Category: Law and Inequality

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Pour Myself a Cup of Ambition

It feels indulgent to have the chance to respond to reviews of my book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016)—all the more so given that the back-and-forth is almost instantaneous. I so appreciate Concurring Opinions for providing a forum to hear what readers have to say, and for giving me the last—or at least the next—word.

Nancy Dowd posted first with an important and provocative set of questions. She makes the accurate observation that the book is “unabashedly” focused on women. Indeed, it is. She encourages that we ask the “other questions,” invoking the advice of Mari Matsuda to look at objectionable patterns and practices and ask whether there isn’t something other than the obvious thing going on. In other words, when you identify a practice that is harmful to women, ask whether it might also involve race or class. And even when looking at problems from a strictly gender perspective—think about men. Where are they in the equation? Dowd is the perfect person to encourage this broadening of perspectives, as she has been a pioneer in the emerging field of masculinities theory (her 2010 book The Man Question is a staple in the field) and has done a brilliant job in her more recent work of unmasking the racial biases in the juvenile justice system. So why didn’t I ask more complex questions about race, class, gender identity, and the intersectional effects of these characteristics? The cheeky answer is that a book that managed to ask all those questions would be long enough to be slapped with a cover price that would deter all potential readers. But the real answer is that my focus on women as individuals and as a category was purposeful. It was an effort to refute a complacency that has developed specifically around gender.   People tend to think that because the law embraces gender equality, we have achieved it. References to a post-gender millennium and headlines saying “We did it!” (with a picture of Rosie the Riveter) make me crazy. What I see when I look at the experience of women at work is that gender is everywhere and it operates largely to the disadvantage of women. Read More

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Just a Step on the Boss Man’s Ladder

There is no greater privilege as a writer than to have a group of people you deeply respect take the time to read your work and respond to it. Thanks to Naomi Cahn, who organized this symposium and launched it with a wonderful introduction, I have been granted this privilege for my new book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge 2016).

This book was a labor of love. As many of the commentators have noted, it is based on a column I have been writing every other week for over fifteen years (the first ten for FindLaw’s Writ and the last five for Justia’s Verdict).   It blows my mind that what started as a one-off essay on whether a woman should be able to annul a marriage to a man she was auctioned off to on the reality television show “Who Wants to Marry a Millionaire?” would have turned into one of the most important pieces of my professional life. Because of this column, I have gotten to chronicle legal and social developments in my areas of interest and expertise in real time—a refreshing change from the world of academic publishing—and to be part of an ongoing conversation with an audience of litigants, lawyers, judges, policymakers, journalists, and the general public.

When I began writing my column, I was at the beginning my academic career, and I had just given birth to the first of my three sons. As this book was published, I was teaching that son how to drive in the middle of a significant professional transition from Hofstra Law School, after a 17-year run, to SMU Dedman School of Law, where I will serve as the inaugural holder of the Ellen K. Solender Endowed Chair in Women and Law. This book, which collects columns on women and work and ties them together with introductory essays, gave me the opportunity to reflect at this time of transition not only on my own life and career, but also on the developments in sex equality law—where we were, where we are now, and where we are headed. The book, although packaged in a lighthearted style (with some of my favorite sex discrimination cartoons!), ends on a somewhat depressing note: despite a complicated and robust set of laws mandating women’s workplace equality, the terrain remains uneven at best, slanted firmly towards inequality at worst.  In all too many respects, today’s workplace is similar to the one farcically depicted in the movie 9 to 5, which hit the big screen almost forty years ago.  Why haven’t we as a society made more progress? From this vantage point, I feel a kind of solidarity with Ellen Solender, who spoke of her mother’s hope that women’s suffrage would bring about broad-based equality for women, but her own disappointment that even her granddaughters may not live to see it. That we aren’t there yet just means we have to continue the fight. Nine to Five is one tiny piece of the effort to promote equality for all women, and my new position will be the perfect platform from which to work.

In a forthcoming post, I will respond to the provocative and interesting points raised by the reviewers, to whom I am grateful for their generosity of time and spirit, as well as their individual and collective expertise.

