Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights with Justice Holmes’s overall “bad man” approach to the law. I argue further that Mims’s rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which passed legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.
{"title":"You Can't Go Holmes Again","authors":"Lumen N. Mulligan","doi":"10.2139/SSRN.2005970","DOIUrl":"https://doi.org/10.2139/SSRN.2005970","url":null,"abstract":"Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights with Justice Holmes’s overall “bad man” approach to the law. I argue further that Mims’s rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which passed legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"107 1","pages":"237-284"},"PeriodicalIF":1.9,"publicationDate":"2012-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67845699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How Judges Judge","authors":"Corey Rayburn Yung","doi":"10.2139/ssrn.1758710","DOIUrl":"https://doi.org/10.2139/ssrn.1758710","url":null,"abstract":"","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.9,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67736101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reforming the Filibuster","authors":"Gerard N. Magliocca","doi":"10.2307/j.ctt2005z6g.15","DOIUrl":"https://doi.org/10.2307/j.ctt2005z6g.15","url":null,"abstract":"105 Northwestern University Law Review 303 (2010)","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"105 1","pages":"303-328"},"PeriodicalIF":1.9,"publicationDate":"2010-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68738359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.
{"title":"Privileges or Immunities","authors":"Philip A. Hamburger","doi":"10.7916/D85H7FQ6","DOIUrl":"https://doi.org/10.7916/D85H7FQ6","url":null,"abstract":"What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"105 1","pages":"61-147"},"PeriodicalIF":1.9,"publicationDate":"2010-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71364482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Yale law professor Jack Balkin has recently argued in three forthcoming law review articles that originalism and living constitutionalism are compatible contrary to the claims of Supreme Court Justice Antonin Scalia. This essay explores Balkin's claims, agrees with him to some extent, but suggests a number of subjects on which Balkin needs to say more. Balin's writing is powerful, but we argue his approach to constitutional interpretation is in tension with some of the core fundamental principles of constitutionalism itself.
{"title":"Two Cheers for Professor Balkin's Originalism","authors":"S. Calabresi, L. Fine","doi":"10.2139/SSRN.1294787","DOIUrl":"https://doi.org/10.2139/SSRN.1294787","url":null,"abstract":"Yale law professor Jack Balkin has recently argued in three forthcoming law review articles that originalism and living constitutionalism are compatible contrary to the claims of Supreme Court Justice Antonin Scalia. This essay explores Balkin's claims, agrees with him to some extent, but suggests a number of subjects on which Balkin needs to say more. Balin's writing is powerful, but we argue his approach to constitutional interpretation is in tension with some of the core fundamental principles of constitutionalism itself.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"103 1","pages":"663-702"},"PeriodicalIF":1.9,"publicationDate":"2008-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68158821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article we provide a comprehensive and original critique of the free speech theories of two of the most heralded scholars of all time, Alexander Meiklejohn and Robert Post, and in so doing employ their theories as a foil for the development of an entirely new theory of free expression, grounded in precepts of "adversary democracy." Both Post and Meiklejohn purport to ground their theories of free expression in democratic theory, but both misperceive the true normative and descriptive nature of American political theory, and in any event both fashion free speech theories that undermine even their own perceptions of democracy. While the two differ in important ways, they share a common theme: an appeal to notions of cooperative democracy and the common good. In this sense, both share the same flaw: the failure to recognize that the essence of democratic theory is recognition of the need to permit the peaceful resolution of adversarial interests grounded either in citizen self-interest or personal ideology. The goal of free expression, then, should be to foster the resolution of these competing interests through citizens' strategic framing of arguments in an effort to convince others to share their interests. While our theory of expressive adversary democracy protects everything that both Meiklejohn and Post would protect, it goes further to also shield expression that fails to satisfy either the communitarian interests fostered by Meiklejohn or the collectivist interests fostered by Post.Professor Post has expressed an interest in preparing a response to our article.
