Category Archives: Blog

Wrongful Convictions: Social Change conference discusses root causes and reforms

By Danielle Arbogast

On November 12, 2014, more than three hundred and forty guests gathered at the NYU Law Alumni Association’s Annual Fall Conference, cohosted by the NYU Review of Law & Social Change, to consider a pressing problem in the United States legal system: wrongful convictions. Law Alumni Association President Carren Shulman ’91, Dean Trevor Morrison, and Review of Law & Social Change Symposium Editor, Olivia Scheck ’15, introduced the distinguished panel of speakers: moderator Rachel E. Barkow, Jennifer E. Laurin, Ken Thompson ’92, Ronald S. Sullivan Jr., Barry C. Scheck, and Peter J. Neufeld ’75.

The evening began with an overview of wrongful convictions in the American legal system. Professor Jennifer Laurin, whose article on Brady violations is forthcoming in Issue 38.3 of Social Change, described the patterned, systematic nature of the mistakes that lead to wrongful convictions. These mistakes include erroneous identifications, false confessions, unreliable forensic evidence, poor defense performance, and prosecutorial misconduct, among others.

Another key focus of Laurin’s was the interaction of systemic factors to introduce error. As Laurin noted, “You also see that the witnesses were wrong, in part because… there were incidents of suggestion, or you see a false confession, and in an overwhelming number of these cases, the confession stood, because the confessor spoke to inside information.” This inside information, or information that had not been made public, may have actually been suggested during the process of an interrogation—just one example of how error can be introduced into the process of investigating these cases. Laurin explained that not all exonerations are the products of intentional misconduct—errors found in cases resulting in exonerations are consistent with social science findings that regular investigative practices and adjudicative practices can actually introduce error.

Laurin noted the great need for further study of these systemic mistakes. She pointed out that the legal system’s procedures for error correction are disturbingly ineffective. For example, surprisingly few of the individuals had even litigated the evidentiary issues that led to their exoneration in their original post-conviction proceedings, and those who did were generally unsuccessful in their appeals.

Ken Thompson, who was sworn in as Brooklyn District Attorney on January 1, 2014, continued the conversation by describing the efforts of his newly formed Conviction Review Unit, which has vacated ten wrongful convictions in ten months. Thompson prioritized the unit after taking office. Thompson shared a personal story about vacating the wrongful conviction of Willie Stuckey, who had died in prison. Thompson spoke of his call to Stuckey’s mother, when he asked her to stand in Willie’s place in court when they moved to vacate, and poignantly stated that “I think what we are doing in Brooklyn is necessary. It is necessary to protect the integrity of the criminal justice system.”

Ron Sullivan Jr., the faculty director of the Harvard Criminal Justice Institute and a founding fellow of the Jamestown Project, was appointed as Special Counsel to the District Attorney for the Conviction Review Unit. When Sullivan—who has a strong background in criminal defense—was called to be Special Counsel to the District Attorney, Thompson told Sullivan that he wanted this to be a “real unit, a unit that actually does the work, not something that does the work in name only. And I want it to be good, I want it to be great, I want to do some of the best work in the country on this.” The two panelists spoke about the safeguards for the integrity of the unit to ensure that the Conviction Review Unit avoided problems of “the fox guarding the henhouse,” including an independent review board to assess each case.

Barry Scheck and Peter Neufeld, co-founders and co-directors of the Innocence Project, concluded the panel discussion by considering what we can learn from exonerations, and where we should go from here. Scheck discussed the multifaceted nature of the mistakes leading to wrongful convictions, noting that when mistakes are made in a complex system, the cause is rarely a single event. Scheck explained that in cases of wrongful convictions, “It’s not just that there was a mistaken identification or a false confession—but where was the defense counsel? Where was the judge? And maybe some of the police officers made a mistake. Very rarely are these total system failures the result of a single person.” As more exonerations take place, states are trying out new ways to not only correct these errors, but also to learn from them and prevent them in the future. Some of these solutions include new discovery rules influenced by a growing awareness of wrongful convictions. For example, Scheck discussed a rule in North Carolina which mandates that after a conviction in a capital case, a defendant must be given access to the prosecution’s entire file. Even as these innovations are made, however, Scheck notes that “[w]e are just beginning to learn from these cases.”

