Category: Law and Inequality

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The 100 Year Bloom?: Wealth Inequality in the U.S.

The debates around Piketty’s analysis of wealth gaps will persist, but a recent paper by Emmanuel Saez (U.C. Berkeley) and Gabriel Zucman (London School of Economics) indicates that wealth disparity in the U.S. has hit the levels of about 100 years ago. As the Economist Espresso edition reports, the study finds that “In the late 1920s the bottom 90% held just 16% of America’s wealth; the top 0.1% had a quarter.” From the Depression until “well after” World War II, the middle class share went up. Since the go-go 1980s that tide reversed and now “The top 0.1% (160,000 families worth $73m on average) hold 22% of America’s wealth, just shy of the 1929 peak—and almost the same share as the bottom 90% of the population.” (The Economist link has a nice chart from the paper. The chart captures the trend well. I was unable to get the image from the paper, however.).

I have to wonder whether the intersection of wealth disparity, race and police tensions, health security, job prospects, lack of food, and perhaps other factors explain what seem to be larger examples of unrest and revolutionary impulses from all ranges of political interests all around the world. And, the general sense of rejecting all institutions (a millennial impulse if lack of joining a party is a signal) can still lead to the short term alliance of enough people to cause revolution (their cause is change and rage and unleashed energy against the unjust), the aftermath of which is rarely bloodless. Once the common enemy goes, the energies of the one truth turn on each other. The show Survivor is much more real: eliminate those who are strong and helped you win, for they may threaten your vision. In other words, I sense much anger out there (and it may be founded) on many fronts. I see lex talionis (eye for an eye), but that is not justice. The law is supposed to mediate our impulse to revenge, and yet the law lies behind the changing tides of wealth. The unarticulated sense of injustice and disenfranchisement can eat the system from the inside. And even those gaining the biggest benefit right now will not see that the bottom is falling out from under them.

Not all 100 year blooms are pretty or benign. Reorganizing a country or the world so that baseline well-being goes up and is shared by most, if not all, seems like a blip in historical terms (I am trying to think of an extended era, more than 100 years, when wealth disparity was not high). But it may be that if we don’t start to fix these problems, the desire for those blips will become real and travel with high costs: depressions, starvations, revolutions, and wars.

It may not take much to prevent the fall. Who knows? Maybe the Jam’s That’s Entertainment captures an odd, sad, equilibrium that barely satisfies.

Waking up at 6 A.M. on a cool warm morning
Opening the windows and breathing in petrol
An amateur band rehearsing in a nearby yard
Watching the telly and thinking ’bout your holidays

If that is gone, well…

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Blue Collar Blues

The working class man is a hot topic this month. The publication of Andrew Cherlin’s new book, Labor’s Love Lost, a series of  New York Times articles, and recent Washington Post articles on the middle class  have called more attention to the social and economic plight of the working class man. For thinking conservative men, such as the New York Time’s Ross Douthat and the University of Virginia’s Brad Wilcox, much of that inquiry is focused on the issue of gender: is the move toward “an egalitarian vision of gender roles in parenting and breadwinning” part of the reason for the reinvention of marriage for the elite and of its decline for the working class? And is greater tolerance of non-marital sexuality an essential part of this egalitarian vision? An op ed in the Wall Street Journal this week went even farther to declare that the “biggest culprit” in family breakdown “is feminism’s devaluing of males and the conceit that “strong women” can do it all.”

We are particularly interested in the relationship between economic inequality, gender, and family structure not just because we teach family law, but also because we are often attacked for our claims that family structure – and the legal developments that underlie it — are tied to the economy. But we are bemused by the claims that changes in gender roles are a cause rather than a consequence of the increasing instability of working class families. Instead, we are wondering if the focus on gender isn’t really a distraction – a distraction from the remarkable development taking place in discussions of the family. Now that marriage equality no longer occupies the disproportionate share of national attention, there is something close to consensus taking place. That consensus is that family stability for the working class is unlikely to return without better jobs.

Few serious academics dispute that the disappearance of stable, well-paying jobs for blue collar men has a lot to do with the decline in blue collar marriage and the increased rate of divorce. And few serious academic disputes that cultural changes reinforce the effect. The point of our book, Marriage Markets, was to explain how the law institutionalizes a new model of marriage (the subject of our next blog) and (the focus of this blog) how a changing economy does not just produce less marriage in some straight-line fashion that varies with the latest marginal change in unemployment rates, but rather how it changes the way men and women relate to each other producing reinforcing cycles of gender distrust.

