CHAPTER INTRODUCTION This study is in the form of Policy Research in the area of Foundations in Higher Education. The issue of affirmative action is both ...

This article argues that because racial inequalities are embedded in American society, as well as in medicine, more evidence-based investigation of the effects and implications of affirmative action is needed. Residency training programs should also seek ways to recruit medical students from underrepresented groups and to create effective mentorship programs.

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred (...) congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language. (shrink)

This essay is about the moral and political justification of affirmative action programs in the United States. Both legally and politically, many of these programs are under attack, though they remain ubiquitous. The concern of this essay, however, is not with what the law says but with what it should say. The main argument advanced in this essay concludes that most of the controversial affirmative action programs are unjustified. It proceeds in a way (...) that avoids dependence on controversial theories of justice or morality. My intention is to produce an argument that is persuasive across a broad ideological spectrum, extending even to those who believe that justice requires these very programs. Though the main focus of the essay is on affirmative action, in the course of making the case that these programs are illegitimate, I shall defend some principles about the conditions under which it is appropriate for the state to impose on civil society the demands of justice. These principles have broader implications for a normative theory of social change in democratic societies. (shrink)

My paper addresses a topic--the implications of Rawls's justice as fairness for affirmative action--that has received remarkably little attention from Rawls's major interpreters. The only extended treatments of it that are in print are over a quarter-century old, and they bear scarcely any relationship to Rawls's own nonideal theorizing. Following Christine Korsgaard's lead, I work through the implications of Rawls's nonideal theory and show what it entails for affirmative action: viz. that under nonideal conditions, aggressive forms (...) of formal equality of opportunity (e.g., sensitivity training, outreach efforts, external monitoring and enforcement) and compensating support (e.g., special fellowship programs, childcare facilities, mentoring, co-op opportunities, etc.) can be justified, but that "hard" and even "soft" quotas are difficult to defend under any conditions. I conclude the paper by exploring the implications of these surprising results for contemporary liberalism more broadly and for constitutional law and public policy. (shrink)

This article examines the legal arguments that may lead the Supreme Court to overrule precedent and strike down affirmative action in university admissions. Given the critical importance of a diverse physician workforce for our Nation’s health care system, the potential reversal of affirmative action admission programs in medical schools may have severe negative consequences. This article discusses the implications for health care should the Court issue an opinion restricting or eliminating affirmative action in (...) higher education. (shrink)

Affirmative action programs are not justified by compensatory justice. They place a disproportionate burden on white-male applicants. White-male applicants do not owe compensation because they committed a relevant wrongdoing or because they benefitted from another’s wrongdoing. They did not commit a relevant wrongdoing. Receipt of an unjust benefit, when unavoidable and mixed with hard work, does not justify a duty to compensate a victim of the injustice. Thus, the compensatory-justice argument for affirmative action fails.

This article describes the racial integration of Emory University and the subsequent creation of Pre-Start, an affirmative action program at Emory Law School from 1966 to 1972. It focuses on the initiative of the Dean of Emory Law School at the time, Ben F. Johnson, Jr.. Johnson played a number of leadership roles throughout his life, including successfully arguing a case before the United States Supreme Court while he was an Assistant Attorney General of Georgia, promoting legislation (...) to create Atlanta 's subway system as a state senator, and representing Emory in its lawsuit to strike down the state statute that would have rescinded its tax exemption if it admitted African American students ). This account supplements my related article on Pre-Start, "'A Bulwark against Anarchy': Affirmative Action, Emory Law School, and Southern Self-Help", providing more information about historical context generally, and particularly about Emory v. Nash. Johnson was ambitious for Emory as a whole, and particularly for the Law School, and he saw in segregation the single largest impediment to making Emory a nationally prominent research university. The story of Emory's integration, and Johnson's leadership, requires revision of the prevailing story of integration generally, and especially of universities. Integration at Emory came about because of the pressure that African Americans and their supporters created through the civil rights movement, but Emory administrators responded to such pressure more constructively than most. Their actions provide an interesting case study in effective leadership during a period of significant moral and political conflict. (shrink)

