their perspective seems rather limited: sometimes forestland should be cleared for industrial purposes. Isengard may not have been "pretty" after Saruman put it to its more productive use, but neither was nineteenth-century Manchester. On the other hand, there is a certain beauty to efficiently operating industry. Moreover, an admittedly nasty and dirty initial stage of industrialization is often a prerequisite for raising standards of living in the long run. Indeed, the Ents' forests might be better protected a few hundred years' down the road had they not destroyed Saruman's factories, for the technologically advanced society the Ents helped to stunt would be better prepared to protect and conserve environmental treasures. Rather than Saruman, the Ents really should be worried about agrarian Gondor and Rohan, who inevitably are going to bring slash-and-burn techniques to Fangorn Forest as their populations increase without technological improvements to raise the productivity of lands already cultivated.

In the end, it would seem that both Ents and moviegoers are a bit short-sighted about Saruman and Isengard. One can only conclude that, once again, the elves are behind it all.

2002-12-29T13:43:00.000-08:00

THE ADAMS FAMILY. Finally got around to reading David McCullough's fine biography of John Adams, which I've had sitting in the queue for a year. The general raving about the book is justified -- it is a captivating read -- and I wish I had gotten to it earlier. While all due credit should go to McCullough, especially for subject selection and for organizing and filtering the vast amount of writing John Adams and his relatives and friends left behind, the real reason the book is so compelling has to be the magnificent quality of the primary sources McCullough draws on and quotes from at length, mostly John Adams's diary and the wonderful letters he and those close to him (especially Abigail Adams) left behind. Take this exchange with Abigail, who wrote to him while he was away during the First Continental Congress:

If particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any law in which we have no voice or representation. That your sex are naturally tyrannical is a truth so thoroughly established as to admit of no dispute, but such of yours as wish to be happy willingly give up the harsh title of master for the more tender and endearing one of friend....Men of sense in all ages abhor those customs which treat us only as vassals of your sex.

To which John replied:

I cannot but laugh....We have been told that our struggle has loosened the bands of government everywhere....But your letter was the first intimation that another tribe more numerous and powerful than all the rest were grown discontented. This is rather too coarse a compliment but you are so saucy, I won't blot it out.

Depend on it, we know better than to repeal our masculine systems. Although they are in full force, you know they are little more than theory. We dare not exert our power in its full latitude. We are obliged to go fair and softly, and in practice you know we are the subjects. We have only the name of masters, and rather than give up this, which would completely subject us to the despotism of the petticoat, I hope General Washington and all our brave heroes would fight.

Pp. 104-05. While one could easily adopt a feminist approach to these excerpts, viewing Abigail as speaking truth to power and John as the honey-tongued patriarchal oppressor, I think in this case that would be a bit much; I tend to agree with McCullough that both writers are really being playful. In any event, the whole book is filled with similarly memorable quotations. The Adamses' letter-writing was honed beyond even the high standards of the day due to the cumulative decades of separation between John and Abigail, while he was away from Massachusetts at the early Congresses and Constitutional Convention, and during his many years as an American envoy in Europe. Undoubtedly, this celebrated couple wouldn't be nearly so celebrated had they not been separated by John's patriotic duties during much of their marriage, which led to the remarkable mass of letters between the two, which allowed McCullough to paint a particularly insightful and personal portrait of one of the Founders.

2002-12-17T15:52:00.000-08:00

DAVID BRIN ON TOLKIEN. Wonderful piece. I couldn't agree more.

2002-12-16T14:34:00.000-08:00

LAW REVIEWS REDUX: A "STRAW OMAN"? Nate Oman eloquently critiques a position he made up. Taking me out of context, he states that I "see[] the continuation of law reviews for the simple reason that 'students don't want to give up power.'" In fact, in the post he takes that from I was offering a reason the real "solution" to the legal academic publication problem -- keeping student-subcited journals but handing over articles selection for those journals to professors -- will probably never happen. Of course it's true that if academics want to start their own journals law review editors can't stop them, (and indeed there are a handful of these, as I pointed out in the very post Nate critiques) but if you want a painstakingly subcited journal, it's going to have to be done by students, and they're not likely to give up the concomitant power of article selection once they have it.

UPDATE: Read Nate's worthwhile surreply. He accuses me of resorting to the "if-it-is-a-good-idea-it-is-what-I-meant principle" (I prefer to call it a "sympathetic reading"). I certainly prefer that approach to the "if-it-was-in-a-parenthetical-it-must-be-his-main-argument-aproach" employed in Nate's original post.

2002-12-15T09:09:00.000-08:00

SNL POLITICS. Even though it was at times painful, I generally got a kick out of Al Gore's appearance on Saturday Night Live last night (though he wasn't half the showman John McCain was). But things won't really get going until they have Clinton: he could be both host and musical guest. And I don't even want to think about the possibilities for inappropriate skits.

2002-12-14T07:56:00.000-08:00

STUDENT-EDITED v. PEER-REVIEWED. Juan Non-Volokh explains why student-edited law reviews promote academic integrity more than peer-edited journals in other disciplines. The reason -- only law students, paid in prestige, would/could actually painstakingly look up and check every single footnote in the original source. (This process of verifying each footnote is called "subciting", and some reviews actually do it twice per piece.)

So every discipline should go to student-edited, right? Maybe not. The part of the the debate Non-Volokh doesn't go into is the claim that law review editors don't know enough to be able to tell a worthwhile contribution to the field from a candy-coated but academically uninteresting piece. Only professors, or so the argument usually goes, are qualified to do article selection (though I've never heard the claim that students aren't qualified to subcite!). Others counter that student selection keeps the field fresh, helping the legal academy open up to new arguments faster than other fields, where old fuddy-duddies act as gatekeepers and slow down the rate of change in the discipline. There are elements of truth to both views, but the reality is that law review editors are not about to give up their selection power -- one of the real perks of membership -- when they are the ones doing the painstaking labor of subciting (or maybe just because no one likes to give up power once they have it). Thus, it seems unlikely that many peer-reviewed legal journal are going to get going (though there are some) because of path dependency. It may have been happenstance at the start, but the oldest student-edited law reviews have been around for over a hundred years now, and for better or for worse, they're the name brands.

UPDATE: Sasha Volokh offers a nuanced take on the same issue, with some insights from his also-field, economics. Though I wonder if the kinds of sophisticated catches he talks about aren't already largely made thanks to the practice of circulating drafts to ten or twenty other academics. (Check out the shout-outs in the first footnote of just about any law review article. It's like something from a rap/hip-hop album liner.)