The Missing Jurisprudence of Merit

Abstract

This article examines and dispels the pervasive assumption that our society legally mandates the distribution of rewards based on merit. The assumption provides justification for the frequently held view that anti-discrimination laws and affirmative action policies undermine our supposed merit based system. No body of law defines merit, measures merit, or selects on the basis of merit; hence, "the missing jurisprudence of merit. As an initial matter, this article describes how certain rhetoric uses "merit" to argue against anti-discrimination laws and affirmative action. The article next discusses the relationship between anti-discrimination statutes and the dominant system of employment-at-will in private business. The following sections discuss merit-based student admissions in academia; how the academic definition of merit has changed, and how such cases as Hopwood v. Texas fit into the academic selection process. The discussion continues with two exceptions to the thesis, areas of the law where merit plays a role. The exceptions include merit as a defense to charges of employment discrimination and merit selection in civil service.

In conclusion, this article discusses the problems a lack of merit jurisprudence causes, including the flourishing of rhetoric against anti-discrimination laws and our nation's inability to define and apply a merit system. This article does not claim that merit is nonexistent, or that selection decisions should not include considerations of merit. Rather, this article argues that society should use merit in decisions, but its use must be rigorously defined, studied, and debate.

Keywords: Affirmative action, merit selection, legal requirements of merit, academic merit, SAT, disparitae impact, determination of merit

JEL Classification: K12, L20, M12, M51