 

 

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Working 9 to 5: What a Way to Make a Living

Joanna Grossman’s Nine to Five:  How Gender, Sex, and Sexuality Continue to Define the American Workplace is an invaluable contribution to the popular understanding of how gender works – or doesn’t – at work.  With wry humor and a clarity that’s all-too-rare among those who write about the law, Grossman provides a comprehensive, must-read primer for the lay reader.  But Nine to Five also is a bracing corrective to the notion that the issues raised by the popular 1980 movie of the same name are remotely as anachronistic as the bad fashion sported onscreen by Dabney Coleman, Jane Fonda, Dolly Parton, and Lily Tomlin. Read More

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The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.

 

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Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

Private Lenders’ Troubling Influence on Federal Loan Policy

Hundreds of billions of dollars are at stake in the upcoming reauthorization of the Higher Education Act (HEA). Like the confirmation of a new Supreme Court justice, it may be delayed into 2017 (or beyond) by partisan wrangling. But as that wrangling happens, Washington insiders are drafting “radical” proposals to change the federal government’s role.

Faculty at all institutions need to examine these proposals closely. The law and public finance issues raised by them are complex. But if we fail to understand them, and to weigh in against the worst proposals, we could witness developments that will fundamentally change (and perhaps end) the university as we know it. Moreover, even if universities find ways to shield themselves from change, some proposals will leave students vulnerable to worse financing terms and lower-quality programs.

In a series of posts over the next few weeks, I’ll be explaining the stakes of the HEA reauthorization. For now, I want to start with a thought experiment on how education finance may change, based on recent activities of large banks and digital lending services I’ve studied. What would be ideal, in terms of higher education finance, for them?

Financiers consider government a pesky and unfair competitor. While federal loans offer options to delay payments (like deferment and forbearance), and discharge upon a borrower’s death or permanent disability (with certain limitations), private loans may not offer any of these options. Private lenders often aim to charge subprime borrowers more than prime borrowers; federal loans offer generally uniform interest rates (though grad students pay more than undergrads, and Perkins loans are cheaper than average). Alternatively, private lenders may charge borrowers from wealthy families (or attending wealthy institutions) less. Rates might even fluctuate on the basis of grades: just as some students now lose their scholarships when they fail to maintain a certain GPA, they may face a credit hit for poor performance.*

Now in conventional finance theory, that’s a good thing: the “pricier” loan sends a signal warning students that their course may not be as good an idea as they first thought. But the commitment to get a degree is not really analogous to an ordinary consumer decision. A simple Hayekian model of “market as information processor” works well in a supermarket: if bananas suddenly cost far more than apples, that signal will probably move a significant number of customers to substitute the latter for the former. But education does not work like that. College degrees (and in many areas further education) are necessary to get certain jobs. The situation is not as dire as health care, the best example of how the critical distinction between “needs” and “wants” upends traditional economic analysis. But it is still a much, much “stickier” situation than the average consumer purchase. Nor can most students simply “go to a cheaper school,” without losing social networks, enduring high transition costs, and sacrificing program quality.

For financiers, a sliding scale of interest rates makes perfect sense as “calculative risk management.” But we all know how easily it can reinforce inequality. A rational lender would charge much lower interest rates than average to a student from a wealthy family, attending Harvard. The lender would charge far more to a poorer student going to Bunker Hill Community College. “Risk-based pricing” is a recipe for segmenting markets, extracting more from the bottom and less from the top. The same logic promoted the tranching of mortgage-backed securities, restructuring housing finance to meet investor demands. Some investors wanted income streams from the safest borrowers only–they bought the AAA tranches. Others took more risk, in exchange for more reward. Few considered how the lives of the borrowers could be wrecked if the “bets” went sour.

Now you might ask: What’s the difference between those predictable disasters, and those arising out of defaults of federal loans? They’re very difficult to discharge in bankruptcy. But federal loans have income-based repayment options. For loans made after 2007, lenders in distress can opt into a payment plan keyed to their income level, which eventually forgives the debt. Private loans don’t offer IBR.

