Feb 062003

Turns out Canada has a “notwithstanding clause,” “a rarely-exercised legislative veto allowing some individual rights to be suspended, explicitly, where a statute conflicts with them.” (Cosh: it’s not just hockey and Canadian football any more.) Hey, great: just like Article 48 of the Weimar Constitution! You remember, that was the one Hitler used to suspend the Constitution and declare himself dictator. I propose to christen these “Wormer clauses,” after Dean Wormer’s classic line in Animal House: “There’s a little-known codicil in the Faber College Constitution granting the Dean unlimited powers in times of campus emergency.”

Jan 292003

Goodwin Liu has exposed, in the Washington Post and at greater length in the forthcoming Michigan Law Review, a flaw in the thinking of affirmative action opponents that he calls the “causation fallacy.”

Affirmative action is widely thought to be unfair because it benefits minority applicants at the expense of more deserving whites. Yet this perception tends to inflate the cost beyond its real proportions. While it is true that affirmative action gives minority applicants a significant boost in selective admissions, it is not true that most white applicants would fare better if elite schools eliminated the practice. Understanding why is crucial to separating fact from fiction in the national debate over affirmative action…

…Allan Bakke, a rejected white applicant who won admission in 1978 to the University of California at Davis’s medical school after convincing the high court that the school’s policy of reserving 16 of 100 seats each year for minority students was unconstitutional. For many Americans, the success of Bakke’s lawsuit has long highlighted what is unfair about affirmative action: Giving minority applicants a significant advantage causes deserving white applicants to lose out. But to draw such an inference in Bakke’s case — or in the case of the vast majority of rejected white applicants — is to indulge in what I call “the causation fallacy.”

This is a “fallacy,” according to Liu, because the vast majority of rejected white applicants would still be rejected, even without affirmative action. This fallacy works in mysterious ways. The lower the standards for black applicants, the more rejected whites clear the bar. The more rejected whites with better credentials than accepted blacks, the less certain it is that any particular white would have been admitted if there were no affirmative action. It follows, from Liu’s logic, that the lower the standards for blacks as opposed to whites, the less cause for whites to complain!

Liu makes a big deal of the fact that Gratz and Bakke very likely wouldn’t have been admitted regardless, and in any case couldn’t be sure. He then publishes the following table, of admissions rates at “five highly selective universities” (this is thanks to Ampersand, who takes it from Liu’s full Law Review article, which I haven’t read and isn’t yet online):

SAT score
< 1000
Black rate
White rate
Rate w/o AA

One wonders, first, what the raw numbers are. They would be easy to include and would prove instructive. (The nice round numbers in the upper rows in the black column make me suspect that we are dealing with a vanishingly small sample size.) It is fishy that the percentages of whites admitted in the upper percentiles declines without affirmative action. Ampersand comments that “[a] white student with a combined score below 1000 has a 96.7% chance of rejection from a selective school with affirmative action, and a 93.3% chance of rejection if aa didn’t exist. In either case, the odds are overwhelming she’ll be rejected; and the primary reason for the rejection is her poor SATs, not her race.” An opponent of affirmative action might retort that whites with such scores would have twice as good a chance at admission. This is a fine example of how to lie with statistics.

But the overwhelming question about this data is, how does he know? If Bakke and Gratz can’t prove that they would have been admitted in the absence of affirmative action, how can Liu establish the SAT distribution in its absence?

Ampersand also notes how whiny the AA plaintiffs are:

Anti-affirmative action lawsuits are not put forward by whites who would have gotten in to a selective college if only affirmative action didn’t exist. They’re put forward by whites who have such a strong sense of entitlement that they can’t admit they failed to gain admission because, on the merits, they didn’t deserve admission.

Well maybe, but Gratz and Bakke are paragons of virtue compared to Miranda, Escobedo, Gideon, and other plaintiffs in famous Constitutional cases. Spy magazine once ran a little story profiling such plaintiffs called “Dirtball Heroes of the Constitution,” and there isn’t an AA plaintiff who would even come close to qualifying. In any case, aren’t you supposed to take the plaintiff as you find him?

This whole business of percentages disguises the fundamental fact that for every black applicant who is admitted because of affirmative action there is a white applicant who is rejected for the same reason. We may not know which white applicant, but that fact is immaterial. Liu suggests “rethinking the conventional view that a race-conscious admissions policy pits whites against minorities in a zero-sum game,” but a zero-sum game is precisely what it is, and what it has to be.

Jan 232003

Philosoblogger Jim discusses slippery slopes today:

It is obviously an unjust society that lets cripples and children die of starvation and exposure. I don’t see how that is a misuse of the term “unjust” in ordinary usage. (I’m not arguing all of the unfortunate can be helped, that’s Paul Wellstone-ism, not my view.

No one has ever shown that the slippery slope to socialism exists. You can imagine slippery slopes anywhere. “One drink, and you’ll inevitably become an alcoholic.” “Give the state the power to imprison citizens, and it will eventually imprison people arbitrarily, en masse, with no justification.” America doesn’t let cripples die, and it still isn’t socialist. We use reason and debate to stop ourselves from slipping.

The argument is certainly not respectable as he puts it. In my family we used to call it The Fatal Glass of Beer Theory, after a W.C. Fields short whose plot you can imagine. It is easy to do something in moderation; people, and even governments, manage it all the time.

Slippery slope theorists, however, rarely make the argument in this bald form, and if they do it isn’t really what they mean. They are asking for a principle, an intellectualy tenable distinction, something beyond “less” and “more.” One can drink so long as it doesn’t seriously impair one’s ability to function. The state can imprison people so long as they have violated the rights of others. The state can seize assets from its citizens to keep cripples from dying so long as — well, this time it’s not so simple. To ask for a distinction between seizing assets to help some of the unfortunate a little and seizing them to help all of the unfortunate a lot — between Jim’s position and “Wellstone-ism” — seems to me a perfectly respectable demand.

(Update: Jim answers.)

(Another: Eugene Volokh has posted a draft of his forthcoming Harvard Law Review article on this very subject.)

Jan 032003

(To the tune of “Maria,” from The Sound of Music)

He builds a nuke without rebuke
Then asks for foreign aid.
He thumbs his nose at those who will
Clean up the mess he’s made.
Amassing troops at the border,
Dear Leader’s not an asset to world order.

He’s always breaking treaties,
But his penitence is real.
If things have worked out badly
He’ll just make another deal.
I hate to have to say it
But I very firmly feel
Dear Leader’s not an asset to world order!

I’d like to say a word in his behalf.
Dear Leader makes me laugh!

How do you solve a problem like Korea?
How do you reason with the barking mad?
How do you find the words for our Dear Leader?
A cineaste! A communist! A cad!