Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that diversity is good for business. In this Article, I examine this surprising turn of events by investigating the rise of market-based diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers - and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans - depends upon a closer examination of the connection between diversity and business than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients - a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of race-matching, pigeonholing, and moral evasion that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible business case for diversity in their own careers. This paper is part of a symposium on the fiftieth anniversary of Brown v Board of Education held at Harvard Law School on April 15, 2004 in which Richard Ford, Molly McUsic, Frank Michelman, Juan Perea, and Reva Siegel also contributed articles. The Symposium papers were published in Volume 117, Number 5 (March 2004) of the Harvard
50年前，美国顶级企业律师之一约翰·w·戴维斯(John W. Davis)在布朗诉教育委员会案(Brown v. Board of Education)中无偿为种族隔离辩护。50年后，美国企业界似乎已经坚定地接受了多元化对企业有利的信条。在这篇文章中，我通过调查法律行业中基于市场的多样性论点的兴起来审视这一令人惊讶的转变。具体来说，我研究了寻求整合公司律师事务所的黑人律师如何越来越多地将他们的主张押在多元化对律师事务所和客户的业务有益的论点上。尽管多元化倡导者被这些争论所吸引并不奇怪，我认为，这些主张是否真的会为黑人律师带来更多的机会——以及由此产生的多样性是否会反过来进一步推进布朗的另一个目标，即通过法律为所有美国人促进社会正义——取决于对多样性和商业之间联系的更仔细的研究，而不是大多数支持法律职业多样性的商业案例的人愿意承担或甚至承认的。首先，律师们必须面对律师行业的一种根深蒂固的信念，即同质性实际上是最好地为公司和客户服务的——这种信念在律师事务所可能比在美国企业界更难以动摇。与此同时，倡导者也必须意识到，以市场为基础的多元化论点可能会鼓励各种形式的种族匹配、分类和道德逃避，最终会因边缘化和疏远少数族裔律师而损害多元化事业。具有讽刺意味的是，注意到这些复杂性也可能是实现布朗的社会正义目标的关键。整合公司律师是一个相当重要的社会正义问题。然而，如果给美国法律界的精英阶层带来多样性不仅仅是为了加剧法律富人和穷人之间的巨大差距，那么那些占据这些权力位置的人必须有规范的承诺，既能塑造又能约束他们有权势的客户的商业利益。然而，与多样性倡导者的悲观预测相反，他们敦促完全放弃社会正义的多样性论点，有充分的理由相信，那些对多样性保持规范理解、超越公司自身利益的黑人律师，可能在自己的职业生涯中为多样性建立可信的商业案例方面具有重要优势，这是自相矛盾的。这篇论文是2004年4月15日在哈佛法学院举行的布朗诉教育委员会案五十周年研讨会的一部分，理查德·福特、莫莉·麦库西克、弗兰克·迈克尔曼、胡安·佩雷亚和雷瓦·西格尔也在研讨会上发表了文章。研讨会的论文发表在《哈佛法律评论》第117卷第5期(2004年3月)上，并可从该法律评论的网站上获得。
{"title":"From 'Separate is Inherently Unequal' to 'Diversity is Good for Business': The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar","authors":"D. Wilkins","doi":"10.2307/4093260","DOIUrl":"https://doi.org/10.2307/4093260","url":null,"abstract":"Fifty years after John W. Davis, one of America's premier corporate lawyers, took on the defense of segregation in Brown v. Board of Education as a pro bono case, corporate America appears to have firmly embraced the mantra that diversity is good for business. In this Article, I examine this surprising turn of events by investigating the rise of market-based diversity arguments in the legal profession itself. Specifically, I examine how black lawyers seeking to integrate corporate law firms have increasingly staked their claim on the contention that diversity is good for the business of law firms and clients. Although it is not surprising that diversity advocates have been drawn to such arguments, I argue that whether these claims will actually produce greater opportunities for black lawyers - and whether the resulting diversity will in turn further Brown's other goal of promoting social justice through law for all Americans - depends upon a closer examination of the connection between diversity and business than most proponents of the business case for diversity in the legal profession have been willing to undertake or even to acknowledge. As a preliminary matter, advocates must confront the profession's deep commitment to the idea that it is actually homogeneity that best serves firms and clients - a commitment that may be even harder to shake in law firms than it apparently has been in corporate America. At the same time, advocates must also be aware of the danger that market-based diversity arguments will encourage various forms of race-matching, pigeonholing, and moral evasion that can end up harming the cause of diversity by marginalizing and alienating minority lawyers. Ironically, taking note of these complexities may also hold the key to making progress on Brown's social justice goals as well. Integrating the corporate bar is a social justice issue of considerable importance. Nevertheless, if bringing diversity to the elite ranks of the American legal profession is going to do more than accentuate the yawning gap between the legal haves and have-nots, then those who come to occupy these positions of power must have normative commitments that both shape and constrain the business interests of their powerful clients. Contrary to the gloomy predictions of diversity advocates who urge abandoning social justice arguments for diversity altogether, however, there are good reasons to believe that black lawyers who maintain a normative understanding of diversity that goes beyond corporate self-interest may, paradoxically, have important advantages in building a credible business case for diversity in their own careers. This paper is part of a symposium on the fiftieth anniversary of Brown v Board of Education held at Harvard Law School on April 15, 2004 in which Richard Ford, Molly McUsic, Frank Michelman, Juan Perea, and Reva Siegel also contributed articles. The Symposium papers were published in Volume 117, Number 5 (March 2004) of the Harvard","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093260","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730787","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":"Buscando America: Why Integration and Equal Protection Fail to Protect Latinos","authors":"J. Perea","doi":"10.2307/4093258","DOIUrl":"https://doi.org/10.2307/4093258","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093258","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730532","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}