{"title":"Understanding Post's and Meiklejohn's Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression","authors":"Martin H. Redish, Abby Marie Mollen","doi":"10.2139/SSRN.1177788","DOIUrl":"https://doi.org/10.2139/SSRN.1177788","url":null,"abstract":"In this article we provide a comprehensive and original critique of the free speech theories of two of the most heralded scholars of all time, Alexander Meiklejohn and Robert Post, and in so doing employ their theories as a foil for the development of an entirely new theory of free expression, grounded in precepts of \"adversary democracy.\" Both Post and Meiklejohn purport to ground their theories of free expression in democratic theory, but both misperceive the true normative and descriptive nature of American political theory, and in any event both fashion free speech theories that undermine even their own perceptions of democracy. While the two differ in important ways, they share a common theme: an appeal to notions of cooperative democracy and the common good. In this sense, both share the same flaw: the failure to recognize that the essence of democratic theory is recognition of the need to permit the peaceful resolution of adversarial interests grounded either in citizen self-interest or personal ideology. The goal of free expression, then, should be to foster the resolution of these competing interests through citizens' strategic framing of arguments in an effort to convince others to share their interests. While our theory of expressive adversary democracy protects everything that both Meiklejohn and Post would protect, it goes further to also shield expression that fails to satisfy either the communitarian interests fostered by Meiklejohn or the collectivist interests fostered by Post.Professor Post has expressed an interest in preparing a response to our article.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"103 1","pages":"1303-1370"},"PeriodicalIF":1.9,"publicationDate":"2008-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1177788","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68150340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.
{"title":"Phony Originalism and the Establishment Clause","authors":"A. Koppelman","doi":"10.2139/SSRN.1125482","DOIUrl":"https://doi.org/10.2139/SSRN.1125482","url":null,"abstract":"The \"originalist\" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"103 1","pages":"727-750"},"PeriodicalIF":1.9,"publicationDate":"2008-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Delaware Supreme Court shifted its corporate-law jurisprudence in the post-Enron period, replacing its historic deference to corporate management with uncharacteristic scrutiny. Commentators claim that this shift was a result of the looming federal threat to Delaware's primacy. Not surprisingly, perhaps, with the federal threat abating, Delaware's strategy has changed. In this article, I explore the court's state of mind in the post-post-Enron era through the lens of a particular case, VantagePoint Venture Partners 1996 v. Examen, Inc. In VantagePoint, the court declared that the internal affairs doctrine (providing that the law of the state of incorporation governs disputes among directors, officers, and shareholders) is a constitutional mandate, and hence, that other states are barred from regulating the internal affairs of Delaware firms. This decision not only removes any doubt that the Delaware Supreme Court acts to further Delaware's chartering market interests, but also exposes Delaware's new fears and ambitions. And I contend it was designed to do no less than chart the future course of American business entity law. The Empire has, indeed, struck back. VantagePoint highlights often overlooked aspects of the current structure of entity law. Despite its dominance and advantages in attracting entity charters, Delaware remains vulnerable to other states' choosing not to adhere to the internal affairs doctrine. This threat is made more acute by changes in the chartering markets. Unlike most states, Delaware relies heavily upon revenues from incorporations. In recent years, Delaware's domination in the market for publicly traded firms has been failing to produce the benefits it once did. However, Delaware is now filling the gap through the dramatic growth in revenues from chartering of closely held firms (most notably LLCs). In light of its reliance upon these revenues, Delaware has incentives to expand greatly its chartering business in the closely held context, particularly since any federal preemption of state corporate law is likely to be limited to publicly traded firms. The VantagePoint decision - which addresses a California statute purporting to apply domestic law to a shareholder dispute within a closely held Delaware corporation - suggests that the Delaware Supreme Court is very much aware of these conditions and of this burgeoning market's particular vulnerability to outside regulation. The Delaware Supreme Court designed VantagePoint to further these interests in an unconventional way. Doctrinally dubious, the decision is not likely to persuade other jurisdictions through the unforced force of reason. Rather, it is intended to deter other states from regulating the affairs of Delaware entities and to create the very conditions - the appearance of ongoing interstate conflict - that might convince federal actors to prevent other states from doing so. The deployment of VantagePoint by Delaware's natural allies in corporate choice-o
