Friday, August 02, 2002

Blogging worth reading

* A lot has been written about Grutter v. Bollinger, the Supreme Court's decisions in the Michigan affirmative action cases, but Stanford Law School professor Marcus Cole has penned a passionate and personal indictment of affirmative action. Among other things, Cole writes:

[T]o insinuate that my life is nothing more than an Affirmative Action storyline is the insult that I endure year in, year out. I have done everything I can do to distinguish myself. I've worked hard (scrubbed toilets as a janitor to put myself through college at Cornell, among other things). Yet nothing I do is enough to satisfy anyone on the left that I am their equal without need of their help, or anyone on the right that I am not where I am because of affirmative action.

While I am convinced of the educational benefits of diversity writ large, I worry about the use of race as a proxy for diversity. Partly because of the effects on Marcus Cole and others like him, and partly because of the effects on political discourse. But all of this has been thoroughly discussed.

One aspect of this debate that I have not seen discussed is this: the entire system of "positive preferences" is maintained to ensure racial diversity at a relatively small number of schools. In a world without such preferences, the University of Wisconsin Law School would still have a diverse student body. If one surveyed the entire pool of prospective law school students, plenty of minority candidates would qualify for admission here under a race-blind process. And I suspect the same could be said for most law schools. The need for preferences at the University of Wisconsin arises because higher-ranked schools -- also using preferences -- are getting minority candidates who otherwise would be part of our pool. Of course, this cascade effect begins at the top: Harvard, Yale, Chicago, Columbia, and Stanford apparently cannot obtain the desired level of racial diversity without preferences. (That is not to say that those schools would be entirely devoid of minority students. Marcus Cole is exceptional, but not unique.)

This is a vexing issue, and I don't mean to suggest that this insight settles the matter. But at least we should acknowledge that the benefits of preferences are confined to a small number of "elite law schools," and that many other schools are probably harmed by the system.

* Guest-blogging for Glenn Reynolds, Eugene Volokh takes on Maureen Dowd's silly column on Justice Thomas. Eugene is right about the racial double standard, a problem that seems destined to track Thomas for the rest of his career. David Bernstein exposes another facet of the double standard. Discussing attempts by commentators to explain Justice Thomas' conservative views, Bernstein writes:

None gave any serious weight to Thomas's own explanation, which is that he read a lot, ranging from Ayn Rand to Thomas Sowell, and concluded that libertarianish conservatism made sense. I thought those articles were insulting to Thomas and to blacks in general, and still do. If whites can read and be influenced by Ayn Rand and Thomas Sowell, why can't blacks? And if Scalia can win grudging praise for the sharpness of this legal writings, why can't Thomas, who, if anything, is a bolder and more original thinker than is Scalia?

Good questions.

* Commenting on Lawrence v. Texas, Larry Lessig writes: "at Market and Castro there is a huge Gay Pride flag that flies every day of the year. Huge — maybe the largest flag I have ever seen.... I am told that the day after Lawrence was decided, the Gay Pride flag came down. An American flag was raised in its place."

* Nate Oman offers an entertaining an provacative take on penalty clauses in contract law in his response to Sasha Volokh's post on "utilitarian paternalism." The issue is cigarette taxes and smoking policy, and Nate wonders whether smokers might enter into a "a contract whereby [they] sell to someone my commitment not to smoke in the future." He uses a liquidated damages clause to set the price of breach by the smoker, and "imagines lawyers buying up a portfolio of these promises." Nate suggests that the problem with this idea is that the liquidated damages provision is a penalty clause, which cannot be enforced. (We'll play along for the moment and assume this is the only problem with the idea.) He then argues that enforcement of a penalty clause is justified in this instance as a means of getting around "the problem of hyperbolic discounting" by smokers. During law school, when I was still enamored with public law, I wrote a paper that was related to this question (actually, the paper was about drug legalization), and the missing piece in this exchange is addiction. It isn't clear from the exchange whether addiction is raised in the issue of Regulation that started all of this, but that is possibly the source of the hyperbolic discounting that lies at the core of the problem. In any event, I doubt that taxes, prohibitions, or contracts hold much sway over the addicted, who tend to find ways around such constraints.