Category: Law and Inequality


More Thoughts on the Dangerous Fragility of Men

First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.

I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.

We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read More


Expanding Bob Jones University v. United States

In Bob Jones University v. United States, the IRS revoked the tax exempt status of two religiously affiliated schools because they discriminated on the basis of race. One school (Goldsboro Christian Schools) refused admittance to black students, the other (Bob Jones University) barred interracial dating and marriage. Both schools claimed that the discrimination was religiously mandated, and that the loss of their tax exempt status violated the Free Exercise Clause. The schools lost. The Supreme Court characterized tax exemptions as a taxpayer subsidy for charitable organizations that, at the very least, do not contravene fundamental public policy like our commitment to racial equality, and held that racist schools did not satisfy that requirement: “[I]t cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising beneficial and stabilizing influences in community life or should be encouraged by having all taxpayers share in their support by way of special tax status.” In addition, the Court held that eliminating race discrimination in education was a narrowly tailored and compelling state interest. The bottom line is that a university may discriminate based on race, but it should not expect to be considered a beneficial organization entitled to tax subsidies.

Assuming Bob Jones was correctly decided, should its holding be limited to discrimination in education, or discrimination on the basis of race? I think not. In fact, the IRS denies tax exempt status to any nonprofit organization, religious or not, that invidiously discriminates on the basis of race. If you are a church that excludes blacks, or won’t let blacks become ministers, you may have the constitutional right to exist, but you won’t get any government money to help you prosper. Should the same policy apply to organizations, religious or not, that invidiously discriminate on the basis of sex?


On Information Justice

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

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Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

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For whom does IP work?

One of the major questions Professor Sunder’s book asks is whether IP works for the people who make it. This is a question that US law does not grapple directly with, but assumes and then glosses over. It is an important question. As Molly Van Houweling mentions, drawing on Julie Cohen’s fantastic article on IP as corporate property, IP certainly works for some companies some of the time. Insofar as companies are intermediaries (distributors of IP protected goods) and the licensees of the creators of those goods (either through work for hire or assignment), firms can and do make some of their money from IP revenues, which IP is generated by individuals working alone or in groups.

The story of Solomon Linda is an example of what can go wrong from the initial creation to the widespread distribution of creative expression that has commercial value. Firms will say that without intellectual property, they cannot harness or nourish the creativity to reproduce, commercialize and distribute it, that the conditions of their productive and distributive business require exclusive rights in the intangible goods. (I think this in part right, but it is largely overstated in light of the the many other ways in which companies make money, such as first to market, complementary products, contracting for services, reputation. And the extent to which the company depends on IP is industry specific.) Individuals will say that the best environment for their creative work is a situation in which autonomy and collaboration are optimized. Individuals want time and space to do their work, and they need some funding to pursue it, but that funding may come from a day or night job that does or does not directly relate to their creative or innovative activity. Ideally, the way the individuals earn a living derives from the creative or innovative work they do, and if that is the case, they still seek autonomy and collaboration, which are often at odds with corporate structure and IP exclusivity. Sunder’s book points out many of these conflicts between individual welfare and corporate welfare. My puzzle, these days, is why there must be such inconsistency. How (when and why) does the corporate interest so greatly diverge from the individual’s interest and what, if anything, can be done about it to maximize IP’s functionality in our global system of creative and innovative production? Sunder’s book goes a long way to putting these issues front and center.

Fractal Inequality and Politics

According to the Fed, the the net worth of the typical American household was $77,300 in 2010. The new vice presidential candidate, Paul Ryan, had a net worth of $3,207,000 in 2010—about 40 times that of the median household. The man who picked Ryan has about 80 times more wealth than him, with a net worth of $250,000,000. And one of the Romney/Ryan ticket’s greatest supporters, David Koch, has about $25,000,000,000, about 100 times Romney’s fortune. David’s brother and Sheldon Adelson are about that wealthy, too, and very politically active.

If this example sounds terribly partisan to you, just substitute in your favorite left wing billionaire and Obama/Biden, or consider the fabulous lives of Bill Clinton or Tony Blair after they retired from office. Romney/Ryan is more interesting here because of the fractal inequality on display.

Numbers like these take a little time to sink in (and perhaps they never do, given our cognitive limitations). They need to be explored and illuminated. What does it mean that, say, David Koch could double each half of the GOP ticket’s net worth by giving Romney one-hundredth of his fortune, or giving Ryan one five-thousandth of his fortune? Consider how readily you might give 1/5,000th of what you own to a charity, or use it to pay for a magazine subscription, or a dinner out. The median household might not think twice about using its $15 (about .0002 * $77,000) to buy a pizza.

What does it mean for politics when leading figures of either party can leave office and expect lucrative sinecures from tycoons or corporations? Who really is in charge?