Peter Neufeld commended Thompson and the Conviction Integrity Unit for the integrity that is shown by their work, but cautioned, “there is still more to be done.” He urged that when wrongful convictions are identified, root cause analyses need to be conducted. The systemic causes of each case need to be explored, and the contributing factors need to be identified.  Neufeld argued that in addition to the cases we know were wrong, we must also be seeking out the near misses—the cases that almost went wrong. He drew a comparison to the office of the medical examiner, which has a standing root cause analysis committee in place, and mechanisms in place to ensure transparency. Neufeld expressed that this should be extended to crime labs, so that when things go wrong, we are able to get at the system where it is failing. He also expressed concern about allowing DA offices to police themselves—before and after trial. Because so many cases involve a failure to disclose, Neufeld suggests having an independent person review what evidence has been turned over to defense prior to trial, and what has been withheld. A fresh view free from unconscious cognitive biases might prevent some errors. Neufeld also touched on the risk factors that can impact the likelihood of a wrongful conviction, and addressed the issue of racial disparity that plagues the system. He notes that this is a unique risk factor, because it doesn’t have a clear recommendation for remedy like the other risk factors. He argued that exploring possible remedies is crucial to achieving true justice.

A question and answer period followed the panel discussion, which drew extensive crowd participation.

The Law Alumni Association and NYU Review of Law & Social Change are grateful to everyone who attended, as well as to the many individuals who helped put this spectacular event together.

 

“The Harbinger” Launches March 11th!

Coming soon: The Harbinger, an online publication from Social Change!

We are excited to announce that this spring, Social Change will launch an online-only, short form publication. The Harbinger will publish innovative content and legal scholarship that incorporate critical new perspectives and diverse voices. The Harbinger will reflect the core values of Social Change and complement our traditional publication by providing a flexible, responsive and dynamic platform.

Our emphasis is on work that is timely, approachable, and varied in format. Diversity in form is
intended to facilitate diversity in author perspective and in readership. Our condensed publication schedule and online presence allows authors engage in unfolding debates about the law and social issues. Practitioners, policymakers, students, and others are encouraged to take advantage of our emphasis on short-form pieces and range of content. Please see our submission policy for additional information.

We are currently soliciting pieces for publication and encourage submissions by December 20th for consideration for March publication. Mark your calendars for the evening of March 11th for our launch party and please feel free to contact the Digital Executive Editors with any questions.

Announcement: The New Frontier of the Fight Against Pregnancy Discrimination

Association for Women in Science Piece by Mary Ann Mason, PhD

Earlier this month, the California State Legislature asked upcoming RLSC author Mary Ann Mason, Ph.D., to testify on Assembly Bill No. 2350, an Assembly amendment requiring all institutions of higher education—public colleges and universities—to comply with the Title IX prohibitions on pregnancy discrimination. After considering, among other things, Dr. Mason’s research on women in STEM career paths, as well as an advance copy of her article, Title IX and Pregnancy Discrimination: The New Frontier (co-written with Jaclyn Younger, forthcoming in issue 38.2), the legislature passed the amendment unanimously.

This amendment provides for significant new protections, including a requirement that postsecondary educational institutions to allow graduate students, if they so choose, to take leaves of absence of at least 2 academic terms because they are pregnant or have recently given birth, unless there is a medical reason for a longer absence. The amendment also requires that these students be given at least 12 additional months to prepare for and take preliminary and qualifying examinations and an extension of at least 12 months toward normative time to degree while they are in candidacy for a graduate degree, unless a longer extension is medically necessary.

Check back soon to read this exciting article!

