The Volokh Conspiracy

For the last 30 years or so, I've kept a kind of "Commonplace Book"** - a collection of writings, anything from a sentence or two to a couple of paragraphs, that I had come across and found particularly well-constructed, or expressing some particularly interesting or profound idea in a special way, which I copied out and stored in a series of notebooks.

** The term "Commonplace Book" is quite ancient, and comes from the Latin locus communis, or "common knowledge." Aristotle and Cicero both discussed the practice of collecting and organizing sententiae, or "wise sayings" or quotations from philosophers, poets, dramatists, and the like, and the list of great writers and thinkers over the years who have assiduously kept their own Commonplace books is impressive, including e.g. John Milton, John Locke (who went as far as publishing a guide to the practice, entitled "A New Method of Making Common-Place-Books), Thomas Jefferson, Erasmus and Charles Darwin, Emerson, Thoreau, Mark Twain, Virginia Woolf, Thomas Hardy, . . .

Somewhat to my surprise, it turned out to be very helpful for my own writing; the practice of simply copying out well-written passages, like the practice of memorizing texts, forces one to dig a little deeper into, and to think a little bit harder about, exactly what the author is doing and why the passage works as well as it does.

I have well over 500 entries in my book, and, skimming them over recently, I found a great deal of interesting stuff in there that I think would be fun to share. So over the next few months I'll pull something out and post it every few days, perhaps with a (brief) commentary on context, or on what I found particularly alluring about the excerpt. I think - or at least I hope - that some of you will find it interesting and illuminating.

**********

This seems like a good place to start:

The wonderful Polish poet Wislawa Szymborska, winner of the Nobel Prize for Literature in 1996, was, from 1968 to 1981, the (anonymous author) of the Literary Mailbox column in the Polish journal Literary Life. It was a kind of "Dear Abby" advice column for aspiring poets and novelists, in which she would answer readers' questions about writing or, more frequently, comment on excerpts that they had submitted. A bunch of her more trenchant (and often hilarious) responses are collected in How to Start Writing (and When to Stop).  I think this is my favorite:

To the Author of 'The Pianist's World':

We advise you—for a few months at least—to read only the great humorists. You won't be wasting time: such activity provides rest and recreation for a mind worn down by its own lyricism. It also demonstrates, incidentally, the folly of excessive self-importance. After this course of treatment, you will see your poems differently. The mood of 'The Pianist's World' will strike you as contrived, and the metaphor "life licks us with a tongue of contrasts" will no longer fill you with writerly pride.

Best regards.

The eleventh episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange has us chatting with Prof. Erin Sheley who brings her personal and professional wisdom to the world of online dating.

Erin found love (and indeed, a fiance) on Bumble after dating app adventures across North America. While last time we had Catgate, this week's episode brings us Fishgate: this vegetarian scholar and her avid fisherman date from the apps did NOT see eye to eye when it comes to how many fish it's okay to kill in a year. Erin also tells the tale of how a man tried to throw her on the train tracks in Calgary and how an intrepid cowboy intervened just in time to save her life!

We will discuss the difficulties in settling down romantically as an itinerant academic, so come join us on this journey from DC to Canada, Oklahoma, Dallas, and finally San Diego.

Also, what exactly was that guy planning to do on their car ride if Erin hadn't sent his info to her friends in advance? Can even a criminal law professor stay safe from crime by strangers on the Internet? We've got the tea - grab a cup and have a listen!

In the oral argument from SFFS v. UNC, Justice Alito raised the question, highlighted in my amicus brief and book, of whether the racial and ethnic classifications used by UNC and other universities are so arbitrary as to be unconstitutional. I have posted the colloquy below.

Two comments:

(1) Justice Alito asks why a student of Afghani heritage should be put in the same classification as a Chinese American. In fact, while this is far from clear from the Common Application itself, officially the Asian American classification ends at the Western border of Pakistan, and Afghan-Americans are white. This just goes to show how arbitrary and confusing the classifications are.

(2) Mr. Park for UNC struggles to explain that UNC both considers each student's ethnicity on an individualized basis, but also relies on box-checking because racial heritage is relevant to one's life experiences: "[Plaintiffs' argue] that race says nothing about who you are. And we just don't think that is true when you look at American society as it exists." But that just gets us back to Justice Alito's question: what common "racial" experiences do, say a Filipino, a Vietnamese, and Bangladeshi American have in common, such that they should be considered members of the same classification? "Asian" seems like a rather arbitrary dividing line, especially given that "racially" Asians may be Caucasian, East Asian, Austronesian, or "other" (like indigenous Malaysians.)

