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California Law Review

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Conventional concepts of merit are under attack by some Critical Legal Scholars, Critical Race Theorists, and radical feminists. These critics contend that "merit" is only a social construct designed to maintain the power of dominant groups. This Article challenges the reductionist view that merit has no meaning except as a tool for those in power to perpetuate the existing social order. The authors observe that certain traditionally oppressed groups, most notably Jews and Asian Americans, are disproportionately represented in some desirable economic and educational positions. They have in that sense "succeeded" beyond the supposedly dominant majority. The economic and educational accomplishments of these groups are hard to reconcile with the notion that "merit" exists solely to perpetuate the power of the dominant majority (white Gentiles). Because the radical critique of merit denies that the accomplishments of these minority groups can be explained by genuine merit, it necessarily implies that these groups have obtained an unfair proportion of desirable social goods. Therefore, the authors suggest, the radical critique of merit has the wholly unintended consequence of being anti-Semitic and possibly racist. The Article concludes that the radical critique equates merit with raw power and approaches moral relativism. The authors call for continued scrutiny and improvement (rather than wholesale repudiation) of current conceptions of merit.

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