Working Papers

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Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Classic Catalog to locate a working paper.

Recent Working Papers:

The Tax Lawyer as Gatekeeper


The modern tax lawyer has many different roles. She serves as advisor, advocate, engineer, endorser, insurer, and, at times, even adversary. In addition, as concerns about tax abuse and an eroding tax base have grown, legislators and the Internal Revenue Service have increasingly relied on tax lawyers to provide various quasi-gatekeeping functions. As constructed, however, this role is neither precise nor consistent. In many respects it muddles the roles of the tax lawyer, causes undue client conflicts, and merely serves as an obstacle to the sound and efficient provision of legal advice while failing to deter significant amounts of wrongdoing. This Article argues that in the prelitigation phase of a tax lawyer’s representation, the tax lawyer is well suited to perform a gatekeeping function and should do so.

The current legal rules governing taxpayers and their advisors comprise a labyrinth of procedures and controls that ineffectively regulate the modern tax system. Although the tax lawyer is certainly vested with a number of quasi-gatekeeper responsibilities, her duties often either over-effect or under-effect an ideal gatekeeper model. Within the proper framework, however, the tax lawyer is well positioned to perform the gatekeeping tasks of guidance, compliance monitoring, and misconduct prevention. These gatekeeping functions are consistent with the long-standing professional responsibilities of a lawyer, and a sound gatekeeping system could also help reconcile the otherwise conflicting duties tax lawyers face. 

This Article explores various modifications and refinements that must be made to the legislative and regulatory regime governing the behaviors of tax lawyers and taxpayers in order to fully realize the benefits of the tax lawyer‘s gatekeeping potential. Specifically, the proposed gatekeeping structure seeks to eliminate some of the ineffective and overly adversarial elements of the system, raise the standards for tax legality and penalty protection between tax lawyers and taxpayers, and augment the tax lawyer’s due diligence responsibilities.

Deconstructing the Rules of Corporate Tax


The U.S. corporate tax system is failing to keep pace with the evolving global economic landscape. The overwhelmingly complex regime rewards aggressive tax planning and creates incentives for corporations to move their capital and tax homes offshore. Calls for fundamental reform are escalating as the current system succumbs to the pressures of declining revenues, ever-emerging loopholes, and the perpetuation of one of the highest national statutory rates in the world. Indeed, President Obama and members Congress have acknowledged these shortcomings and affirmed their commitment to significantly overhaul the corporate tax system. Academics, practitioners, and the White House have proposed any number of reform measures to deal with the problems plaguing the U.S. corporate tax regime, including moving from a worldwide to a territorial-based regime, eliminating deferral, and lowering the statutory rate. However, these solutions involve varying structural and statutory changes, which are in fact extrinsic to the form of the underlying rules themselves.

In contrast, this Article argues for an innate form of change to the U.S. corporate tax rules, which would fundamentally affect the way in which tax lawmakers actually draft tax rules and regulations. In particular, it argues that a systemic focus and commitment by lawmakers to a more principles-based approach to regulation would significantly mitigate many of the challenges currently encumbering the U.S. tax regime. Generally speaking, as used herein, principles-based rules are rules in which the principle underlying the rule is actually stated on the face of the rule. In contrast, prescriptive rules are rules for which the lawmaker ex ante prescribes an outcome for a set of anticipated factual situations by applying, but not stating directly, the underlying principle. Unlike the present system, which relies almost exclusively on a complex entanglement of bright-line prescriptive rules, a principles-focused corporate tax regime would help significantly simplify tax provisions, close loopholes, make the system more responsive to a dynamic marketplace, and serve as a gateway to lowering the U.S. corporate tax rate. Thus, the implementation of more principles-based rules should be given consideration in any contemplated tax reform proposals.