But IBR is not that great a deal, you may counterAnd in many cases, you’re right, it isn’t! Interest can accumulate for 20 or 25 years. Then, when the debt is finally forgiven, the forgiven amount could be treated as income which must be taxed. There is no IBR for the tax payment. Moreover, the impact of growing debt (even it is eventually to be forgiven) on future opportunities is, at present, largely unknown. Many consumer scores may factor it in, without even giving the scored individual notice that they are doing so.

So why keep up the federal role in higher ed finance? Because one key reason federal loans are so bad now is because private lenders have had such a powerful role in lobbying, staffing the key loan-disbursing agency (Department of Education), and supporting (indirectly or directly) think tank or analyst “research” on higher ed finance. When government is your competitor, you use the regulatory process to make the government’s “product” as bad as possible, to make your own look better by comparison. And the more of the market private lenders take, the more money they’ll have to advocate for higher rates and worse terms for federal loans–or getting rid of them altogether.

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*The CFPB has warned lenders that using institutional cohort default rates to price loans could violate fair lending laws, and that may have scared some big players away from doing too much risk based pricing. However, with the rise of so many fringe and alternative lenders, and the opacity of algorithmic determinations of creditworthiness, the risk of disparate impact is still present.

The Emerging Law of Algorithms, Robots, and Predictive Analytics

In 1897, Holmes famously pronounced, “For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” He could scarcely envision at the time the rise of cost-benefit analysis, and comparative devaluation of legal process and non-economic values, in the administrative state. Nor could he have foreseen the surveillance-driven tools of today’s predictive policing and homeland security apparatus. Nevertheless, I think Holmes’s empiricism and pragmatism still animate dominant legal responses to new technologies. Three conferences this Spring show the importance of “statistics and economics” in future tools of social order, and the fundamental public values that must constrain those tools.

Tyranny of the Algorithm? Predictive Analytics and Human Rights

As the conference call states

Advances in information and communications technology and the “datafication” of broadening fields of human endeavor are generating unparalleled quantities and kinds of data about individual and group behavior, much of which is now being deployed to assess risk by governments worldwide. For example, law enforcement personnel are expected to prevent terrorism through data-informed policing aimed at curbing extremism before it expresses itself as violence. And police are deployed to predicted “hot spots” based on data related to past crime. Judges are turning to data-driven metrics to help them assess the risk that an individual will act violently and should be detained before trial. 


Where some analysts celebrate these developments as advancing “evidence-based” policing and objective decision-making, others decry the discriminatory impact of reliance on data sets tainted by disproportionate policing in communities of color. Still others insist on a bright line between policing for community safety in countries with democratic traditions and credible institutions, and policing for social control in authoritarian settings. The 2016 annual conference will . . . consider the human rights implications of the varied uses of predictive analytics by state actors. As a core part of this endeavor, the conference will examine—and seek to advance—the capacity of human rights practitioners to access, evaluate, and challenge risk assessments made through predictive analytics by governments worldwide. 

This focus on the violence targeted and legitimated by algorithmic tools is a welcome chance to discuss the future of law enforcement. As Dan McQuillan has argued, these “crime-fighting” tools are both logical extensions of extant technologies of ranking, sorting, and evaluating, and raise fundamental challenges to the rule of law: 

According to Agamben, the signature of a state of exception is ‘force-of’; actions that have the force of law even when not of the law. Software is being used to predict which people on parole or probation are most likely to commit murder or other crimes. The algorithms developed by university researchers uses a dataset of 60,000 crimes and some dozens of variables about the individuals to help determine how much supervision the parolees should have. While having discriminatory potential, this algorithm is being invoked within a legal context. 