 

 

Diversity and Disgrace – How the U.S. News Law School Rankings Hurt Everyone

Image Credit: James Sarmiento via Flickr

Image Credit: James Sarmiento via Flickr

By Tony Varona[*]
Professor of Law and Associate Dean for Faculty and Academic Affairs at the American University Washington College of Law

U.S. News and World Report recently released its law school rankings[1] and, as happens every year, readers have focused almost exclusively on the many extreme fluctuations in ranks. Why did Schools A, B and C suddenly jump 20 spots? Did the learning experience at Schools X, Y and Z really erode so dramatically as to justify their 25-spot freefall? What will this big drop (or climb) mean for student and faculty recruitment, and alumni employment rates, at these schools?

Instead, or in addition, we should be asking more probing questions, like: Does the U.S. News measuring stick itself measure up? Is it measuring the right things? And what effects have the U.S. News rankings had on legal education and society itself?

If we were to carry a miner’s canary[2] into the depths of the U.S. News ranking methodology,[3] we quickly would have a dead bird on our hands. Why? Let us look at just one flaw that, standing alone, discredits the U.S. News rankings altogether.

Experts in diversity point to how composites and alloys of diverse elements produce building materials that are much stronger and more robust than their individual parts.[4] They reference how reproductive diversity is crucial for the collective health of species.[5] There is no dispute that biodiversity itself is a linchpin of the planet’s ecosystem.[6] Philosophers such as Montesquieu and Condorcet credited random transactions among diverse merchants for promoting community and trust among different peoples; doux commerce civilized the motley hordes.[7] “Effective competition” requires the participation of a diversity of market competitors in delivering the best consumer value. And financial advisors urge us to diversify our investments so that we can better optimize the performance of our portfolios in uncertain markets.[8]

In short, diversity pays off in many areas.

In legal education, diversity among students is indispensable. We train law students, after all, to be “social architects”to serve as ministers of justice among the nation’s very diverse communities. Unsurprisingly then, an awareness of and comfort with the diversity of races, ethnicities and backgrounds that make up our societyand that are dependent upon our legal systemhelp law students become better and more effective lawyers.[9] In his plurality opinion in 1978’s Bakke[10] decision, Justice Powell wrote that “[i]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this nation of many peoples.”[11] Justice Powell’s words later played a prominent role in the Court’s landmark Grutter[12] decision, upholding the University of Michigan Law School’s diversity-promoting admissions policy.

Precisely how does a high rate of student diversity benefit all law students?

I teach Contracts to a full section of approximately 80 first-year students every fall at my law school, the American University Washington College of Law. Ours was “the first law school in the world founded by women” (in 1896), [13] “the first . . . founded especially for women,”[14] and one of our two founders, Ellen Spencer Mussey, became “the first woman dean of an American law school.”[15] Valuing diversity is in our school’s genome. Nearly 60 percent of our last entering class was comprised of women.[16] Fully 40 percent are racial and ethnic minorities.[17] We welcome many international, LGBT, and disabled students, and students from a spectrum of faiths, cultures and worldviews.

To train advocates, we law professors prefer to conduct our classes less like virtuoso lecturers and more like conductors of well-tuned symphony orchestras.[18] Law teaching is a rigorous, high-energy, and interactive exercise. What my students contribute from class to class, therefore, determines to a significant degree the quality, sophistication and rigor of the teaching we are able to achieve together. It should come as no surprise, therefore, that our school’s high rate of student diversity enriches the educational experience for all of my students throughout the semester.