In the context of state educational institutions, young white males are owed a duty to respect their interest or desert tokens. Not all white males have waived this duty since many white males have not performed the relevant types of culpable wrongdoing. Merely having benefitted from an unjust injury act or being a member of a community that owe a debt of compensation to racial minorities and women are not sufficient grounds to override the duty owed to the white male. (...) Since the three most plausible attempts to provide a compensatory justice justification for strong affirmative action programs at state educational institutions fail, I conclude that the following is false. (1) Other things being equal, a state educational institution may choose to hire a less qualified candidate over a more qualified candidate because the weight given to the race or gender of the less qualified candidate relates to the elimination of a debt of compensatory justice. Hence, unless strong affirmative action programs at state educational institutions can be justified by reference to some other value, such as the value of diversity, the state ought to eliminate such programs. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Contradiction and Legislation Regarding the Right to LifeKevin L. Flannery, S.J.Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny. Edited by Pilar Zambrano and William Saunders, with concluding reflections by John Finnis. Berlin: Peter Lang, 2019.The most fundamental principle of law is the principle of non-contradiction. This is Thomas Aquinas's position in the seminal article on the natural law, Summa theologiae I-II, question 94, article 2, (...) where, citing Aristotle, he formulates the principle as, "One should not simultaneously affirm and negate." Lafter in the same article, Thomas offers a practical formulation of the same principle, "Good is to be done and pursued and evil avoided"; but in law, since it is contained in propositions (airmations and negations) as distinct from ideas regarding the pursuit of goods, the prior formulation is the more immediately relevant of the two.The book under review is important in that, by going through the legal history regarding abortion and related issues in a number of different countries—the United States, Canada, Italy, Spain, Poland, Ireland (Eire), Costa Rica, Argentina, Chile, Mexico, and Peru—it causes to emerge any number of times the realization that legislation and judicial decisions in favor of abortion "rights" invariably infect a legal system with contradictions and inconsistencies of various sorts. The present essay is, therefore, not your typical book review. Its objective is simply to list some of the legal contradictions and inconsistencies identified by the book's various authors as they describe the legal status of the unborn in their respective nations. [End Page 1323]William Saunders's very clear and comprehensive first chapter is entitled, "Judicial Interference in the Protection of Human Life in the United States: Actions and Consequences." In it, he describes, among other things, the Human Cloning Prohibition Act passed by the U.S. House of Representatives in 2003, which prohibited "any person or entity, public or private" from performing human cloning (23). He speaks also of a bill proposed in the U.S. Senate once the Human Cloning Prohibition Act had passed in the House of Representatives. This Senate bill (which was entitle, "The Human Cloning Ban and Stem Cell Research Protection Act") would have prohibited "any person or other legal entity" from conducting human cloning, even while allowing nuclear transplantation, which it defines as "transferring the nucleus of a human somatic cell into an oocyte from which the nucleus... ha[s] been... removed or rendered inert." The problem here, as Saunders explains, is that this latter definition "is the very definition of cloning" (25). In other words, in the same year, two pieces of legislation were considered in the Congress of the United States, both purporting to ban human cloning, one of which would have permitted what the other described (correctly) as human cloning and so prohibited.In the second chapter, "Whither United States Abortion Law?" by Gerard V. Bradley, discussed, among other things, is the inconsistency between the United States Supreme Court's pro-abortion decision Roe v. Wade and various laws, both state and federal, prohibiting feticide. Bradley says of the 2004 federal Unborn Victims of Violence Act that, "in pertinent part it says that 'whoever' 'causes the death of or bodily injury to,' a 'child who is in utero' is guilty of an offense apart from any accompanying offense against the woman carrying the child." The penalty for such an act is the same as would be imposed if the act were inflicted upon the unborn child's mother: if, for instance, the mother was killed. "A child in utero," reports Bradley, "is defined as a member of the species homo sapiens, at any stage of development, who is carried in the womb'" (37).The problem here is that prosecutable under this law are acts identical with those performed legally by abortionists. Bradley mentions two cases in which a woman's male partner—in one case the woman's husband—effected by stealth the abortion of her child. In one case, the male purchased abortion pills and affixed to their container a pharmacy label indicating that it contained a common antibiotic; in the other, the husband obtained the same type of... (shrink)

-/- CONCLUSION “The experience in California is clear. Affirmative action has helped to dismantle barriers such as "old boys' networks" that have excluded not only women and individuals of racial or ethnic minorities, but also white American men who did not belong to networks of privilege. Affirmative action has also worked to ensure that our schools, workplaces, and other social institutions fully use our diverse talents, thereby helping our government and social institutions to better serve their (...) communities. -/- In short, affirmative action has helped to bring out the best in us as a society. It challenges us to have the courage of our convictions that: (1) we do want a truly equal opportunity society; and (2) we believe that all Americans, including women and minorities, are competent individuals who have talents to contribute. Passing the CCRI would completely eliminate affirmative action, and thus have the same effect as "throwing the baby out with the bathwater." The "baby" —active and affirmative commitment to equal opportunity— is barely out of its infancy. We must not now abandon our commitment, just when we have taken our first steps towards creating a truly equal opportunity society.” -/- (This essay was written against the backdrop of legislative efforts in the mid 1990s, to overturn “affirmative action” policies at educational institutions, which had given more equal access to higher education for students from previously under-represented communities, particularly white women but also racialized communities. By mischaracterizing affirmative action programs as “gender or racial preferences”, opponents were able to pass the 1996 ballot measure, Proposition 209, the so-called “California Civil Rights Initiative” (CCRI). The ban on “preferences” gained the support of 54.6% of all California voters, including 58% of white women and 66% of white men voters. Use of language was key, as a slight majority of Americans approved of some affirmative actions but opposed racial preferences. The CCRI has had a huge toll on Latino and African American enrollment at UC Berkeley and UCLA, which has never recovered. State contracts for firms owned by women and minorities also dropped sharply. Similar initiatives failed in some states but succeeded elsewhere. See online Encyclopedia). (shrink)

