A NOTE ON SUCCESSFUL PARENTS.

A lot of critics of affirmative action like to point out that Jesse Jackson's kid would get 20 points of preferential treatment where some poor trucker's son would not. True enough, and probably unfair. But it's worth keeping in mind a few things.

1. This problem highlights the dangers of the point system to begin with; I have a hard time imagining it would not be corrected for in a system like the law school's, which assigns no rigid values.

2. There are still arguments to be made (although I'm not necessarily the one who will make them) about how such decisions are justified for reparational (is that a word?) purposes.

3. And finally, most importantly: this doesn't happen very often, empirically, because there just aren't that many Jesse Jackson's in the world (at least relative to all the Fortune 500/BW 2000 CEOs, COOs, CFOs, divisional presidents, directors of marketing, &tc. &tc. &tc.) Someone once asked how we would know that affirmative action had done its job. My suggestion then (and I think it is still good today): in about 20 years GE will choose another chairman. If, at that point, there are credible minority candidates among the finalists, and if those candidates represent, in turn, a diverse group of people inhabiting the corporate, legal and social power centers, then we know that we are closer than we are today. But we ain't there yet, folks. We ain't even close.

(To put it another way: how much money does Jesse Jackson make? how many divisional vice presidents make as much? and does anyone want to take a guess at what their demographics are? I don't know the numbers, but will try to find out in the next couple of days).

A LINK, A LINK, MY KINGDOM FOR A LINK.

Phil Carter was kind enough to link to Rule 11 (and compliment my rather scatter-brained conlaw analysis below). So now let me return the favor: Phil's blog, drawing on his military experience, is a well-organized and interesting read focusing, at least in part, on the military angle to many of today's stories. Ten minutes spent on it is worth far more than it would be on some of our more famous warblogger breathren.

A FEW MORE THOUGHTS ABOUT KOREMATSU

Eric Muller, whose kind link brought me my first real traffic, responded to my argument by saying:

Don't get me wrong here. I don't deny the odiousness of the racism at the heart of the Roosevelt program. (Au contraire, mon vieux: I wrote a book about it.) *** But I'm trying to do something a bit different here. I'm trying to figure out what we're really worrying about when we worry that the Bush administration might be making (or moving toward making) "the mistake" of the Roosevelt Administration's program against Japanese Americans. And so I'm trying to imagine a world without each of the hypothetical explanations of the mistake of Korematsu, and asking whether this imagined changed would have avoided a mistake we'd still be talking about, and frightened of repeating. If the imagined change wouldn't do that, then that's not a viable candidate for "the mistake" of Korematsu. See? So sure, if the government's program had included German and Italian immigrants and their children, and the Court had then upheld it in Korematsu v. United States (and, I guess we might add, its hypothetical sister cases of United States v. Joe Dimaggio and Ex Parte Felix Frankfurter), it would have been a somewhat different tragedy from the one the real Korematsu case bequeathed us. But we'd still be talking about it ... and worried about repeating it.
So that one's still out.

A few quick responses:

1. I never meant to suggest that Eric minimized the odiousness of the racial aspect of Korematsu; my apologies if it left anyone with that impression.

2. I now understand, a little better, what Eric is attempting to find out through his thought experiment. But I'm still not willing to give up on Ex Parte Frankfurter & US v DiMaggio; we had problems with "profiling" and bigotry against German-Americans during World War I, but never hear much about that now. (Quick response, I suppose, is that a) the bigotry was never as severe; b) it was never, to the best of my knowledge, codified or condoned by the legal system; and c) had it been more severe or codified, it would have not satisfied Eric's test). But I'm still disturbed, as I think many people are, about the parallels between the racial and ethnic focus of Korematsu and the current racial and ethnic focus on anyone that is, or looks like they may be, of Arabic heritage.

