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Category: Civil Rights

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The Dignity of the Minimum Wage?

[A brief note of apology: it's been a terrible blogging summer for me, though great on other fronts.  I promise I'll do better in the coming academic year. In particular, I'd like to get back to my dark fantasy/law blogging series. If you've nominations for interviewees, email me.]

WorkDetroitThis is one I’ve been meaning to write for a while.

One of the major lessons of the cultural cognition project is that empirical arguments are a terrible way to resolve value conflicts. On issues as diverse as the relationship between gun ownership and homicide rates, the child-welfare effects of gay parenting, global warming, and consent in rape cases, participants in empirically-infused politics behave as if they are spectators at sporting events. New information is polarized through identity-protective lenses; we highlight those facts that are congenial to our way of life and discounts those that are not; we are subject to naive realism.  It’s sort of dispiriting, really.  Data can inflame our culture wars.

One example of this phenomenon is the empirical debate over minimum wage laws. As is well known, there is an evergreen debate in economics journals about the policy consequences which flow from a wage floor.  Many (most) economists argue that the minimum wage retards growth and ironically hurts the very low-wage workers it is supposed to hurt. Others argue that the minimum wage has the opposite effect. What’s interesting about this debate -to me, anyway- is that it seems to bear such an orthogonal relationship to how the politics of the minimum wage play out, and the kinds of arguments that persuade partisans on one side or another. Or to put it differently, academic liberals in favor of the minimum wage have relied on regression analyses, but I don’t think they’ve persuaded many folks who weren’t otherwise disposed to agree with them. Academic critics of the minimum wage too have failed to move the needle on public opinion, which (generally) is supportive of a much higher level of minimum wage than is currently the law.

How to explain this puzzle?  My colleague Brishen Rogers has a terrific draft article out on ssrn, Justice at Work: Minimum Wage Laws and Social Equality. The paper urges a new kind of defense of minimum wages, which elides the empirical debate about minimum wages’ effect on labor markets altogether. From the abstract:

“Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.”

I’m a huge fan of Brishen’s work, having been provoked and a bit convinced by his earlier work (here) on a productive way forward for the union movement. What seems valuable in this latest paper is that the minimum wage laws are explicitly defended with reference to a widely shared set of values (dignity, equality). Foregrounding such values I think would increase support for the minimum wage among members of the populace.  The lack of such dignitary discussions in the academic debate to date has level the minimum wage’s liberal defenders without a satisfying and coherent ground on which to stand. Worth thinking about in the waning hours of Labor’s day.

 

 

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Why “Accommodating Traditions” is Sometimes Wrong: The Case of Gender Segregation in Ultra-Orthodox Communities

Gender segregation on buses is becoming increasingly conspicuous in the Hassidic community in New York. Should society tolerate seating arrangements which mandate women to sit at the back of the bus? Is it analogous to racial segregation? Or are there valid considerations that make gender segregation legitimate? The ultra-Orthodox cite multiculturalism, and demand tolerance of their traditions. But what is tradition, and how old should a practice be in order to be recognized as a tradition?

All these questions have been asked in Israeli, where gender segregation in public transportation to and from ultra-Orthodox communities began in the late 1990’s. In a recently published article I argue that gender segregation is a self-defeating practice. Its motivation is to erase female sexuality from the public sphere, but by being so preoccupied with women’s “modesty” it in fact puts their sexuality at the center of attention. The paradoxical obsession with female sexuality is also, in a way, a form of sexual harassment. Gender segregation on buses is not part of Jewish tradition; not even the ultra-Orthodox tradition. It is a very new product of a rising Jewish religious fundamentalism, which I believe is a reaction to women’s demand for equal rights and their exposure to the outer world (thanks to technology). in Israel segregation on buses is sometimes enforced by passengers violently.

The leaders of the ultra-Orthodox communities, both in New York and in Israel, have been very astute in their enlistment of multicultural discourse and political correctness to promote their misogynist agenda. The majority should not be confused by this. There are plenty of strong voices from within the ultra-Orthodox community who object to this trend. In Israel, for example, a group of ultra-Orthodox women and men petitioned the Supreme Court against segregation on public transportation. These people are part of the ultra-Orthodox community as well, and have as strong a claim to their traditions as any of the Rabbis who have decided all of the sudden to send women to the back of the bus.

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)

Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.

Part II of this post.

Race, Justice, and the Political Economy of Vigilantism

A few thoughts in the wake of Zimmerman verdict (and related matters):

1) The New Yorker’s Amy Davidson stated last night, “I still don’t understand what Trayvon Martin was supposed to do” once he knew he was menaced.  Gary Younge similarly asked, “What version of events is there for that night in which Martin gets away with his life?”

Cord Jefferson, in a way, provides a practical response to that question:

To stay alive and out of jail, brown and black kids learn to cope. They learn to say, “Sorry, sir,” for having sandwiches in the wrong parking lot. They learn, as LeVar Burton has, to remove their hats and sunglasses and put their hands up when police pull them over. They learn to tolerate the indignity of strange, drunken men approaching them and calling them and their loved ones a bunch of [n______]. They learn that even if you’re willing to punch a harasser and face the consequences, there’s always a chance a police officer will come to arrest you, put you face down on the ground, and then shoot you execution style. Maybe the cop who shoots you will only get two years in jail, because it was all a big misunderstanding. You see, he meant to be shooting you in the back with his taser.

Yahdon Israel writes about similar coping mechanisms in Manhattan, and the fallback tactic of avoidance.  He notes that, “Although Columbia [University] is in Harlem, power wills that there is no Harlem in Columbia. Rather than walk through, the people of Harlem are more comfortable with walking around Columbia to get to the other side because they know where they don’t belong.”

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Volume 60, Issue 5 (June 2013)

Volume 60, Issue 5 (June 2013)
Articles

First Amendment Constraints on Copyright After Golan v. Holder Neil Weinstock Netanel 1082
Intraracial Diversity Devon W. Carbado 1130
When to Overthrow your Government: The Right to Resist in the World’s Constitutions Ginsburg et al. 1184
Interbank Discipline Kathryn Judge 1262

Comments

A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement Nicole M. Howell 1324
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The Supreme Court’s Decision in Hollingsworth v. Perry Effectively Renders Prop 8 Unconstitutional

800px-Same_Sex_Marriage-02The Supreme Court’s decision in Hollingsworth v. Perry, issued today, will have something of a domino effect on the rights of Californians:  The Supreme Court dismissed the defendants’ appeal on standing grounds, thereby reinstating a district court ruling that held Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution, thereby reinstating a 2008 California Supreme Court ruling that effectively created a state constitutional right to same-sex marriage.

The Perry Court’s immediate ruling is narrow:  Prop 8′s civilian defenders do not have standing to challenge the district court’s invalidation of the law.  Any defense of the law on appeal would have to come from California officials, who declined to defend Prop 8 or appeal the district court ruling finding it unconstitutional.

The Supreme Court’s decision effectively reinstates the lower court decision by California District Judge Vaughn Walker, which “declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and ‘directing the official defendants that all persons under their control or supervision’ shall not enforce it.”   (See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal.)).

The effect of the Supreme Court’s decision in Perry is complicated by this particular twist: California officials enforced Prop 8, but declined to defend it.

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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.