This essential business ethics text touches on many themes important to future leaders of business. Broad in its scope, the book presents the business aspects of philosophy, law, politics, government policy, and education. The material is designed to heighten the reader's sensitivity to the moral domain existing in business. As the culture of American "big business" has clouded the view of society towards business professionals, Ethics, Law, and Business realizes a need to prepare business students for leadership roles in the (...) communities, as well as in business. This text discusses the basics of free speech, violence, affirmative action, and public education. Filling an important gap, this textbook presents imminently readable information on several business topics. In the past, there was not one or even any combination of books that provided the necessary coverage in a usable format. This book is appropriate for a semester course on business ethics in any graduate or undergraduate program. This textbook will be accompanied by an Instructor's Manual written by Wines and Nancy L. Bodie, Boise State University. It will feature PowerPoint slides, discussion problems, test items, and teaching suggestions. (shrink)

Racial preferences are among the most contentious issues in our society, touching on fundamental questions of fairness and the proper role of racial categories in government action. Now two contemporary philosophers, in a lively debate, lay out the arguments on each side. Carl Cohen, a key figure in the University of Michigan Supreme Court cases, argues that racial preferences are morally wrong--forbidden by the 14th Amendment to the Constitution, and explicitly banned by the Civil Rights Act of 1964. He (...) also contends that such preferences harm society in general, damage the universities that use them, and undermine the minorities they were intended to serve. James P. Sterba counters that, far from being banned by the Constitution and the civil rights acts, affirmative action is actually mandated by law in the pursuit of a society that is racially and sexually just. The same Congress that adopted the 14th Amendment, he notes, passed race-specific laws that extended aid to blacks. Indeed, there are various kinds of affirmative action--compensation for past discrimination, remedial measures aimed at current discrimination, the guarantee of diversity--and Sterba reviews the Supreme Court cases that build a constitutional foundation for each. Affirmative action, he argues, favors qualified minority candidates, not unqualified ones. Both authors offer concluding comment on the University of Michigan cases decided in 2003. Half a century after Brown v. Board of Education, issues pertaining to racial discrimination continue to grip American society. Ideal for courses in political, social, ethical, and legal philosophy, this penetrating debate explores the philosophical and legal arguments on all sides of affirmative action, but also reveals the passions that drive the issue to the forefront of public life. (shrink)

One popular criticism of affirmative action is that it discriminates against those who would otherwise have been offered jobs without it. This objection must rely on the non- consequentialist distinction between what we do and what we merely allow to claim that doing nothing merely allows people to be harmed by the discrimination of others, while preferential programs actively harm those left out. It fails since the present effects of past discrimination result from social arrangements which result (...) from actions of ours. We can be responsible for the effects of past discrimination, even without having discriminated, if we are responsible for that discrimination having those effects. (shrink)

Australia is second only to Israel in being the world’s most culturally diverse nation, based largely on high levels of immigration in the second part of the 20th century. From the 1970s onwards, Australia formally recognized the massive social changes brought about by postwar immigration, and provided legislation to incorporate cultural diversity into everyday lives. One such ‘legislative’ enactment saw the establishment of multicultural broadcasting in Australia, as arguably a world-first, both in its comprehensiveness and diversity. Today, Australia has (...) a public sector corporation, the Special Broadcasting Service, administering five radio services in 68 languages. Also, the Community Radio sector produces multicultural programming in 100 languages through a number of its 330 broadcast and 207 narrowcast stations. This article examines the relationship between radio and its communities. It argues that despite the ‘profile’ of SBS television, radio is much closer to its constituent communities, and therefore plays a greater role in enabling those communities to speak their own histories, beyond the confines of a consensual Anglophile paradigm. (shrink)