3. If I have to vote on one of the remaining choices about the "mistakes" of Korematsu, I would vote for #3: that "it allowed the government to proceed against an entire group of people on the basis of an inference from national origin and ethnicity rather than demanding individualized assessments of loyalty and risk of subversion." I choose this for a couple of reasons. One, I think it is a predicate (or could be understood as a predicate) to the other potential mistakes Eric lists. Second, I think it is the one where the hypothetical impact is easiest to see, as is the outrage it would generate. (Although, in fairness, I think that #2 could be understood this way, too).

QUESTIONS ABOUT KOREMATSU. I, like just about every other lawyer on the planet, deplore the Supreme Court decisions in the 1940s that led to the mass, unjustified internment of Japanese-Americans. Eric Muller, whose new blawg "IsThatLegal?" is a new daily must-read for me, poses a series of challenging questions about what exactly constitutes the "mistake" of Korematsu. He suggests many alternatives, but soon rules one out:

OK, let's take one of the accounts of "the mistake of Korematsu" out of the running. It's an easy one. While the selectivity of the government's national-origin-based suspicions (that is, singling out Japanese Americans) was quite offensive to any plausible norm of equality, this just can't be what we really mean when we refer to "the mistake" of the Korematsu case. Imagine that the government had evicted all of the East Coast's German and Italian aliens, and all of its American citizens of German and Italian ancestry (including, of course, people like Mayor LaGuardia of New York, and Justice Felix Frankfurter), and put them in camps. Would we no longer refer to "the mistake" of Korematsu?

I don't want to go to the mat defending Korematsu, or the sort of reasoning that Professor Muller outlines, but I think he discards this potential "mistake" much too quickly. Yes, we would still talk about the "Korematsu mistake" had the government interned Mayor LaGuardia or Justice Frankfurter, but the nature of that mistake would have radically changed. Part of the real odiousness of Korematsu is the racist assumption that obviously underlies it, which differentiates it from the monumental policy and constitutional mistake of interning all Americans of some "Axis" descent.

To put it another way: when we judge the constitutionality of speech or religion-affecting laws, one test used is whether the proposed regulation is over or under-inclusive. One of many things wrong with Korematsu is that it seems massively under-inclusive related to the purported goal of securing the United States from sabotage or internal attack. (Especially, I would guess, in light of the activities that gave rise to Ex Parte Quirin, but I don't know enough about that to be too sure.)

So where do I end up? Yes, even if the racial disparity of Korematsu was corrected, we would still refer to it as a mistake, for all the other reasons Professor Muller lists. But the nature of the mistake would be radically different (one of the reasons we insist on proper tailoring, I think) and, I guess, somewhat lesser. Maybe along the lines of the Red Scares of the '50s.


HAS HE NO MERCY? I think that How Appealing's new "20 Questions with a Federal Judge" is a great idea, but I was shocked and saddened to see Judge Smith's attacks on the new clerkship hiring plan. Speaking as one who went through the old system, where the first three months of my 2L year were spent frantically trying to 1) decide which firm to work at the next summer; 2) complete (or at least make a good start on) my student note; and 3) apply for clerkship, I think that Judge Smith is way out of touch with the needs of his clerks and clerk-applicants, whether they admit it or not. Yes, in loco parentis shouldn't be necessary for budding professionals and their professors, but let's face it: the unregulated market forced everyone to move forward, less they miss out on a valuable, fun, and almost irreplaceable experience. Judge Smith keeps talking about how the plan will fail, but that's anticipating a result based in part on his own noncompliance with the suggested norms.

Also, I think his concerns are far overstated. Judge Smith argues that a system "without deadlines is the best market, because it recognizes the geographical and personal differences among judges, law schools, and students, and affords the greatest opportunity for judges and applicants to evaluate each other." Perhaps, but I'm not sure why moving the entire process into the third year of law school fails to allow similar advantages--students are just as capable of flying to all parts of the country during their third year as they are during their second, and I don't see how the current system (with a de facto starting line of late summer/early fall of the 2L year) allows any greater flexibility. What's so grand about having your life planned out 2 years in advance?

I do, however, want to thank Judge Smith for his comments on "exploding offers." A plague on the current system, and one that largely deprives it of the benefits he cites--a measured opportunity by the clerk to evaluate the judge's offer.