Even Republics Must Sometimes Strike Back


Advocates for a literal view of the UN Charter hold that armed force can only be deployed with approval of the Security Council or in self-defense against an “armed attack.” They then tend to think that, in the latter case, force can only be deployed against the attackers. While it may seem logical, this approach is at odds with traditional understandings of what international law permits. It is at odds with more recent practice of states. And it is at odds with reasonable policy concerns, such as deterring future attacks and responding to limited, but repeated attacks. A more robust approach to self-defense can embrace a range of retaliatory measures without thereby disdaining humanitarian restraint.

Keynote Address: Is There a George Mason School of Law and Economics?


This article is the edited transcript of remarks provided in November 2013 on the occasion of the 40th Anniversary of the George Mason Law and Economics Center and the 10th Anniversary of the founding of the George Mason Journal of Law, Economics & Policy. The title of the conference was “The Unique Contributions of Armen Alchian, Robert Bork, and James Buchanan to the George Mason University School of Law.” In it I pose the question: “Is there a George Mason School of Law and Economics?” and I answer in the affirmative. I argue that the George Mason tradition of law and economics is a synthesis of multiple complementary schools of law and economics—Austrian, Chicago, UCLA, Virginia, and Washington—focused on spontaneous order, private ordering, dynamic market processes, and property rights. Given the subject of the conference, these remarks focus specifically on UCLA (Alchian), Chicago (Bork), and Virginia (Buchanan), but are not meant to discount the equally important influences of these complementary traditions.

Off the Track or Just Down the Line? From Erie Railroad to Global Governance


Prior to the Supreme Court’s 2012 Kiobel ruling, federal courts had, for three decades, agreed to hear human rights claims by foreign nationals, concerning abuses by foreign governments in their own territories. Some of the same commentators who applauded these cases also endorsed judicial rulings closing American courts to claims against foreign governments for expropriation of property – even when the property was in the United States or owned by Americans. Court rulings on the “federal common law of foreign relations” have zig-zagged since the 1930s. That confusion reflects the displacement of basic principles of common law ordering, which earlier generations identified with natural law. Erie v. Tompkins gave great momentum to that distorting impulse in modern jurisprudence.

Forcing Cooperation: A Strategy for Improving Tax Compliance


The current U.S. deterrence-based tax enforcement regime is failing, particularly with respect to large multinational corporations. Despite the continual passage of new penalties and reporting requirements, large businesses remain able to keep much of their income out of the reach of the federal treasury. While the IRS has struggled with the decreasing effectiveness of its enforcement efforts, jurisdictions such as Australia have been able to achieve increased compliance rates as a result of transitioning to a cooperative tax model. This type of regime focuses on resolving emerging taxpayer issues in real-time, providing taxpayers with helpful, readily available guidance, and creating positive incentives for compliant taxpayers, such as the ability to book tax benefits more quickly and lower compliance costs.

This Article argues for an adoption of a cooperative tax regime in the U.S., and more importantly proposes a framework for its implementation. Because many businesses are already able to successfully game the current system, they may be reluctant to voluntarily cooperate with the IRS based on the mere expectation of cooperation-based benefits. In order to combat this resistance, I argue that the IRS will have to delineate sharper compliance choices for taxpayers by broadening the spectrum of applicable compliance standards.

This Article proposes that the IRS implement a system in which non-cooperation is met with strict liability and heightened compliance standards, while cooperation is rewarded with expanded pre-filing programs, decreased liability standards, and lower compliance costs. When faced with these two choices, most taxpayers should, over time, choose to cooperate. Those who do not, however, will be met with more targeted enforcement. By widening the gap between the two enforcement regimes, taxpayers will be forced to signal their cooperative intentions to the IRS. The IRS can then dynamically use this information to make its post-filing efforts more effective and “force” more taxpayers onto the path of compliance.

