Eric Muller asks a difficult question about Korematsu, as part of his ongoing reflections about the relationship (or lack of relationship) between the internment of Japanese-Americans and events of the past year and a half.

Eugene Volokh's been standing up for truth which, in this odd case, means standing up for Cynthia McKinney's reputation.

It's generally been the case that the internet has worsened the old "falsehood around the world/ truth putting on its boots" thing. By the time a correction had been made, the lie, rumor, or urban legend had been forwarded from e-mail to e-mail hundreds of thousands of times. Bloggers, at least sometimes, can give the truth a serious acceleration boost. For all that blogging seems like amateur pundits commenting on professional reporters, one of the most valuable services we provide is simple but public fact-checking.

John Lott, scholar

I haven't said much about the John Lott affair directly; just this rumination on the Mary Rosh thing. But I've been reading Tim Lambert's updates as well as associated commentary by folks such as Kieran Healy. The IRB question Kieran raises had occured to me, but I didn't follow up. Here's how it now looks to me:

Even if Lott conducted the survey exactly as he says he did, it was sloppy, shoddy, and pretty dramatically invalid. It shouldn't have been used as the basis even for one sentence in the book, much less for a claim that he repeated over and over and over again. If, as seems likely, he didn't go through the IRB (one would think that if he had, he'd by now have gotten a copy of his proposal back from them and released it; they keep such things), then he violated professional rules. If he used the methodology he described, then he has no more business conducting surveys and using them as evidence in his scholarly writings than, well, I do. But I know better. Even if I had a spare couple of grand burning a hole in my pocket *and* a point that I wanted to make using opinion data, I wouldn't just spontaneously make up a survey and hire students to conduct it. (I should note that, given the way things are done here at Chicago, I find the notion that he paid out of pocket with no records particularly implausible.) I'd work with someone who knew what he or she was doing. There are plenty of such people at Chicago.

In short: if Lott's not a liar, then he's a very, very sloppy researcher who violates rules of professional conduct. Not good, and not someone who ought to be defended, regardless of how much we may want his conclusions to be true.

UPDATE: I've received additional confirmation of Lambert's suggestion that IRB procedures aren't SOP in law schools in general. (The confirmation didn't come from colleagues here at Chicago, whom I haven't asked.) At some point, this may well blow up in someone's face. When my friends in business complain that their lawyers won't let them do stuff they want to do, I always remind them: Your lawyers are there to protect you against making mistakes, and against other people being able to say later that you screwed up. Now I'll start saying the same to law professors about IRBs.

Lott's defenders, and Lott himself, are making a great deal out of the peripheralness of the 98% figure. But that makes it all the stranger. Why keep repeating and repeating a claim for which one has no valid evidence, when it would be no great sacrifice to drop it? Why misattribute it, and fail to cite the existing studies that show different results, when it matters so little?

ANOTHER UPDATE: Mark Kleiman hits many of the same points.

Perfidious Marianne

Reading this and this, I'll confess that I can't quite understand what happened on Monday. It's not that I don't understand French public opposition to a war that they privately think will come and want to be on the right side of. I can't understand the diplomatic move: publicly humiliating Colin Powell, cutting him off at the kneecaps. Precommitting, in the case of Germany, to voting against the resolution. This all seems tailor-made to drive the U.S. off the Powell-Security Council path altogether. The maneuver on Monday didn't advance any French or German objective: tying the U.S. to the Security Council, strengthening Powell, preventing a war, protecting French interests in Iraq. It seems to have petulant, spiteful, and self-defeating.

"Perfidious Marianne" has a nice ring to it; it's time to do away with the undeserved slur on Steadfast Albion's character...

Remembering BuckPAC

The Note writes:


William F. Buckley (whose appearance at the Lieberman announcement
in Stamford has still not been fully explained)

Well, I didn't know about it, but I can explain it.

The key words: Lowell Weicker.

That former Connecticut Senator, more despised by conservatives in his day as a RINO (Republican In Name Only) than even Jeffords was when he belonged to the GOP, had a constituent-- we'll call him WFB-- who was, well, rather more conservative than he. WFB also happened to be a man of some prestige among conservative Republicans, for a variety of reasons. When, in 1988, Weicker was challenged by a Democrat names Joe Lieberman, WFB (and his nonpoor family) swung into action. WFB endorsed Lieberman, who sort-of ran against Weicker from the right. WFB's clan embarked on some serious fundraising for the Democrat, even creating a "BuckPAC" for the purpose. And WFB made sure that his fellow conservatives knew to vote for the pro-death-penalty anti-Communist Orthodox Jew, against the tax-raising Republican who wanted to lift the embargo on Cuba. Lieberman won the race, and the victory was attributed to Republican crossover.