This Chapter studies legislative initiatives around sustainable finance deriving from the Action Plan: Financing Sustainable Growth (also called ‘Sustainable Finance Action Plan’, ‘Action Plan’ henceforth), published by the European Commission (‘Commission’) in 2018 (Communication 2018/97). I evaluate various instruments proposed in the Action Plan, using a reflexive law approach coupled with insights from business ethics and epistemology (De Bruin, 2013, 2015). I point to the challenges such an approach encounters, and offer suggestions how to address them. (...) Reflexive law approaches to legislation (Farber 1994, Hess 1999, Orts 1994, Farmer & Teubner 1994) acknowledge the limits of law as an instrument to realize social or political goals, and stress the need to encourage self-reflection and transparency among stakeholders through procedural rather than ‘command-and-control’ legislation. Typical reflexive law instruments involve disclosure, reporting, and labelling. Examining the Action Plan, I show that the main legislative instruments it puts forward are reflexive. I use empirical and theoretical work that challenges the effectiveness of some of these instruments. Drawing on recent work from behavioural economics I suggest that these problems may be overcome once we integrate more fully in reflexive law what it means for people ‘reflectively’ to recruit evidence and gather knowledge, and once we appreciate the value knowledge has over and above mere belief. My argument here is not so much to the effect that more interventionist regulatory tools are needed (they are dearly needed, but that is not the point here). Rather I argue that once a regulator opts for a reflexive law approach, a richer notion of information should be deployed. I call this ‘epistemic’ instead of ‘reflexive’ law. The Chapter gives some background information about the Action Plan, introduces the core ideas of reflexive law, shows how the Action Plan is reflexive law par excellence, considers the challenges, and offers a few modest suggestions. (shrink)

Critiquing any practice, theory, or law, requires understanding the characteristics of the environment which created a need for this law. There are hundreds of different cultures in the world, and each one has its own set of norms, characteristics, and values. What in one country is perceived normal, ethical or unethical, right or wrong, may not be the same somewhere else in the world. The first civilizations begun in Africa and Europe many thousands of years ago when people were hunters (...) and nomads, it is not unreasonable to suspect that many of those traits and characteristics have been socially transferred and/or inherited by future generations. (shrink)

Hodgkin and Huxley’s model of the action potential is an apparent dream case of covering‐law explanation in biology. The model includes laws of physics and chemistry that, coupled with details about antecedent and background conditions, can be used to derive features of the action potential. Hodgkin and Huxley insist that their model is not an explanation. This suggests either that subsuming a phenomenon under physical laws is insufficient to explain it or that Hodgkin and Huxley were wrong. I (...) defend Hodgkin and Huxley against Weber’s heteronomy thesis and argue that explanations are descriptions of mechanisms. †To contact the author, please write to: Department of Philosophy, Philosophy‐Neuroscience‐Psychology Program, Washington University in St. Louis, One Brookings Drive, Wilson Hall, St. Louis, MO 63130; e‐mail: [email protected]. (shrink)

In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of equality that has (...) become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation remains elusive, while the “justice gap” is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice. (shrink)

While affirmative action programs exist for a number of groups, little serious consideration has been given to the establishment of such programs for gay men and lesbians. This essay argues that many of the conditions that justify current affirmative action programs would also justify their extension to gay people, both in terms of compensation for injuries suffered and in terms of benefit to both individuals and society generally. It is argued that anti-discrimination policies (...) are hard to enforce and, in any case, would be inadequate to redress many of the wrongs suffered by gays and lesbians. It is concluded that programs favoring gay visibility are morally justified. (shrink)

The Centers for Disease Control and Prevention’s goal is to develop a surveillance system of public health laws that would both support research and analysis among policymakers and legislators, and support the scientific basis for public health law. This session was convened, in part, to discuss the value of creating an electronic system to track public health legal information. Public health surveillance is the “ongoing, systematic collection, analysis, interpretation, and dissemination of data regarding a health-related event for use in public (...) health action to reduce morbidity and mortality and to improve health. Data disseminated by a public health surveillance system can be used for immediate public health action, program planning and evaluation, and formulating research hypotheses.” There is currently no system available that meets the goals of this definition of “surveillance” for public health laws. (shrink)

The Centers for Disease Control and Prevention’s goal is to develop a surveillance system of public health laws that would both support research and analysis among policymakers and legislators, and support the scientific basis for public health law. This session was convened, in part, to discuss the value of creating an electronic system to track public health legal information. Public health surveillance is the “ongoing, systematic collection, analysis, interpretation, and dissemination of data regarding a health-related event for use in public (...) health action to reduce morbidity and mortality and to improve health. Data disseminated by a public health surveillance system can be used for immediate public health action, program planning and evaluation, and formulating research hypotheses.” There is currently no system available that meets the goals of this definition of “surveillance” for public health laws. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

