The Volokh Conspiracy

Say, you're interested in rats? I'm interested in them, too! And I'm interested in the same outcome for them as you are.

Source: UPI / HealthDay News (Cara Munez). Of course, the notion of cats having been domesticated as ratters and mousers isn't anything new; I just liked the "shared interest in rats" formulation.

Simkovic, over at Leiter's Law School Reports, defends the LSAT from those who would eliminate it in an effort to enhance law school "diversity" (see the original for hyperlinks supporting various assertions):

If standardized test scores were removed from the rankings, or their weight reduced, law schools probably would spend less money on merit scholarships. But there is no guarantee that this money would be spent to help students from poor families. Indeed, affirmative action, as practiced by elite law schools, generally involves the admission of students from high income families who benefited from high quality K-12 and college educations, and who can afford to pay full tuition. Many students who are diverse because they are Hispanic are also white and no less wealthy than their non-Hispanic white peers.

Affirmative action, as practiced by many universities, does not screen for individual circumstances, family history of suffering or moral culpability for the suffering of others, or anything closely related to moral desert. These programs were initially ostensibly intended as remediation for enslavement of African Americans and forceful expropriation from Native Americans. But in practice, the benefits and costs to individuals turn only on people's willingness to check boxes on a self-report form or write a well-crafted "diversity statement", knowing that there is substantial upside and little risk to claiming to be 'diverse' in the particular way that will gain favor from admissions officers. Economists have found that many people change their self-reported racial and ethnic identities in response to incentives created by affirmative action. Numerous studies find that the rich exhibit more entitled and less honest behaviors than the general population, so this self-report diversity regime likely benefits the rich, entitled, and dishonest at the expense of both the truly disadvantaged and meritocratic efficiency and desert.

There is no mechanism to prevent diversity programs from benefiting the wealthy direct heirs to the fortunes of Spanish Conquistadors, slave traders, plantation owners, Inquisitors, and war criminals. Nor is there any mechanism to exempt from official discrimination those who families suffered from serfdom, slavery, genocide, or famine overseas or subsequent discrimination in the United States: serfs, concentration camp survivors, Jews, Mormons, Huguenots, Armenians, Poles, Ukrainians, and other Eastern Europeans, Copts, Irish, Boers, Kosovars, Bosnians, Italians, Middle Easterners, among others.

Rather than screen for moral desert based on sources of family wealth or documented persecution of direct progenitors, universities have allowed heirs to shady fortunes to donate their way into our classes and onto our boards. At the same time, we preach a self-righteous, self-serving ideology, and treat those who challenge it with hostility. This ideology maintains that moral responsibility for slavery turns not on inheritance of wealth misappropriated from slave labor, but rather on racial and ethnic identity, regardless of individual economic circumstances. Universities with large endowments benefit at the expense of innocent applicants who we scapegoat for the sins of our aristocratic donors.*

My bet is that if the rankings emphasized standardized test scores less, most law schools would shift even more toward serving students from wealthier backgrounds, and would also increase their net prices and the shadow price of expected donations from students' families. In other words, law schools—like the unreformed, less effective, and corrupt British Navy of old—would sell seats to the highest bidder.

Idiosyncratically defined diversity will likely continue to serve as a rationalization for profit-maximizing practices. Educators, public officials, and media organizations have been arguing for decades that diversity justifies departures from identity-neutral meritocratic standards. Nevertheless, most of the population still considers universities' race, ethnicity, and legacy admissions policies unethical. They prefer test scores, grades and community service.

FWIW, when I was at Yale Law, first semester was pass/fail, so there was no objective way for employers to determine how one was performing in law school. The result was a clear pattern: students with connections, who went to the most elite private colleges (Harvard, Yale, Princeton, Stanford and the like), or otherwise appeared attractive on rather subjective grounds to employers got summer jobs at big firms. My friends who went to excellent-but-not-quite-Harvard undergrads like Berkeley, Trinity, or SUNY Binghamton, and who didn't have parents who were prominent lawyers, politicians, or the like did not. So agree or disagree overall with Simkovic, it does strike me that the absence of the objective indicator of grades un-leveled the playing field, and I think the same would happen in law school admissions.

Prompt: Write an essay about Lochner v. New York in the style of David Bernstein

Answer: Lochner v. New York is a landmark case that was decided by the United States Supreme Court in 1905. The case involved a challenge to a New York state law that regulated the working hours of bakers. The law was challenged on the grounds that it violated the Due Process Clause of the Fourteenth Amendment, which protects individuals' rights to liberty and property.

In his opinion, Justice Rufus Peckham, writing for the majority, held that the law was unconstitutional because it interfered with the right to contract between an employer and an employee. According to Peckham, the law violated the "liberty of contract" that was protected by the Due Process Clause.

The decision in Lochner v. New York has been widely criticized by legal scholars and historians. Many have argued that the Court's decision was based on a narrow and misguided interpretation of the Due Process Clause, and that it was driven by a laissez-faire ideology that was out of step with the realities of the time.

For example, David Bernstein, a legal scholar and historian, has argued that the Court's decision in Lochner was based on a flawed and outdated understanding of the Constitution. According to Bernstein, the Court's emphasis on "liberty of contract" ignored the broader social and economic context of the time, and failed to account for the ways in which the law could have protected workers from exploitation and abuse.

Furthermore, Bernstein has argued that the Court's decision in Lochner had far-reaching and negative consequences for workers and society. By striking down laws that regulated working conditions, the Court effectively gave employers the ability to impose dangerous and unhealthy conditions on their employees. This, in turn, contributed to the rise of sweatshops and other forms of exploitation, and helped to fuel the growth of labor unions and other forms of worker organization.

In conclusion, Lochner v. New York was a misguided and harmful decision that ignored the realities of the time and failed to protect the rights and interests of workers. Its legacy continues to be felt today, as debates over the role of government in regulating the economy and protecting workers' rights continue to shape our society and legal system.