Bottlenecks: Applying the Theory (some responses)

I want to respond here to several thoughtful posts about Bottlenecks: A New Theory of Equal Opportunity from participants in this symposium, each of which applies the theory to a novel domain: legal education, health, and the whole field of economic policy that affects wage inequality.

So let’s start with legal education.

Lea Shaver, in one of her posts, focuses on bottlenecks in legal education: to become a lawyer, you need a good LSAT score, a fair amount of money (borrowed or otherwise), and you need to pass the bar exam. At most schools, you also need to go to school during the day, precluding other work and life obligations. I basically agree with all of this. The LSAT is similar in many ways to the SAT, although in my view, as a bottleneck it is by far the less problematic of the two. Why? Because if you can’t score well on the LSAT, the only career path you’re locked out of is law, whereas if you can’t score well on the more general SAT, a very large swath of all careers may be closed to you (although some alternative routes exist).

From the point of view of opportunity pluralism, the largest question I’d ask about the current structure of legal education is: Why is it so uniform? Why do all law schools appear to be using basically the same criteria, and chasing the same students, with increasingly finely-calibrated scholarship-based pricing? More radically, why is nobody pursuing models of legal education that are smaller-scale (and quicker and cheaper) than a JD, yet offer graduates the opportunity to provide some more limited set of legal services? (These also could function as Lea’s intriguing suggestion: programs that partially feed into JD programs, the way community college programs partially feed in to 4-year college programs.) What’s stopping this sort of thing? The culprits here are several, but the main ones, I think, are three: state regulations defining the practice of law and the unauthorized practice of law, accreditation rules defining what is required to be a law school, and finally, a pervasive rankings system that rewards schools for pursuing the current model and punishes schools that do anything else. (This last factor, the rankings, is likely helping to kill off even the existing night law school programs that I think Lea is right to value.) In any event, each of these factors deserves more scrutiny. We ought to offer prospective law students a wider range of different kinds of choices to pursue different forms of legal education for different types of careers in the law.

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Jessica Roberts focuses on health as a bottleneck. She zooms in specifically on the topic of employment discrimination against smokers or overweight people. It’s a very interesting set of examples. In terms of most of our usual ways of thinking about antidiscrimination law, it just seems odd, at first blush, to pass laws protecting overweight people or smokers. Far from being a group marked by an immutable trait analogous to race, smokers and obese people are often viewed in our culture (rightly or wrongly) as people who chose to smoke or to be obese—and in our culture these choices carry a layer of moral disapprobation. There’s a parallel here to phenomena I discuss in the book, such as discrimination on the basis of credit history. We often assume (although generally without evidence, and we’re often wrong) that people with bad credit must have made morally suspect financial choices. In light of these assumptions, invoking the tools of antidiscrimination law raises the question: Do we really want antidiscrimination law to protect people on the basis of their own bad choices? At first that sounds crazy—and it sounds like it gets the incentives exactly backward.

But, as Jessica notes, the story is more complicated. Being a healthy, non-overweight non-smoker is the product of many factors, including class background. It’s impossible to disentangle the relative roles of chance and choice in the background story of how each of us ended up either a smoker or not, either obese or not. (See chapter 2 of Bottlenecks for the full version of this argument.) Thus, in my view, the question we ought to ask is a more practical one: are these factors acting as too constraining a bottleneck in the opportunity structure? That is, are overweight people, or smokers, facing severe constraints on the opportunities they can pursue? To the degree that they are, it’s important to find ways to help them both through the bottleneck (lose weight, quit smoking) and around it (meaning that we get fewer employers to discriminate on this basis). Fewer employers doesn’t mean none. Perhaps smokers will still be legitimately shut out of jobs at hospitals that involve contact with patients, if secondhand or thirdhand smoke is an especially serious problem there. But we should be more concerned, in my view, if lots of employers—for example in order to lower their group health premiums—began to discriminate against smokers. That’s when there’s a severe bottleneck. And while many strategies, including some that involve incentives to quit smoking, can play a role in helping people through this bottleneck, I don’t think we want to live in a world where the main strategy for promoting healthy behaviors is the threat that if you behave any other way, you’re out of a job.

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Finally, Brishen Rogers, in a couple of posts that have both given me a lot to think about, pushes me on the question of the relationship between class and equal opportunity. He suggests that the key to making class less of a bottleneck is compressing the wage scale—that is, compressing class itself.

I think there is a lot to recommend Brishen’s argument. My approach to bottlenecks is, in general, to help people both through and around them, but there are many situations in which we can (or should) do only one or the other. The idea of a “class bottleneck” is that one needs to grow up a particular class (or at least, one needs to grow up non-poor) in order to have any realistic chance of being able to reach the vast majority of all the paths one might pursue in life. To loosen this bottleneck, part of what we need to do is apply the tools of equal opportunity policy: programs to give children early nutrition and better education and to enable the adults around them to read and speak more words to them. We can also change the opportunity structure, as Brishen notes, to lower the stakes of early competitions and reduce the “arms race” effect in which wealthier and more privileged families leave the rest behind.  But, Brishen asks, will any of these reforms be “stable” in the long run, in a society of great inequality? As inequality increases, the relative political power of the wealthier part of the population, and its power to oppose taxes and redistribution, increases too. Thus, Brishen tells a political economy story in which there is a robust role for unions not only as a wage-compressing institution, but also as a political counterweight in the struggle to build and maintain policies that compress overall inequality. (Although it’s also important to note, as Brishen does, the ways unions themselves can function as bottlenecks—especially when they reinforce gender and racial exclusions from skilled trades.)

In my view, Brishen is entirely correct that if we want to loosen the class bottleneck—if we want opportunities to be less unequal, on the basis of class—we need to reduce class differences themselves. And he is right that this is a significant amendment to Rawls’ way of framing fair equality of opportunity and distributive justice: we need to build a significant degree of material equality (or, less material inequality) for opportunities to be fair.

What I mean is this. Typically we think of money in distributive justice as the outcome—the reward. It is as though we’re talking about the luxury goods people consume, and examining who has more and who has less. But that is not why inequalities matter from the point of view of opportunity pluralism. The problem is that we all do a lot more with money than consume some luxuries. We buy ourselves and our children a lot of opportunities. For various reasons I think this means we face big problems when our class structure pulls apart—especially, when the middle gets hollowed out, and the class structure begins to look more like that of Brazil or South Africa. A class structure like that makes mobility difficult, and it just increases the distance—physical distance, social distance, educational distance, psychological distance—between the wealthy and the working class.

I would amend Brishen’s political economy story with a further wrinkle: in order to build and maintain support for policies that compress class or preserve a middle class and opportunities to join the middle class, I suspect that paradoxically, part of what is needed may be prosperity. In a situation of scarcity, people are more jealous about guarding what they have and more anxious about opening up more chances for more people to compete with them. In a situation of broadly shared prosperity, there may be more room to argue for institutional reforms that loosen the class bottleneck. The paradox here is that if inequality itself impedes broadly-shared prosperity, or leads to more busts that shatter people’s security, then we’ve found yet another way that inequality may lead to more inequality—and unequal opportunity may lead to more unequal opportunity. But these fascinating questions about political economy are far beyond the project of this book.

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