Volume 72, Number 1

April 1997

The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions

Linda F. Wightman

The use of affirmative action policies in school admissions has been a continuing source of controversy. In the wake of Hopwood, it is unclear if their continued use will even be possible. In an effort to inform the debate, Professor Wightman has engaged in a comprehensive empirical analysis to examine the impact of abandoning considerations of race and ethnicity in the law school admission process. Using data obtained from students who applied to law schools in 1990-1991 and from Fall 1991 first-year law students, she examined the likely effects of an admission policy that relied exclusively on LSAT scores and undergraduate grade-point averages. Countering arguments that affirmative action policies merely reallocate minority students among schools, Professor Wightman’s study indicates that such a “numbers only” policy would result in a sharp increase in the number of minority applicants who would be denied access to a legal education, not just at the schools to which they applied, but to any of the law schools included in the study. In striking contrast to the decline in admission rates, Professor Wightman found no significant differences in the graduation rates and bar passage rates between those minority students who would have been accepted to law schools and those who would not. Thus a “numbers only” policy would deny a legal education to many minority applicants who were fully capable of the rigors of legal education and of entering the legal profession. Professor Wightman also examined whether any of several factors, such as socioeconomic status, could serve as an effective proxy for race and ethnicity in order to achieve a diverse student body. None of the factors she studied indicated satisfactory results. In short, Professor Wightman’s study shows that affirmative action policies are likely a necessary prerequisite to maintaining a diverse yet capable law school student body.

Birthright Citizenship and the Constitution

Christopher L. Eisgruber

The United States Constitution’s citizenship rule, which grants citizenship to, among others, the American-born children of illegal aliens, has come under attack. Professor Eisgruber defends the Constitution’s birthplace rule against calls for its amendment and against arguments in favor of a parentage rule. He proposes the Responsiveness Principle as a competitor to a consent or reliance theory to provide the normative justification for a rule of citizenship. Under this principle, a government should be responsive to the interests of all those over whom it exerts general jurisdiction. Professor Eisgruber argues that the current birthplacerule is the best way to implement the Responsiveness Principle because it makes it likely that those subject to the laws will have an effective voice in determining their content. He also cautions that an amendment modifying the birthplacerule would likely affect the interpretation of other constitutional provisions by compromising the Constitution’s commitment to political justice.


The Use of Mandamus to Vacate Mass Exposure Tort Class Certification Orders

Amy Schmidt Jones

In the early years following its adoption in 1966, courts and commentators generally regarded amended Rule 23 of the Federal Rules of Civil Procedure as an inappropriate device for mass tort litigation. This resistance stemmed from the conviction that plaintiffs seeking redress for serious personal injuries should maintain direct control over their claims and the perception that individualized issues of causation, liability, and choice of law rendered such suits too complex for unitary adjudication. With the onslaught of individual Agent Orange, asbestos, DES, and Bendectin cases in the 1980s, however, the “overwhelming need to create an orderly, efficient means for adjudicating hundreds or thousands of related claims” forced the courts to reconsider the feasibility of the mass exposure tort class action. The first successful certification of a mass exposure tort class action in 1984 ushered in a new era of class action litigation.

Derivatives and Dialectics: The Evolution of the Chinese Futures Markets

Victor L. Hou

Recently, financial papers have been inundated with accounts of the heady risks and dizzying consequences of derivatives gambling gone bad. Losing bets have caused the demise of a centuries-old bank. Elsewhere, corporations worldwide have been dealt severe losses, and governments have gone bust. Yet conceptually, derivatives are hardly new.

Youth Curfews and the Trilogy of Parent, Child, and State Relations

Gregory Z. Chen

In 1923, Justice McReynolds, writing for the Supreme Court in Meyer v. Nebraska, noted that the state’s involvement in the development and upbringing of minors extended deep into the history of Western civilization: “In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians.” Employing this example of ancient history primarily as an heuristic device, Justice McReynolds declared that the society and government of Sparta were “wholly different from those upon which our institutions rest”–the critical difference being the two societies’ divergent conceptions of the relation between the individual and the state. The United States Constitution, he concluded, barred restrictions as severe as those used in Sparta.

The Failure of Equal Regard to Explain the Sherbert Quartet

Prabha Sipi Bhandari

The First Amendment of the United States Constitution provides in pertinent part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Where laws have prohibited the free exercise of religion, whether by direct regulation of religious conduct or as an unintended consequence, religious adherents burdened by those laws have sought exemptions, arguing that such exemptions are constitutionally compelled.