Posner, Richard A.

Duke Law Journal

English

Duke Law Scholarship Repository

COMMENTDUNCAN KENNEDY ON AFFIRMATIVE ACTIONRICHARD A. POSNER*The text for these brief remarks on affirmative action is ProfessorDuncan Kennedy's article, A Cultural Pluralist Case for Affirmative Ac-tion in Legal Academia, which appears in the September 1990 issue ofthe Duke Law Journal IAffirmative action-more bluntly, reverse discrimination-is a vastand variegated subject. I do not think it is possible to discuss it in a lumpeven if one is confining one's attention not only to the education marketbut, within that market, to law schools. For one thing, it is important-although Professor Kennedy is sure to differ with me on this point-todistinguish between public and private institutions. Wholly apart fromthe different constitutional status of state action and private action, weshould be more wary-on pragmatic grounds, duly regardful of his-tory-about allowing or encouraging public institutions to engage in ra-cial discrimination, however well intentioned. I shall therefore confinemy remarks to affirmative action by private law schools.It is also important to decide which racial, ethnic, or other groupsshall be entitled to favorable treatment. Here things quickly get stickyand it is understandable that Professor Kennedy should largely duck theissue. Are Asians an oppressed group in the United States today? Arethey worse off for lacking sizable representation on the faculties of Amer-ican law schools? Are Japanese- and Chinese-Americans in particular,whose incomes and education compare so favorably with those of whiteAmericans, 2 really entitled to a leg up in law school hiring? If so, what* Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chi-cago Law School. This is the lightly revised text of remarks delivered on January 4, 1991, at a sessionat the annual convention of the Association of American Law Schools.1. Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DuKEL.. 705.2. In 1980, Japanese-Americans had incomes more than 32% above the national average in-come, and Chinese-Americans had incomes more than 12% above the national average; Anglo-Saxons and Irish exceeded the average by 5% and 2%, respectively. Sowell, Weber and Bakke, andthe Presuppositions of "Affirmative Action," in DISCRIMINATION, AFFIRMATIVE ACTION, ANDEQuAL OPPORTUNITY 46 (W. Block & M. Walker eds. 1982). Also in 1980, 17.8% of the whitepopulation aged 25 and over had completed four or more years of college, compared to 32.9% of the1157DUKE LAW JOURNALabout Jews? They are as much a race as Hispanics are, and they have alonger history of being discriminated against-we recall that they wereexpelled from Spain in 1492. Of course, it would be odd for law schoolsto discriminate in favor of Jews, because if any group is overrepresentedin law schools, it is not WASPs, but Jews. Many law schools have a veryhigh percentage of Jewish faculty members, so it is likely to be Jews inmajor part who Will have to make way for the "major minorities" towhich Kennedy alludes.3 I should add that Professor Kennedy, uncon-sciously reinforcing the basic point of his paper about the insensitivity of"white ruling class males" such as himself, makes a comment that islikely to grate on Jewish sensibilities when he speaks of assimilation. Hesays "we usually think of assimilation as very different from being 'borninto' a culture. There are always doubts about 'authenticity,' or"-andthis is the passage that grates---"the possibility that the assimilated per-son is 'neither fish nor fowl.' "4I propose to elide all these issues by confining my attention toblacks. Thus, I am going to talk about the issue of private law schoolsdiscriminating in favor of blacks. The neither-fish-nor-fowl issue will re-cur, however.There are still other sets of distinctions to be made, and the failureto make them is a weakness of Professor Kennedy's analysis. First is thedistinction between requiring and permitting law schools to engage inaffirmative action. Although Kennedy says that he is not talking aboutthe former,5 the tone of his paper is that he would very much like to seeall law schools practice the high (though unspecified) degree of affirma-tive action that he thinks desirable.6 But to believe, however earnestly,that an educational reform would be a very good idea does not entailrecommending that every school in the country adopt it. Not at all. Forif they all do, we shall lose the benefit of controlled experimentation.That is an important fruit of diversity, and Kennedy applauds diversity.He may even be aware of the potential benefits from less-than-universalapplication of his proposal.7Asian-American population. STATISTICAL ABsTRAcr OF THE UNITED STATES 38, 39 (110th ed.1990).3. See Kennedy, supra