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Prof. Bracey on Articulating Normative Commitments to Racial Preferences:

Bracey: "But asking a law school to articulate and stand behind its normative commitments regarding race preferences -- one way or the other -- strikes me as a good thing to do." I vehemently disagree that this is what the ABA is asking law schools to do; rather, it is requiring all schools to have preferences. But I agree with Prof. Bracey that what he suggests is a good idea, and I'm not sure why he thinks I would object to this. Indeed, my preferred solution to the preferences issue in higher education would be for schools to articulate what preferences they have, how strong these preferences they are, and why they have them, and then defend their position to their constituents and the public at large.

LTEC (mail) (www):
It is my impression that the most recent Supreme Court decision on Affirmative Action makes it specifically illegal for schools (that receive federal funding) to "articulate what [racial] preferences they have". Rather, these preferences must be embedded in a holistic process in a manner that cannot and must not be described.
2.19.2006 11:42am
Duncan Frissell (mail):
There is clearly a movement within the profession to mandate particular political views.

There have been past discussions in the ABA to declare discriminatory actions by lawyers as unethical and subject to discipline. See history here.

In the end the ABA just put a comment into ABA MRPR 8.4:

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

Clearly, many on the Left would like to broadly punish protected political speech through the fake "ethics" process.

Back in the mid '90s when this discussion was going on, a conference speaker told me that he wanted to preserve the right for zealous advocacy to include disciminatory argument but that outside the the advocacy process, discriminatory speech (i.e. traditionalist speech) should be unethical for lawyers.

Which means of course that lawyers couldn't be members of traditional religious organizations or members of conservative political movements.

Even though this position has not been adopted, it has widespread support within the profession.

Note the moot court revolts where left-wing law students (that is law students) refused to argue the "wrong side" in a discrimination case.

The substitution of fake political "ethics" for well established principles of right and wrong is a trend that has to be resisted by conservative and libertarian professionals.
2.19.2006 12:00pm
A Blogger:
Professor Bernstein writes:

I'm not sure why [Professor Bracey] thinks I would object to this.

When reading Professor Bracey's post, it is helpful to understand it in the context of his prior work. See, e.g., his current working draft, The Fashion and Pedigree of Conservative Race Rhetoric.

From the abstract:

This article seeks to . . . examin[e] the dominant rhetorical strategies employed by racial conservatives to oppose progressive racial reform. It identifies and explores the principal body of arguments used by contemporary legal actors to oppose the hallmark of progressive racial reform in the modern era -- race preferences in employment and education -- and maps the pedigree of these arguments by locating their late nineteenth and twentieth century origins. Given the dramatic transformation in American society that occurred over the intervening 150 years, one might reasonably anticipate that the rhetoric of racial conservatism would exude the dynamism and improvisation necessary to keep pace with societal evolution. Interestingly, this has not been the case. To the contrary, the basic set of arguments deployed by racial conservatives today bear a striking family resemblance to core arguments advanced by nineteenth century legal actors to stymie preeminent racial reform efforts following the Civil War. Because rhetoric, ideological conservatism, and racial repression exist in a dialectical relationship in which each mutually reinforces, nurtures, and sustains the others, the longevity of these rhetorical forms in our legal conversations about race prove particularly troubling. It offers a painful reminder of just how contested and deep-seated the disagreement is regarding the current state of American race relations, and how much of our odious racial history remains fundamentally unresolved.
In light if this, it seems likely that Professor Bracey simply expects Bernstein to have a particular set of views because that is Bracey's model of how conservatives think. Bracey's model is wrong, but it leads him to predict all sorts of reactions.
2.19.2006 12:04pm
RJT:
Bracey needs to read some Thomas Sowell before making these idiotic arguments.
2.19.2006 12:31pm
GMUSL 2L (mail):
Given Bracey's apparent love of dialectics, I'm sure he'd argue that Sowell is a victim of False Consciousness.

Personally, I'd take Sowell over most other commentators on racial matters in a heartbeat.
2.19.2006 1:05pm
John Jenkins (mail):
Given that so-called progressivisim is the dominany ideology , wouldn't that make Bracey the one subject to false consciousness? (that's all the neo-marxist pseudo-thought you're going to get from me, though).
2.19.2006 1:24pm
Mackey:
Duncan,

I believe several states maintain canons of judicial conduct require judges refrain from joining discriminatory associations, etc. etc. Is this also an attempt to mandate particular political points of view?