Here are just a few examples from my last Contracts class:

  • In our first session, I had the students puzzle over an introductory hypothetical. In what cases should a gift shop’s prominently displayed sign saying “You Break It, You Buy It” lead to contractual liability? Almost immediately, some of my multilingual, multicultural students asked something like: “Would the answer not depend on whether the customer in question could read and understand English?” “What if she were blind, or functionally illiterate?” Important, challenging questions.
  • Later, we analyzed a case study involving sex work contracts and the legal bases for their criminalization. In response to several students’ liberty-based arguments for decriminalization, another student presented an eloquent appeal for the subjugation of personal autonomy in favor of communitarian objectives. This value of community over self, tribe over individual, was a decidedly foreign counterpoint delivered by my student from West Africa – a former Christian pastor and community servant.
  • When we discussed the Civil Rights Act of 1866 and its provision against racial discrimination in contract formation and enforcement, we considered the refusal of certain hairstylists to “do African-American hair.”[19] Some of my African-American students offered enlightening and unique observations, stemming from their personal experiences, about how our legal analysis should consider racial differences in hair texture, the manner in which the customer was addressed and treated, the salon’s clientele, and its neighboring community. These inquiries enabled us to go far beyond the otherwise facile substantive framing provided by casebook.
  • In another class, we discussed a viral social media story, likely a hoax but still instructive as a hypothetical case, in which a Chinese father claimed breach of contract against his wife after their biological baby came out, as he put it, “extremely ugly.”[20] The father alleged that his wife had surreptitiously undergone facial plastic surgery in order to induce him into marriage. Our analysis was made all the more sophisticated and culturally competent by the contributions of two of my students – one an Asian-American and the other a native-born Chinese student – who described the prevalence of plastic surgery among unmarried young women within Far Eastern societies.
  • Our examination of the 1902 Alaska Packers’ Association v. Domenico decision[21] was especially telling. Mostly Italian immigrant fishermen in San Francisco were contracted by a salmon fishing and packaging company to sail to Alaska and work in exchange for a flat $50 fee and a commission of 2 cents for every fish caught. The fishermen expected to earn most of their money catching salmon and so were alarmed to find upon arriving in Alaska that the company had plenty of salmon already caught for the fishermen to can and would only provide low-grade fishing nets. [22] They refused to work until the company’s representative granted their demand for a doubling of the base fee. After the company broke that promise, the fishermen sued, and lost. The court held that Alaska Packers’ representative had promised the doubled fee under duress, rendering the promise unenforceable.

    Our casebook presents Alaska Packers as a cut-and-dry application of doctrine, but some of my immigrant, working class, and non-native English students argued for the fishermen. They helped show how the fishermen were at a bargaining disadvantage due to a lack of facility with both the English language and American business practices. It was Alaska Packers who acted in bad faith and breached the contract, they argued, by unfairly saddling the fishermen with a backlog of fish and low quality nets. Their arguments were instrumental in bringing to light a more sophisticated and critical legal analysis found only in the best scholarly writing on the case.[23]

The different perspectives provided by these diverse students, rooted in their own experiences and backgrounds, added depth, nuance and quality to our discussions and debates. Their contributions turned what otherwise would have been rote and simplistic coverage of dusty doctrines into rigorous and careful analyses of the kind that we expect from the most sophisticated of practicing attorneys. Their presence and contributions added significantly to the academic rigor and sophistication of our course, and grounded it in the real world. In other words, they helped produce precisely the sort of learning experience we law professors strive to provide to all of our law students but that would be impossible to achieve in the absence of student diversity.

So, in light of how valuable diversity among students is to legal education, you might be wondering how much weight U.S. News devotes to student diversity in rating America’s law schools. Ten percent? Fifteen?

The answer is… zero.

The U.S. News ranking methodology ignores student diversity altogether in calculating the rankings. It treats a law school with little diversity as virtually indistinguishable from a very diverse school where pedagogically rich exchanges like those above abound.

For a variety of reasons,[24] the average underrepresented minority student tends to have lower GPA and LSAT scores – the myopic[25] academic credentials that U.S. News “counts” – than his or her White, nonminority counterpart. So, it is easy to see how schools that trade student diversity for higher numbers tend to move up in the U.S. News ranks. By contrast, schools that refuse to sacrifice diversity pay a big U.S. News price for pursuing what most educators agree is best for all our students. U.S. News actually rewards less diverse schools for admitting less diverse classes, and altogether ignores the clear learning advantages at the more diverse schools.