When Brown v. Board of EducationI prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. The case reverberates with conflict, with stories about the possibilities and limits of constitutional law. This Article explores the relation of constitutional principle and constitutional politics in the ways we talk about the decision's meaning. It shows how convictions about the principle on which Brown rests were forged in conflicts over enforcing Brown, and demonstrates how such conflicts have produced indirection and contradiction in doctrines that enforce the equal protection guarantee. By revisiting early arguments about Brown, we are better able to describe the values and concerns that have shaped the development of equal protection law, and to debate those that might shape its future. At the same time, exploring the impress of constitutional conflict in our constitutional commitments invites us to reflect again on the ways that the Court and the nation make claims on one another to ask questions about how the Court forges a constitutional principle that can compel the allegiance of the people whose lives it would constrain. Today, many understand Brown to have ended the era of segregation in America by declaring the constitutional principle that government may not classify on the basis of race. Judicial and popular speakers invoke this Brown, the anticlassification Brown, quite commonly.2 Most recently, the Brown that prohibits classification on the basis of race was prominently cited by proponents of a law that would have outlawed racial data collection by the State of California. Summoning Thurgood Marshall's arguments in Brown, the legacy of Mar-
布朗诉教育委员会案(Brown v. Board of education)禁止在公共教育中实行种族隔离，开启了一场关于公民权平等和联邦制的大辩论，这场辩论持续了20世纪下半叶。这个案件在冲突中回响，在关于宪法的可能性和局限性的故事中回响。本文通过对宪法决定意义的探讨，探讨了宪法原则与宪政的关系。它展示了关于布朗案所依据的原则的信念是如何在执行布朗案的冲突中形成的，并展示了这些冲突如何在执行平等保护保障的理论中产生间接和矛盾。通过回顾关于布朗案的早期争论，我们能够更好地描述影响平等保护法发展的价值观和关注点，并讨论那些可能影响其未来的价值观和关注点。与此同时，探讨宪法冲突对我们的宪法承诺的影响，邀请我们再次反思法院和国家相互要求对方的方式，并提出法院如何制定一项宪法原则，迫使那些生活受到宪法约束的人效忠的问题。今天，许多人认为布朗案宣告了政府不得以种族为基础进行分类的宪法原则，从而结束了美国的种族隔离时代。司法和大众演讲者经常提到这个布朗，即反分类的布朗最近，禁止以种族为基础进行分类的布朗案被一项法律的支持者明显引用，该法律将禁止加利福尼亚州收集种族数据。回顾瑟古德·马歇尔在布朗案中的论点，马丁·路德·金的遗产
{"title":"Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown","authors":"Reva B. Siegel","doi":"10.2307/4093259","DOIUrl":"https://doi.org/10.2307/4093259","url":null,"abstract":"When Brown v. Board of EducationI prohibited racial segregation in public education, it inaugurated a great debate about equal citizenship and federalism that spanned the second half of the twentieth century. The case reverberates with conflict, with stories about the possibilities and limits of constitutional law. This Article explores the relation of constitutional principle and constitutional politics in the ways we talk about the decision's meaning. It shows how convictions about the principle on which Brown rests were forged in conflicts over enforcing Brown, and demonstrates how such conflicts have produced indirection and contradiction in doctrines that enforce the equal protection guarantee. By revisiting early arguments about Brown, we are better able to describe the values and concerns that have shaped the development of equal protection law, and to debate those that might shape its future. At the same time, exploring the impress of constitutional conflict in our constitutional commitments invites us to reflect again on the ways that the Court and the nation make claims on one another to ask questions about how the Court forges a constitutional principle that can compel the allegiance of the people whose lives it would constrain. Today, many understand Brown to have ended the era of segregation in America by declaring the constitutional principle that government may not classify on the basis of race. Judicial and popular speakers invoke this Brown, the anticlassification Brown, quite commonly.2 Most recently, the Brown that prohibits classification on the basis of race was prominently cited by proponents of a law that would have outlawed racial data collection by the State of California. Summoning Thurgood Marshall's arguments in Brown, the legacy of Mar-","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093259","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730566","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":"The Future of Brown v. Board of Education: Economic Integration of the Public Schools","authors":"Molly S. McUsic","doi":"10.2307/4093256","DOIUrl":"https://doi.org/10.2307/4093256","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093256","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68730340","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":"The Theorists' Constitution: And Ours","authors":"N. Feldman, A. Gutmann","doi":"10.2307/4093366","DOIUrl":"https://doi.org/10.2307/4093366","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093366","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731416","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}