note 1, at 713 (discussing "numerically significant minoritycommunities").4. Id at 741.5. See ia at 757.6. See, ag., id. at 705 (calling for "large scale affirmative action"), 715 (discussing "massiveaffirmative action").7. See i. at 757 (Kennedy hopes that his proposal will either be accepted or abandoned,"faculty by faculty, decision by decision").1158 [Vfol. 1990:1157Vol. 1990:1157] COMMENT ON AFFIRMATIVE ACTIONThe second distinction that Kennedy (virtually), ignores is the dis-tinction among affirmative action in law school admissions, affirmativeaction in initial and lateral hires to the faculty, and affirmative action inpromotion to tenure. These different forms of affirmative action in lawschools have to be examined separately, but then put back together be-cause there are important interrelations.So far as admissions are concerned, one must distinguish two types(degrees, really) of affirmative action. One is to make small departuresfrom grade point average and law school aptitude test criteria in recogni-tion of the fact that these are not perfect predictors of performance in lawschool or the legal profession. Quite different are the large departuresthat are necessary to admit blacks (remember that I am confining mydiscussion to blacks) in anywhere near the number that reflects their per-centage of the overall American population, the college-age population,or even the college population.8 This sort of affirmative action is a recipefor disaster because of its consequence that blacks tend to do poorly atthe elite law schools, cluster at the bottom of the class, arouse the con-tempt of many of their white classmates, and become unhappy and evenbitter.But if for this reason a school decides not to establish substantialquotas for black students, then it will look a little funny for the school tohave faculty quotas. As a practical, political matter the two sorts of quo-tas go hand in glove, and so the objection to student quotas is also one tofaculty quotas.The reason for distinguishing between, on the one hand, new andlateral faculty hires, and, on the other, promotions to tenure from withinis that if a school bends its standards at the entry level, things becomedicey when the entrants come up for promotion. That is not too seriousa problem with admissions. It is enough for most law students if theygraduate, and most students who are admitted pursuant to affirmativeaction can graduate, although they are unlikely to do so with great dis-tinction. Tenure is not the same. Not every competent untenuredfaculty member is expected to get tenure; and tenure is a commitment tolifetime employment (literally, with the abolition of mandatory retire-ment ages). What then are the tenure standards for the affirmative actionhires to be? If they are the same tenure standards as for white males,then probably a disproportionate number of blacks will not make tenure,and this will be more than awkward. What is to be done? Are there to8. At the beginning of 1990, blacks constituted 12.41% of the overall American populationand 14.59% of the American college-age population. STATISTICAL ABnSTRACr OF THE UNITEDSTATES, supra note 2, at 15, 16. But in October 1988, blacks made up only 9.85% of those actuallyenrolled in college. Id at 151.1159DUKE LAW JOURNALbe two tenure tracks? If so, will voting on tenure in the affirmative actiontrack be limited to blacks?Let me put these questions to one side and concentrate on entry-level hiring of blacks. Here Professor Kennedy's most interesting pointis that the bending of standards necessary to hire a substantial number ofblacks will actually raise the quality of legal scholarship. 9 I think not,but I don't think his point is ridiculous. I do think his invocation of "thegeneral democratic principle that people should be represented in institu-tions that have power over their lives"10 is rather ridiculous, because itimplies that all law schools should be public so that the public at large,whose lives are affected by law and lawyers, can be represented in lawschool governance. But he is right that academic law is a weak field,11and this opens up the possibility that shaking things up along the lines herecommends could actually strengthen it. Indeed, you can tell that law isa weak field by its very vulnerability to calls for affirmative action.Strong fields don't have that vulnerability. There are few (not no) callsfor affirmative action in mathematics and statistics, in physics, in ballet,in economics. These are fields in which there is a strong consensus oncriteria of performance and on the application of those criteria to partic-ular individuals and works. That consensus both allays suspicion thatpeople are being excluded on invidious grounds and undermines argu-ments that racial or