Even if there's no eventual endorsement this time, it's hardly a surprise that WFB would be invited to, and would, turn out to show moral support on announcement day for the homestate Senator whose career he did so much to advance, and to whom he is no doubt still grateful for dispatching Weicker. "Longtime supporters" do that kind of thing.

Around the web/ miscellany

Heh. Sometimes one wants more than snark, but when snark is called for, Kinsley does it well. (I would have thought than "sanctimonious" has more the right flavor than "pious.")

An intersection between two of my cornerstone interests, comics and political philosophy, was revealed by the search engine words that brought someone to this site: It appears that John Rawls' grandson Tyhib (whose name was on this site as one of the philosopher's survivors, from an obituary) is the artist and co-writer of a SF/ martial-arts comic, Smoke.

The things one learns...

Readingthis article about the Democrats at the NARAL dinner, I couldn't help remembering the wisdom of Bloom County.

Who remembers what "Gephardtization" referred to? To which lead character was it done?

(And: does anyone happen to have any of the relevant strips scanned in or otherwise electronically accessible?)

Christopher Caldwell thinks that the Bush brief amounts to "the most important substantive defense of affirmative action ever issued by a sitting president. If the Court accepts the president’s reasoning, it will have rescued affirmative action from what appeared to be a terminal constitutional illogic. More than that–it will have secured for this rickety program an indefinite constitutional legitimacy."

Quick response: read Josh Chafetz's analysis. By making up new standards of the importance of state interests, the brief manages to be rhetorically pro-"diversity" [i.e. racial diversity] while arguing neither for nor against the key claim: that diversity is a compelling state interest even in the absence of prior discrimination. Calling it an "entirely legitimate" interest is a kind of constitutional damning with faint praise. Caldwell has only noticed the praise.

Tapped writes:

As discussed earlier, the low-population Red states in the Western/Mountain areas --
while they send a fair number of Democrats to the Senate these days -- vote Republican
in presidential elections. That's important, because electoral votes are allocated by giving
states one vote for each member of the House they send (which correlates roughly to a
state's population size) plus one for each senator. So a state like South Dakota, which
as only one representative but two senators, gets three electoral votes. That gives states
with small populations an edge, and most of the states with small populations go to the GOP.

If you strip each state of its two Senate electoral votes, and add up the 30 states George W.
Bush and the 21 (including D.C.) Al Gore won in 2000 (awarding Florida to Bush), guess who
wins? Gore, with 224 electoral votes to Bush's 211.

The question of how the Electoral College biases outcomes is old hat among political scientists-- and it has two components that can't be taken in isolation from each other. One is the one Tapped notes-- the massive increase in the relative voting power of small states because every state (large or small) gets two more electoral votes than its number of Representatives. The other is the fact (not dictated by the Constitution but by the state law of 48 states) that electoral votes are awarded on a winner-take-all basis by state. Notice that 224-211 is a much bigger margin than Gore's popular-vote plurality (c. 6% vs. <1%). That's driven by awarding all of the electoral votes from California, New York, New Jersey, Pennsylvania, Michigan, and Illinois to Gore. (Bush won fewer big or very big states-- Florida, Texas, and Ohio. IIRC.) Given that, currently, cities vote Democratic and rural counties tend to vote Republican, the electoral college over-rewards Democrats for their urban majorities in states such as New York, and denies Republicans any benefit from their large rural votes in such places.

The Electoral College increases the proportionate weight of very small states; but also creates massive returns to even tiny pluralities in very big states. One overweights for rural constituencies, one for urban constituencies. They don't perfectly cancel out; but they come closer to cancelling out than Tapped's math suggests.

Women and Muslim minorities in Europe

Two news stories today about women's rights and immigration to European countries. From the NYT, continued coverage of the Muslim dissident woman running for Parliament in the Netherlands. Via Best of the Web, this story from Norway about an immigrant's sentence for the rape of a mentally handicapped woman being reduced to a fine (from an initial, whopping, sixty days in prison) "on the grounds that he had only lived 12 years in Norway and so had difficulty understanding the victim's condition."