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Interview on The Black Box Society

BBSBalkinization just published an interview on my forthcoming book, The Black Box Society. Law profs may be interested in our dialogue on methodology—particularly, what the unique role of the legal scholar is in the midst of increasing academic specialization. I’ve tried to surface several strands of inspiration for the book.

Digital Labor & Rethinking Economics

LaborDayIt’s easy to document the degradation of work conditions in the wake of capital’s ascendance. I’ve done so for years, fully expecting that globalization would push the downward convergence of non-college-educated American workers’ living standards to that of the 73% of the global work force now living in the developing world. But I think we are in the midst of a sea change of resistance. Just listen to Belabored, an extraordinary series of podcasts on labor struggles (with plenty of print/web sources accompanying each broadcast). Or, if you’re in, or can visit, New York City, try to attend the following two conferences:

Rethinking Economics: A student-led movement, this group has an all-star line-up for a conference on Sept. 12-14. I’m particularly happy to see Philip Mirowski in the mix, as his Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown was one of my most enjoyable (and illuminating) reads this summer.

Digital Labor: This November conference will “will bring together designers, labor organizers, theorists, social entrepreneurs, historians, legal scholars, independent researchers, cultural producers and perspectives from workers themselves to discuss emerging forms of mutual aid and solidarity.” I attended the first iteration in 2009, and am on the Advisory Board for this one. It should be a fascinating event, particularly as forms of exploitation common in the “gig economy” influence large corporations.

Photo Credit: Karen Horton.

Konczal on Piketty

There are a number of excellent reviews of Piketty out there; to the 14 Brad Delong collected, I’d add James K. Galbraith and Paul Krugman as well. As a former vox clamantis in deserto, I’m happy to see them. Today Mike Konczal weighs in, with a Foucauldian take:

As Foucault argued, the ability of social science to know something is the ability to anthropologize it, a power to define it. As such, it becomes a problem to be solved, a question needing an answer, something to be put on a grid of intelligibility, and a domain of expertise that exerts power over what it studies. With Piketty’s Capital, this process is now being extended to the rich and the elite. Understanding how the elite become what they are, and how their wealth perpetuates itself, is now a hot topic of scientific inquiry.

Many have tried to figure out why the rich are freaking out these days. Their wealth was saved from the financial panic, they are having a very excellent recovery, and they are poised to reap even greater gains going forward. Perhaps they are noticing that the dominant narratives about their role in society—-avatars of success, job creators for the common good, innovators for social betterment, problem-solving philanthropists—-are being replaced with a social science narrative where they are a problem to be studied. They are still in control, but right to be worried.

Joanne Barkan’s debunking of philanthrocapitalism is part of that story; I’d also expect to see much more reporting from Lee Fang and Republic Report on the tangled interests behind primary challenges and much think tank advocacy. Some may even suggest that children be taught the names of local billionaires, rather than those of the governor and top legislative officials, to understand how politics works. The Pikettian moment marks the inflection point when extreme wealth can’t simply be written off as some ancillary feature of our political economy, but rather, as one of its motivating forces.

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Bottlenecks and copyright

Yes, you read that headline correctly. This post explores how Joseph Fishkin’s new theory of equal opportunity applies to… copyright law. As I hinted earlier, this is seemingly an unlikely connection. It is thus a connection that uniquely demonstrates the generativity of Bottlenecks.

Other posts in this symposium by Wendy Greene and Jessica Roberts have explored how Bottlenecks applies in the context of workplace anti-discrimination rules. Brishen Rogers extends the workplace focus by exploring how labor unions fit into the theory. And my own earlier post connects Bottlenecks to legal education reform.

Copyright scholarship, however, is not where we expect to encounter a new theory of equal opportunity. Yet that is where I found myself applying Fishkin’s framework, which finally provided the language and conceptual clarity to express what struck me as so profoundly problematic within my own field.

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Identity Performance as a Bottleneck to Employment Opportunity

In his timely and provocative book, Professor Joey Fishkin makes an important intervention to anti-discrimination law praxis and theory. Poignantly, he observes that in developing anti-discrimination legislation and doctrine, policy makers as well as judges have largely focused on either eliminating or diminishing severe, pervasive, and arbitrary bottlenecks in the opportunity structure as opposed to focusing singularly on the achievement of equal outcomes. He defines bottlenecks as a “narrow place in the opportunity structure through which one must pass in order to successfully pursue a wide range of valued goals.” (Page 13). Professor Fishkin identifies three types of bottlenecks—“qualification,” “developmental,” and “instrumental good”—that policy should address in educational and employment contexts to bring about “equality pluralism”: “[the] opening up a broader range of opportunities for everyone.” (Page 2). As a race and law and employment discrimination law scholar, I am particularly interested in how Fishkin’s “anti-bottleneck” principle applies to arbitrary “qualification bottlenecks” in the employment context. Indeed, my scholarship on grooming codes discrimination illuminates how an obscured yet severe and pervasive “qualification bottleneck”—(non)conformity with racialized and gendered identity performance standards imposed by employers (which are reified within anti-discrimination jurisprudence like Title VII)—constrains or widens one’s range of employment opportunities.In this post, I will draw upon my scholarship on grooming codes discrimination to briefly explicate how one’s ability to navigate and negotiate identity performance demands limits or increases employment opportunities. Read More

