Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

By Brian C. Kalt[*]      

[Editor's Note:  This piece is the last of a four-part dialogue between Tillman and Kalt.  You can find Tillman's first piece here, Kalt's first reply here, and Tillman's reply here.]                

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.

"Testing the 'Model Minority Myth'": A Case of Weak Empiricism

By Robert S. Chang[*] and Rose Cuison Villazor[**]

[Editor's Note:  This piece is a reply to Miranda Oshige McGowan and James Lindgren, Testing the "Model Minority Myth", 100 Nw. U. L. Rev. 331 (2006) (link).]

I.  Introduction

As the legal and political wars rage over affirmative action, the role played by Asian Americans is increasingly disputed.  Should Asian Americans be included in affirmative action programs?  Do such programs harm Asian Americans because spaces that should be given to them are instead given to less qualified Blacks and Latinos?  Does Asian American success indicate that affirmative action polices are unnecessary?  At stake in each of these questions is the notion that Asian Americans are the "model minority."

The model minority designation often depicts Asian Americans as achieving success through cultural values and hard work,[1] presenting them as a blueprint for others who want to achieve similar success.  These positive attributes of Asian Americans are used to illustrate their ability to overcome discrimination and to juxtapose them with other racial groups, whose failure to overcome discrimination is then blamed on a lack of these cultural traits and an ethic of hard work.[2]  This juxtaposition may then be used to imply that social policies such as affirmative action, welfare, or reparations might be wrongly directed.

Critical discussion of the model minority designation is now standard fare in Asian American jurisprudence.[3]  A number of scholars have critiqued the veracity of the success stereotype and the validity of indicia such as household income or education as a measure of ongoing discrimination against Asian Americans.[4]  They have also posited that the model minority designation has had a negative impact on those Asian Americans who do not fit the success model.  Additionally, they claim the stereotype has harmed other racial minorities and poor whites who have not achieved similar success.

Professors McGowan and Lindgren make an important contribution by trying to test the causal connection between the model minority stereotype and these posited harms.  They set out to test this empirically through statistical analysis of survey data, concluding that their "results do not confirm the Model Minority Hypothesis."[5]  Instead, they contended that their research demonstrated "slightly more evidence conflicting with the Hypothesis than confirming it."[6]  They concluded that "we must all be careful to present our generalizations, not as essences or necessities, but as conclusions that are true only to the extent that they fit the world and untrue to the extent that they do not fit what they claim to capture."[7]  This cautionary note is directed to "Asian [sic] critical scholars"[8] who critique the model minority designation, suggesting that we are making a claim that does not fit the world.

We turn this cautionary note back on McGowan and Lindgren.  Their conclusion is only as good as their test design, which depends on their assumptions and the validity or accuracy of their underlying data.

Administrative Note: New Editors

Spring is upon us again, and along with the rest of the Law Review, the Colloquy is in the process of transferring editorial control to the class of 2008.   Mark Spottswood, the first editor of the Colloquy, will soon be handing over control to a new team of three editors.   To fill his very big shoes, three people will be managing the site:  

Isaac Peterson, Senior Colloquy Editor, will be responsible for selection of the Colloquy's content and its overall production schedule. 

Melissa Whitehead, Managing Colloquy Editor, will ensure that the editorial quality of all Colloquy pieces matches the quality of pieces found in the print Law Review. 

Richard Kirkendall, Executive Colloquy Editor, will handle Colloquy publication duties, act as the Law Review's webmaster, and direct our digitization project. 

With three of us, we will be able to streamline the publications process of the Colloquy by dividing up some of the tasks for which Mark was solely responsible.   All submissions should still be sent to the Colloquy Editor email address, and all of the information in the Frequently Asked Questions still applies.  Thanks for reading, and stay tuned - we have big plans for the next year.

Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt

By Seth Barrett Tillman[*]

[Editor's Note:  The following piece is the third in a four-part dialogue between Tillman and Kalt.  Tillman's opening piece can be found here, Kalt's response (to which this piece replies) can be found here, and Kalt's final rejoinder can be found here.]

In my opening article,[1] I took the position that although the Recess Appointments Clause[2] is traditionally imagined as merely a grant of authority to the President, it grants a coordinate power to the Senate.  If the Senate chooses to end its next session, the President's recess appointment has been terminated.

Professor Kalt acknowledges that the end of the Senate's session terminates a recess appointment, even if the recess is made only for an instant and only for the purpose of terminating recess appointees.[3]  Beyond that, he voices some thoughtful constitutional objections to my proposal.  Finally, he suggests that the proposed innovation, which he colorfully calls a "Tillman adjournment," is muddled by "practical problems" rendering it "pointless at best."[4]