Doing Affirmative Action

Sometime this year the Supreme Court will announce its holding in Fisher v. University of Texas at Austin, a case that asks whether colleges may continue to consider race when making admissions decisions. Most Court watchers predict that the five conservative justices will vote to curtail the use of racial preferences. Lost in the weighty discussions about the scope of the Equal Protection Clause and the meaning of the Civil Rights struggle is any clear and concise explanation of how selective colleges actually make admissions decisions and how they work to fulfill the goals of affirmative action. This Essay seeks to fill the gap. I draw the following conclusions from the two years I worked in the Admissions Office at Princeton University. As part of the job, I interviewed hundreds of high school seniors and evaluated thousands of college applications. I also helped to implement the University’s full battery of affirmative action policies. To put a fine point on it, I routinely pushed to reject white applicants with higher SAT scores and GPAs in favor of less credentialed black students

A Third System of the Arts? An Exploration of Some Ideas from Larry Shiner\u27s The Invention of Art: A Cultural History

I explore some implications of Larry Shiner’s view that fine art is a modern invention. In part I, I briefly summarize Shiner’s main thesis and defend it against some misunderstandings and objections that have appeared in the literature. In part II, I discuss Shiner’s remarks about the possible emergence of what he calls a “third system of the arts.” I ask what such a system might look like, consider some signs that it may indeed be emerging, and venture a suggestion about what would be required for it actually to come about

Property in Law: Government Rights in Legal Innovations

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become extraordinarily slow, inefficient, and less than ideal. Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or will not, solve basic problems. Frank Knight, a leading Chicago School economist, succinctly captured the current angst: The real trouble with [public officials] is not that they are rash, but the opposite .... [T]hey universally show a tendency to \u27play safe\u27 and become hopelessly conservative. What can reverse the stagnation? In this Article, the author argues that granting state and local governments some form of intellectual property protection in the text of their statutes would ignite a socially beneficial upsurge in legal experimentation. The idea is simple. Intellectual property theory posits that innovators take bolder risks and produce better ideas when the law hands them exclusive control over their creations. Pharmaceutical companies, for example, are more likely to invest in costly research if they can prevent rivals from copying and selling the medical advances they engineer. Artists, too, can pour years of work into the development of a new technique, confident that only they will have the right to display, distribute, and adapt any work produced by their risk-taking. This same principle—that exclusive rights induce optimal levels of innovation—should be applied to the legal experiments generated by local legislatures

Doing Affirmative Action

Sometime this year the Supreme Court will announce its holding in Fisher v. University of Texas at Austin, a case that asks whether colleges may continue to consider race when making admissions decisions. Most Court watchers predict that the five conservative justices will vote to curtail the use of racial preferences. Lost in the weighty discussions about the scope of the Equal Protection Clause and the meaning of the Civil Rights struggle is any clear and concise explanation of how selective colleges actually make admissions decisions and how they work to fulfill the goals of affirmative action. This Essay seeks to fill the gap. I draw the following conclusions from the two years I worked in the Admissions Office at Princeton University. As part of the job, I interviewed hundreds of high school seniors and evaluated thousands of college applications. I also helped to implement the University’s full battery of affirmative action policies. To put a fine point on it, I routinely pushed to reject white applicants with higher SAT scores and GPAs in favor of less credentialed black students

A Third System of the Arts? An Exploration of Some Ideas from Larry Shiner\u27s The Invention of Art: A Cultural History

I explore some implications of Larry Shiner’s view that fine art is a modern invention. In part I, I briefly summarize Shiner’s main thesis and defend it against some misunderstandings and objections that have appeared in the literature. In part II, I discuss Shiner’s remarks about the possible emergence of what he calls a “third system of the arts.” I ask what such a system might look like, consider some signs that it may indeed be emerging, and venture a suggestion about what would be required for it actually to come about

Property in Law: Government Rights in Legal Innovations

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become extraordinarily slow, inefficient, and less than ideal. Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or will not, solve basic problems. Frank Knight, a leading Chicago School economist, succinctly captured the current angst: The real trouble with [public officials] is not that they are rash, but the opposite .... [T]hey universally show a tendency to \u27play safe\u27 and become hopelessly conservative. What can reverse the stagnation? In this Article, the author argues that granting state and local governments some form of intellectual property protection in the text of their statutes would ignite a socially beneficial upsurge in legal experimentation. The idea is simple. Intellectual property theory posits that innovators take bolder risks and produce better ideas when the law hands them exclusive control over their creations. Pharmaceutical companies, for example, are more likely to invest in costly research if they can prevent rivals from copying and selling the medical advances they engineer. Artists, too, can pour years of work into the development of a new technique, confident that only they will have the right to display, distribute, and adapt any work produced by their risk-taking. This same principle—that exclusive rights induce optimal levels of innovation—should be applied to the legal experiments generated by local legislatures