This study constitutes an ethical analysis through the lens of distributive justice in the case of the Troubled Asset Relief Program (TARP), which was enacted in the midst of the Great Recession of 2007–2009. It begins by engaging with the visions of justice constructed by John Rawls and Robert Nozick, using their insights to locate the injustices of TARP according to their moral imaginations. However, this study argues that Rawls’ and Nozick’s theories of justice primarily envision the nature of law (...) as being restrictive of vice, not as instructors of virtue. Thus, it resources the legal philosophy of St. Thomas Aquinas to demonstrate how the positive pedagogy of law can enable a more just construction of economic rescue legislation, one that not only prevents future repetitions of economic vices and injustice, but is also formative for a society that prizes economic justice and virtues. In doing so, the study proposes two criteria for a more just consideration of economic rescue legislation that embraces law’s positive pedagogy. (shrink)

A significant body of evidence shows that law schools and many elite colleges use large admissions preferences based on race, and other evidence strongly suggests that large preferences can undermine student achievement in law school and undergraduate science majors, thus producing highly counterproductive effects. This article draws on available evidence to examine the use of racial preferences in medical school admissions, and finds strong reasons for concern about the effects and effectiveness of current affirmative action efforts. The author (...) calls for better data and careful investigation of several identified patterns. (shrink)

In this article, the authors operationalize the intersection of gender and race in survey research. Using quantitative data from the Multi-City Study of Urban Inequality, they investigate how gender/racial stereotypes about African Americans affect Whites’ attitudes about two types of affirmative action programs: job training and education and hiring and promotion. The authors find that gender/racial prejudice towards Black women and Black men influences Whites’ opposition to affirmative action at different levels than negative attitudes towards (...) Blacks as a group. Prejudice toward Black women has a larger effect on Whites’ policy preferences than does prejudice toward Black men or Blacks in general. In future research, survey methodologists should develop better intersectional measures to further document these gender/racial attitudes. (shrink)

Though the common sense defense of affirmative action (or employment equity) appeals to principles of restitution, philosophers have tried to defend it in other ways. In contrast, I defend it by appealing to the notion of restitution, arguing (1) that alternative attempts to justify affirmative action fail; and (2) that ordinary affirmative action programs need to be supplemented and amended in keeping with the principles this suggests.

Affirmative action programs remain controversial, I suspect, partly because the familiar arguments for and against them start from significantly different moral perspectives. Thus I want to step back for a while from the details of debate about particular programs and give attention to the moral viewpoints presupposed in differenttypesof argument. My aim, more specifically, is to compare the “messages” expressed when affirmative action is defended from different moral perspectives. Exclusively forward-looking (for example, utilitarian) arguments, (...) I suggest, tend to express the wrong message, but this is also true of exclusively backward-looking (for example, reparation-based) arguments. However, a moral outlook that focuses on cross-temporal narrative values (such as mutually respectful social relations) suggests a more appropriate account of what affirmative action should try to express. Assessment of the message, admittedly, is only one aspect of a complex issue, but it is a relatively neglected one. My discussion takes for granted some common-sense ideas about the communicative function of action, and so I begin with these.Actions, as the saying goes, oftenspeaklouder than words. There are times, too, when only actions can effectively communicate the message we want to convey and times when giving a message is a central part of the purpose of action. What our actions say to others depends largely, though not entirely, upon our avowed reasons for acting; and this is a matter for reflective decision, not something we discover later by looking back at what we did and its effects. The decision is important because “the same act” can have very different consequences, depending upon how we choose to justify it. (shrink)

This paper emplaces arguments about affirmative action today inside a history of racial harms inflicted by public policy during the last heyday of southern power in Congress in the 1930s and 1940s. Showing how social programs utilized occupational exclusions and administrative decentralization to protect the Jim Crow racial order, it argues that assertive remedies can be found that connect the ambitions for affirmative action announced by President Lyndon Johnson at Howard University in 1965 with the (...) principles enunciated by Justice Lewis Powell in the Baake case in 1978. (shrink)

This paper explores the psychological phenomena of sex stereotypes and their consequences for the occurrence of sex discrimination in work settings. Differential conceptions of the attributes of women and men are shown to extend to women and men managers, and the lack of fit model is used to explain how stereotypes about women can detrimentally affect their career progress. Commonly-occurring organizational conditions which facilitate the use of stereotypes in personnel decision making are identified and, lastly, data are provided demonstrating the (...) way in which affirmative action programs and practices can act to promote the stereotyping of women suggesting, that rather than being a remedy for sex discrimination, such programs might in fact be another contributor to the problem. Conclusions focus on the importance of attending to the role sex stereotypes play in hindering women's career progress when procedures to combat sex discrimination in organizations are designed and implemented. (shrink)

Affirmative action refers to positive steps taken to hire persons from groups previously and presently discriminated against. Considerable evidence indicates that this discrimination is intractable and cannot be eliminated by the enforcement of laws. Numerical goals and quotas are justified if and only if they are necessary to overcome the discriminatory effects that could not otherwise be eliminated with reasonable efficiency. Many past as well as present policies are justified in this way.