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Health as a Bottleneck

In his thoughtful and path-breaking book, Bottlenecks: A New Theory of Equal Opportunity, Joey Fishkin challenges the common conception of equal opportunity as providing a level playing field.  He explains that merely equalizing opportunity at critical points in a person’s life, such when she applies for a desirable job or college program, is often not enough. By then, social inequities and previous limited opportunities may have already taken their toll on the affected individuals, perhaps leaving them underprepared and ill-equipped to meaningfully compete—let alone succeed—even when given the chance.  Fishkin explains that this line of reasoning puts us in a vicious cycle: To achieve true equal opportunity, interventions must happen earlier.  But when is earlier?  The disadvantaged job applicant could have benefited from a better college education.  Yet the disadvantaged college student could also have benefited from a better high school education.  And the disadvantaged high school student could have benefited from a better primary school education. And the disadvantaged primary school student could have benefited from having parents with higher incomes and more time to devote to parenting, which just takes us back to the disadvantaged job applicant.  Hence, Fishkin identifies a key flaw in the traditional construction of equal opportunity: We are all the products of our opportunities, and those opportunities can never be truly “equal.”  To that end, he endorses “opportunity pluralism,” which he defines as making more opportunities available to more people.  Thus, in a society that limits educational or job opportunities based on a particular standardized test, we can move away from asking whether the test is a fair metric and instead ask why the opportunity structure depends upon its results.

Fishkin christens these opportunity-limiting factors “bottlenecks” and pushes us to understand traditional antidiscrimination protections through that lens.  Thus, well-known protected statuses, such as race and sex, can be understood as bottlenecks because certain opportunities have been construed to require whiteness or maleness.  But legally recognized antidiscrimination categories, such as race and sex, are not the only bottlenecks we have to contend with.  Employers also restrict opportunities based on other factors, such as college education, credit history, criminal convictions, or unemployment.  My own scholarship has dealt extensively with yet another employer bottleneck: health.

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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.

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Scorned Law: Rethinking Evidentiary Rules in Cases of Gender-Based Violence

Today, I would like to touch upon what I believe to be a disturbing void within Critical Legal Theory. Although Crit-scholars have unmasked many examples of apparently neutral laws with discriminatory effects, they have overlooked to some extent the weight of apparently neutral evidentiary rules upon certain minority and identitarian groups.  The article I’m currently working on intends to explore this void by examining how evidence rules are not neutral in practice, but rather inexorably respond to our patriarchal practices.

The ultimate end of our evidentiary system is to fairly ascertain the truth and secure a just determination in every proceeding. However, for centuries, women have been doubly victimized and subjugated to patriarchal powers because of evidentiary rules. Their value as human beings have been lessened in rape and sexual harassment cases by a long history of corroboration requirements and public disclosure of their sexual pastMost jurisdictions have been able to recognize that it was necessary to reform these rules in order to amend those wrongs. Nonetheless, our system, through its evidentiary rules, continues to re-victimize women. Attorneys unscrupulously make use of certain rules of evidence to access a patriarchal narrative that blames women for the violence they are victims of or that portrays them as a dishonest party seeking revenge.  The resulting proceedings preclude effective judicial redress. It is time we start looking into these instances and think of amending our rules of evidence to correct the wrongs we continue to inflict upon women, especially in the context of gender-based violence.

Violence against women is an alarming problem in our society.  Although reliable figures are difficult to compile, it is estimated that 1.3 million women are victims of physical assault and that 85% of domestic violence victims are women. Most of these crimes, however, are not prosecuted, mainly because they go unreported. Organizations working in this field estimate that only 25% of all physical assaults, 20% of all rapes and 50% of all stalking crimes are reported. Moreover, meta-analysis of police and judicial statistics reveals that only one out of six domestic violence cases reported to the police in the United States results in a conviction.  Furthermore, only a third of the people arrested for domestic violence ends up convicted. These numbers illustrate a twofold problem.  First, a large percentage of the afflicted population of women is not seeking judicial redress. On the other hand, those who do go through the legal process are not receiving the justice they deserve and seek.