Salience and Sin: Designing Taxes in the New Sin Era


Tax salience reflects the extent to which consumers take into account the after-tax cost of a good or service prior to making their consumption decision.  Recent empirical work on tax salience has revealed something that is perhaps intuitive, but nevertheless important to the design of sin taxes.  Taxpayers are more likely to make consumption decisions based on pre-tax rather than post-tax prices when the salience, or visibility, of a tax is diminished.  Thus, consumers are less likely to change their demand for a particular product if shelf prices are tax-exclusive rather than tax-inclusive.  Economically, this makes low salience taxes mimic some of the benefits of taxes on inelastically demanded goods.  Because a taxpayer’s demand change in response to a tax increase is diminished, the deadweight loss generated by the imposition of the tax can be reduced. Notwithstanding the potential for efficiency gains, politicians and academics alike have expressed various fairness, distributional, and normative concerns regarding the use of low salience taxes.  In fact, a number of countries already require tax-inclusive pricing for consumer products in order to purportedly preserve consumer awareness and transparency.

In contrast, I argue that lawmakers should not rush to reject tax-exclusive pricing outright and should continue to explore the benefits of low salience taxes in select situations.  To the extent lawmakers are able to minimize economic distortions the concerns that have been expressed are not always fatal.  I develop a new analytical rubric for tax salience, and determine that the appropriate use of salience for any particular tax is dependent on a number of factors.  These factors include the price elasticity of demand, the potential for countervailing income effects, and whether the tax is intended to raise revenue or modify taxpayer behavior.  As a normative matter, I find that selectively implemented low salience taxes can be beneficial.  However, I do not believe they should be universally implemented in sin tax design.  In fact, in another expansion on the current literature, I argue that in certain situations lawmakers may best benefit from high salience taxes.  I propose that these taxes may have efficiency benefits when lawmakers are seeking to influence taxpayer behavior.  Ultimately, while it is difficult to draw definitive conclusions regarding the optimal use of tax salience given that many empirical and theoretical aspects of salience have yet to be developed, the empirical work done to-date suggests that the impact of tax salience on tax design may be significant and is worth exploring.

City Replanning

By: Roderick Hills David Schleicher

Date Posted: 2014

No.: 14-32

Full text (most current version) on SSRN


In this paper we provide a new defense for one of the most criticized ideas in land use law, that city plans should constitute settled deals about the proper uses of land that should be sticky against subsequent zoning amendments. In the middle of the last century, several prominent scholars argued that courts should find zoning amendments that were contrary to city plans ultra vires. But this idea was largely rejected by courts and scholars alike, with leading figures like Carol Rose, Robert Nelson and Bill Fischel arguing that parcel-specific zoning amendments provide space for the give-and-take of democracy and lead to the efficient amount of development by encouraging negotiations between developers and residents over externalities from new building projects. Their case against plans and in favor of deals suggested that zoning authorities act either as arbiters in land use disputes or as agents for existing residents to encourage negotiated solutions.

We argue, by contrast, that the dismissal of plans was shortsighted and has helped contribute to the excessive strictness of zoning in our richest and most productive cities and regions, which has driven up housing prices excessively and produced outcomes that are economically inefficient and distributively unattractive. In contrast with both planning’s critics and supporters, we argue that plans and comprehensive remappings are best understood as deals. Plans and remappings facilitate trades between city councilmembers who understand the need for new development but refuse to have their neighborhoods be dumping grounds for all new construction. Further, by setting forth what can be constructed as of right, plans reduce the information costs borne by purchasers of land and developers, broadening the market for new construction. We argue that land use law should embrace a version of plans as a procedural tool that packages together policies and sets of zoning changes in a number of neighborhoods simultaneously through procedures that make such packages difficult to unwind.

We conclude by arguing that modern property law scholarship has failed to recognize that real property law is now substantially a public law subject and should be studied using the tools of public law. Leading scholars, most notably Tom Merrill and Henry Smith, have developed sophisticated tools for analyzing the ways in which the common law of property is designed to reduce information costs, which we employ here. But the field has ignored the fact that the common law of property is far less important than it once was as a method for regulating real property ownership and use. Legislatures and administrative agencies at a variety of levels determine most of the rules governing how real property is used and purchased. In order to understand how today’s property law increases or reduces the information costs facing owners, users, potential purchasers and third-parties to property, the field must make an “institutional turn,” studying the likely effects on policy of different institutional arrangements and procedures.

