Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [49:16-54:21]

you have about 15 minutes for questions which what Joseph told me to leave and what I'm going to do please raise your hands and I'll rush around to where you are so I can hear the question that's what I do when I teach torts I instead of teaching from a podium I go around and the students think oh isn't he nice that he comes in as a question and it's only after a couple of weeks that I tell him that otherwise I couldn't hear a thing Walter Deltier this guy by the way was my student in torts before most of you were born and came in one day who's not only a brilliant student who made a point that I hadn't thought of really that he also came in one day with a guitar and some friends and sang a ballad about Ted Levy Elman if any of you remember that case in torts and got the case perfectly in the ballad okay I'm not saying the ballad it seems that it's a really powerful idea in your talk that there is a number of random taking calls that we should recognize the egalitarian how would he even title this paper the egalitarian number of the taking calls and I can think of one very powerful application and one misapplication is in your talk the powerful application is in the height of the Iraq war we invoke the cause to require soldiers whose time was up we force them into another two year commitment because we had to have at a time we were cutting taxes when the alternative was find out what is the market clearing price and so everybody pays and then see a egalitarian but no one thought of that in terms of it's taking but it follows all that on the contrary I think with affirmative action even if you go back to the case of the pocket where you're reserved in 10 places for minorities that is if every school had that it is a minor reduction nationwide of the number of places available and therefore it's already spread and exactly the way you would think well yeah so I mean there again you'll have to be careful about this and what is what gives an adequate compensation the person who doesn't get into the Yale law school because of affirmative action and has to go to Harvard you know tough I mean that's not a big deal in the person who doesn't have to go to Harvard to get into an excellent huh so that it is spread and spread out now whether at the bottom you really want then to say expand the best I don't know but obviously the compensation for a taking is never a full compensation even when you take for a part it isn't ever a full it's never quite the same it's always the kidney transp- donation next to the abortion situation it's always something and the question is when is it closing up and I think in many affirmative action situation it is that so I agree with you but at least there should be one of the things that is important is the showfulness is the show of earnest is the indication on the part of the haves that they are not simply doing this because somebody else whom we don't care about but for this we don't know that Alan Baki didn't get in because of affirmative action well of course if we don't have gotten in because he may have lost it out too yeah yeah that's a sense of which is spread I happen to because I teach a course in which I cause people to listen to the arguments that are made to the Supreme Court this and if you listen to the argument in Baki which is one which we do it's really quite fascinating because Archie Cox arguing in favor of affirmative action says here are the number of minorities in the learned profession today here are the number there will be in 10 years without affirmative action here are the number there will be in 20 years without affirmative action this is a disaster for the country therefore we should do it then the