There are multiple reasons that would account for the low reporting rates in these types of crimes. It has been widely studied how victims do not feel comfortable going to the authorities because police officers do not validate their accusations and instead receive victims with the same violence the victims have been trying to escape. In addition, in many instances, women are trying to avoid the negative repercussions that prosecuting these crimes introduce to their lives, such as adverse child custody determinations or becoming the object of criminal investigations themselves. Likewise, there are several reasons that explain the low percentage of convictions. The more salient one is the implicit biases of triers of facts. It has been documented how judges and jurors take women to be less credible than their male partners, a bias that grows even deeper when factors such as race, socio-economic and immigration status are thrown into the mix.

This credibility bias is extremely powerful, especially when rules of evidence allow defense attorneys to use it in their favor. Fully aware of this fact, defense attorneys have reclaimed the myth of the scorned woman to argue that female victims are misusing the judicial system “to get back at” their partners or ex-lovers and that defendants should not be convicted because it is all a lie. The strategy takes advantage of the rules of evidence that allow attorneys to impeach the credibility of a witness with any specific act of untruthfulness by bringing into evidence inconsequential acts of mendacity. By doing so, defense attorneys access the sexist narrative of the scorned woman that resonates with the implicit credibility bias of adjudicators and secure a verdict of not guilty. This strategy hinders convictions and deters victims from coming forward. Domestic violence victims are well aware of this practice and choose not to report the crimes out of the fear of being demonized as liars and re-victimized during the trial.

Consider the following example. A woman decides to press charges against her husband who has been physically abusing her for three years. During the trial, the defense attorney impeaches the 25–year-old “housewife” with a loan application she filed when she was 20. The victim admits during cross that she in fact lied on the application.  Since all of the acts of violence occurred in the privacy of their home, there are no other witnesses to corroborate her version except for the victim’s mother. During the trial, the defense attorney highlights how successful his client is and how the marriage was experiencing difficulties. In the closing, the defense attorney states that we know how the victim is capable of lying to get whatever she wants. He further argues that she did not want her husband to leave the relationship and was capable of lying in order to force her husband to stay with her and secure her financial stability. The basic premise of the defense’s theory is that it was all an attempt from the victim to get back at the abuser for wanting to end their relationship. Finally, the attorney discredits the victim’s mother by affirming that a mother would do anything for a daughter. The verdict comes out and the defendant is found not guilty.

This case is more common than we might think. Women not only face the disbelief of those closest to them who cannot understand why they would leave their “alleged” abusive partner, but also bear the cross of being depicted as liars in court. Conviction rates seem to suggest that such a strategy is quite effective and that fact triers’ biases are indeed precluding the fair administration of justice in gender-based violence cases.

A good strategy to prevent this from continuing to happen is to reform our evidentiary rules. We must shield gender-based violence victims from vicious attacks based in patriarchal notions about women’s character that only skew the truth and prevent justice from being served. Such a proposal should also make evident that this powerful narrative of women not being credible is so pervasive that none of us is exempt from acting upon its premises. Specifically, I advocate for the adoption of rules that would prevent attorneys from impeaching victims of gender-based violence (such as a battered women, rape and sexual harassment victims) with previous acts of untruthfulness not related to the charges.

My proposal envisions a hearing presided by a second judge in which defense attorneys will proffer to the court the evidence they possess and intend to use in the trial regarding the untruthful character of the victim. In addition, the defense will be required to present evidence about the victim’s history of misusing the judicial system or any proof it might possess with regard to the victim maliciously filing the suit or pressing charges against the defendant. During this special hearing, the prosecution or the plaintiff would have the opportunity to rebut the allegations from the defense and present evidence that supports the veracity of the charges and the lack of evidence about the victim abusing the judicial system.

This hearing would give the court the opportunity to weigh the relevance of the evidence against its prejudicial effects and the probability of misguiding the triers of facts in their determination of whether the offense actually occurred.  If the court determines that the probative value of the evidence outweighs its prejudicial effects, the court will issue an order stating that such evidence should be admissible and will state the scope of the defense’s line of questioning and how it could be used by the defense when arguing its case. This procedure would ensure – especially in criminal cases – that the defendant’s rights are not being violated, while providing the victim a less biased court.

Although a blog post does not provide sufficient space to explore all the details of a possible shield rule, I hope this entry serves to stir up a conversation about the need for such a rule. Hopefully, in the future, our rules of evidence will be amended to protect women from being doubly victimized in gender-based violence cases. Even more importantly, such a reform would help increase the conviction rates in gender-based violence cases and would encourage victims to report incidents of violence.