Intellectual Property and Property Rights


This essay is the introductory chapter to Intellectual Property and Property Rights (Edward Elgar, 2013), which contains some of the leading articles published in recent years on the nature of patents, copyrights, trademarks and trade secrets as property rights. But this essay does not merely review the articles. For the first time in a single essay, it presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.

Drawing upon the substantive content of the articles in the volume and beyond, the essay first reviews the two descriptive framings of intellectual property rights, explaining that intellectual property rights historically have been defined and justified as property rights since the eighteenth century and that there are serious analytical reasons why intellectual property is defined conceptually in this way. The essay then explains how these two descriptive bases – the historical account and conceptual definition – provide a foundation for the two normative justifications for intellectual property as property – the utilitarian and labor-desert theories. Ultimately, the essay summarizes the substantive theoretical case for intellectual property as property, and it also briefly summarizes the critique of intellectual property from the perspective of property rights advocates.

Does Price Discrimination Intensify Competition? Implications for Antitrust

By: James C. CooperLuke FroebDaniel O'BrienSteven Tschantz

Date Posted: 2014

No.: 14-30

Full text (most current version) on SSRN


As a general proposition, antitrust law is hostile to price discrimination. This hostility appears to derive from a comparison of perfect competition (with no price discrimination) to monopoly (with price discrimination). Importantly, economists have known for some time that some forms of price discrimination by oligopolists yield different welfare outcomes than price discrimination by a monopolist. This article focuses on the antitrust implications of price discrimination based on consumer location by spatial competitors that, in contrast to monopoly price discrimination, lowers prices for all consumers. In an important class of spatial models and many real world markets, the consumers to whom one firm would like to raise price – its strong market – are another firm’s weak market to which it would like to lower price. When this “best-response asymmetry” exists, the equilibrium outcome of spatial competitors reacting to each other’s discriminatory price reductions may be lower prices for all consumers and lower profits for all firms, compared to an equilibrium in which all firms offer uniform pricing to all consumers. We identify three areas of antitrust that could benefit from this economic insight: mergers of spatial competitors; the use of price discrimination to infer market power; and Robinson-Patman enforcement.

Competing Visions of Patentable Subject Matter


Although many people disagree about whether various types of subject matter (e.g. human genes, diagnostic tests, or business methods) are or should be patentable, they ostensibly agree on the overarching framework within which the issue is analyzed. Almost everyone in legal debates—in courts and in the scholarly literature—talks about patentable subject matter (PSM) in the consequentialist terms of promoting innovation and of maximizing utilitarian benefits while minimizing utilitarian costs. A solution to PSM debates is thus understood to involve merely the collection of better data and more empirical evidence to answer the utilitarian-economic question.

This Article challenges the widely shared premise. The ostensible consensus that everyone agrees that PSM law is about answering an agreed-upon utilitarian-economic question is an illusory one. In reality, debates about PSM law are not just about differences in empirical intuitions over economic costs and benefits; they are more importantly about differences in moral values, as well as about the relative weight of moral concerns vis-à-vis utilitarian concerns in patent law. Better data and more evidence will not resolve what is in reality a debate over first- and second-order normative commitments. Without candidly acknowledging and addressing the value differences that underlie PSM debates, the law in this area will remain an intractable mess.