[T]he steep rise in the rate of drone attacks during the Obama administration has been ascribed to the algorithmic identification of ‘risky subjects’ via the disposition matrix. According to interviews with US national security officials the disposition matrix contains the names of terrorism suspects arrayed against other factors derived from data in ‘a single, continually evolving database in which biographies, locations, known associates and affiliated organizations are all catalogued.’ Seen through the lens of states of exception, we cannot assume that the impact of algorithmic force-of will be constrained because we do not live in a dictatorship. . . .What we need to be alert for, according to Agamben, is not a confusion of legislative and executive powers but separation of law and force of law. . . [P]redictive algorithms increasingly manifest as a force-of which cannot be restrained by invoking privacy or data protection. 

The ultimate logic of the algorithmic state of exception may be a homeland of “smart cities,” and force projection against an external world divided into “kill boxes.” 


We Robot 2016: Conference on Legal and Policy Issues Relating to Robotics

As the “kill box” example suggests above, software is not just an important tool for humans planning interventions. It is also animating features of our environment, ranging from drones to vending machines. Ryan Calo has argued that the increasing role of robotics in our lives merits “systematic changes to law, institutions, and the legal academy,” and has proposed a Federal Robotics Commission. (I hope it gets further than proposals for a Federal Search Commission have so far!)


Calo, Michael Froomkin, and other luminaries of robotics law will be at We Robot 2016 this April at the University of Miami. Panels like “Will #BlackLivesMatter to RoboCop?” and “How to Engage the Public on the Ethics and Governance of Lethal Autonomous Weapons” raise fascinating, difficult issues for the future management of violence, power, and force.


Unlocking the Black Box: The Promise and Limits of Algorithmic Accountability in the Professions


Finally, I want to highlight a conference I am co-organizing with Valerie Belair-Gagnon and Caitlin Petre at the Yale ISP. As Jack Balkin observed in his response to Calo’s “Robotics and the Lessons of Cyberlaw,” technology concerns not only “the relationship of persons to things but rather the social relationships between people that are mediated by things.” Social relationships are also mediated by professionals: doctors and nurses in the medical field, journalists in the media, attorneys in disputes and transactions.


For many techno-utopians, the professions are quaint, an organizational form to be flattened by the rapid advance of software. But if there is anything the examples above (and my book) illustrate, it is the repeated, even disastrous failures of many computational systems to respect basic norms of due process, anti-discrimination, transparency, and accountability. These systems need professional guidance as much as professionals need these systems. We will explore how professionals–both within and outside the technology sector–can contribute to a community of inquiry devoted to accountability as a principle of research, investigation, and action. 


Some may claim that software-driven business and government practices are too complex to regulate. Others will question the value of the professions in responding to this technological change. I hope that the three conferences discussed above will help assuage those concerns, continuing the dialogue started at NYU in 2013 about “accountable algorithms,” and building new communities of inquiry. 


And one final reflection on Holmes: the repetition of “man” in his quote above should not go unremarked. Nicole Dewandre has observed the following regarding modern concerns about life online: 

To some extent, the fears of men in a hyperconnected era reflect all-too-familiar experiences of women. Being objects of surveillance and control, exhausting laboring without rewards and being lost through the holes of the meritocracy net, being constrained in a specular posture of other’s deeds: all these stances have been the fate of women’s lives for centuries, if not millennia. What men fear from the State or from “Big (br)Other”, they have experienced with men. So, welcome to world of women….

Dewandre’s voice complements that of US scholars (like Danielle Citron and Mary Ann Franks) on systematic disadvantages to women posed by opaque or distant technological infrastructure. I think one of the many valuable goals of the conferences above will be to promote truly inclusive technologies, permeable to input from all of society, not just top investors and managers.

X-Posted: Balkinization.

A Review of The Black Box Society

I just learned of this very insightful and generous review of my book, by Raizel Liebler:

The Black Box Society: The Secret Algorithms that Control Money and Information (Harvard University Press 2015) is an important book, not only for those interested in privacy and data, but also anyone with larger concerns about the growing tension between transparency and trade secrets, and the deceptiveness of pulling information from the ostensibly objective “Big Data.” . . .