The Norwegian case is pretty dismaying, though that doesn't make it easy.

The accused, a 22-year-old taxi driver originally from the Middle East,
explained that he found nothing odd about the woman's appearance or
behavior. The woman used a 'TT-card' - a transport sponsorship arrangement
for the handicapped - when paying for the ride.

The accused also argued that cab drivers often talked about easy sex offers
from female passengers, especially late on weekends. He also believed that
it was easy to sleep with Norwegian girls one had just met.

The court ruled unanimously that the accused should not serve jail time, but
was ordered to pay the woman NOK 25,000 in damages and to replace her
ruined coat.

The court found that the man's comprehension of the Norwegian language was
worse than that expected of someone resident since 1990 and could not rule
out that his age, cultural background and immaturity could have contributed to the assault.


The thing is that-- as conservatives are eager to remind us in the case of allegations of date rape on college campuses and so on-- mens rea and intent are relevant to our thinking about rape. Someone' s failure to understand someone else's incapacity to give consent-- or someone's genuine misunderstanding about whether someone else has given consent-- matter. How, and how much, such things matter are vexed questions in both law and philosophy. But if and to the degree that they matter, then the courts shouldn't rule out considerations of culture in sorting them out. It's pretty dismaying if some Middle Eastern men in Norway are so isolated from Norwegian society that they believe women are likely to have sex with their taxi drivers at the drop of a hat. And it's pretty dismaying if immigrants are so isolated that twelve years isn't enough time to allow the courts to assume that an immigrant has basically figured such things out. (And, frankly, it's pretty dismaying that, in the absence of such extenuating circumstances, the trial court only handed down a sixty-day sentence.) But if those things are true, then it seems to me they do affect mens rea and intent. Cases such as this are different from pure cases of what's referred to as the "cultural defense," in which a violent act is actively defended as being a genuinely appropriate cultural tradition-- Hmong betrothal-by-capture-and-rape, female genital mutilation, the killing of unfaithful spouses, kidnapping and beatings as part of initiation rites into an Indian tribe. In those cases, the defense isn't "I didn't understand that my victim didn't consent" but "I deny that the court's standards of consent are relevant, because the practice in question has a cultural justification that doesn't depend on consent." I think that defenses of the latter sort can't be accepted, but that defenses of the former sort are at least sometimes relevant to any system that in general considers intent as part of the criminal law.

I've written on such matters further in The Multiculturalism of Fear, especially chapter 2.

Rosh to judgment

From time to time I worry about the permanent virtual paper trail created by a decade's worth of e-mails, listserv postings, Usenet postings, and now blogging. I have moments of wondering: "When I'm trying to impress readers of my book, professional colleagues, etc, do I really want to be worried that they might turn up x bit of writing from a thorough web search?" I know people who, for that reason, use online pseudonyms for everything that's not stictly professional. A few academic bloggers, especially junior faculty whose political views differ from the mainstream of their disciplines', blog pseudonymously to protect themselves. I've never gone that route; as a result, if someone wants to discredit an argument from my academic writings by quoting from something I once said on rec.arts.comics.dc.vertigo, they're able to do so. As I said, I sometimes wonder about the wisdom of this.

But the cloak of anonymity is sometimes too tempting; the liberation provided by no one knowing you're a dog can loose internal constraints that really ought to stay put. To wit:

Julian Sanchez noticed that his comment section included a number of defenses of John Lott by one Mary Rosh; and that some of these defenses depended on non-public knowledge about who had or hadn't personally corresponded with Lott. Julian then noticed that Rosh's IP address matched Lott's precisely; and that Rosh's voluminous Usenet postings were entirely made up of defenses of or posts about John Lott. Indeed, some of them provided character testimony ("Lott was very nice when he taught me in class," that sort of thing).

Lott subsequently confirmed that he used the Rosh sock puppet "as a way to respond to points in online discussions... without the time commitment posts under his real name might have required."

The lesson, I guess, is that it's probably wiser to make the time commitment to say what you have to say under your name, and not to be tempted by the laxness that's possible behind a cloak of pseudonymity. If you use such a cloak-- and I do understand that there can be good reasons for it-- use it to talk about things other than yourself. But that cloak can offer false safety, and I'm going to stick with the business of attaching my name to what I write.