A Return to Coercion: International Law and New Weapons Technologies

By: Jeremy RabkinJohn Yoo

Date Posted: 2014

No.: 14-28

Full text (most current version) on SSRN


In recent years, the U.S. has threatened air strikes against Syria and insisted on the possibility of air strikes against Iran, in both cases to deter development of weapons of mass destruction. Such threats represent a return to the idea that international law allows states to impose punitive measures by force. Most academic specialists claim that the UN Charter only authorizes force in immediate self-defense. Many commentators embrace the related doctrine that lawful force can only be exercised against the opposing military force. But there remains more logic in the older view, that international law authorizes force for a wider variety of challenges and against a wider range of legitimate targets. Since there is no global protective service, nations must use force more broadly in self-defense and greater powers must sometimes use force to resist the spread of weapons of mass destruction, to disrupt terror networks, to stop aggressive designs before they provoke all out war. There are good reasons to insist on restraints that limit loss of life among civilians, but civilian property does not have the same claims. But with today's technologies, cyber attacks or drone strikes can focus on carefully chosen civilian targets. That approach can help resolve disputes between nations with less overall destruction -- the ultimate purpose of the laws of war.

Removal: Necessary and Sufficient for Presidential Control

By: Neomi Rao

Date Posted: 2014

No.: 14-27

Full text (most current version) on SSRN


Legal and political uncertainty continues to surround the independent agencies. Courts and scholars have recognized that control over administration usually depends on political realities rather than on legal categories of "independence." This perspective, however, tends to disregard the constitutional boundaries for administration. Contrary to the conventional view, I explain why Congress's authority over agency structure must have judicially enforceable limits in order to prevent encroachment on the executive power. In light of the constitutional text and structure, this Article demonstrates that the ability to remove principal officers is necessary and sufficient for presidential control of the executive branch. This means that all agencies, including the so-called independent agencies, must answer to the President. The principle allows Congress and the President to operate within their respective spheres while leaving most questions about actual administrative control to the political process. Limits on the President's removal authority have always been in tension with the basic constitutional design and in recent years there has been growing dissatisfaction with the meaning, structure, and effects of independence. The precedents and functional justifications for supporting agency independence have largely collapsed. The issue is ripe for reconsideration. The constitutional structure requires presidential control and supervision over administration and the removal power provides the mechanism for the possibility of such control.

The Method of Law and Economics: Lectures on the George Mason School: Lecture 1-What Matters?


My objective in this course is to provide a general introduction to the method and content of the economic analysis of law, as it has been developed in the English-language literature, with emphasis on the contributions of those who are associated with what I believe will be known to history as the George Mason school of thought. Secondarily, I would like to use the course to convey some idea of the nature of instruction in American law schools.

Learning Law and Economics


The purpose of this book is to provide an elementary introduction to the body of thought known as “law and economics,” or alternatively as “economic analysis of law.” As is implied by its alternative name of economic analysis of law, the field of law and economics is concerned primarily with applying the methods of economic analysis to law and legal problems. Thus, law and economics primarily is a method of analysis; it is not a philosophy, political, moral, or otherwise; it is a tool. As such, it has achieved application across a spectrum of topics in law, and is used by people holding widely divergent perspectives on the legal process. Because of its increasing success in application, law and economics also can be viewed as a chapter in intellectual history, and one that is continuing today.

My aim in writing this book is two-fold. First, I seek to bring the essentials of law and economics to a wider audience, including those who are not professionally involved or previously trained in either law or economics. Second, the treatment here emphasizes an important aspect of economic analysis that too often is overlooked or de-emphasized in other introductory treatments, which is the economics of information production.

There are several excellent existing works on law and economics, including some introductory treatments, but these tend to be aimed at relatively specialized audiences, such as American law students or graduate economics students. My objective is to make law and economics accessible to the interested general reader, whether in the United States or elsewhere. As such, the book can be used as a text in undergraduate or graduate University courses, as well as law schools and economics graduate courses, or for self-study by others interested in the subject, whatever their prior background. Of necessity, my objective leads me to neglect certain topics and simplify others. However, simplicity need not produce a lack of sophistication. Overall, my aim is to show the broad usefulness of the few simple ideas that make up the law-and-economics paradigm. Detailed refinements or leading-edge critiques of the analysis, and debates over the normative implications of law and economics, largely are left to other works.