It is no secret that law schools have gone as far as admitting much smaller and significantly more homogenous first-year classes, and then letting many more students in through the 2L transfer “back door” (where U.S. News’s methodology does not look), thereby hiding the true credentials of their students from the magazine and artificially inflating their U.S. News ranks.[26] U.S. News does nothing to stop schools from engaging in this obvious manipulation.

The U.S. News editors in charge of the magazine’s law school rankings have known about these (and other) glaring flaws in their ratings methodology for years. I myself, together with colleagues, have spoken about some of these serious shortcomings with Robert Morse,[27] the editor in charge of the U.S. News rankings, twice. Despite the professoriate’s reticence to acknowledge and (we fear) legitimize U.S. News’s rankings, colleagues have made some of the same arguments I have made, as well as many others, again,[28] and again,[29] and again[30] (and again[31]). But to no avail. U.S. News remains unmoved.

Since U.S. News goes so far as to provide diversity data[32] separately from the main rankings, why does it not reward schools that are more diverse than others by incorporating a diversity score in the rankings themselves? Mr. Morse insists that doing so would be difficult.[33] He has argued that “measuring how successful law schools are at achieving diversity goals cannot be included easily in our rankings formula in a fair and meaningful way.”[34] Mr. Morse also has pointed to demographic, statistical and other hurdles.[35] And I agree with him that it would not be easy, particularly in light of the challenge of accurately defining, quantifying and weighting indicia of diversity without inadvertently penalizing schools (like historically Black institutions) that serve underrepresented minorities primarily but are not, in the technical sense, “diverse.” (Sociologists Wendy Espeland and Michael Sauder addressed these and other challenges brilliantly in a 2009 article.[36]) These ambiguities, however, are far less intractable than U.S. News’s current corrosive approach.

Furthermore, it should give pause that Mr. Morse, the guru of the U.S. News law school (and numerous other) rankings, betrays a disturbing ignorance of the significant pedagogical value of student diversity in law school classrooms. He has said that “an important issue” impeding the incorporation of a diversity element into the law school rankings is the “question of whether diversity should even be included in the rankings, given that the main purpose of the rankings is to identify the best schools academically.”[37] Apparently, Mr. Morse believes that student diversity and academic quality are competing instead of complementary objectives. Student diversity, he suggests, detracts from academic excellence, despite the Supreme Court’s own findings to the contrary[38] and the experience of many law students and law professors in diverse classrooms across the nation, including–as I demonstrate above–my own.

The sad truth is that the U.S. News law school rankings have hurt, and not helped, American law students, the legal profession and, thus, society as a whole. The U.S. News rankings have resulted in the denial of a quality legal education to minority law school applicants with great promise and drive but modest, rankings-unfriendly credentials. It has kept deserving students with great potential in the legal profession outside the doors of quality law schools and the profession itself by encouraging restrictive admissions policies geared more towards gaming the rankings than doing what is right societally, and what is best pedagogically.

Adding insult to injury, U.S. News has done all of this at a time when the demographic complexion of the legal profession continues to lag far behind the increasingly rich diversity of the nation’s population. No less than the president of the American Bar Association, James R. Silkenat, recently bemoaned the fact that the American legal profession looks very little like the population it serves. He noted that “[w]hile people of color will soon be the majority in this country, racial and ethnic minorities constitute just 13 percent of lawyers, and minority women are only 6 percent.”[39]

None of this, of course, is to say that White, non-minority students do not have a lot to contribute to in-class analyses, discussions and debates. They very much do. The issue is not about who already is present in many American law school classrooms – it’s who is absent. And there is no disputing the reality that U.S. News’s anti-diversity ranking methodology has led to more homogenous and less effective law school classrooms, harming all of our law students and producing a less sophisticated, worldly and diverse legal profession–a result that hurts us all.

