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If, in applying for law-school faculty jobs, Elizabeth Warren had fudged her transcript to improve her chances of getting hired, she'd almost certainly be suspended by the bar for ethics violations.

So where is the ethics investigation on Warren's fudging of affirmative-action credentials? Earlier.

Just last month I joked about whites who "claim the Cherokee great-grandfather" to get an affirmative action bump. Little did I know that former Harvard Law professor and Massachusetts Democratic U.S. Senate candidate Elizabeth Warren would bring the issue to the forefront: with 1/32 Indian heritage, Warren—and her law-school employers—had been claiming diversity credit as a Native American. We've previously noted Warren's penchant for academic dishonesty when it suits her political purposes (as well as her lobbying for the litigation lobby special interest at the expense of consumers).

Can we at least say that, when someone 31/32 white and 1/32 Indian finds it advantageous to her career to claim to be Indian, we can stop talking about "white privilege"? John Rosenberg and Hans Bader comment at Minding the Campus.

The Atlantic bemoans (h/t A.I.) that the decline in law school applications is largest from those with the higher test scores. This is the wrong way to look at it: we as a society want people capable of scoring 170 on the LSAT to do something more socially productive than practicing law. Related.

The Baylor Law admissions office had a bit of an oopsy recently: they sent an email to every incoming student disclosing all of their admissions data: name, address, phone number, GPA, LSAT, admissions acceptance date, race, and scholarship money, a treasure trove of data rarely available to researchers. If you believe Elie Mystal at Above the Law, the data shows that affirmative action isn't such a big deal:

Eyeballing the numbers (and I haven't done a full statistical analysis on this data because I think it's kind of missing the point), I see about a three to four point bump for African-American or Hispanic students. By "bump," I mean to say that if you were a white student, you had a fighting chance to get into Baylor with a 161 or 162 LSAT score. If you were black or Latino, you were in the running with a 159 or 158. There are some outliers, of course -- a black kid with a 156, a white kid with a 158 -- but, in general, I'm eyeballing the mode for white students at 162, and the mode for blacks and Hispanics at 159 or 158.

This is wrong for a couple of reasons. First, there's an iceberg effect; the spreadsheet doesn't have the data of the people who were rejected for admission. If a 3.7 GPA/162 LSAT gets a white a 30% chance of admission, but an African-American a 90% chance of admission (or vice versa), then there's racial bias with real adverse effects on the disfavored race, even if the averages in the admitted student body doesn't show a lot of disparity. But it's wrong because there's no reason to "eyeball." It's already in a spreadsheet; do an hour of work and run the real numbers. David Lat was kind enough to forward the spreadsheet to me; I deleted the names and addresses and phone numbers, and went to work with the quantitative information.

At a first superficial glance, the data suggests no real affirmative action bump. (NB that the ATL post is incomplete, because it doesn't account for students who identified as multi-racial: thus, some students identified in the ATL post as Caucasian were counted as ethnic minorities in my analysis. See the footnote below for more information.) The sixty non-Asian minorities averaged 3.58 GPA and 162.9 LSAT; the 42 Asians averaged 3.44 GPA and 164.4 LSAT; the 329 whites and did-not-identifies averaged a 3.54 GPA and 164.5 LSAT. As Elie eyeballed, there's only a point or so LSAT difference on average. (But see the April 10 update, as this may be an artifact of the sample that is hiding a larger affirmative action bump.) Note that even these averages hide some shocking disparities in the admissions data.

The most obvious one is that only 14 students in the entire class of 441 (again, see the footnote after the jump) identify as African, African-American, or multi-racial with African ancestry. Baylor may not be giving much of an admissions bump to African-Americans, but the consequence of not reducing admissions standards for African-Americans is that the class is only 3% black. A different university trying to up that number is likely to see a larger disparity in GPA/LSAT scores. (See, however, the April 10 update, as a data sample artifact may be influencing this particular result.)

But Baylor itself does see a big disparity in another metric. I sorted the 431 students with "LSAT Index" scores. (An LSAT Index adds the LSAT to 10 times the GPA.) The top quartile is above 202 (e.g., 3.9/163 or 3.5/167); the median in 199 (e.g., 3.3/166 or 3.8/161), the bottom quartile is below 197 (e.g. 3.6/161 or 3.3/164). Baylor did not vary from the LSAT index often, only 2% of the class was below 193 and the lowest index was 189. (Again, see, the April 10 update.)