Who should be interested in learning law and economics? In my opinion, nearly everyone should be interested in learning something about law and economics, because its subject matter affects everyone who lives in society. Economics studies the conditions and consequences of human choice, and law is concerned with the conditions for human cooperation within a social group. Taken together, law and economics focus on the conditions for successful human cooperation within a society. Members of a society, which is most of us, all have an interest in meeting our own personal objectives within the social group, which may bring us into conflict with others. Economic analysis of law addresses the question of how those individual interests can be reconciled with one another.

Civil Procedure Reconsidered


The economic analysis of civil procedure can be enriched by a more thorough consideration of the productive functions of civil adjudication. The previous literature has recognized that civil adjudication does have products–conventionally described as dispute resolution services, plus precedents for future cases–but otherwise has tended to treat civil litigation as a tax on productive activity, or, worse yet, as unproductive or counter-productive rent-seeking activity.

While all of those perspectives can have their uses in certain contexts, they are all incomplete, because none captures an essential function of civil litigation within the legal system, which is learning, meaning the production of new knowledge or information, and not merely the exchange or revelation of pre-existing knowledge or information. Adding this perspective profoundly changes the economic analysis of civil litigation, which cannot thereafter be treated merely as a zero-sum (or negative-sum) game of strategic posturing and bargaining.

A more thorough consideration of the information-production function of civil adjudication presents a difficult and daunting task, because it requires more searching consideration of an obvious fact that has been recognized but not fully developed in the previous literature, which is that procedural law and substantive law act as both complements and substitutes for one another. This means that a full economic analysis of procedural law necessarily must account for its interactions with the substantive law that is sought to be enforced, which is inherently a complex undertaking. That approach also cuts against the usual instincts of analysts in all fields, which is to carve up the subject of study into more easily digestible parts for examination.

Therefore, the primary objective of this paper is to show why it is essential to consider the substance-procedure interaction in order to arrive at useful results. The implications are profound, because the substance-procedure interaction exposes the information-production function that lies at the heart of the civil adjudicative process: because neither parties nor tribunals nor the legal system can “know” anything until the point of definitive adjudication, the adjudicative process itself functions creatively and productively, much like the price system in open markets. Moreover, as adjudication is a substitute for as well as a complement to substantive law (or ex ante contracting), decisions to defer (or not defer) information production into the adjudicative stage themselves are productive decisions of economic moment. Therefore, the tradeoff between ex ante investment (as through contractual provisions, rules of substantive law, or parties’ decisions regarding their primary conduct) and ex post investment in adjudicative fact-finding is in no sense neglectable in the economic analysis of procedural law, but rather may be the single most important question to be examined.

In developing that thesis, this paper draws upon the insights of the Austrian economists, most notably Mises and Hayek. However, this is not a special “Austrian” perspective only, but a completely general point: once it is recognized that civil litigation creates a product in the form of new knowledge, then decisions to invest in litigation (versus its alternatives) must be treated not merely as “rent-seeking,” but also as embodying some element of innovation, and thus are analogous to other investments in new knowledge, such as research and development, or exploration for natural resources. Because the incentives affecting such investment decisions necessarily will affect the supply and price of new knowledge, then the rules of civil adjudication, no less than those of any other legal regulatory structure, will affect welfare through their effects on the creation and production of new information through litigation, or its alternatives.

The Perils of Regulatory Property in Land Use Regulation


“Regulatory property” is the right to engage in specified activities, made valuable by government prohibitions against competitors, and protected by de jure or de facto status as property. This Article explores regulatory property and focuses upon its applications in land use regulation. It considers, inter alia, transferrable development rights, exclusive leases of subsidized sports stadia, and urban revitalization condemnations for retransfer for pre-arranged private development. The Article concludes that these generally are unfair and inefficient practices.

O’Reilly v. Morse


O’Reilly v. Morse (1854) is a famous patent case. It is relied on by Justices and judges, discussed by scholars, and taught to students. Everyone agrees it was correctly decided: Chief Justice Roger Taney’s majority opinion stopped Samuel Morse’s attempt to control all telecommunication technologies with a patent that went far beyond his invented telegraph and encompassed modern email, fax machines and text messages. This conventional wisdom, however, is profoundly mistaken. It fails to account for the historical context in which Morse invented, patented, commercialized and ultimately was swept up in massive litigation over his innovative telegraph.