For the students, while the numbers are up,… the problem that minorities face – and it is persistent – is that there is still too much of a patronizing air in the professional schools. And there's still too much of the notion that if you're here it must be because someone gave you a break and you're different and you really don't belong here. And indeed when my son went off to school four years ago… I really wanted to warn (...) him about the atmosphere that you see on all too many campuses, diat if you're black and walking on campus, that all too many people look at you and say, “You must be an affirmative action product,” whatever that means to them. “You're here only at our good grace.” And no one's looking at the individual. Thinking about it in retrospect, I guess, in some ways I enjoyed an advantage in being [the only black in my law school class]. It was a terrible disadvantage in a lot of ways, but, because I was the only black, the one thing I never faced was anyone ever challenging my intellectual capability. The way they brought this off was to say, “Well, you're different. You're black but you're not really black.” I think it's a lot worse now…. Professional schools are hard enough as it is, and to constantly have the pressure of what others are thinking about you and wondering whether you really belong, that really is a difficult burden. (shrink)

We should adopt the following principle with regard to compensatory justice. (1) If an unjust act benefits an innocent person and there is no reasonable way to assess the amount of damages to the victim, then compensatory justice does not require that the innocent beneficiary pay compensation for those damages. We cannot reasonably assess the amount of damages to current racial minorities that have resulted from past discriminatory acts. Problems arise in determining the identity of the injured parties, the identity (...) of the injuring agents and injuring acts (and omissions), and the degree of injury that directly resulted from these acts (or omissions). Since such compensable damages cannot be accurately estimated and since white male applicants are innocent beneficiaries of past discriminatory acts, the value of compensatory justice does not justify strong affirmative action programs. (shrink)

This valuable resource provides academic and student affairs practitioners with the tools to make informed legal and ethical decisions in their college and university contexts. Law is constantly changing and is interpreted differently from campus to campus based on institutional culture and history. This text provides higher education practitioners with tools to anticipate practical and responsible action, engaging readers in anticipatory and reflective practice. In this text, Boettcher and Salinas introduce the Institutional Intelligence Model, a helpful framework that guides (...) practitioners in examining a wide variety of campus issues. Throughout the book, readers can explore perspectives from current practitioners and utilize case studies to examine specific topics including admissions, academics, student living, confidential resources, and graduate student experiences. By using the strategies in this book, practitioners will be equipped to successfully navigate legal and ethical issues on their campuses. This text is ideal for graduate students, student and academic affairs professionals, and those in leadership positions responsible for working with and supporting students and staff teams. (shrink)

Professor Sterba argues for two interesting and provocative positions regarding affirmative action. First, affirmative action programs are still needed to ensure diversity in educational institutions of higher learning. Secondly, the proponents and opponents of affirmative action are not as far apart as they seem to think. To this end, he proposes a position that would give weight to race as a category for affirmative action that can withstand the challenges of (...) class='Hi'>affirmative action opponents while giving the needed support for affirmative action proponents. It is his contention that both sides can support arguments for diversity affirmative action. This paper raises concerns about the ability of arguments for racial diversity to resolve or bring together opponents and proponents of affirmative action. It is argued that the negative social climate, regarding the social and intellectual merits of black Americans, works against the acceptance of affirmative action programs. In sum, it is argued that Professor Sterba’s position continues to put the social onus of changing racial attitudes on blacks with little or no effort on the part of whites other than allowing blacks admittance to formerly segregated educational institutions to interact with white students. (shrink)

ABSTRACTThe goal of this paper is to locate indirect legislation within Bentham’s art of legislation, and to distinguish it, as far as possible, from direct legislation. Along the way, some parallels are drawn between indirect legislation on the one hand, and the Nudge theory of Thaler and Sunstein on the other. It will be argued that many expedients categorized by Bentham as indirect legislation are simultaneously exercises of direct legislation. Another set of indirect expedients (...) act on knowledge, and involve efforts to eliminate asymmetries of information between potential offender and potential victim by providing official standards and disseminating a plethora of factual information. Other forms of indirect legislation threaten the coherence of Bentham’s theory of law, firstly by regarding all government actions as exercises in legislation, and secondly by turning the formers of public opinion into legislators. Insofar as some forms of indirect legislation operate by sleight of hand, they conflict with Bentham’s commitment to transparency in the exercise of public power, reflecting a tension between reality and appearance which runs through his thought. (shrink)