I once was -blind, but it didn't take me long from my comforted suburban life to realize that racial and other forms of equality are still sorely lacking. I reserve some fondness for an ultimately color-blind society but must admit that there substantially greater impediments to racial equality than "preference programs." Which is worse, when a gross of law schools pseudo-explicitly determine a small number of admittances on race or when countless employers, educators, associations, businessmen, etc. implicitly/subconsciously use race to influence their decisions generally?

And... do I love rhetorical questions or what?
2.19.2006 3:07pm
John Lederer (mail):
So let me see if I understand this.

My law school must adopt racial preferences. But , were I ajudge, I would be forbidden from joining the alumni association because I would then be a member of a discriminatory institution's association?

Makes sense to me.
2.19.2006 3:31pm
John Jenkins (mail):
Well, if you join an organization that discriminates vis a vis affirmative action, you get a pass because it's only discrimination if it's *against* a minority group. Yes, I know that's not logical, but that's what *is*, irrespective of its inconsistencies.
2.19.2006 4:03pm
Duncan Frissell (mail):
"But asking a law school to articulate and stand behind its normative commitments regarding race preferences -- one way or the other -- strikes me as a good thing to do."

So Bracey would be perfectly happy if law school X said, "We eschew minority preferences because such policies are a bunch of anti-American Commie garbage (but with smoother rhetoric)"?

I somehow doubt it.
2.19.2006 8:15pm
Stephen M (Ethesis) (www):
What adds some twists to the entire debate is that companies with affirmative action initiatives tend to outperform those without them.

I would really like to see some research comparing those clean, marketplace numbers, with academia.

It seems that the same processes ought to provide similar results, and if they don't, the reasons would be very interesting.
2.19.2006 11:11pm
Grand CRU (mail):
How do we know that Bracey's theory is wrong?
2.20.2006 6:42am
farmer56 (mail):
Stephen M.

You have NO data defining that companies with afermative action programs perform better. That would be called a fact. If that were true? Every single company in the nation would have them. (or maybe they do) Because bosses tend to do easy things that make them money. Its a big shock to the system, but making money is the only thing companies do. so the silly notion that a company would reduce their own profits, is, just that that silly.

Reminds me of the old argument that women make less because, they are women.

The odd fact is that, labor is any companies largest expense any company has. Now lets assume that women earn less $'s for the same job? Now As a manager I would only, exclusively hire women. Because? I would reduce my expenses by 10%, or what ever number is being made up at the moment. BUT! Output is the most important thing, and you (even female managers) will hire the most productive workers.
2.20.2006 12:13pm
Stephen M (Ethesis) (www):

You have NO data defining that companies with afermative action programs perform better.


Actually I do, which got my attention. There are groups that follow those sorts of numbers.

There are market sectors dominated by female hires that have reduced their comparative labor expenses. Think of bank tellers, for example.

I had not considered that part of the argument, but you did manage to make a good example work to illustrate the point. Over and over again traditionally male dominated areas have moved to being dominated by women and labor costs have dropped as a part of the shift.

I realize that there is a belief that a perfect marketplace exists and that everyone makes use of perfect information -- the same sort of belief that made people think that central planning could work.

In reality, business is driven by fads, many of which do not work well, and rent seeking activities. Obviously, it is an imperfect world, which makes central management even more of a disaster.


Its a big shock to the system, but making money is the only thing companies do.


Well, like the ABA, a trade organization that could be expected to maximize the income of its members?

There is a reason so many companies go out of business or lose ground in the marketplace. That is because making money efficiently is not the only thing they are doing.


If that were true? Every single company in the nation would have them. (or maybe they do)


Close. It is a growing trend, interestingly enough, though a quiet one.

But I'm curious about someone doing some research into what seperates academia from the business world and the results therein. Why do they get such different results?

For that matter, assuming that the ABA is doing the logical thing to better the position of its members, what is it doing and why? How does this change make life better for lawyers and improve the market driven situation that is implicit in your assertions as the only thing that a trade organization such as the ABA is driven to do?

Reality may be more complex, or it may not be. (as an aside, if you think I've got answers to the questions, you are greatly mistaken. I have real questions because I don't know the answers, but find them interesting).
2.21.2006 3:46am