This paper corrects this anachronism by reinserting this full historical context back into our understanding of Morse. It details the invention and innovative commercial development of the telegraph, and it reveals that Chief Justice Taney’s opinion was not a sterling exemplar of patent law. Similar to his decisions in constitutional law and in other patent cases, Chief Justice Taney ignored established patent doctrines and instead decided the case on the basis of his own political biases. As a fervent Jacksonian Democrat, Chief Justice Taney viewed patents as state-granted monopolies, and not as property rights in technological innovation. It is only a happy accident for him that his judicial activism in O'Reilly v. Morse comported with much-later changes in patent law that made his opinion appear correct to our modern eyes — unlike Chief Justice Taney’s similar twisting of established law in Dred Scott to reach a result similarly dictated by his personal political preferences.

A Christmas Gift for the Supreme Court: How a 1959 Holiday Party Eclipsed a History of Discrimination

By: Ross Davies

Date Posted: 2014

No.: 14-21

Full text (most current version) on SSRN


On December 28, 1959, the New York Times published a little news item that was, in hindsight, both (1) a public relations triumph for Banning E. “Bert” Whittington, the U.S. Supreme Court’s Press Officer at the time, and (2) a jurisprudential and institutional relief for the Court. COURT DEFIES PRECEDENT: "One of the last institutions holding out against the Christmas Party succumbed last week. The Supreme Court had a pleasant but sober affair arranged by its press officer, Banning E. Whittington. Five of the Justices – Hugo L. Black, Felix Frankfurter, William O. Douglas, William J. Brennan Jr. and Potter Stewart – joined the small staff of employes. There were fruit punch, cookies and carols by a high school group, with some audience singing, too." The story has a tone that should ring familiar in the ears of modern consumers of Supreme Court news reporting: good-natured indulgence of that somewhat dull, somewhat behind the times, somewhat culturally clueless wallflower among our great institutions of national government. But the background to that story suggests that the Court was not at all clueless in 1959. Indeed, the Court’s handling of that Christmas party, and the Times coverage of it, may have helped the Court occupy the high ground during its continuing campaign in the 1960s against racial discrimination.

Affirmative Action: Between the Oikos and the Cosmos


This essay reviews Sander & Taylor’s book, MISMATCH: HOW AFFIRMATIVE ACTION HURTS STUDENTS IT’S INTENDED TO HELP, AND WHY UNIVERSITIES WON’T ADMIT IT (MISMATCH) by situating its claims within a context. Context is supplied by examining three things: first, by reflecting on the contradictions embedded in the modern world; second, by exploring the paradoxes of Supreme Court jurisprudence; and finally, by observing the gulf between the cosmopolitan ideal predicated on appeals to Americans as citizens of the world who are provoked by reason and love of humanity and bounded only by universal moral obligations on the one hand, and a vision that sees citizens of the United States as individuals who are bounded by the primacy of their commitment to the nostos comprised by the local community of birth and the particularities of family and nation, on the other.

Several reasons spark this review of MISMATCH. First, the authors contend that they have “demonstrated that the present system of racial admissions preferences has grave problems and has shown a remarkable incapacity to heal itself,” a thesis that is made all the more puzzling given their corresponding claim that the United States “Supreme Court seems to be the only hope for serious and stable reform” of our current affirmative action system. Second, William Kidder and others have raised a number of serious issues that indicate Sander & Taylor have too often relied on either questionable data or incomplete data analysis. Third, the Court’s recent decision upholding the state of Michigan’s ban on racial preferences. Fourth and finally, the possibility that diversity as practiced within leading American universities has been transmuted into racial commodification. These factors, taken together, suggest that it is a propitious time to review the authors’ scholarship.