Category: Law and Inequality

Disrupting “Disruption” Rhetoric

Why is the term “disruption” so popular nowadays? We rarely hear about a new social commitment to guarantee access to housing, health, or education. Instead, elite media features a parade of thinkers keen on “disrupting” old institutions. Freddie DeBoer has one perspective on their popularity:

Talk of social contracts is passé in an America obsessed with technocapitalist visions of a prosperous future. The yen for “disruption,” an empty term for empty minds in empty people, makes traditional obstacles like social contracts suspect or downright pernicious. This has led to an embrace of proceduralism by those true believers who want an app economy to be the engine of capitalism. And such people rule the world.

The “disruption” proposed by thought leaders also appeals to those who think of economics as the king of social science, and methodological individualism as the only ontological orientation to rigorous inquiry:

[I]ndividualistic predilections give a cohesiveness and homogeneity to … new ideas and inventions, actively constructing and shaping the digital environment from which [Silicon Valley thought leaders] claim to draw their inspiration. The insistence on “disrupting” our social and environmental lives; the idea that the solutions inspired by and enabled by the Internet mark a clean break from historical patterns, a never-before-seen opportunity – these mean that the only lessons to learn from history are those of previous technological disruptions. The view of society as an institution-free network of autonomous individuals practicing free exchange makes the social sciences, with the exception of economics, irrelevant. What’s left is engineering, neuroscience, an understanding of incentives (in the narrowly utilitarian sense): just right for those whose intellectual predispositions are to algorithms, design, and data structures.

The economy of internet intellectuals encourages endless reworking of algorithmic, design-, and data-based thinking. As Henry Farrell has observed, “While making your way up the hierarchy [of internet intellectuals], you are encouraged to buff the rough patches from your presentation again and again, sanding it down to a beautifully polished surface, which all too often does no more than reflect your audience’s preconceptions back at them.” The smiling faces at TED talks want to hear tried-and-true methods and 17-minute solutions. Woe to the skeptic who counsels there may not be any.

In the hands of a Cory Doctorow, we can see a disruption ethic of public spirited dissent. Unfortunately, the “disruptions” pursued by Silicon Valley giants (and their well-heeled consultants) often have little to do with challenging the biggest power centers in society. And why would they? As Farrell notes,
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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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Martin Luther King, Labor Day, and Surveillance

Interesting to see how the three topics converge. First, an excerpt from King’s December 1961 speech to the AFL-CIO Convention:

Less than a century ago, the laborer had no rights, little or no respect, and led a life that was socially submerged and barren. . . . American industry organized misery into sweatshops and proclaimed the right of capital to act without restraints and without conscience. . . . The children of workers had no childhood and no future. They, too, worked for pennies an hour and by the time they reached their teens they were worn-out old men, devoid of spirit, devoid of hope and devoid of self-respect.

Second, from Tom Geoghegan’s analysis of King as a labor leader: “It is said that just after this speech, J. Edgar Hoover was more determined to wiretap King.”

Treating someone working for the betterment of the many, as an enemy of the state, is a core harm of politicized surveillance.

364 CEO Days

SaluteLaborLynn Parramore observes that exploitative practices do little to help US productivity, or even the position of firms engaging in them:

[America’s] cult of endless toil doesn’t really help the bottom line. Study after study shows that overworking reduces productivity. On the other hand, performance increases after a vacation, and workers come back with restored energy and focus. The longer the vacation, the more relaxed and energized people feel upon returning to the office. Economic crises give austerity-minded politicians excuses to talk of decreasing time off, increasing the retirement age and cutting into social insurance programs and safety nets that were supposed to allow us a fate better than working until we drop.