JUSTICE ALITO: I'd like your response to the argument that these racial categories are so broad that any use of them is arbitrary and, therefore, unconstitutional. So what would you say to, for example, a student whose family came from Afghanistan and doesn't get in because the student doesn't get the plus factor that the student would get if the student's family had come from someplace else? So you would say to the student: Well, we don't -- we don't need you to contribute to a diversity of views at our school because we already have enough Asians. We have a lot of students whose families came from China or other Asian countries. And the student says: Well, you don't have anybody like me, I'm from Afghanistan. What -- what similarity does a family background to the person from Afghanistan have with somebody whose family's background is in, let's say, Japan?
MR. PARK: So, respectfully, what you're describing is the exact opposite of how our process actually works on -- on an individualized basis. This is -- we discuss this on page 11 of our brief. There was a Vietnamese student. The admissions office –the admissions officer testified about a Vietnamese student who immigrated to a remote part of North Carolina and thrived in that setting, and she testified, undisputed, that that was a favorable aspect of her application.
JUSTICE ALITO: Well, that's -- that's-- that's an individual aspect of the application and something that has to do with her experience. But what is the justification for lumping together students whose families came from China with someone -- with students whose families came from Afghanistan? What do they have in common?
MR. PARK: So I agree that that would be a strange rule. And that is not the rule that this Court has established. It would require --
JUSTICE ALITO: Well, then why do you have them check a box that I'm Asian? What do you learn from the mere checking of the box?
MR. PARK: So we think that it depends on the individual circumstances of that person, but I am telling --
JUSTICE ALITO: So you don't need the -- you don't need the boxes at all?
MR. PARK: So I think that that is not necessarily true on an individualized basis. So another example, so we -- again, as I discussed, we attempt very vigorously to recruit and enroll rural students, and we don't ask them to write an essay about how being from a rural background affects their, you know, sense of self and their experiences, but what we say is that person comes with something that we value, and –
JUSTICE ALITO: Well, they may choose to write about it, but what's the answer to my question? Why do you have these boxes? Why – why do you give a student the  opportunity to say this one thing about me, I'm Hispanic, I'm African American, I'm Asian? What does that in itself tell you?
MR. PARK: We think that it can in context, on a individualized basis, perhaps not in every case but in some cases, give important information about where that person is coming from and what their experiences have been. And, really, this goes to the heart of the dispute that we have between the parties. So they say on page 53 of their brief that race says nothing about who you are. And we just don't think that is true when you look at American society as it exists.

One originalist argument in favor of allowing the government to engage in "race-conscious" policies is that the post-Civil War Freedmen's Bureau was established to assist freedmen and refugees, the vast majority of whom were black, as Congress was well aware.

During oral argument on Monday, the plaintiff's attorney replied, "The Freedmen's Bureau for the most part did not draw any racial classifications. It was classifications on the basis of being a former slave or a refugee." A law professor tweeted in response, "It's one of the most ridiculous things I've heard in legal argument."

And yet the distinction drawn by the attorney is not ridiculous at all. Imagine an Allied policy in 1946 to help former inmates of Nazi camps, 95% of whom were Jews. This is, on the one hand, "about" race (the Nazis having considered Jews an inferior race), i.e., race conscious. On the other hand, the policy does not single out Jews for assistance based on them being Jews, as such.

Such would be a clear precedent for the notion that you can give assistance to a group that suffered horrific discrimination, knowing that the group is overwhelmingly composed of Jews. It's a much weaker precedent for the notion that the government can in the future, especially 160 years in the future, single out Jews specifically for special treatment, regardless of whether their ancestors were ever persecuted by the Nazis.

It would be an even weaker precedent that one could single out ANY ethnic or religious minority for differential treatment. In the affirmative action context, state universities give preferences to all black applicants, even if they were born in the Caribbean or Africa--and note that African immigrants may be descendants of slavers rather than slaves. They also give preferences to Hispanics, even if they are "white" (of European ancestry). The connection between these policies and the Freedmen's Bureau precedent is far from obvious.

This raises an important point. Lawyers often refer to the question of whether the government can use racial preferences as a question of whether the government may engage in "race-conscious" policies. But this is a misnomer (and one I am guilty of using myself). Affirmative action policies involve not simply consciousness of how a policy affects putative racial groups, but classifying individuals by race.

Imagine two scenarios. The first scenario involves a local government with three high schools. One high school is 60% Hispanic, 20% Black, and 20% White. The second is 60%Black, 20% Hispanic, and 20% White. And the third is 60% White, 20% Black, and 20% Hispanic. The government decides that sound social policy dictates that each school should be 1/3 each group. It therefore proceeds to classify each student by race/ethnicity, and buses them around town to achieve racial balance.

In the second scenario, a town is deciding where to place two new high schools. If it places the high schools in locations A, one school will be 90% White and 10% Black, and the other school will be the reverse. Under plan B, each school will be 50-50. Even though other factors (cost, convenience, etc) slightly favor plan A, the town considers de facto integration to be a value, and therefore decides to go with plan B.

Both scenarios depicted above involve "race consciousness." But scenario A involves different considerations than scenario B. Scenario A involves classifying individuals by racial and ethnic categories, and changing many of their school assignments based on which group they are classified into. Scenario B involves simply placing a school in one location or another, without anyone's assignment specifically being based on his or her racial classification. If demographics naturally shift over time such that the schools move away from the 50-50 preferred balance, no one is going to be forced to switch schools based on race.

Some might argue that both scenarios involve unconstitutional "race consciousness." But it strikes me that the better view is that the classifications involved in school assignment in scenario A are far more troubling under the Equal Protection Clause. Indeed, my inclination would be to say that scenario A is unconstitutional while scenario B is permissible. Being conscious of how government policy may or may not affect social policy seeking integration or relieving the isolation of specific minority groups is just not the same as dictating an individual's rights and remedies based on a government classification of his or her racial status. The latter is both a much greater intrusion on individual rights, and a much more dangerous power to give the government.