Prospective law students should keep these criticisms in mind as they review the new U.S. News rankings. Applicants are right to choose among their law school options with great care and a skeptical eye. But they also should be wary of the U.S. News law school rankings themselves, which are so flawed and misleading that they may very likely do these students – like so many students before them – a whole lot more harm than good.


[*] The author thanks colleagues Professors Mary Clark, Angela Davis, Robert Dinerstein, Claudio Grossman, BJ Kaufman, Elliott Milstein, Andrew Popper, Jamin Raskin, Darren Rosenblum, Ann Shalleck, and Ari Ezra Waldman, the students in his fall 2013 Contracts class, and John Gill, for very helpful feedback on earlier drafts of this essay. Tami Martin, Esq., provided excellent research assistance. Many thanks also go to Geoffrey Wertime, Scott Bulua and Jonah Peppiatt for brilliant editing.

[1] Travis Mitchell, Best Law Schools 2015, U.S. News & World Rep., March 10, 2014, http://www.usnews.com/education/best-graduate-schools/top-law-schools/slideshows/us-news-best-law-schools-2015.

[2] See Lani Guinier & Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (The Nathan I. Huggins Lectures) (2003) (applying the “canary in the coal mine” metaphor to the function and status of race in the United States).

[3] Sam Flanigan and Robert Morse, Methodology: 2015 Best Law Schools Rankings, U.S. News & World Rep., March 10, 2014, http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2014/03/10/methodology-2015-best-law-schools-rankings.

[4] Frederick A. Miller & Judith H. Katz, The Path from Exclusive Club to Inclusive Organization: A Developmental Process 8 (2007), available at http://outandequal.org/documents/KJ_PathFromExclusive_AR_Flat_010509.pdf. See also Jeffrey F. Milem, Mitchell J. Chang, & Anthony Lising Antonio, Making Diversity Work on Campus: A Research-Based Perspective 6 (2005), available at http://siher.stanford.edu/AntonioMilemChang_makingdiversitywork.pdf (discussing educational advantages of diverse college classrooms).

[5] Miller & Katz, supra note 4, at 8.

[6] Biodiversity, World Health Org., http://www.who.int/globalchange/ecosystems/biodiversity/en/ (last visited Mar. 21, 2014, 12:41 AM).

[7] Alessandro Roncaglia, The Wealth of Ideas: A History of Economic Thought 86 (2006).

[8] See, e.g., The Pros’ Guide to Diversification, Fidelity Viewpoints, Fidelity (Sept. 4, 2013), https://www.fidelity.com/viewpoints/guide-to-diversification.

[9] See, e.g., Alyson Oliver and Reed Erikson, Why Leadership Diversity in Litigation Is Crucial, Trial Mag., March 2014, at 40, 40-43. Litigators Oliver and Erikson argue that “[d]iversity breeds courtroom success.” Id. at 41. They observe that, “[g]enerally, diverse groups tend to outperform nondiverse groups by a substantial margin, and they make more innovative business decisions than their homogenous counterparts.” Id. at 40.

[10] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)) (upholding the reliance on race as an element in college admissions decisions but invalidating the use of racial quotas).

[11] Bakke, 438 U.S. at 313.

[12] Grutter v. Bollinger, 539 U.S. 306 (2003).

[13] Founders: Mussey & Gillett, Am. U. Wash. Coll. of L., http://www.wcl.american.edu/history/founders.cfm (last visited April 1, 2014).

[14] http://www.wcl.american.edu/history/founders.cfm Virginia G. Drachman, Sisters in Law: Women Lawyers in Modern American History 150 (1998) (emphasis added). Drachman notes that WCL was the first and “only law school in the county devoted especially to women” and “was run and taught primarily by women.” Id. at 152.

