I'd also like to welcome Professor Harrison to MoneyLaw. I'm honored to be in his company.I've just read his thought-provoking 1992 essay in the Journal of Legal Education (available here from Hein On-Line) on "Thoughts on Class Bias in Law School Hiring," which I enjoyed. I look forward to hearing more of his thoughts on this important topic.
I think it may be appropriate to consider a job candidate's economic background (I don't think we're thinking so much about their class-identity as their economic background, though I may be wrong) in hiring. I think that people who've overcome obstacles and presents a comparable record to those who've have more advantages are generally a better bet. Also, people who've had fewer opportunities may be--though I know individual cases vary--more likely to take advantage of the opporuntities that are presented to them. So my reason for giving the nod in hiring to people from poorer economic backgrounds has more to do with my sense of who'll perform better at the job than with what "different perspectives" they bring to the table. (The American studies person in my thinks of Horatio Alger here, hence the image.)
That leads me to two questions from Harrison's 1992 article. First, if we're going to support affirmative action based on economic background on the grounds of diversity, what are the particular perspectives that people who grew up poorer will bring? In property (one of the areas I know best), I might hazard a couple of guesses: that people from poorer backgrounds will be more likely than others to know how hard it is to make ends meet and thus be more supportive of tenants' rights, more forgiving of people who're behind on their mortgage payments, and more forgiving of people who fail to pay their taxes on time (some thoughts about that over at my home blog, propertyprof). They may also be more likely to support public access to beaches--a variant of what I'm calling aloha jurisprudence. I can envision some other places where this would matter: on admissions committees, for instance, people from poorer than average backgrounds might be advocates for those didn't face those same obstacles.
Without replaying all of the Randall Kennedy--Richard Delgado debt on "racial critiques of academia," however, I'd like to hear a little bit more about what affirmative action in this context is likely to do. As I say, I think there are solid reasons (including fairness) for doing this. I'd just like to be a little more explicit about the reasons.
Second, I'm interested in hearing more about how one might design a workable affirmative action plan based on economic background (or class, if Professor Harrison prefers). How will this work. Ask about whether the candidates' parents graduated from high school or from college? Whether they (or their grandparents) were able to read? Whether their family ever received public assistance? Had an income greater than $40,000/year? One of the many things that struck me when I was arrived in law school lo' those many years ago was how few people were from (what I thought of then as) truly disadvantaged backgrounds there were.
I'm very much looking forward to this discussion. I think these are precisely the kinds of issues that MoneyLaw ought to be talking about.
Alfred L. Brophy