This paper explains a function of the legal boundaries of various organizations (such as corporations, security interests and trusts): they define internal capital markets within which capital may be redeployed over time by fiat and over which it may be moved only at greater cost and with greater difficulty. The option to switch capital allocations among available projects is valuable and its value can be enhanced when management of the option is delegated to an informed and loyal agent. However, if the switching option has low value, agents have little private information or agency costs are severe, the principal should constrain the ability of her agent to reallocate capital. She may accomplish this by shrinking the legal boundaries of the relevant internal capital markets: that is, by segregating projects into separate legal organizations. For example, a number of corporate, securities, tax and debtor-creditor law rules make switching between affiliate corporations significantly more costly than within a firm. Security interests and trusts also constrain capital budgeting flexibility. Indeed, the law provides a menu of instruments that, to varying degrees, remove from agents the discretion to adjust capital allocations among projects over time. The paper also examines the charitable sector: the prevailing information conditions and tax rules differ in important respects from those in the commercial sector and they raise interesting internal capital market issues. Capital budgeting flexibility in charities is constrained by charitable trust law principles. In both commercial and charitable sectors, intermediaries offer an attractive alternative solution to the agency tradeoff.
{"title":"Organizations as Internal Capital Markets: The Legal Boundaries of Firms, Collateral and Trusts in Commercial and Charitable Enterprises","authors":"George G. Triantis","doi":"10.2307/4093365","DOIUrl":"https://doi.org/10.2307/4093365","url":null,"abstract":"This paper explains a function of the legal boundaries of various organizations (such as corporations, security interests and trusts): they define internal capital markets within which capital may be redeployed over time by fiat and over which it may be moved only at greater cost and with greater difficulty. The option to switch capital allocations among available projects is valuable and its value can be enhanced when management of the option is delegated to an informed and loyal agent. However, if the switching option has low value, agents have little private information or agency costs are severe, the principal should constrain the ability of her agent to reallocate capital. She may accomplish this by shrinking the legal boundaries of the relevant internal capital markets: that is, by segregating projects into separate legal organizations. For example, a number of corporate, securities, tax and debtor-creditor law rules make switching between affiliate corporations significantly more costly than within a firm. Security interests and trusts also constrain capital budgeting flexibility. Indeed, the law provides a menu of instruments that, to varying degrees, remove from agents the discretion to adjust capital allocations among projects over time. The paper also examines the charitable sector: the prevailing information conditions and tax rules differ in important respects from those in the commercial sector and they raise interesting internal capital market issues. Capital budgeting flexibility in charities is constrained by charitable trust law principles. In both commercial and charitable sectors, intermediaries offer an attractive alternative solution to the agency tradeoff.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093365","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731729","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":"Destabilization Rights: How Public Law Litigation Succeeds","authors":"C. Sabel, William H. Simon","doi":"10.2307/4093364","DOIUrl":"https://doi.org/10.2307/4093364","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093364","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731697","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":"The Second Amendment, so Far","authors":"Stuart Banner, D. Williams","doi":"10.2307/4093463","DOIUrl":"https://doi.org/10.2307/4093463","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093463","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68732722","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":"Note, Underenfranchisement: Black Voters and the Presidential Nomination Process","authors":"J. Driver","doi":"10.2307/4093339","DOIUrl":"https://doi.org/10.2307/4093339","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4093339","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731521","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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