I've been doing reading about Destutt de Tracy and Thomas Jefferson. Tracy's book-length commentary on Spirit of the Laws couldn't safely be published in Napoleonic France. Jefferson translated it and arranged for its anonymous publication in the U.S.-- that is, neither Tracy's nor Jefferson's name appeared. Jefferson then wrote a great many letters praising the book, commending it to students and universities and friends, and generally talking about how wonderful and impressive it was. And, frankly, those letters now seem a little weird, almost creepy-- even though keeping Tracy anonymous was clearly necessary. (NB: I haven't been able to determine whether Jefferson derived any financial benefit from sales of his translation, but I suspect that he did not.)

Iraq on campus

The Chronicle asks: "Should Faculties Take a Stand?" ("A stand" means "a stand against war with Iraq," which I take not as a sign that the Chronicle's biased but as a sign that it understands which way faculty senates, in general, would vote; "faculties" means "faculties as corporate bodies," i.e. faculty senates, not individual professors.)

I've quoted from it before, but I think there is much wisdom in it and I'll quote from it again. My university's Kalven Report, which has quasi-constitutional status around here, says:

The mission of the university is the discovery, improvement, and dissemination of knowledge.
Its domain of inquiry and scrutiny includes all aspects and all values of society. A university
faithful to its mission will provide enduring challenges to social values, policies, practices, and
institutions. By design and by effect, it is the institution which creates discontent with the
existing socal arrangements and proposes new ones. In brief, a good university, like Socrates,
will be upsetting.

The instrument of dissent and criticism is the individual faculty member or the individual student.
The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once
again to the classic phrase, a community of scholars. To perform its mission in the society,
a university must sustain an extraordinary environment of freedom of inquiry and maintain an
independence from political fashions, passions, and pressures. A university, if it is to be true
to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest
diversity of views within its own community. It is a community but only for the limited, albeit
great, purposes of teaching and reseacrh. It is not a club, it is not a trade association, it is not a
lobby.

Since the university is a community only for these limited and distinctive purposes, it is a
community which cannot take collective action on the issues of the day without endangering
the conditions for its existence and effectiveness. There is no mechanism by which it can
reach a collective position without inhibiting that full freedom of dissent on which it thrives.
It cannot insist that all of its members favor a given view of social policy; if it takes collective
action, therefofre, it does so at the price of censuring any minority who does not agree with
the view adopted. In brief, it is a community which cannot resort to majority vote to reach
positions on public issues.

The neutrality of the university as an institution arises then not from a lack of courage nor out
of indifference and insensitivity. It arises out of respect for free inquiry and the obligation to
cherish a diversity of viewpoints. And this neutrality as an institution has its complement in
the fullest freedom for its faculty and students as individuals to participate in political action
and social protest. It finds its complement, too, in the obligation of the university to provide
a forum for the most searching and candid discussion of public issues.

In other words: no.

UPDATE: The very next day, Stanley Fish quoted from the same passage here, in his Chronicle column on related subjects.

Laloca has the rundown on last night's NARAL dinner, and the speeches by the Democratic presidential candidates.

Remember this lovely, classy post from John Derbyshire in The Corner last week?
(Andrew Sullivan commented on it.)

"A friend in DC emails to tell me that there are 100,000
antiwar protestors on the Mall. I am reminded of watching
the New York St. Patrick's Day parade once with a friend
of Ulster Unionist sympathies. As the massed ranks of
Irish marched past, my friend sighed and said: 'The things
you see when you don't have a gun!'"

Well, it's gone down the memory hole, as noted by Gene Healy and Jesse Walker.

Of course, NRO is entirely within its rights, and indeed entirely right, to remove content from its website that violates its norms, editorial message, and sense of propriety. Any magazine, and any magazine's website, properly exercizes discretionary control over its own content. And NR in particular has a history of seeing itself as policing the boundaries of respectability in the conservative movement (a history that long predates the Ann Coulter brouhaha).

What this latest event puts into stark relief is: NRO is willing to take down Derb's comments when it deems them offensive and over-the-line-- which means that it doesn't consider his constant racial vitriol and venom against gays to be over the line. As I've asked before, when Jonah Goldberg criticized libertarians for not properly policing their own boundaries: What about Derbyshire?

Bob Bartley contemplates the rise of a Republican Establishment, comparable to the Democratic Establishment of the second half of the twentieth century. But he seems to think that, from a conservative perspective, this would be a good thing. Didn't conservatives used to indict the Democratic Establishment for being sclerotic and bereft of ideas and incapable of fresh thought? Is it really such a victory to gain that status oneself? In this context, recall this George Packer article from the Nation.

