Chua and Rubenfeld on law school admissions; Baude on zombies and federalism

April 2, 2014
WASHINGTON, DC - OCTOBER 12: Zombies unite on the eve of World Zombie Day on the streets of Washington, DC to persuade DISH Network to return AMC and its top-rated series "The Walking Dead" to its line-up on October 12, 2012 in Washington, DC. Season three of "The Walking Dead" returns to AMC on all cable and satellite networks, except for DISH, on Sunday, October 14, 2012. (Photo by Paul Morigi/Getty Images for AMC Networks) Are zombies people, too? (Paul Morigi/Getty Images for AMC Networks)

I always find it confusing to read on the Internet on April Fools’ Day. There are so many prank posts, and I am often taken in by them. Maybe this marks me as gullible, but I’d like to think it’s also a case of life imitating parody. Many of the so-called jokes are things that the authors really might believe.

My favorite in this genre is always Larry Solum’s Legal Theory Blog, which posts fake abstracts of fake papers by real law professors — abstracts that seem absurd or hyperbolic and yet are disturbingly close to things the author actually maintains. This year Larry posted a fake paper on “Judicial Ignorance” by Ilya Somin, a fake paper on “Antimodalities” by Suzanna Sherry, one by himself on living constitutionalism, and most hilariously, one by Amy Chua and Jed Rubenfeld on race and culture in law school admissions:

In “The Triple Package,” Chua and Rubenfeld laid out a provocative argument about the traits that enable Americans to succeed. Mormons have recently risen to astonishing business success. Cubans in Miami climbed from poverty to prosperity in a generation. Nigerians earn doctorates at stunningly high rates. Indian and Chinese Americans have much higher incomes than other Americans; Jews may have the highest of all. The Triple Package uncovered the secret to their success. A superiority complex, insecurity, impulse control — these are the elements of the Triple Package, the rare and potent cultural constellation that drives disproportionate group success.

In “Culture and Admissions,” Chua and Rubenfeld argue that these cultural differences have implications for admissions to elite educational institutions at the graduate, undergraduate, and professional school levels. They explicate research that demonstrates that cultural groups within which the Triple Package predominates succeed at substantially higher rates than other group for any given level of measurable qualifications such as test scores and grades. For example, given a Chinese-American applicant and a European-American student with identical test scores and grades, the data shows that the Chinese-American student will be more successful at an elite educational institution. Because the Triple Package cannot be directly measured, admissions criteria may wish to use cultural background as a proxy. For example, Chinese Americans, Immigrant Africans, Mormons, Jews, Cubans, and South Asians might receive a substantial upward adjustment in their index numbers (test scores plus grades) to reflect their greater likelihood of success. Another possible solution would be the imposition of maximum admission quotas for groups (such as persons of European dissent, African Americans, and Latinos other than Cubans) with cultural backgrounds the predict a lower probability of academic success. Chua and Rubenfeld conclude by considering the pluses and minuses of explicit recognition of cultural superiority for the educational mission of elite academic institutions.

Finally, Solum also posted an abstract by me, on Zombie Federalism:

The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult. The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies.

What’s the best constitutional solution to this problem? Zombie Federalism. The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law.

There is a meta-joke in this last post, which is that the Zombie Federalism paper is real. I presented it last year at the Center for Law and the Necrosciences, run by Hank Greely at Stanford Law School. You can download it here (it is only a page long).

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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