[15] Mary Clark, The Founding of the Washington College of Law: The First Law School Established by Women for Women, 47 Am. U. L. Rev. 613, 661 (1998). Dean Clark notes that “[WCL] became the first law school established by and for women in the United States. As WCL’s first and second deans, Mussey and Gillett were the first two women to lead an American law school.” Id. at 614. See also Washington College of Law: Rich in History, Am. U. Wash. Coll. of. L., http://www.wcl.american.edu/history/ (last visited Mar. 21, 2014, 12:58 AM).

[16] Admissions Profile for the 2013 Entering Class, Am. U. Wash. Coll. of L., http://www.wcl.american.edu/admiss/profile.cfm (last visited Mar. 21, 2014, 1:00 AM).

[17] Id.

[18] See Tania Sheko, Should Teachers Be More Like Conductors? TED Tells, Brave New World (Oct. 22, 2009, 8:17 AM), http://tsheko.wordpress.com/2009/10/22/should-teachers-be-more-like-conductors-ted-tells/.

[19] See, e.g., Perry v. Command Performance, 913 F.2d 99 (3d. Cir. 1990) (African-American patron of hairstyling salon refused service by substitute stylist who exclaimed, “No, no, no, no! I don’t do black hair. No, no, no, no! Not today!. . . I’m from New Hampshire and I don’t deal with blacks!”), discussed in E. Allan Farnsworth et al., Contracts: Cases and Materials 176-77 (Foundation Press, 8th ed. 2013); “We Don’t Do Black Hair”: Discrimination at the Hair Salon, Clutch (Oct. 1, 2012), http://www.clutchmagonline.com/2012/10/we-dont-do-black-hair-discrimination-at-the-hair-salon.

[20] Zoe Mintz, Is That Jian Feng? New Ugly Baby Photo Attributed To Chinese Man Who Sued Wife Over Plastic Surgery Deception, Int’l Bus. Times (Nov. 7, 2013, 12:33 PM), http://www.ibtimes.com/jian-feng-new-ugly-baby-photo-attributed-chinese-man-who-sued-wife-over-plastic-surgery-deception. See also Chinese Man Sues Wife for Being Ugly, Wins, WBTV.COM (Nov. 2, 2012), http:// http://www.wbtv.com/story/19986930/chinese-man-sues-wife-for-being-ugly-wins.

[21] Alaska Packers’ Ass’n v. Domenico, 117 F. 99 (9th Cir. 1902).

[22] Id. at 100-01.

[23] See, e.g., Debora L. Threedy, A Fish Story: Alaska Packers’ Association v. Domenico, 2000 Utah L. Rev. 185 (2000).

[24] See Wendy Espeland & Michael Sauder, Rankings and Diversity, 18 S. Cal. Rev. L. & Soc. Just. 587 (2009); Alex M. Johnson, Jr., The Destruction of the Holistic Approach to Admissions: The Pernicious Effects of Rankings, 81 Ind. L.J. 309 (2006).

[25] See, e.g., Phoebe Haddon A. & Deborah W. Post, Misuse and Abuse of the LSAT: Making the Case for Alternative Evaluative Efforts and a Redefinition of Merit, 80 St. John’s L. Rev. 41 (2006)

[26] Catherine Ho, Law School Deans Push ABA About Transfers, Wash. Post (March 23, 2014), http://www.washingtonpost.com/business/capitalbusiness/law-school-deans-push-aba-about-transfers/2014/03/21/d59e2a98-aec1-11e3-96dc-d6ea14c099f9_story.html (“At issue is what many legal educators say is an effort by some schools to keep the data hidden in order to inflate their credentials for rankings purposes. Because U.S. News and World Report’s law school rankings look at the median LSAT scores of first-year students, but not the LSAT scores of transfer students — which are typically lower — critics contend the practice allows the schools to game the system.”).

[27] Mr. Morse’s official title is “Director of Data Research” for the magazine and, according to the biography on his blog, “[h]e develops the methodologies and surveys for the Best Colleges and Best Graduate Schools annual rankings….” Bob Morse, Morse Code: Inside the College Rankings, U.S. News & World Rep., http://www.usnews.com/education/blogs/college-rankings-blog (last visited April 2, 2014).