Brink Lindsey's back in blogging action, talking about his current trip to east Asia.

I've gotta admit: I love this story (blogged by Eugene Volokh but also covered in yesterday's WSJ) about a court deciding against the humanity of the X-Men. Other good stuff from the Conspiracy: Eugene shares a free sample of his guide to writing law review articles.

The best stuff I read over the weekend and this morning was mostly from the left-blogosphere: Josh Marshall on Confederatistas, Mark Kleiman on lots of stuff including the coverage of Condaleeza Rice's position on affirmative action; Matthew Yglesias on lots of stuff from Eldred to Kymlicka to Scanlon; Chris Bertram's syllabus on public reason and justification.

I'm on leave this year, so I won't be posting any new syllabi anytime soon. On the other hand, most of my syllabi are already out there in public on the web, here.

This will be a light blogging week, but there are two announcements coming up within the next ten days...

A new feature, inspired by laloca: my current, recent, and upcoming pleasure reading, at the bottom of the sidebar to the left. I've also updated the blogroll in general.

In the new National Review, John O'Sullivan has an article (not online) in which he says what a shame it is that the "self-righteous mob" of "libertarians, conservatives, and neoconservatives," especially bloggers, succeeded in hounding poor Trent Lott from office. I'm going to comment more extensively next week. But to begin with:

"Into this political gap [between the national and the southern Democratic party] stepped the Republicans-- including Trent Lott-- to persuade a resentful reagion to accept a steady movement toward racial equality. In order to soothe the South into accepting the Civil Rights Act, such politicians had to treat their constituents not as bigots but as essentially good people open to change... [T]hey had to make speeches to bodies like the White Citizens' Council.
"What did those speeches say? Usually, behind closed doors, they went like this: 'Look, boys, I know you all are decent folks. But we gotta admit we treated the Negroes badly, and there have to be some changes. Some of those changes I don't like any more than you. Others-- let's admit it-- are long overdue. And all of them will help us attract new industries and make everybody, white and black, better off. But we need responsible leadership. And that sure as hell doesn't mean the northern Democrats.'
"This kind of politics is uninspiring, which explains why a master of it, like Trent Lott, strikes Charles Krauthammer, Andrew Sullivan, and the philosophers of the blogosphere as insincere and opportunist."

This sounds like Georgia. It doesn't sound like Mississippi. And it sure doesn't sound like Trent Lott.

Is there anyevidence that Lott was a master of this sort of politics? That he ever lifted a finger to bring his fellow white southerners along in this way? That he ever told them that any of the changes of the civil rights era were "long overdue"? In his floundering statements after the Thurmond speech, I did not hear someone who knew in his heart that Jim Crow was wrong, but had had to compromise with the sensibilities of those who didn't know. I heard someone who was only just then beginning to think about Jim Crow at all. Lott's astonishment and befuddlement, as much as anything else, indicted him and makes O'Sullivan's portrait implausible.

Now I've never been tro a meeting of a White Citizen's Council; maybe O'Sullivan has and knows what he's talking about. But even if--if!-- this was the message that some enlightened southern Republicans were spreading to their neighbors, I don't see anything in Trent Lott's public career that would suggest that he was one of them.

Don't miss Virginia Postrel's "State of the States" posting. She quotes the following from USA Today on those poo, impoverished state governments:


The printed sidebar includes a great chart, unavailable online,
that shows the average annual change in each state's budget
from 1997 to 2002 and the projected change for 2003. Examples:
California's state budget grew 9.4% a year from 1997 to 2002
and is projected to shrink by 0.2% this year; Colorado's grew
8.1% a year and is shrinking 2.7% this year; Virginia's grew
8.0% a year and is projected to grow 1.6% this year.

A 9.4% annual growth rate means a doubling of the state budget every seven-and-a-half years.

Regardless of how one feels about Keynesian stimuli, state spending ought to be countercyclical on simple grounds of responsiveness to need. There is something perverse about having to cut spending (even if by .2%) at the moment when legitimate claims on unemployment insurance and poverty relief are rising. But that means that spending should fall during the flush times. Instead, the states went on an astonishing spending binge during the second half of the 90s.