That doesn’t seem very economically rational: why not respect Brandeis’s basic insight that “I can get 12 months of work done in 11 months, but not in 12″? One clue lies in an observation from Polish economist Michal Kalecki:
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The “Markets” for Top “Talent”

IncomeGrowthThe stories we tell ourselves about inequality matter. As incomes of the top 0.1% and top 0.01% grow ever more stratospheric, “low wage workers are paid less now than they were from the 1950s-1970s.” Is this just, as Steve Schwartzman suggests, the natural consequence of globalization? Tim Harford suggested as much in the FT last week:

The uncomfortable truth is that market forces – that is, the result of freely agreed contracts – are probably behind much of the rise in inequality. Globalisation and technological change favour the highly skilled. . . . [A]t the very top, winner-take-all markets are emerging, where the best or luckiest entrepreneurs, fund managers, authors or athletes hoover up most of the gains.

The most important word in that paragraph is “luckiest.” What deserves comment is Harford’s argument that “freely agreed contracts” are deciding who is “hoovering up” the most. He elaborates a bit later:
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Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.


The River of Purchasing Power Dries Up at Detroit

RiveraIf only Detroit were a big bank, Treasury officials would be working round the clock this weekend to save it. Alas, this city is no Citi. It lacks a “winning business model” (like lobbying and bonuses for key federal officials). So municipal bankruptcy is on the horizon.

Detroit was chronically mismanaged, and the victim of unforgiving political geography. But the decline of jobs there is also a bellwether for the rest of the country. As Juan Cole observes,

This rise of [robotized manufacturing] violates the deal that the capitalists made with American consumers after the great Depression, which is that they would provide people with well-paying jobs and the workers in turn would buy the commodities the factories produced, in a cycle of consumerism. If the goods can be produced without many workers, and if the workers then end up suffering long-term unemployment (as Detroit does), then who will buy the consumer goods? Capitalism can survive one Detroit, but what if we are heading toward having quite a few of them?

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“The Cruel Radiance of What Is” James Agee’s Introduction to Cotton Tenants

Imagine an introduction that cuts to the core of what you believe and demands you act without demanding that at all. And, imagine an insight that moves beyond race and class to how we set up society and how we treat each other. Just part of the introduction to James Agee’s Cotton Tenants does that. Fortune magazine cared about poverty in the South. It was 1936. Perhaps any magazine on economic issues had to cover poverty. Fortune sent James Agee and Walker Evans to Alabama to cover cotton farmers. That work led to a book, Let Us Now Praise Famous Men. But the original story, which was about 30,000 words, was never published, until now. Summers of The Baffler published a short version in the magazine, and now the book is out. In an interview in The Atlantic, Summers shows how bold Agee was. In Summer’s words, “This statement puts the reader at some pretty fucking serious risk. He’s writing a magazine article, but in order to proceed with him you must first agree with what he’s just said.” What he said applied then and now. Here’s the passage:

And since every possibility human life holds, or may be deprived of, of value, of wholeness, of richness, of joy, of dignity, depends all but entirely upon circumstances, the circumstances are proportionately worthy of the serious attention of anyone who dares to think of himself as a civilized human being. A civilization which for any reason puts a human life at a disadvantage; or a civilization which can exist only by putting human life at a disadvantage; is worthy neither of the name nor of continuance. And a human being whose life is nurtured in an advantage which has accrued from the disadvantage of other human beings, and who prefers that this should remain as it is, is a human being by definition only, having much more in common with the bedbug, the tapeworm, the cancer, and the scavengers of the deep sea.

I have not digested all that is here. That may take years, and I have as yet to read the full work. For now, I focus on this point. All our chances at success and joy are based on circumstances. Are all men created equal? I know some cringe at one, maybe two words, already. But circumstances can change. Disadvantages entrenched in society can change. Men may mean more today but has far to go. How did that change happen? Was it a fear of being less than human? A feeder on others? Agee may have been crying out against systems designed to maintain disadvantage. And he indicts those who know they benefit from such a system but wish it to continue. Yet Agee did not give up his place in the world. He was a writer, film critic, screenplay author, and more. As Summers offered, “There’s no specific argument for reform either–he’s not taking a position about what might or should be done to remedy this catastrophic rural poverty. There is no clear concept made of the difference between the is and the ought. There’s just a whole lot of is (the “cruel radiance of what is,” as he wrote in LUNPFM.)” Cruel radiance of what is. That is the key for me.

