Bottlenecks: The book we all should be reading

Let me start with a confession: I am an unlikely contributor to this symposium.

Bottlenecks: A New Theory of Equal Opportunity, by Joseph Fishkin

Bottlenecks is fundamentally a work of legal philosophy, offering as the subtitle promises, “a new theory of equal opportunity.” The book lays out a new way of thinking about both the purposes and the structure of social opportunity, exploring in depth the implications of this theory for thinking about topics such as class, work, education, gender, anti-discrimination law, and equality as a constitutional value.

I don’t write about any of those things. Maybe you don’t either. So what are we both doing here?

My goal in this post is to convince you that both you and I very much belong in this conversation, because with Bottlenecks, Joey has penned that rare book that can inform projects in fields as diverse as IP (my own) and immigration, bankruptcy and business organizations, family law and criminal law. If there one book of 2014 that I can plausibly claim should be read by everyone in law and public policy, this would be that book.

At its heart, Bottlenecks offers us a new theory of justice. John Rawls posited a framework of “fairness;” Amartya Sen and Martha Nussbaum focused on the development of “capabilities.” Joseph Fishkin offers a similarly big grounding principle: “opportunity.”

The book’s title refers to “Equal Opportunity,” yet this phrasing is really more of a nod to the most familiar legal jargon, rather than the perfect caption for the book’s big idea. Joey’s real emphasis is on opportunity, which the author frames as valuable because it will promote not only greater social equality, but also freedom and self-realization. His goal is not primarily to equalize opportunity, but to expand it… for everyone, and especially for disadvantaged groups.

In fact, the more I read, the more I began to suspect that if this book were simply a treatise to explain the principle to other political philosophers, its author would have insisted upon the alternative title, “Opportunity pluralism.” (And a google search seemed to confirm my suspicion: Joey’s PhD thesis title was … “Opportunity Pluralism.”) This is the true big idea.

By “opportunity pluralism,” Joey means that we should aim as a society to build an opportunity structure that provides many, diverse, and alternative paths to many, diverse, and alternative conceptions of the good life. This is contrasted with a social opportunity structure in which members are forced into a zero-sum competition to squeeze through narrow gateways in which only a few will win: bottlenecks.

The shift of emphasis from equality to opportunity is not an accident.

One reads in Joey’s work a deep disappointment with how far the clamor for equality has failed to take us toward its achievement. The book’s cover image helps to explain this critique. Our public conversation on equal opportunity has looked something like this: If ten people can cross the bridge from Povertyland to Opportunityland, should those spots go to the most “meritorious” applicants? Or should women and minorities receive a preference to compensate for their disadvantages?

Joey wants to blow up that lose-lose argument by refocusing our energies on the problematic opportunity structure. Why in the world should we be content with a social structure in which there is just one bridge, and only ten spots? The problem is the opportunity structure.

But this is not a work that seeks to invoke “opportunity” as a way of shifting the focus away from the very real problems of inequality. Rather, Joey’s book explores what it means to take the opportunity seriously, rather than pointing to it as a political excuse. (In this respect, I was reminded of Jack Balkin’s work exploring what it means to take originalism seriously, rather than as a convenient shortcut to socially conservative constitutional interpretations.)

Taking opportunity seriously means that we have an obligation to reexamine the ways in which law, public policy, and business practices restrict and limit opportunity. Especially, we must identify the opportunity “bottlenecks,” prioritize the most problematic among them, and then devise solutions for loosening them or building new pathways around them.

Framed in that way, it starts to become clear why Bottlenecks can powerfully inform projects to design more just law and policy even in very tangentially related fields. Immigration, child support, criminal punishment, health care, small businesses, higher education… Bottlenecks invites us to think about all of these topics in terms of their impact on the structure of social opportunity.

Along the way, he provides a number of sophisticated tools to help explore what exactly is problematic about existing opportunity structures, and think through strategies for altering them. I’ll pick back up on these in my next post, which will explore how the theoretical tools of Bottlenecks can help build a social justice perspective for evaluating copyright law.

Meanwhile, I hope that readers will post comments briefly sketching out some connections they see between this brief (and deeply incomplete) account of Bottlenecks and their own fields of inquiry.

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