Automation and Jobs, cont’d

The always excellent Thomas B. Edsall has a piece today discussing the dilemmas addressed in the “jobless futures” post I wrote over the weekend. Here are some of the questions posed by “young researchers and prospective entrepreneurs at Singularity University” whom Edsall observed:

How much can wealth accumulate for a small slice of the population at the top, while large numbers of people are forced to work for ever lower pay or to drop out of the workforce altogether? For such a future society to function, would wealth need to be (coercively) redistributed from the top to those below, in order for the mass of the jobless population to survive? Who would have power and how would tax and spending policies be determined in such a radically bifurcated, automated, workless society?

These are tough questions, but at least they are the right questions. The management experts interviewed by Edsall have 19 proposals for addressing this transition.

Exiling the Poor from the Insurance Market

John Roberts’ jurisprudential wizardry in NFIB has been compared to the artistic genius of pro wrestlers and rappers. Poor Americans in states newly empowered to resist the ACA’s Medicaid expansion may need even more ingenuity to get themselves insured. Both Kevin Outterson and my colleague John Jacobi have observed the perplexing predicament imposed on the poor in states that keep Medicaid 1.0, and resist Medicaid 2.0. From Jacobi’s post:

The reform provides insurance subsidies through tax credits. The credits are calculated on a sliding scale, according to household level, for people with income up to 400% of FPL [the federal poverty line] — subsidizing more generously someone earning 200% of FPL, for example, than someone earning 350% of FPL. But, under 26 USC 36B(c)(1), credits will not be distributed to those with incomes below 100% of the FPL. Why? Because Congress assumed states would take up the Medicaid expansion, obviating the need for exchange-based subsidies for the very poor. . . .Bottom line: states rejecting Medicaid 2.0 will not only forego about 93% federal funding for the program between 2014 and 2022, but they could also be depriving the poorest of the uninsured from any shot at coverage — potentially affecting millions nation-wide.

Georgia hospitals are already worried about the “unexpected prospect of lower reimbursements without the expanded pool of patients” to be covered by the Medicaid expansion:
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Academic Biases (Regarding Google, and Beyond)

Yesterday a vice president of the European Commission announced preliminary conclusions regarding the EU’s antitrust investigation into Google. The EC has warned Google to “change or face fines,” as Alex Barker puts it, noting “possible antitrust problems in how Google favours its own products in search results.” I cannot predict exactly how far US cases will go, or if the EC’s efforts to guide the development of the search market will succeed. (I have offered some preliminary thoughts at Danny Sokol’s excellent symposium on Google at the Antitrust & Competition Law Blog.) However, I applaud the EC for its attention to the matter.

After attending the “Regulating Search” conference in 2005, I spent some of my early academic career trying to understand whether complaints about Google had merit. I was publishing on the matter in 2006, and have continued to do so. When I started writing about this topic, some established scholars mocked my interest in it. After I published Federal Search Commission? with a co-author, one IP professor loudly scoffed that “maybe we need a federal map commission” at a conference where the restaurant location was unclear. Establishment voices who have fought for net neutrality looked with disdain or bored incomprehension at someone who dared to question a Silicon Valley darling. One scholar even threw a draft of mine on the table at a faculty talk, loudly muttered “This is not scholarship!,” and boldly predicted that Google’s dominance of search couldn’t last for more than a few years. (That was in 2008.)

I don’t know whether the EU’s actions today will lead these skeptics to a different view of my work, or to condemnations of creeping socialism. But I do think the EU has now confirmed that it was appropriate for a legal scholar to raise the types of questions I have posed over the past six years. They deserved to be part of the agenda of internet law.

This is a somewhat roundabout (and hopefully not too self-pitying) response to Frank Bowman’s earlier post on the role of outside funding in academic research (and particularly Eugene Volokh’s intervention regarding First Amendment protection for search results). Like Bowman, I worry about the effect of outside money on research. However, I think it is often the academy’s own biases and presumptions that most threaten independent thought.
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Please Make Room for the Stateless Superrich

A recent panel at the Milken Institute decried a grave injustice. Jeff Greene, a billionaire real estate investor, noted that a single mother who weighed “over 300 lbs” received welfare of about $600 a month. “She could barely take care of herself, much less her kids,” lamented Greene. The redoubtable Niall Ferguson swiftly summed up the problem:

Why, he wondered, was Greene letting this lady off the hook? Why doesn’t she get up off her fat lazy butt and get a job?!, he demanded, with his Scottish brogue in full Braveheart mode. “Taking from the successful and giving from the unsuccessful.”. . . Loud applause ensued from the Wall Street-friendly crowd, most of whom paid several thousand dollars for a conference ticket.

Contrast the target of Ferguson’s wrath with the “stateless superrich,” whose “second, third, or fourth homes” are often vacant as they “spend a few months in St Moritz, before moving to their trophy mansion in London, and then on to their luxury villa in Sardinia for the summer months.” Some worry that “their children will become indolent spongers, who will blow their inheritance ‘recklessly and lose their ambition or even their health.'” But they tend to employ “legions of charge-by-the-hour gurus” who can help make crucial decisions about, say, “how to divvy-up seven properties between three” heirs. That is job creation par excellence.*
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