Seeing the world as it is; Conrad, Hemingway, Stendahl, almost any writer who writes about writing has said that is their goal. This passage from Conrad hit me in high school and never left: “My task which I am trying to achieve is, by the power of the written word to make you hear, to make you feel—it is, before all, to make you see. That—and no more, and it is everything. If I succeed, you shall find there according to your deserts: encouragement, consolation, fear, charm—all you demand—and, perhaps, also that glimpse of truth for which you have forgotten to ask.” Agee’s introduction makes me want to dive in and see what he saw. My bet is that our problems are not so different. My fear is that not much has changed. My hope is that there is a way out. Seeing what Agee and Walker saw is perhaps a start.


Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?

This post marks the end of my guest appearance on Concurring Opinions, and as usual, I’ve enjoyed my run.

I sometimes show the 2007 documentary Brazil in Black and White in my Law in Film seminar to give my students some exposure to how other racialized countries handle the difficult business of mediating the lingering consequences of slavery and de jure race discrimination. I also have them read Tanya K. Hernandez, 2005 article To Be Brown in Brazil: Education & Segregation Latin American Style. Her recent book, Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge Univ. Press, Oct. 2012), contains an even more nuanced discussion.

Like the United States, affirmative action in Brazil is a controversial issue. I remember having a deja vu like experience when I visited the country in 2007 and heard some of the discussions. Opponents’ arguments sounded very much like the arguments I had heard in the U.S. years earlier. But there are important differences between the two countries. Notions of race are far more complex and confusing in Brazil as the documentary and a recent article in The Economist explain. Further, unlike the United States public universities in Brazil are more prestigious than private schools. In addition, “Brazil’s racial preferences differ from America’s in that they are narrowly aimed at preventing a tiny elite from scooping a grossly disproportionate share of taxpayer-funded university places. Privately-educated (ie, well-off) blacks do not get a leg-up in university admissions.”

The notion of racial quotas never went over well in the United States, and most observers believe that our current weak form of affirmative action, most apparent in university admissions, is on its last leg. As we anxiously waited this term to see what the Supremes will do with the latest case, Fisher v. University of Texas at Austin, the Court agreed last month to hear another higher education affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in that case is “whether Michigan voters in 2006 had the legal right to bar the state’s public colleges and universities from considering race or ethnicity in admissions.” Briefs in the case can be found on SCOTUSblog. Whatever the outcome in Fisher, it seems clear that the ongoing controversy over affirmative action in higher education will not be resolved this term. Read More


Fortune’s Bones: Is There Dignity after Death?

In 1995 Gunther von Hagens presented his Body Worlds exhibit, described as a collection of real human bodies that have been “plastinated” to prevent their decay and make them more malleable. Some of these plastinated bodies were cut open to reveal their inner organs and then positioned in lifelike poses. The exhibit toured the world and was wildly popular.

Body Worlds also generated some criticism. Canadian social scientist, Lawrence Burns, argued that “some aspects of the exhibit violated human dignity.” (7(4): 12-23 Amer. J. Bioethics 2007)  Although touted as an educational experience Burns and others worried that the bodies were being used as “resources to make money from the voyeurism of the general public.” A key concern was that the bodies were denied burial and that this was a dignitary affront. Burns conceded, however, that the concept of human dignity as applied to deceased individuals is unclear.

I started to think about whether there is dignity after death and, if so, what are its parameters, when I read a news article from the New Haven Register, about the skeleton of an enslaved man that was being studied by the anthropology faculty and students at Quinnipiac University prior to burial.

The enslaved man who died in the 1798 (slavery was not abolished in Connecticut until 1848), was named Fortune. At the time of his death Fortune was the human chattel of a Waterbury Connecticut physician who upon Fortune’s death boiled his body to remove the flesh keeping his skeleton to study human anatomy. Fortune’s body remained unburied and was on display as late as 1970 at the Mattatuck Museum where until recently it was still housed. Read More