This chapter discusses major theories of domestic justice in the context of South African Constitutional, statutory and case law. It begins by considering when it is permissible for legislators to restrict civil liberty. South Africa's Parliament has criminalised prostitution, liquor sales on Sundays and marijuana use, actions that few liberals would say should be illegal. However, South African law permits abortion, gambling and homosexual relationships, which many conservatives would criminalise. Is there any deep inconsistency here? Should South Africa become more (...) liberal or less? Then, this essay takes up the issue of the way the law ought to govern the distribution of personal property such as houses, TVs and money. Is it permissible for the state to force those who have acquired wealth without using force or fraud to give some of it to those with less? Libertarians say that it is not permissible, while redistributivists say that it is. If the latter are correct, are wealthy South Africans giving their fair share, and is the South African state redistributing it in the right way? Next, the discussion considers whether the law should protect private property, something that capitalists affirm and socialists deny. Despite its socialist disposition before the end of apartheid, the ANC has decisively promoted private ownership of the means of production. Has this been appropriate? Is there a 'third way' between the communism of the East and the capitalism of the West that South Africa should pursue? The chapter concludes by providing a brief summary of the use of legal coercion in the new South Africa along with readings for further consideration. (shrink)

Pierre Manent is one of France's leading political philosophers. This first English translation of his profound and strikingly original book La loi naturelle et les droits de l'homme is a reflection on the central question of the Western political tradition. In six chapters, developed from the prestigious Étienne Gilson lectures at the Institut Catholique de Paris, and in a related appendix, Manent contemplates the steady displacement of the natural law by the modern conception of human rights. He aims to restore (...) the grammar of moral and political action, and thus the possibility of an authentically political order that is fully compatible with liberty rightly understood. Manent boldly confronts the prejudices and dogmas of those who have repudiated the classical and (especially) Christian notion of "liberty under law" and in the process shows how groundless many contemporary appeals to human rights turn out to be. Manent denies that we can generate obligations from a condition of what Locke, Hobbes, and Rousseau call the "state of nature," where human beings are absolutely free, with no obligations to others. In his view, our ever-more-imperial affirmation of human rights needs to be reintegrated into what he calls an "archic" understanding of human and political existence, where law and obligation are inherent in liberty and meaningful human action. Otherwise we are bound to act thoughtlessly and in an increasingly arbitrary or willful manner. Natural Law and Human Rights will engage students and scholars of politics, philosophy, and religion, and will captivate sophisticated readers who are interested in the question of how we might reconfigure our knowledge of, and talk with one another about, politics. (shrink)

In print for the first time in over ten years, Act and Crime provides a unified account of the theory of action presupposed by both Anglo-American criminal law and the morality that underlies it. The book defends the view that human actions are always volitionally caused bodily movements and nothing else. The theory is used to illuminate three major problems in the drafting and the interpretation of criminal codes: 1) what the voluntary act requirement both does and should require; (...) 2) what complex descriptions of actions prohibited by criminal codes both do and should require ; and 3) when two actions are 'the same' for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book both contributes to the development of a coherent theory of action in philosophy, and it provides both legislators and judges a grounding in three of the most basic elements of criminal liability. (shrink)

The U.S. Supreme Court's seminal 1978 Bakke decision, now 25 years old, has an ambiguous and endangered legacy. Justice Lewis Powell's opinion provided a justification that allowed leaders in medical education to pursue some affirmative action policies while at the same time undermining many other potential defenses. Powell asserted that medical schools might have a "compelling interest" in the creation of a diverse student body. But Powell's compromise jeopardized affirmative action since it blocked many justifications for (...) responding to increases in political opposition and legal challenges. The Bakke decision and itsmoral background and legal legacy are traced and analyzed. Despite recent legal setbacks, the framework sketched by Powell can be used to defend diversity inmedical education bothmorally and legally as a "compelling state interest." Because trust is a central component of the physician-patient relationship and a prerequisite to the profession's ability to provide effectivemedical care, the state has a compelling interest in training physicians with whom patients can feel comfortable and safe if the population is distrustful; underserved; faces significant discrimination in the allocation of benefits, goods and services and affirmative action programs would be likely to promote their trust in the system. Similar narrowly-tailored arguments could be used in other professions and for other groups. Bakke is an important background for the pending Grutter case. (shrink)

In recent years, legal studies have increased the focus on contemporary social issues involved in law and society. This volume discusses the traditional subjects covered in other law and society texts and eliminates the need for a separate reader by also including chapters on controversial legal topics including affirmative action, education, the death penalty, right to work laws, and abortion. Each chapter builds on the previous ones and includes concrete examples of the issues involved. Supplemented with ample pedagogical (...) features, the book is designed to encourage students in the development of new insights on the relationships between law and society. (shrink)