ethnic diversity would improve performance-per-formance doesn't seem in need of improvement. But in law, as in historyand sociology, such consensus is lacking. There is room for suspicionthat people are being excluded for discriminatory reasons (albeit proba-bly unconscious ones), and also for the hope articulated by ProfessorKennedy that a diversity of approaches, a multiplication of perspectives,a shaking up of the settled ways are desperately needed antidotes to com-placency and stagnation.1 2 There is some evidence that feminism hashad this effect in all three weak fields that I have named; maybe minorityscholarship will as well.I think not, myself. And one reason is that whereas feminism is anapproach (or cluster of approaches), race is not. Of course, there is apositive correlation between being black and having distinctive life exper-iences that may create a distinctive perspective. It is these experiences,9. See Kennedy, supra note 1, at 715-16, 728-29.10. Id. at 705.11. See i& at 715 (characterizing legal academia as beset by a "fetishistic, neurotic and justplain irrational attitude toward 'standards' and merit-based 'entitlements ").12. See 1& at 715-16 (arguing that, with the advent of massive affirmative action, "in terms ofthe social and intellectual value of scholarly output, legal academia would be better off than it isnow," and that "most legal scholarship is pretty much done by the numbers").1160 [Vol. 1990:1157Vol. 1990:1157] COMMENT ON AFFIRMATIVE ACTIONthis perspective, that Kennedy is after.13 The problem, from the stand-point of his proposal, is that not all blacks are culturally black.' 4 Someare completely assimilated to the dominant white Eurocentric culture.They do not add the diversity that he seeks. But there will be pressurefrom faculty members who do not share Kennedy's desire for culturaldiversity at the price of conventional credentials to focus racial hiringprecisely on assimilated blacks. To work, therefore, his scheme wouldrequire a cultural definition of blackness (Hispanic-ness, American In-dian-ness, Asian-ness)-and thus would discriminate against thoseblacks, Hispanics, American Indians, and Asians who have adopted thedominant culture.This seems to me a very curious result of his program and must giveus pause about its wisdom. And I have other grounds for misgivings.Professor Kennedy does not mention a single idea that critical race the-ory has produced, and Professor Peller's long article on critical race the-ory in the same issue of the Duke Law Journal is equally evasive.' s Ithink Kennedy's faith that if only more blacks were law professors theywould produce a scholarship that would "knock our socks off"'16 is afalse and sentimental faith, reflecting a lack of realism that is a constantfeature of Professor Kennedy's work and, in the article under considera-tion, is represented by such fantasies as that there are "millions of peoplewho might be able to do the job of law professor better than those whoend up getting it"'17 or that modem civil rights law is the creation ofblack lawyers' 8 (rather than of black lawyers plus white lawyers pluswhite judges plus white legislators) or that "[flacially neutral categoriescan accomplish almost anything a confirmed racist would want ' 19 orthat law school teaching positions are a "small but significant part of thewealth of the United States." 20But I don't want to argue with Professor Kennedy over which of usis better connected to reality. I want experimentation. I think it's a goodthing that Santa Monica, Cambridge, and New York have rent control-a good thing not for the people of those cities but for the rest of us, whocan judge from these natural experiments whether rent control has theeffects that economists predict or the effects that the Left predicts. I13. See id at 730.14. Kennedy is aware of this problem. See id at 720 ("[We coerce minorities who want therewards we have to offer into 'being like us.' ").15. See Peller, Race Consciousnes; 1990 DuKE L. 758.16. Kennedy, supra note 1, at 715.17. Id at 717.18. See id. at 728.19. Id at 737.20. Id at 712.11611162 DUKE LAW JOURNAL [Vol. 1990:1157think it's a good thing, for us academic types, that socialism was tried inthe Soviet Union, Eastern Europe, China, Cuba, Nicaragua, Chile, Mad-agascar, and Great Britain, because now we know that incentives do mat-ter, private property does matter, prosperity matters, and price matters.So if a few law schools, perhaps starting with Professor Kennedy's lawschool, experiment with racial and ethnic quotas for its faculty, we shalllearn whether the kind of diversity, the kind of shaking up, the kind ofperspectivism that Professor Kennedy believes racial and ethnic quotaswould engender will raise or lower the quality of legal scholarship.