DEADLINES. I've been gone longer this week than I thought, so my posting has been much less than I wanted it to be. In particular, there have been some interesting things posted on Discriminations recently that I'd like to comment on. But, unfortunately, this weekend doesn't look much better: I foresee a Saturday and Sunday (pre-Super Bowl, of course) in the office, so I can't promise there will be much more. But I hope to keep trying, and eventually, when my cable modem is installed and my work-work subsides, I hope to resume (and maintain) a daily posting schedule.

YEAH, WHAT HE SAID. Jack Balkin pretty much covers everything I could say about the "colorblindness" of the "equal protection clause," originally understood. I kinda feel like the kid at the edge of the village who was so busy hurling pebbles at the tank that he didn't hear the field howitzer role up behind him and start firing. I hope at some point he will start discussing how the other modalities (text, structure, ethos, etc.) also fail to provide support for the "colorblindness" argument. If not, maybe I can get to it later in the week.

PROMISES, PROMISES, PART THREE. I had hoped to spend some time today working through Croson and Adarand, but work intervened, alas. And this afternoon I found out that I will be travelling the next couple of days and since my broken down laptop can't be moved anymore, that means I will be out of touch. Not that anyone will notice; if sitemeter is correct, Eugene Volokh who was kind enough to look at my site once and offer me suggestions, has been my only visiter. (If a blogger posted in the woods and no one read him . . . )

AND YOU KNOW MY NAME IS SIMON. One suggestion Eugene offered was that I should at least offer a name, if not a more full description of who I am. I'm a nonpracticing lawyer with some, er, complicated workplace politics that prevent me from revealing my identity, but in case anyone reads this and wants to send me an email, some friends call me "Simon."

SUPER BOWL PREDICTIONS. The line, according to Peter King, is Raiders by 3-1/2. I'm not a bettin' man, but if I were, I'd take the Bucs. I think that the Raiders will be in for a tough surprise about just how hard it is to run an offense against a Super Bowl-caliber defense. See, e.g., Pats/Rams in 2002, Ravens/Giants in 2001, Rams/Titans in 2000. (Yes, I know the Rams won that game, but their offense sputtered throughout).

AND FINALLY-- HOW IS SUPER WAL*MART LIKE LAW SCHOOL? Both demand (and reward) close reasoning by analogy. Tonight I ventured to the local Super Wal*Mart in search of some basic staples. I decided, for a change of pace, to get some beef jerky. But what is beef jerky most closely related to? Is it other meat? (No, because all the other sorts of meat have to be refridgerated). Is it dried fruit? (A good guess, but not in Wal*Mart's eyes). Canned meat? (Nope). Turns out that beef jerky is found in and near . . . potato chips.

Whatever.

TAMPA BAY 27, PHILLY 10.

I wouldn't have guessed the margin would end up that big. But a good win for Tampa, and good for Chuckie Gruden for acknowledging his debt to Tony Dungy--whose spirit still inhabits that defense. (Although I oftentimes wonder just where the hosannas come from--my high school team ran a pretty decent cover-2 in our day, and Terry Bradshaw didn't seem excited about it then.)

AND NOW ON TO SOMETHING REALLY IMPORTANT.

Bucs 17, Iggles 14. I think the Tampa Bay defense will make McNabb wish he had stayed on the disabled list, and AJ Feeley will realize that the playoffs are a little different.

[UPDATE: I stand by my prediction, even after watching Brian Mitchell's return and the subsequent touchdown.]

Raiders 27, TItans 20. I don't see how the Titans can score enough to keep up with Messrs Rice, Gannon, Brown et al.


I missed seeing the end of Outside the Lines last weekend, and so didn't hear Rich Lowry counsel "patience" when it comes to integrating the NFL head coaching profession. For the record, statement displays a stunning ignorance and insensitivity toward the history of race relations in the sport. And, I fear, it reflects an unspoken attitude in areas other than football as well.

BACKSLIDING, PART ONE. And how sure are we that ours is a colorblind society?