In the top quartile (and stretching down to the top 128 admittees), there was a single African-American. So it's not accurate to say affirmative action makes little difference. The 4.0/170 white with a 210 Index gets a full scholarship to Baylor Law. The 4.0/170 black with a 210 Index might get the same offer, but doesn't accept the full scholarship to Baylor Law: she presumably has better options available to her. One would expect a 4.0/170 African-American to end up at a top-14 law school. Moreover, the 3.7/167 African-American generally isn't accepting the offers to attend Baylor Law, either. If we expect the top 10% of the class and the editorial board of the Baylor Law Review to be much more likely to come from the top quartile of applicants, African-Americans are going to be even more underrepresented than that 3%. If nothing else, larger bumps of affirmative action are having an effect on Baylor Law's diversity.

But the real difference was in the scholarship money. Though non-Asian minorities had slightly lower Index scores on average, they averaged $24,231 in scholarship money; whites and Asians averaged under $20,000. It's unclear to what extent Baylor Law considers financial need in scholarship money, but it's clear that merit makes a big difference. Over 90% of students with Index scores above 206 got full scholarships (the three who didn't were white); less than 3% of students with Index scores below 202 got full scholarships, and all seven were African-American or Hispanic.

Again, we don't have to eyeball; we can perform a basic regression on GPA, high LSAT score, and race.

To translate into English, a bump of GPA of 0.1 is worth, on average, $2679 in scholarship money; a single LSAT point is worth $2190. But that does not compare to the scholarship money awarded for being a Star-Bellied Sneech with the power to Bestow The Experience Of Diversity upon Lithuanians and Macedonians and Jews who would otherwise be deprived. Checking the African-American box on your Baylor Law application is worth $9575/year, all else being equal; Hispanic heritage is worth $7023. In other words, if you were a white with your heart set on a scholarship to Baylor Law, and a magical genie offered you the choice of increasing your LSAT score by 4 points or changing your skin color, you'd be better off financially with the latter option. (Perhaps the disparity can be explained by financial-aid factors, if African-Americans are more likely to apply from families without household assets; if so, that data is absent from the spreadsheet. I strongly suspect these are just merit scholarships, as the only financial data reported in the spreadsheet is the scholarship amount.) All four variables are statistically significant well above the 99% level. Corporations have paid millions of dollars in disparate impact litigation settlements on far flimsier evidence. And hundreds of law students short-changed tens of thousands of dollars of scholarship money each over three years because of their skin color? Sounds like a multi-million dollar class action to me.

I don't mean to single out Baylor; it's undoubtably the case that virtually every other top-sixty school is engaging in the same shenanigans in competing for a limited pool of qualified African-Americans. (NB that I am not claiming that the pool is limited because African-Americans are not smart enough to go to law school; miserable urban public school systems and the disproportionate number of single-mother families surely do a lot to depress the number of African-Americans who get the education to do well at college and apply to law school.) As Richard Sander has noted, Baylor's plight is created by the better-ranked schools above it poaching the African-American students who would otherwise be at the top of the Baylor Law class; Baylor has to pony up extra scholarship money just to attract the handful of African-Americans it does have. But it really surprises me that a group as litigious as white law students hasn't done more to ask for the law to be evenly applied; this is a much easier case for plaintiffs than complaining about alleged consumer fraud in employment statistics.

Related. Discussion of statistical methodology (and an important update) after the jump.

How biased is the legal academy? Caroline Forell, who teaches torts at the University of Oregon Law School, has published a paper (h/t Torts Prof via Situationist) that discusses the McDonald's hot coffee case for several pages without once acknowledging the arguments against liability. At least when I give my Law of McDonald's talk, I give both sides of the story. Forell is in such a bubble that she thinks she can premise her argument on the idea that the Liebeck case is aspirational and tort reformers are wrong and "fictionaliz[ing]" by merely asserting it. And none of her editors would think to ask if she's being one-sided and two law blogs can link to it without even thinking about being a wee bit skeptical about what most people would correctly consider an outlandish argument.

Needless to say, Forell also defends the bogus obesity suits against McDonald's.

A new paper from Donald J. Kochan of Chapman Law:

This Essay introduces the "Anti-Interference Principle" - a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon - as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. Absent avoidance of harm - special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided.

The primary point is that equality matters. The purpose of this Essay is not to survey the vast political, jurisprudential and academic debate on equality but instead to take a broad look at the philosophical concept of equality itself. Part I discusses the general meaning of equality. Part II presents brief summaries of some selected recent developments regarding the concept of equality, namely California's Proposition 8 and the U.S. Supreme Court decision in Ricci v. DeStefano. Part III introduces a useful term for the equality discussion - "anti-interference" - and argues that the best way to foster equality is to embrace freedom, choice, and liberty in the absence of a showing that different treatment is justified to avoid harm. Simply stated, equality is best served when the government refrains from interfering with individual choice and individual freedom.