Duncan Kennedy on Affirmative Action

University of Chicago Law School: Chicago Unbound

University of Chicago Law SchoolChicago UnboundJournal Articles Faculty Scholarship1990Duncan Kennedy on Affirmative ActionRichard A. PosnerFollow this and additional works at: https://chicagounbound.uchicago.edu/journal_articlesPart of the Law CommonsThis Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in JournalArticles by an authorized administrator of Chicago Unbound. For more information, please contact unbound@law.uchicago.edu.Recommended CitationRichard A. Posner, "Duncan Kennedy on Affirmative Action," 1990 Duke Law Journal 1157 (1990).COMMENTDUNCAN KENNEDY ON AFFIRMATIVE ACTIONRICHARD A. POSNER*The text for these brief remarks on affirmative action is ProfessorDuncan Kennedy's article, A Cultural Pluralist Case for Affirmative Ac-tion in Legal Academia, which appears in the September 1990 issue ofthe Duke Law Journal IAffirmative action-more bluntly, reverse discrimination-is a vastand variegated subject. I do not think it is possible to discuss it in a lumpeven if one is confining one's attention not only to the education marketbut, within that market, to law schools. For one thing, it is important-although Professor Kennedy is sure to differ with me on this point-todistinguish between public and private institutions. Wholly apart fromthe different constitutional status of state action and private action, weshould be more wary-on pragmatic grounds, duly regardful of his-tory-about allowing or encouraging public institutions to engage in ra-cial discrimination, however well intentioned. I shall therefore confinemy remarks to affirmative action by private law schools.It is also important to decide which racial, ethnic, or other groupsshall be entitled to favorable treatment. Here things quickly get stickyand it is understandable that Professor Kennedy should largely duck theissue. Are Asians an oppressed group in the United States today? Arethey worse off for lacking sizable representation on the faculties of Amer-ican law schools? Are Japanese- and Chinese-Americans in particular,whose incomes and education compare so favorably with those of whiteAmericans, 2 really entitled to a leg up in law school hiring? If so, what* Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chi-cago Law School. This is the lightly revised text of remarks delivered on January 4, 1991, at a sessionat the annual convention of the Association of American Law Schools.1. Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DuKEL.. 705.2. In 1980, Japanese-Americans had incomes more than 32% above the national average in-come, and Chinese-Americans had incomes more than 12% above the national average; Anglo-Saxons and Irish exceeded the average by 5% and 2%, respectively. Sowell, Weber and Bakke, andthe Presuppositions of "Affirmative Action," in DISCRIMINATION, AFFIRMATIVE ACTION, ANDEQuAL OPPORTUNITY 46 (W. Block & M. Walker eds. 1982). Also in 1980, 17.8% of the whitepopulation aged 25 and over had completed four or more years of college, compared to 32.9% of the1157HeinOnline  -- 1990 Duke L.J. 1157 1990DUKE LAW JOURNALabout Jews? They are as much a race as Hispanics are, and they have alonger history of being discriminated against-we recall that they wereexpelled from Spain in 1492. Of course, it would be odd for law schoolsto discriminate in favor of Jews, because if any group is overrepresentedin law schools, it is not WASPs, but Jews. Many law schools have a veryhigh percentage of Jewish faculty members, so it is likely to be Jews inmajor part who Will have to make way for the "major minorities" towhich Kennedy alludes.3 I should add that Professor Kennedy, uncon-sciously reinforcing the basic point of his paper about the insensitivity of"white ruling class males" such as himself, makes a comment that islikely to grate on Jewish sensibilities when he speaks of assimilation. Hesays "we usually think of assimilation as very different from being 'borninto' a culture. There are always doubts about 'authenticity,' or"-andthis is the passage that grates---"the possibility that the assimilated per-son is 'neither fish nor fowl.' "4I propose to elide all these issues by confining my attention toblacks. Thus, I am going to talk about the issue of private law schoolsdiscriminating in favor of blacks. The neither-fish-nor-fowl issue will re-cur, however.There are still other sets of distinctions to be made, and the failureto make them is a weakness of Professor Kennedy's analysis. First is thedistinction between requiring and permitting law schools to engage inaffirmative action. Although Kennedy says that he is not talking aboutthe former,5 the tone of his paper is that he would very much like to seeall law schools practice the high (though unspecified) degree of affirma-tive action that he thinks desirable.6 But to believe, however earnestly,that an educational reform would be a very good idea does not entailrecommending that every school in the country adopt it. Not at all. Forif they all do, we shall lose the benefit of controlled