The Volokh Conspiracy

The tenth episode (Apple Podcasts link here and Spotify link here) of "Strangers on the Internet" with co-host and psychologist Michelle Lange features philosopher Dr. Rebecca Roache from Royal Holloway, University of London, who is also known for her "The Academic Imperfectionist" podcast. She was listed as one of the top 100 philosophers on Twitter in 2018.

A self-described introvert, Rebecca is of two minds about dating apps these days. Should she bother meeting new men or comfortably stay home, knit, and hang out with her kids and cats? And speaking of cats, come hear about "Catgate", the incident in which a (narcissistic) then-boyfriend became enraged with Rebecca because she dared to pet a stray kitty while the couple was talking! We also discuss how to learn to trust yourself again after falling prey to liars and other predators, and how to get in touch with your sense of intuition that can steer you in the right direction in all things dating.

David Kris opens this episode of the Cyberlaw Podcast by laying out some of the massive disruption that the Biden Administration has kicked off in China's semiconductor industry – and among its Western suppliers. The reverberations of the administration's new measures will be felt for years, and the Chinese government's response, not to mention the ultimate consequences, remains uncertain.

Richard Stiennon, our industry analyst, gives us an overview of the cybersecurity market, where tech and cyber companies have taken a beating but cybersecurity startups continue to gain funding.

Mark MacCarthy reviews the industry from the viewpoint of the trustbusters. Google is facing what looks like a serious adtech platform challenge from many directions – the EU, the Justice Department, and several states. Facebook, meanwhile, is lucky to be a target of the Federal Trade Commission, which rather embarrassingly had to withdraw claims that Facebook's acquisition of Within would remove an actual (as opposed to a hypothetical) competitor from the market. No one seems to have challenged Google's acquisition of Mandiant, meanwhile. Richard suspects that is because Google is not likely to do anything much with the company.

David walks us through the new White House national security strategy – and puts it in historical context.

Mark and I cross swords over PayPal's determination to take my money for saying things Paypal doesn't like. Visa and Mastercard are less upfront about their willingness to boycott businesses they consider beyond the pale, but all money transfer companies have rules of this kind, he says. We end up agreeing that transparency, the measure usually recommended for platform speech suppression, makes sense for Paypal and its ilk, especially since they're already subject to extensive government regulation.

Richard and I dive into the market for identity security. It's hot, thanks to zero trust computing. Thoma Bravo is leading a rollup of identity companies. I predict security troubles ahead for the merged portfolio.

In updates and quick hits:

• The Texas social media law is on hold again, but don't get excited. It is a voluntary deal designed to speed Supreme Court consideration of a review petition.
• Now Ukraine knows how Twitter feels: Elon Musk has changed his mind again. He will not be demanding that Department of Defense pay for the Starlink service Elon rolled out at the start of the war with Russia.
• After catching Google red-handed in what looks like ideological use of a spam filter, the GOP now appears to be overplaying its hand.
• And I predict much more coverage, not to mention prosecutorial attention, will result from accusations that a powerful partner at the establishment law firm, Dechert, engaged in hack-and-dox attacks on adversaries of his clients.

Download the 426th Episode (mp3)

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I am reprinting a post from 2012, again pertinent given that the Supreme Court is about to hear arguments in the Harvard and UNC affirmative action cases. (Harvard is a private university, but under precedent it's held to the same anti-discrimination standards as public universities via Title VI of the 1964 Civil Rights Act).

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici. The brief tries to exploit a weakness in conservative Justices' affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans. The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

I have neither the time nor inclination to check the brief's citations. So let's assume that not just the brief's facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate. It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation. None of the legislation in question grants authority to states to engage in race-conscious legislation. In Fisher the underlying issue is whether a state university may engage in race-conscious admissions. The authors not only don't defend, but don't even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

And indeed, we know that Congress didn't think that, because it passed a Fourteenth Amendment that applied only to the states, and did not deign to apply any sort of new equal protection standard to the federal government, which in turn was not covered by any explicit equal protection guarantee of the sort contained in the Fourteenth Amendment. So I think the brief makes a provocative case that perhaps the federal government should be subject to more lenient standards of race neutrality than the states, an argument that the Supreme Court itself has adopted at times, but abandoned in the Adarand case. And while it's true that the Court now holds that all levels of government are subject to the same equal protection standard, the black letter law is that the federal government is subject to the Fourteenth Amendment's standards, and not the states to whatever standard the federal government should theoretically be held too.