Amy Wax in a forthcoming William & Mary L. Rev. piece:

In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Supreme Court recently reaffirmed the doctrine, first articulated by the Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971), that employers can be held liable under Title VII of the 1964 Civil Rights Act for neutral personnel practices with a disparate impact on minority workers. The Griggs Court further held that employers can escape liability by showing that their staffing practices are job related or consistent with business necessity.

In the interim since Griggs, social scientists have generated evidence undermining two key assumptions behind that decision and its progeny. First, the Court in Griggs noted the absence of evidence that the selection criteria in that case (a high school diploma and an aptitude test) were related to subsequent performance of the service jobs at issue, and expressed doubt about the existence of such a link. But research in industrial and organization psychology (IOP) has repeatedly documented that tests and criteria such as those at issue in Griggs (which are heavily "g"-loaded and thus dependent on cognitive ability) remain the best predictors of performance for jobs at all levels of complexity. Second, Griggs and its progeny rest on the implicit assumption, reflected in the so-called 4/5 rule, that fair and valid hiring criteria will result in a workforce that roughly reflects the representation of each group in the background population. Work in psychometrics and labor economics shows that this assumption is unjustified. Because blacks lag significantly behind whites on measures of cognitive ability, most valid job selection criteria will have a substantial adverse impact on this group. The combination of well-documented racial differences in cognitive ability and the consistent link between ability and job performance generates a pattern that experts term "the validity-diversity tradeoff": job selection devices that best predict future job performance generate the smallest number of minority hires in a broad range of positions. Indeed, the evidence indicates that most valid screening devices will have a significant adverse impact on blacks and will also violate the 4/5 rule under the law of disparate impact.

Because legitimately meritocratic (that is, job-related) job selection practices will routinely trigger prima facie violations of the disparate impact rule, employers who adopt such practices run the risk of being required to justify them - a costly and difficult task that encourages undesirable, self-protective behaviors and may result in unwarranted liability. To alleviate this burden, the article proposes to adopt a new regime of "disparate impact realism" that abandons the 4/5 rule in favor of sliding scale ratios pegged to measured disparities in group performance and the selectivity of particular positions. Alternatively, the disparate impact rule should be repealed altogether. The data indicate that pronounced differences in the background distribution of skill and human capital, not arbitrary hurdles imposed by employers, explain racial imbalances in the workforce. Moreover, blacks lag behind whites in actual on-the-job performance, which indicates that employers are not unfairly excluding minorities but rather bending over backwards to include them. Disparate impact litigation, which does nothing to correct existing disparities and distracts from the task of addressing them, represents a cumbersome, misplaced effort that could better be directed at the root causes of workforce racial imbalance.

Speaking of Ricci, New Haven finally threw in the towel and settled the damages aspect of that reverse-discrimination case: the twenty plaintiffs will receive $2 million in back pay, even more in enhanced pension benefits, and fourteen of them won promotions previously wrongfully denied them: congratulations to Karen Lee Torre. [WSJ Law Blog; Hartford Courant]

A GMU Law video.

When a book is already blurbed by Bryan A. Garner, David Mamet, and George Will (not to mention Eugene Volokh) I don't know that my endorsement can add much at the margin, but I found Farnsworth's Classical English Rhetoric edifying and entertaining.

Farnsworth is now a professor at Boston University Law School, but the book takes me back to the days when he was a law-school classmate and then a fellow Seventh Circuit clerk; now, as then, I envy his clear and convincing writing. With this book and his earlier The Legal Analyst, Farnsworth now has two volumes that belong on every law student's shelf as readable reference works to sharpen legal thinking and communicating.

Inside Higher Ed has an article (via @annaivey) about anonymous attacks on Bradley Smith's candidacy for the deanship at Case Western Reserve Law.

A third-year law student who is organizing the opposition to Smith said that the candidate's political activism should disqualify him from the post. "He is not an academic, in my mind," said the student, who asked to remain anonymous because he is close to graduating. "He has crossed over into activism with a lot of his outside activities.

Because, after all, Harvard Law suffered so much when they hired Elena Kagan, a former Clinton administration political official, as dean. There thankfully doesn't seem to be any faculty support for the smear campaign.