Author: Max Hyams

Getting Rid of Bar Exams Won’t Help Anyone

For years, affirmative-action proponents have urged colleges and universities to reduce (or eliminate) their reliance on standardized tests as a basis for admission. The COVID-19 pandemic has opened up a window of opportunity for these activists, as many high-school students have been unable to sit for tests. And so a growing list of schools are waiving SAT and ACT requirements for their applicants. What is less known is that the same trend is gaining traction in the professional sphere. Last month, Darleen Ortega, a judge on the Oregon Court of Appeals, cast doubt on the value of state bar exams, arguing that the bar-passage requirement “does not function to protect the public by assuring a minimum level of competence to practice law… I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.” Similar arguments have appeared in the Washington Post and trade publications. Under the headline COVID Should Prompt Us To Get Rid Of New York’s Bar …

Affirmative Action in a Multiethnic Nation

This last week, the California Legislature voted to hold a referendum to repeal Proposition 209 in November. Passed in 1996, Prop 209 banned affirmative action in public contracting, employment, and education. This maneuver comes on the heels of the Black Lives Matter protests and riots roiling the nation, and is of a piece with the ongoing cultural revolution which is attempting to instantiate Critical Race Theory as the hegemonic ideology in elite institutions. As we are constantly reminded, America is becoming an ever-more diverse nation. Whites will be a minority by mid-century. Some perceive this to be an unalloyed good. But it appears that few proponents of affirmative action are prepared to consider the dangers of quotas in a multiethnic society. A survey of other nations’ experiences with this policy reveals sobering consequences. At best: social strife, inefficiency, endemic public corruption, and nepotism. At worst: tribalized violence and warfare. In Malaysia, after the British colonial administration departed, the fledgling nation faced simmering ethnic tensions among native Malays (bumiputeras/“sons of the soil”) and overseas Chinese and …

Paul Manafort and Systemic Bias

As we navigate the world, we attempt to understand the structures that surround us. And often, because we struggle with complexity and uncertainty, our putative knowledge comes packaged in neat and tidy descriptions of societal phenomena, invoked with a high degree of epistemic confidence. Rather than indulging explanations rife with qualifiers and disclaimers—for example, “System X is Y in areas C, B and Q but not in D and F”—we defer to absolute, uncompromising narratives that allow for the staking of moral high ground. In order to sustain these narratives—and, by extension, our moral certainty—singular cases are adduced as definitive proof of system-wide descriptions, inapt analogies are drawn, and relevant/countervailing facts are elided. In discussions about racism in the U.S. criminal justice system, the dynamics are no different. The 47-month sentence received by Paul Manafort, former campaign chairman for President Trump, has provided fodder for bias theorists. According to their account, the U.S. criminal justice system has two-tiers: one for those with white collars and white skin and another for those with blue collars (or …

Truth and Disfavored Identities

In public discourse, an opponent’s identity and experience can matter more than their arguments. For instance, if you are a philosopher who supports the use of torture in a narrow set of circumstances on utilitarian grounds, you would not want to find yourself debating the ethics of such a position with a victim of torture. The optics of such a debate would be horrible, and in the minds of many observers they would place the philosopher at a decisive disadvantage no matter how careful or well defended his arguments happened to be. In the same way, whole groups of people consigned to the bottom of the identity politics grievance hierarchy are saddled with a similar handicap, often in situations far less contentious than the debate over torture. On Saturday in Washington DC, a group of Catholic school kids fell victim to this presumptive logic. The progressive media ran with a story that confirmed their intersectional priors and, in the process, damaged their credibility, established an unsustainable precedent, and unwittingly affirmed President Trump’s demagogic “Fake News” …

The Folly of a Racialized Criminal Justice Reform Debate

In the wake of the 2014 shooting of Michael Brown and the subsequent upheavals in Ferguson, Missouri, a number of political pundits implored Americans to engage in a “national conversation about race,” particularly as it pertained to racial disparities in the criminal justice system. These exhortations were understandable. America has the highest rate of incarceration in the world and—in state prisons—blacks are incarcerated at five times the rate of whites. America has a well documented history of subjecting blacks to police brutality, and reform advocates will often claim that this racially motivated mistreatment persists today. Well intentioned activists seek to rectify this state of apparent racial injustice. However, almost four years after Ferguson, no federal legislation has been passed. While several states have enacted meaningful reforms, the system as a whole remains unaltered. What explains this failure? By all reasonable accounts, we have had the demanded ‘national conversation’ about race in the intervening years since Ferguson. Apparently, and perhaps predictably, that discussion has been unproductive. Race as a Distraction and Means of Alienation After high-profile incidents …