experimentation.That is an important fruit of diversity, and Kennedy applauds diversity.He may even be aware of the potential benefits from less-than-universalapplication of his proposal.7Asian-American population. STATISTICAL ABsTRAcr OF THE UNITED STATES 38, 39 (110th ed.1990).3. See Kennedy, supra note 1, at 713 (discussing "numerically significant minoritycommunities").4. Id at 741.5. See ia at 757.6. See, ag., id. at 705 (calling for "large scale affirmative action"), 715 (discussing "massiveaffirmative action").7. See i. at 757 (Kennedy hopes that his proposal will either be accepted or abandoned,"faculty by faculty, decision by decision").1158 [Vfol. 1990:1157HeinOnline  -- 1990 Duke L.J. 1158 1990Vol. 1990:1157] COMMENT ON AFFIRMATIVE ACTIONThe second distinction that Kennedy (virtually), ignores is the dis-tinction among affirmative action in law school admissions, affirmativeaction in initial and lateral hires to the faculty, and affirmative action inpromotion to tenure. These different forms of affirmative action in lawschools have to be examined separately, but then put back together be-cause there are important interrelations.So far as admissions are concerned, one must distinguish two types(degrees, really) of affirmative action. One is to make small departuresfrom grade point average and law school aptitude test criteria in recogni-tion of the fact that these are not perfect predictors of performance in lawschool or the legal profession. Quite different are the large departuresthat are necessary to admit blacks (remember that I am confining mydiscussion to blacks) in anywhere near the number that reflects their per-centage of the overall American population, the college-age population,or even the college population.8 This sort of affirmative action is a recipefor disaster because of its consequence that blacks tend to do poorly atthe elite law schools, cluster at the bottom of the class, arouse the con-tempt of many of their white classmates, and become unhappy and evenbitter.But if for this reason a school decides not to establish substantialquotas for black students, then it will look a little funny for the school tohave faculty quotas. As a practical, political matter the two sorts of quo-tas go hand in glove, and so the objection to student quotas is also one tofaculty quotas.The reason for distinguishing between, on the one hand, new andlateral faculty hires, and, on the other, promotions to tenure from withinis that if a school bends its standards at the entry level, things becomedicey when the entrants come up for promotion. That is not too seriousa problem with admissions. It is enough for most law students if theygraduate, and most students who are admitted pursuant to affirmativeaction can graduate, although they are unlikely to do so with great dis-tinction. Tenure is not the same. Not every competent untenuredfaculty member is expected to get tenure; and tenure is a commitment tolifetime employment (literally, with the abolition of mandatory retire-ment ages). What then are the tenure standards for the affirmative actionhires to be? If they are the same tenure standards as for white males,then probably a disproportionate number of blacks will not make tenure,and this will be more than awkward. What is to be done? Are there to8. At the beginning of 1990, blacks constituted 12.41% of the overall American populationand 14.59% of the American college-age population. STATISTICAL ABnSTRACr OF THE UNITEDSTATES, supra note 2, at 15, 16. But in October 1988, blacks made up only 9.85% of those actuallyenrolled in college. Id at 151.1159HeinOnline  -- 1990 Duke L.J. 1159 1990DUKE LAW JOURNALbe two tenure tracks? If so, will voting on tenure in the affirmative actiontrack be limited to blacks?Let me put these questions to one side and concentrate on entry-level hiring of blacks. Here Professor Kennedy's most interesting pointis that the bending of standards necessary to hire a substantial number ofblacks will actually raise the quality of legal scholarship. 9 I think not,but I don't think his point is ridiculous. I do think his invocation of "thegeneral democratic principle that people should be represented in institu-tions that have power over their lives"10 is rather ridiculous, because itimplies that all law schools should be public so that the public at large,whose lives are affected by law and lawyers, can be represented in lawschool governance. But he is right that academic law is a weak field,11and this opens up the possibility that shaking things up along the lines herecommends could actually strengthen it. Indeed, you can tell that law isa weak field by its very vulnerability to calls for affirmative action.Strong fields don't have that vulnerability. There are few (not no) callsfor affirmative action in mathematics and statistics, in physics, in ballet,in economics. These are fields in which there is a strong consensus oncriteria of performance and on the application of those criteria to partic-ular individuals and works. That consensus both allays suspicion thatpeople are being excluded on invidious