Research Handbook on Economic Models of Law
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Research Handbook on Economic Models of Law

Edited by Thomas J. Miceli and Matthew J. Baker

One of the great successes of the law and economics movement has been the use of economic models to explain the structure and function of broad areas of law. The original contributions to this volume epitomize that tradition, offering state-of-the-art research on the many facets of economic modeling in law.
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Chapter 14: The efficiency of affirmative action with purely historical discrimination

Abraham L. Wickelgren


Affirmative action is one of societyís most controversial issues. The constitutionality of affirmative action in university admissions is about to be decided by the United States Supreme Court in Fisher v. University of Texas at Austin. Opponents of affirmative action argue that affirmative action is discriminatory and leads to more qualified white candidates being passed over for less qualified minorities. They argue that while affirmative action based on disadvantaged status may be justifiable, it should not be based on race. Its proponents, in contrast, argue that affirmative action is necessary to counter the effects of current or past discrimination, to provide role models, or to promote diversity. While each of these arguments has its supporters, the most prevalent justification for affirmative action is the history of racism in the United States. This is likely due to the fact that the premise of this justification is undeniable. Almost no one claims that African-Americans did not suffer unjustly in the past from slavery, the Jim Crow laws, and many other de jure and de facto forms of discrimination. However, while there is still some evidence of current discrimination in the labor market and in educational opportunities (Harry Holzer and David Neumark 2000 provide an excellent discussion of this evidence), many doubt the existence or magnitude of current discrimination (Washington Post 2001). Similarly, there is no widespread agreement about the importance of role models or diversity in the workforce or in higher education.

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