This paper presents a lesson plan originally designed for applied ethics classes filled with primarily white, conservative students. In an environment where students used the terminology of “reverse discrimination” and “quotas” rather than “Affirmative Action,” the author employs a fictionalized example of a claim jumper and the rightful owner’s entitlement to the claim in order to present basic arguments for compensatory justice. These arguments are extended by analogy to the issue of Affirmative Action in order to (...) deliver several key points: First, the “discrimination” of Affirmative Action programs is restitution, even if modern white people are not responsible for the privilege they possess, and thus Affirmative Action is not the same as the discrimination suffered by African-Americans. Second, an extraordinarily high number of African-Americans are still suffering as a result of past injustices. Third, while theoretical opportunity may exist for African-Americans today, true equal opportunity does not. Appended to this paper are a number of statistics relevant to the Affirmative Action debate and an Affirmative Action bibliography. (shrink)

The puzzle arises because propositions of law seem to be descriptive—they are about how things are in the law, not about how they should be—and yet it has proved extremely difficult to say exactly what it is that they describe. Legal positivists believe that propositions of law are indeed wholly descriptive: they are in fact pieces of history. A proposition of law in their view, is true just in case some event of a designated law-making kind has taken place, and (...) other wise not. This seems to work reasonably well in very simple cases. If the Illinois legislature enacts the words "No will shall be valid without three witnesses, "then the proposition of law, that in Illinois will needs three witnesses, seems to be true only in virtue of that historical event.But in more difficult cases the analysis fails. Consider the proposition that a particular affirmative action scheme is constitutionally valid. If that is true, it cannot be so just in virtue of the text of the Constitution and the fact of prior court decisions, because reasonable lawyers who know exactly what the constitution says and what the courts have done may yet disagree whether it is true. What are the other possibilities? One is to suppose that controversial propositions f law, like the affirmative action statement, are not descriptive at all but are rather expressions of what the speaker wants the law to be.Another is more ambitious: controversial statements are attempts to describe some pure objective or natural law, which exits in virtue of objective moral truth rather than historical decision. Both these projects take some legal statements, at least, to be purely evaluative as distinct from descriptive: they express either what the speaker prefers—his personal politics—or what he believes is objectively required b the principles of an ideal political morality. Neither of these projects is plausible because someone who says that a particular untested affirmative action plan is constitution does mean to describe the law as it is rather than as he wants it to be or thinks that, by the best moral theory, it should be. He might, indeed, say that the regrets that the plan is constitutional and thinks that, according to the best moral theory, it ought not to be.There is a better alternative: propositions of law are not simply descriptive of legal history, in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, which combines elements of both description and evaluation but is different from both. This suggestion will be congenial, at least at first blush, to many lawyers and legal philosophers. They are used to saying that law is a matter of interpretation; but only, perhaps because they understand interpretation in a certain way. When a statute is unclear on some point, because some crucial term is vague or because a sentence is ambiguous, lawyers say that the statute must be interpreted, and they apply what they call "techniques of statutory construction." Most of the literature assumes that interpretation of a particular document is a matter of discovering what its authors meant to say in using the words they did. But lawyers recognize that on many issues the author had no intention either way and that on others his intention cannot be discovered. Some lawyers take a more skeptical position. They say that whenever judges pretend they are discovering the intention behind some piece of legislation, this is simply a smoke screen behind which the judges impose their own view of what the statute should have been.Ronald Dworkin, professor of jurisprudence at Oxford University, is the author of Taking Rights Seriously and editor of The Philosophy of Law. (shrink)

Collective Action, Philosophy and Law brings together two important strands of philosophical analysis. It combines general philosophical inquiry into collective agency with analyses of specific questions about plural entities and activities in the legal domain. These are issues of growing interest in areas of philosophy like action theory and social ontology, as well as in philosophy of law. The book contains thirteen original chapters written by an international team of leading philosophers and legal theorists, and is divided into (...) four clear parts: The nature of law and of legislative intention Practical reasoning and duties Causality, blameworthiness, and responsibility Citizens, states, and institutions. These sections cut across, and build on, different accounts to advance the debate on classical and new issues in collective agency. Each part also features legal-philosophical analyses that draw on general accounts of collective agency to cast new light on the law, descriptive as well as normatively. Collective Action, Philosophy and Law is the first major interdisciplinary and multi-authored work bridging legal and philosophical approaches to collective agency. As such, it is essential reading for students and researchers of philosophy of law, ethics, political philosophy, jurisprudence, and legal theory. (shrink)