grounds and undermines argu-ments that racial or ethnic diversity would improve performance-per-formance doesn't seem in need of improvement. But in law, as in historyand sociology, such consensus is lacking. There is room for suspicionthat people are being excluded for discriminatory reasons (albeit proba-bly unconscious ones), and also for the hope articulated by ProfessorKennedy that a diversity of approaches, a multiplication of perspectives,a shaking up of the settled ways are desperately needed antidotes to com-placency and stagnation.1 2 There is some evidence that feminism hashad this effect in all three weak fields that I have named; maybe minorityscholarship will as well.I think not, myself. And one reason is that whereas feminism is anapproach (or cluster of approaches), race is not. Of course, there is apositive correlation between being black and having distinctive life exper-iences that may create a distinctive perspective. It is these experiences,9. See Kennedy, supra note 1, at 715-16, 728-29.10. Id. at 705.11. See i& at 715 (characterizing legal academia as beset by a "fetishistic, neurotic and justplain irrational attitude toward 'standards' and merit-based 'entitlements ").12. See 1& at 715-16 (arguing that, with the advent of massive affirmative action, "in terms ofthe social and intellectual value of scholarly output, legal academia would be better off than it isnow," and that "most legal scholarship is pretty much done by the numbers").1160 [Vol. 1990:1157HeinOnline  -- 1990 Duke L.J. 1160 1990Vol. 1990:1157] COMMENT ON AFFIRMATIVE ACTIONthis perspective, that Kennedy is after.13 The problem, from the stand-point of his proposal, is that not all blacks are culturally black.' 4 Someare completely assimilated to the dominant white Eurocentric culture.They do not add the diversity that he seeks. But there will be pressurefrom faculty members who do not share Kennedy's desire for culturaldiversity at the price of conventional credentials to focus racial hiringprecisely on assimilated blacks. To work, therefore, his scheme wouldrequire a cultural definition of blackness (Hispanic-ness, American In-dian-ness, Asian-ness)-and thus would discriminate against thoseblacks, Hispanics, American Indians, and Asians who have adopted thedominant culture.This seems to me a very curious result of his program and must giveus pause about its wisdom. And I have other grounds for misgivings.Professor Kennedy does not mention a single idea that critical race the-ory has produced, and Professor Peller's long article on critical race the-ory in the same issue of the Duke Law Journal is equally evasive.' s Ithink Kennedy's faith that if only more blacks were law professors theywould produce a scholarship that would "knock our socks off"'16 is afalse and sentimental faith, reflecting a lack of realism that is a constantfeature of Professor Kennedy's work and, in the article under considera-tion, is represented by such fantasies as that there are "millions of peoplewho might be able to do the job of law professor better than those whoend up getting it"'17 or that modem civil rights law is the creation ofblack lawyers' 8 (rather than of black lawyers plus white lawyers pluswhite judges plus white legislators) or that "[flacially neutral categoriescan accomplish almost anything a confirmed racist would want ' 19 orthat law school teaching positions are a "small but significant part of thewealth of the United States." 20But I don't want to argue with Professor Kennedy over which of usis better connected to reality. I want experimentation. I think it's a goodthing that Santa Monica, Cambridge, and New York have rent control-a good thing not for the people of those cities but for the rest of us, whocan judge from these natural experiments whether rent control has theeffects that economists predict or the effects that the Left predicts. I13. See id at 730.14. Kennedy is aware of this problem. See id at 720 ("[We coerce minorities who want therewards we have to offer into 'being like us.' ").15. See Peller, Race Consciousnes; 1990 DuKE L. 758.16. Kennedy, supra note 1, at 715.17. Id at 717.18. See id. at 728.19. Id at 737.20. Id at 712.1161HeinOnline  -- 1990 Duke L.J. 1161 19901162 DUKE LAW JOURNAL [Vol. 1990:1157think it's a good thing, for us academic types, that socialism was tried inthe Soviet Union, Eastern Europe, China, Cuba, Nicaragua, Chile, Mad-agascar, and Great Britain, because now we know that incentives do mat-ter, private property does matter, prosperity matters, and price matters.So if a few law schools, perhaps starting with Professor Kennedy's lawschool, experiment with racial and ethnic quotas for its faculty, we shalllearn whether the kind of diversity, the kind of shaking up, the kind ofperspectivism that Professor Kennedy believes racial and ethnic quotaswould engender will raise or lower the quality of legal scholarship.HeinOnline  -- 1990 Duke L.J. 1162 1990

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Duncan Kennedy on Affirmative Action

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