{"title":"Delaware's Vantagepoint: The Empire Strikes Back in the Post-Post-Enron Era","authors":"Timothy P. Glynn","doi":"10.2139/SSRN.966449","DOIUrl":"https://doi.org/10.2139/SSRN.966449","url":null,"abstract":"The Delaware Supreme Court shifted its corporate-law jurisprudence in the post-Enron period, replacing its historic deference to corporate management with uncharacteristic scrutiny. Commentators claim that this shift was a result of the looming federal threat to Delaware's primacy. Not surprisingly, perhaps, with the federal threat abating, Delaware's strategy has changed. In this article, I explore the court's state of mind in the post-post-Enron era through the lens of a particular case, VantagePoint Venture Partners 1996 v. Examen, Inc. In VantagePoint, the court declared that the internal affairs doctrine (providing that the law of the state of incorporation governs disputes among directors, officers, and shareholders) is a constitutional mandate, and hence, that other states are barred from regulating the internal affairs of Delaware firms. This decision not only removes any doubt that the Delaware Supreme Court acts to further Delaware's chartering market interests, but also exposes Delaware's new fears and ambitions. And I contend it was designed to do no less than chart the future course of American business entity law. The Empire has, indeed, struck back. VantagePoint highlights often overlooked aspects of the current structure of entity law. Despite its dominance and advantages in attracting entity charters, Delaware remains vulnerable to other states' choosing not to adhere to the internal affairs doctrine. This threat is made more acute by changes in the chartering markets. Unlike most states, Delaware relies heavily upon revenues from incorporations. In recent years, Delaware's domination in the market for publicly traded firms has been failing to produce the benefits it once did. However, Delaware is now filling the gap through the dramatic growth in revenues from chartering of closely held firms (most notably LLCs). In light of its reliance upon these revenues, Delaware has incentives to expand greatly its chartering business in the closely held context, particularly since any federal preemption of state corporate law is likely to be limited to publicly traded firms. The VantagePoint decision - which addresses a California statute purporting to apply domestic law to a shareholder dispute within a closely held Delaware corporation - suggests that the Delaware Supreme Court is very much aware of these conditions and of this burgeoning market's particular vulnerability to outside regulation. The Delaware Supreme Court designed VantagePoint to further these interests in an unconventional way. Doctrinally dubious, the decision is not likely to persuade other jurisdictions through the unforced force of reason. Rather, it is intended to deter other states from regulating the affairs of Delaware entities and to create the very conditions - the appearance of ongoing interstate conflict - that might convince federal actors to prevent other states from doing so. The deployment of VantagePoint by Delaware's natural allies in corporate choice-o","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"102 1","pages":"91"},"PeriodicalIF":1.9,"publicationDate":"2007-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.966449","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67914228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the Supreme Court issued its controversial decision in Employment Division v. Smith, scholarly commentary has, for the most part, been harshly critical. Preeminent scholars of the Religion Clauses, including Michael McConnell and Douglas Laycock, consistently have attacked Smith as an entirely illegitimate - and largely indefensible - interpretation of the Free Exercise Clause. The critics suggest that Smith fails to protect religious liberty adequately and urge that it be reversed in favor of the prior regime of strict judicial scrutiny of neutral laws of general applicability that burden religiously motivated conduct. If one frames the Free Exercise Clause in terms of advancing religious autonomy, these criticisms have substantial merit. Autonomy, however, need not serve as the principal value of the Free Exercise Clause. Advancing the equality of religious sects could serve as an alternative vision for the clause. Perhaps paradoxically, empirical legal research clearly establishes that Smith actually reduced disparities between the religious liberties of dominant and minority religious groups. Moreover, if one considers the legislative history of the Free Exercise Clause, the relevance of psychological research on the construction and recognition of particular groups as legitimate "religions" (as opposed to "sects" or "cults"), and normative considerations about the proper role of free exercise in a democratic polity, an equalitarian approach represents a better means of framing and enforcing the Free Exercise Clause. However, the article also argues that even if Smith better advances equality values than did Sherbert and Yoder, an equalitarian approach to free exercise doctrine requires stronger efforts at preventing religious discrimination than Smith undertakes.
自从最高法院在“就业部门诉史密斯案”(Employment Division v. Smith)中发表了有争议的裁决以来，学术评论在很大程度上一直是严厉的批评。研究宗教条款的杰出学者，包括迈克尔·麦康奈尔(Michael McConnell)和道格拉斯·莱科克(Douglas Laycock)，一直抨击史密斯对自由行使条款的解释是完全不合法的，而且在很大程度上是站不住脚的。批评者认为，史密斯未能充分保护宗教自由，并敦促将其推翻，以支持对普遍适用的中立法律进行严格司法审查的先前制度，这些法律对宗教动机的行为负有责任。如果从促进宗教自治的角度来定义《宗教自由条款》，这些批评就有很大的价值。然而，自治不一定是自由行使条款的主要价值。促进宗教派别的平等可以作为该条款的另一种愿景。也许矛盾的是，实证法律研究清楚地表明，史密斯实际上缩小了主流宗教团体和少数宗教团体之间的宗教自由差距。此外，如果考虑到“自由行使条款”的立法历史，对特定群体作为合法“宗教”(而不是“教派”或“邪教”)的建构和承认的心理学研究的相关性，以及对自由行使在民主政体中适当作用的规范性考虑，平等主义方法代表了构建和执行“自由行使条款”的更好手段。然而，这篇文章还认为，即使史密斯比舍伯特和约德更好地推进了平等价值观，但对自由行使原则的平等主义方法需要比史密斯更努力地防止宗教歧视。