One of the most important aspects of The Black Box Society builds on the work of Siva Vaidhyanathan and others to write about how relying on the algorithms of search impact people’s lives. Through our inability to see how Google, Facebook, Twitter, and other companies display information, it makes it seem like these displays are in some way “objective.” But they are not. Between various stories about blocking pictures of breastfeeding moms, blocking links to competing sites, obscurity sources, and not creating tools to prevent harassment, companies are making choices. As Pasquale puts it: “at what point does a platform have to start taking responsibility for what its algorithms go, and how their results are used? These new technologies affect not only how we are understood, but also how we understand. Shouldn’t we know when they’re working for us, against us, or for unseen interests with undisclosed motives?”

I was honored to be mentioned on the TLF blog–a highly recommended venue! Here’s a list of some other reviews in English (I have yet to compile the ones in other languages, but was very happy to see the French edition get some attention earlier this Fall). And here’s an interesting take on one of those oft-black-boxed systems: Google Maps.

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The Limits of Relationship Work

Merle Weiner’s book, A Parent-Partner Status for American Family Law, is a tremendously important contribution to the debate about how to strengthen families and improve outcomes for children. At a time when families are rapidly changing and marriage is of dwindling importance in some communities, it is imperative to think anew about how to support a wide range of families. Weiner’s proposal for a new parent-partner status is a bold and welcome addition to this debate.

Weiner proposes five core legal obligations that would attach to the parent-partner status. Three of these obligations are incremental changes to existing law—a duty to aid regardless of marital status, a heightened duty of loyalty in contracting, and additional protections against domestic violence for parent-partners. These obligations strike me as reasonable and would seem to further Weiner’s goal of inculcating stronger ties between parents. A fourth obligation—financial compensation for a parent who does a disproportionate share of the physical caregiving—usefully builds on existing law as well as the proposals in the ALI Principles of the Law of Family Dissolution, which Weiner convincingly critiques. Together, these obligations would formalize a status that exists currently in the interstices of family law, which is itself a positive step forward.

It is Weiner’s final obligation that, at least at first glance, appears to be a major departure from existing law. She proposes that parent-partners have a legally enforceable obligation to engage in “relationship work”—counseling, education, and so on—both at the time a child is born and if the parents’ romantic relationship ends. The relationship work at the first juncture is intended to help parents navigate the stressful transition to parenthood. The relationship work at the time of dissolution contemplates reconciliation as a first measure. If, after considering the impact of the dissolution on the child, the couple still proceeds to break up, then the relationship work would focus on helping the couple remain friends while ending their romantic relationship.

This obligation would not be enforced by a third party, but one parent-partner could seek a court order to enforce the obligation against the other parent-partner. A court could not require a resistant parent to engage in the actual relationship work but could order the parent to attend an educational session touting the benefits of relationship work. Weiner believes creating an enforceable legal obligation does not necessarily mean parties will flock to the courts to seek enforcement but rather that it “should help couples internalize the value of relationship work and the social expectation of participation.” (p. 358)

Weiner claims that the “proposal is not as radical as it may sound” (p. 352). It is true, as Weiner notes, that both the federal and state governments are already involved in some form of relationship work: mandating mediation for custody and visitation disputes, requiring co-parenting education classes for separating and divorcing couples, and funding programs designed to strengthen family relationships, such as the federal Responsible Fatherhood program.

As I elaborate below, her proposal differs from these kinds of programs in meaningful ways, and therefore I think it is a significant departure. But audacity alone is not a problem. The real question is whether the proposal is good policy.

I am not so sure. In my own work, I, too, have argued that if the law wants to improve the vertical relationship between a parent and child, it needs to focus on the horizontal relationship between the two parents. Whether and how the parents get along deeply affects the ability of each parent to provide a child with the time and attention needed for healthy child development. Further, I have argued in favor of the kinds of programs that Weiner’s proposal builds on, particularly co-parenting classes for parents at the end of a romantic relationship. (I have also proposed a legal status that would attach at birth, which I called co-parent status, but whereas I dedicated a short section of a long law review article to the idea, Weiner has dedicated an entire book; therefore I want to focus on her proposed status, not mine.)

So why am I resistant to Weiner’s proposal while seeming to promote many of the same ideas? Read More

A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.