[28] Karen Sloan, Law School Rankings Complicate Diversity Efforts, Research Suggests, Nat’l L. J., http://www.alm.law.com/jsp/article.jsp?id=1202445313688&slreturn=20140220234501 (last visited Mar. 21, 2014, 1:22 AM).

[29] Victor Gold, What’s Really Behind U.S. News’ Refusal to Consider Diversity?, Huffington Post (Mar. 21, 2011, 2:53 PM), http://www.huffingtonpost.com/victor-gold/whats-really-behind-us-ne_b_838580.html.

[30] Louis H. Pollak, Why Trying to Rank Law Schools Numerically is a Non-Productive Undertaking: An Article on the U.S. News & World Report 2009 List of The Top 100 Schools,” 1 Drexel L. Rev. 52 (2009).

[31] Johnson, supra note 24. See also SALT Statement in Support of U.S. News & World Report Boycott (May 21, 2010), available at http://www.saltlaw.org/userfiles/file/5-21-10rankings%20letter.pdf; Jeffrey E. Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead, 81 Indiana L. J. 229 (2006).

[32] Law School Diversity Index, U.S. News & World Rep., http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/law-school-diversity-rankings (last visited Mar. 21, 2014, 1:28 AM).

[33] Robert Morse, Should Diversity Be Added to Best Law Schools Rankings?, Morse Code: Inside the College Rankings, U.S. News & World Rep. (April 7, 2011), http://www.usnews.com/education/blogs/college-rankings-blog/2011/04/07/should-diversity-be-added-to-best-law-schools-rankings [hereinafter Should Diversity]; Sloan, supra note 28 (“Bob Morse, director of data research for U.S. News, said that diversity is a complicated issue that cannot easily be incorporated into its rankings formula. ‘To say that U.S. News is inhibiting law schools from taking minority students is a misunderstanding of the mathematics behind the rankings,’ he said.”); Debra Cassens Weiss, US News Weighs Request to Add Diversity Measure to Law School Rankings, ABA J. (Apr. 8, 2011, 10:28 AM), http://www.abajournal.com/news/article/us_news_weighs_request_to_add_diversity_measure_to_law_school_rankings.

[34] Should Diversity, supra note 33.

[35] Id.

[36] Espeland & Sauder, supra note 24.

[37] Should Diversity, supra note 33.

[38] See supra notes 10-12 and accompanying text. See also Gold, supra note 29 (quoting Grutter, which noted that the Court would “defer” to the University of Michigan “Law School’s educational judgment that diversity is essential to its educational mission,” particularly since the school’s “assessment that diversity will, in fact, yield educational benefits is substantiated . . . .”).

[39] James R. Silkenat, President’s Message: Major Push for Diversity, ABA J., March 2014, at 8. Mr. Silkenat also noted that “[a]t the law firm partner level, only 7 percent are minorities and just 2 percent are minority women.” Id.

Suggested citation: Tony Varona, Diversity and Disgrace – How the U.S. News Law School Rankings Hurt Everyone, N.Y.U. Rev. L. & Soc. Change Blog (April 3, 2014), http://socialchangenyu.com/2014/04/03/diversity-and-disgrace-how-the-u-s-news-law-school-rankings-hurt-everyone.

AWIS Previews RLSC Article on “Title IX and Pregnancy Discrimination”

Title IX AWISThe Association for Women in Science recently published an article by upcoming RLSC author Mary Ann Mason, PhD, called Title IX and Pregnancy Discrimination: Who Knew?. Dr. Mason, along with Jaclyn Younger, has written a piece on the same topic for a forthcoming issue of Social Change.

Read the AWIS piece now (PDF), and check back soon for the full Social Change article, Title IX and Pregnancy Discrimination: The New Frontier!