Second, it strikes me that if I were to find the brief persuasive on the Fourteenth Amendment issue, it would only persuade me that all levels of government may at times engage in race-conscious legislation on behalf of African Americans. But in a state like Texas, with a much larger Hispanic population than black population, the primary beneficiaries of affirmative action preferences are Hispanics. The authors provide no evidence that the Framers would have allowed race-conscious preferences for groups other than blacks (and indeed, I believe that Mexican-Americans, the primary Hispanic group in Texas, were (a) in any event considered "white" under federal law and that (b) they were nevertheless subject to federal discrimination, not federal favoritism, at the time the Fourteenth Amendment was being enacted).

More generally, most "minorities" in the United States are not African Americans, with Hispanics outnumbering blacks, plus an additional six percent Asian Americans (who don't usually benefit from admissions preferences–quite the opposite–but who are eligible for many other affirmative action programs), plus another several million Native Americans. Even among African Americans, a significant percentage of the beneficiaries of affirmative action programs, especially on university campuses, are blacks who were never subject to American slavery because they or their ancestors immigrated from Africa or the Caribbean long after the Civil War.

So the CAC brief may provide originalist evidence that the U.S. government should be given more leeway in regard to race-conscious policies than the states get, and, more generously, may provide originalist evidence that even the states may engage in race-conscious programs that benefit the descendants of American slaves. But I'm not persuaded that it's at all helpful in showing that states may willy-nilly benefit any ethnic group it chooses at the expense of any other ethnic group, as, for example, University of Texas does in preferring Hispanic applicants (who are deemed "underrepresented") and disfavoring Asian-Americans (who are deemed "overrepresented").

UPDATE: It's also worth noting that many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as 'white' on census bureau forms. UT's approach, in common with how preferences work in general, is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent, solely because the former have Spanish-speaking ancestors. (Indeed, the "diversity" rationale for affirmative action seems to demand such a policy. In Grutter, the district court found that Michigan Law School gave preferences only Mexican American and mainland Puerto Ricans, but Michigan vigorously denied this, assumedly because it conflicted with the diversity rationale and suggested an illicit social justice rationale for its policies. Grutter's attorneys didn't pursue this point.) So for the brief to be persuasive in defending UT's policies, it seems to me it would need to persuade readers that the fact that the the Reconstruction Congress allowed for race-conscious federal legislation benefiting slaves and descendants of slaves somehow means that the same Congress would have endorsed state preferences based on linguistic heritage, regardless of race and regardless of whether the individuals received the preference or their ancestors had even been subject to de jure discrimination in the United States. That seem like quite a stretch.

One of the stranger phenomena related to the official government racial and ethnic classifications we have all gotten used to (Hispanic, White, Black, Native American, Asian, Native Hawaiian/Pacific Islander) is the way people treat them as true sociological or anthropological classifications. Ironically, when the government established these classifications (with minor modifications in the interim), they came with the warning that the "classifications should not be interpreted as being scientific or anthropological in nature."

Nevertheless, when Steven Spielberg wanted to show he was being "culturally sensitive" to Puerto Ricans in casting West Side Story, he hired a half-Columbian, half-European actress to play Maria because, after all, Puerto Ricans and Columbians are both "Hispanic." This is like showing respect for Quebecois culture by hiring someone of half-Walloon and half-Mexican descent to play a character of French Canadian origin.

Similarly, when Michelle Malkin, a Filipina American, published her book defending the internment of Japanese Americans during World War II, many critics tut-tutted that they couldn't understand how an "Asian American" could write a book defending racism against other "Asian Americans." (E.g., "Her take on the racial politics of the internment of Japanese Americans during World War II is quite outrageous, especially for an Asian American. Even though she has a white name, it doesn't make her so.")

I found it remarkable at the time that it did not occur to any of of these critics that few people think of themselves primarily as "Asian Americans." (Indeed, I've since learned that research shows that fewer than forty percent of "Asian Americans" accept that identity even as a secondary one.) Many Filipinos, meanwhile, have resented (to put it mildly) the brutal Japanese invasion, occupation, and defense of the Philippines during World War II. So, if we looked beyond the government label of "Asian American," it was perhaps less surprising that a Filipina American wrote a book defending mistreatment of Japanese Americans during World War II than if a white author had written it. (Note: I am not suggesting that Japanese Americans should have been deprived of rights thanks the actions of the nation of Japan; rather, I'm just saying that to the extent these policies were a reaction to anti-Japanese hostility arising out of World War II, if you think of someone as a "Filipina" rather than as an "Asian American," the notion that she would be especially unlikely to defend Japanese American internment becomes much less viable.)

Four side notes. First, the West Side Story remake was entertaining, but wholly superfluous given the original. Second, the joke that gave me the post title's can be found here. Third, Malkin has since more explicitly gone off into far right racist looney land, and that may be explanation enough in retrospect. Finally, if you are interested in how our arbitrary classification came about and spread through society, you will want to check out my recent book on the subject.