The WSJ reports that Harvard Law Professor Lani Guinier has passed away:
Ms. Guinier’s writings and studies focused on voting rights, race and gender. ...
Before her appointment at Harvard Law School in 1998, she was a tenured professor at the University of Pennsylvania Law School; worked in the civil rights division at the Justice Department under President Jimmy Carter ; and headed the voting rights project at the NAACP Legal Defense Fund in the 1980s. She received her law degree from Yale Law School in 1974. ...
In 1993, President Bill Clinton nominated Ms. Guinier to be the assistant attorney general for civil rights. However, her writings on voting rights came under scrutiny and the administration withdrew her nomination.
“Her scholarship changed our understanding of democracy—of why and how the voices of the historically underrepresented must be heard and what it takes to have a meaningful right to vote,” said Mr. Manning.
Obviously, condolences go out to her friends and family. I never had the privilege of meeting her, but I was very interested in her work in two areas.
First, I was fascinated by her proposal to use cumulative voting in political elections so as to promote minority representation:
Cumulative voting is based on the principal of “one person one vote” because each voter gets the same total number of votes. Everyone's preferences are counted equally.
It's not a particularly radical idea. I learned about cumulative voting from my gentleman professor of corporations back at Yale Law School. Thirty states either require or permit corporations to use this election system to protect minority shareholders, and minority in that sense is not based on race, but is based on the number of shares that the person owns in the corporation.
Cumulative voting is certainly not anti-democratic because it emphasizes the importance of voter choice in selecting public or social policy, and it is neither liberal nor conservative.
Lani Guinier, Keynote Address, 25 U. Toledo L. Rev. 875, 881 (1995). In another work, she elaborated:
Many people, not all people, but many people think of their interests along racial lines. If that is true, and that is important to them, and they choose to vote along racial lines, then it is democratic, in my view, to allow them to participate as a racial group. But we must allow people to self-identify so that if they do not want to vote along racial lines, they don't have to. Nobody is forcing them. Cumulative voting or nondistricted elections provide exit opportunities for people who do not want to vote along with the majority of their particular racial-minority group. Cumulative voting provides racial “dissenters” the opportunity to form coalitions, biracial coalitions. But it also provides racial minority groups with a chance to reach out to other groups.Because it minimizes “wasted” votes, meaning votes cast for political losers, cumulative voting enables groups to reach out beyond their racial “cul-de-sac” and negotiate and bargain excess votes on particular issues or at particular elections.
Cumulative voting does not eliminate the need for compromise. It changes, however, the timing and the atmosphere of the compromise. Compromises are made in the open; compromises are made after open exchanges of views. Compromises are not hidden in order to confuse voters; compromises are not suppressed in order to pretend one is all things to all people.
Lani Guinier, More Democracy, 1995 U. Chi. Leg. Forum 1, 17–18 (1995). I'm not a huge fan of cumulative voting in the corporate law context. Boards elected by cumulative voting tend to fall into cliques, with the majority clique often meeting prior to the formal board meeting so as to work out a mutual position that is then imposed on the minority.
But in a federal system in which, as Justice Brandeis famously observed, the states can serve as laboratories of democracy, it strikes me as a worthy experiment for ensuring fairer elections.
In addition, as a critic of the Socratic method, I was interested to come across a pair of critiques of the method coauthored by Professor Guinier:
... many women are alienated by the way the Socratic method is used in large classroom instruction, which is the dominant pedagogy for almost all first-year instruction.Women self-report much lower rates of class participation than do men for all three years of law school.Our data suggest that many women do not “engage” pedagogically with a methodology that makes them feel strange, alienated, and “delegitimated.”
Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow, and Deborah Lee Stachel, Becoming Gentlemen: Women's Experiences at One Ivy League Law School, 143 U. Pa. L. Rev. 1, 3–4 (1994).
The Socratic method in the large classroom, though valuable as a way to teach sharp analytic skills, is ill-suited to fostering “legal imagination,” which is what lawyers need most to become effective advocates, institutional designers, transaction engineers, and leaders. It also contributes to law student disengagement, particularly for women and people of color.
Susan Sturm & Lani Guinier, The Law School Matrix: Reforming Legal Education in A Culture of Competition and Conformity, 60 Vand. L. Rev. 515, 516 (2007). All of which tended to confirm that I was right to be a Socratic method skeptic.
In sum, I found Professor Guinier's scholarship to be provocative, thoughtful, and insightful. Based on what I saw of it, she was unfairly Borked. I'm sure we disagreed on many political issues, but I found her quite admirable in many ways.