Best of the Web often seems to be a bit sarcasm-and-irony impaired. Witness:

[Quoting Will Saletan:]
You know this isn't going to be a standard Democratic presidential
campaign kickoff when the guy introducing Sen. Joe Lieberman asks
everyone to stand and say the Pledge of Allegiance. With cameras
rolling, Lieberman turns to the wall and recites the magic words:
allegiance, flag, America, God. Stepping to the podium, he speaks
of our "God-given talents." He says he feels "blessed by God" and
believes "God's work must truly be our own." "My faith is at the center
of who I am," he continues. "I'll not hesitate to talk about faith when it's
relevant or to invoke God's name. . . . If the spirit moves me occasionally
to say a word or two of faith, I think it's a very American thing to do."

He smiles and sips from his glass as the audience applauds.
Nobody's going to out-Christian Joe Lieberman.

[now this is Taranto's comment:]
Lieberman is not Christian at all. He's Jewish. Then again, Saletan may be better off for not having known this fact. It would've sounded really bad if he'd written: "Nobody's going to out-Jew Joe Lieberman."

It's sometimes tricky to explain the blindingly obvious without sounding stupid oneself, but let me give it a shot. Will Saletan knows perfectly well that Joe Lieberman is Jewish. That's why he wrote what he wrote. Y'see, the whole point is that one might think that Lieberman's Judaism was going to be a problem in a majority-Christian country-- that some other candidate would "out-Christian" him because, well, he's not Christian. But Lieberman's shtick is to use his religious Judaism as an asset, because it allows him to demonstrate how much he has in common with believing, church-going Christians. He can pre-empt anyone who tries to out-Christian him because he'll out-religion them.

A question for readers. Did anyone besides James Taranto fail to immediately understand what "Nobody's going to out-Christian Joe Lieberman" meant?

Pejman is impressed by this story about an alleged shift in American public opinion against abortion. I'm not. Abortion polls are notoriously sensitive to changes in wording, and "are you in favor of restoring legal protection for unborn children?" is hardly a careful or subtle way to phrase the question. The sponsoring organization didn't publish the precise results or the list of questions asked-- never a good sign. The reputability of the pollster isn't at issue. The best pollster in the world, if commissioned to conduct a survey using loaded questions, will yield loaded results. The most professional sampling and phoning and weighting won't fix the bias in the questions.

This USA Today poll shows that the shift against abortion has been a matter of a few points. As I recall, the traditional rule of thumb was that the population could be divided into thirds-- a third would answer that abortion should always be legal, a third never or close to never, and a third would be in the middle (oppose public funding, or oppose third trimester abortions, etc, but not want early abortions to be banned or regulated based on the reason for the abortion). The hardcore pro-life answer is up to 38% (plus or minus 3%). Only about 30% (same margin of error) oppose a ban on partial-birth abortion (NB: stipulated to be "during the last six months of a pregnancy"-- a thirteenth-week abortion is hardly the image circulated by proponents of the partial-birth ban), which I think we can take to be the hardcore pro-choice constituency. That's a shift, but not an overwhelming one. The remaining 32% or so remain in the middle. I think it's worth noting that the ban-partial-birth-abortion figure is virtually identical to the "are you in favor of restoring legal protection for unborn children?" figure from the other survey. This suggests to me that when people heard that question, they were thinking about partial-birth abortion (or even, e.g., about the questions involving criminal assault or murder against both mother and fetus), not about all abortion as such.

Advocates and opponents of affirmative action both seem to me to have overinflated expectations about the importance of the Michigan case. As long as O'Connor is the swing vote in affirmative action cases, we're not going to get a sweeping, dramatic statement from the Court one way or the other. We're going to continue in the Bakke/Powell holding pattern-- probably steadily reducing the number of approved policies, but never flatly ruling out state-sponsored affirmative action. In the Michigan case, O'Connor's opinion will abstain from judging whether diversity is ever a sufficient rationale for racial preferences in university admissions but will hold that the Michigan policy crossed the Bakke line of acceptability even if the diversity rationale is legitimate. The policy will be struck down (certainly the undergrad policy, likely the law school policy as well), but the diversity argument won't be decisively disallowed or decisively allowed.

Tapped is keenly interested in getting opponents of affirmative action to talk about legacy admissions. I'm much more interested in athletic admissions-- a problem that interacts with affirmative action in complicated and unpleasant ways. I can't understand why the current degree of atheletic admission-preference (much greater than either race or legacy preference) isn't treated as an obvious scandal requiring action long before the hard question of affirmative action is even reached...