2011 Conference Program (PDF) - Syracuse University College of Law

to the postwar values of modernism and racial progress. In so doing, I seek to not only
explain the prevalence of two seemingly incongruent myths that continue to hold sway
today, but also to explain their relation to the enduring prevalence of white racial
innocence.
Bret Asbury
Strategic Affirmative Action
5.6 Session Cancelled
The constitutional aspiration that all citizens be treated equally—that is, without regard to
genetic characteristics—has long posed a challenge to advocates of affirmative action
programs, which, in their most basic form, advocate privileging underrepresented
categories of citizens—particularly women and people of color—in the context of
admission to, and hiring within, selective institutions and organizations. Though steadfast
principles of non-discrimination on the basis of gender or race have emerged as a cultural
norm, the desire to privilege women and people of color in certain selective processes
persists. The justifications for such privileging have been numerous, but those currently
most prevalent tend to focus on either righting past wrongs (that is, combating past
discrimination against women or minorities by presently privileging them) or promoting
diversity, which has been recognized by the Supreme Court as a legitimate government
interest. Nonetheless, resistance to affirmative action programs remains pronounced and,
from the standpoint of both basic notions of fairness and the Constitution, at least to some
extent justified.
This article argues that contemporary affirmative action efforts aimed at including
women and people of color in selective settings are best understood as neither altruistic
endeavors designed to right past wrongs nor merely promoting diversity for diversity’s
sake, but rather as the rational response to prevailing market forces. Though the
underlying reasons are debatable and problematic to many, it is clear that in
contemporary society a non-diverse student body or workforce can, and often does, have
a negative impact on a given institution or organization. The current marketplace
demands diversity within all selective settings, and an institution or organization lacking
a reasonably diverse membership will suffer as a result. Accepting that the inclusion of
once-excluded and currently underrepresented populations is now strategically
advantageous—and hence part of any institution’s primary objective of promoting its best
interest—affirmative action programs no longer raise many of the constitutional concerns
they once did.
The recognition that enhancing diversity is imperative for strategic reasons requires
institutions and organizations to factor in genetic characteristics in shaping their
membership in order to promote their best interest. Building on this observation, this
article argues that the promotion of diversity via affirmative action programs should no
longer be viewed in the main as crudely (and possibly unconstitutionally) advantaging
certain groups over others, but rather as a manifestation of a rational, market-based effort
aimed at securing strategic advantage.
5.7 Interrogating International and “Other” Tribunals
Eric Sapp
Crisis Society and Its Dialectic of Insecurity
A crisis society is not necessarily a society IN crisis. Rather, a society OF crisis is
characterized by the tendency to utilize perceived crises for the stabilization of its order.
Still, it may be said that any security apparatus is based on an underlying terrain of
insecurity and that, often, it serves to produce more of this being-otherwise-than-secure.
Does such a regime of insecurity render the society of crisis fundamentally unstable
How can law, dependent as it is on virtual realities of force as much as it is on ideals of
!
97