{"title":"If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith","authors":"Krotoszynski, J. Ronald","doi":"10.2139/SSRN.958065","DOIUrl":"https://doi.org/10.2139/SSRN.958065","url":null,"abstract":"Since the Supreme Court issued its controversial decision in Employment Division v. Smith, scholarly commentary has, for the most part, been harshly critical. Preeminent scholars of the Religion Clauses, including Michael McConnell and Douglas Laycock, consistently have attacked Smith as an entirely illegitimate - and largely indefensible - interpretation of the Free Exercise Clause. The critics suggest that Smith fails to protect religious liberty adequately and urge that it be reversed in favor of the prior regime of strict judicial scrutiny of neutral laws of general applicability that burden religiously motivated conduct. If one frames the Free Exercise Clause in terms of advancing religious autonomy, these criticisms have substantial merit. Autonomy, however, need not serve as the principal value of the Free Exercise Clause. Advancing the equality of religious sects could serve as an alternative vision for the clause. Perhaps paradoxically, empirical legal research clearly establishes that Smith actually reduced disparities between the religious liberties of dominant and minority religious groups. Moreover, if one considers the legislative history of the Free Exercise Clause, the relevance of psychological research on the construction and recognition of particular groups as legitimate \"religions\" (as opposed to \"sects\" or \"cults\"), and normative considerations about the proper role of free exercise in a democratic polity, an equalitarian approach represents a better means of framing and enforcing the Free Exercise Clause. However, the article also argues that even if Smith better advances equality values than did Sherbert and Yoder, an equalitarian approach to free exercise doctrine requires stronger efforts at preventing religious discrimination than Smith undertakes.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"102 1","pages":"1189"},"PeriodicalIF":1.9,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67908741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While the Supreme Court upheld some affirmative action programs as constitutional in 2003, the wisdom of affirmative action as a policy decision remains hotly contested. In the law school context, the challenge is to determine how affirmative action policies affect law schools, law students, and the legal profession. This paper takes up one strand of this challenge, estimating how minority students would fare in a world with different affirmative action policies than those currently implemented. I posit a model of law school performance that controls for entering credentials and allows for a mismatch between student and school (where the student is outmatch by his fellow students). The model also allows for differences in the law school experience for students of different races, which may be the result of discrimination or other differences in the way that law school cultures affect students. The results indicate that, if anything, reverse mismatch boosts the performance of students with low credentials. Using monte carlo simulations of graduation and bar passage with bootstrapped standard errors, I find that removing affirmative action policies decreases the number of new black lawyers each year by 13.4% ± 5.2%. This is in direct conflict with a recent study by Richard Sander that estimates an increase in the number of new black lawyers. Sander, however, assumes that there is no discriminatory effect on law student performance, and therefore confounds discriminatory effects with the mismatch effect in his analysis. Finally, recognizing that the data upon which I and others rely is imperfect and unable to provide a definitive answer regarding whether the mismatch theory applies in the law school context, I suggest some experimental additions to the data to correct for these problems.
{"title":"Is Affirmative Action Responsible for the Achievement Gap between Black and White Law Students","authors":"Katherine Y. Barnes","doi":"10.2139/SSRN.913411","DOIUrl":"https://doi.org/10.2139/SSRN.913411","url":null,"abstract":"While the Supreme Court upheld some affirmative action programs as constitutional in 2003, the wisdom of affirmative action as a policy decision remains hotly contested. In the law school context, the challenge is to determine how affirmative action policies affect law schools, law students, and the legal profession. This paper takes up one strand of this challenge, estimating how minority students would fare in a world with different affirmative action policies than those currently implemented. I posit a model of law school performance that controls for entering credentials and allows for a mismatch between student and school (where the student is outmatch by his fellow students). The model also allows for differences in the law school experience for students of different races, which may be the result of discrimination or other differences in the way that law school cultures affect students. The results indicate that, if anything, reverse mismatch boosts the performance of students with low credentials. Using monte carlo simulations of graduation and bar passage with bootstrapped standard errors, I find that removing affirmative action policies decreases the number of new black lawyers each year by 13.4% ± 5.2%. This is in direct conflict with a recent study by Richard Sander that estimates an increase in the number of new black lawyers. Sander, however, assumes that there is no discriminatory effect on law student performance, and therefore confounds discriminatory effects with the mismatch effect in his analysis. Finally, recognizing that the data upon which I and others rely is imperfect and unable to provide a definitive answer regarding whether the mismatch theory applies in the law school context, I suggest some experimental additions to the data to correct for these problems.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"101 1","pages":"1759-1808"},"PeriodicalIF":1.9,"publicationDate":"2006-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67877534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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