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Category: Law and Inequality

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.


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


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.


Pro-Marriage Deregulation of Conjugal Unions and Marriage Equality: Two Sides of the Same Coin

I am delighted to be guest-blogging for Concurring Opinions this month. It is an honor to be part of this community!  Throughout February, I will be sharing my thoughts on how certain narratives are used in the Law to subjugate various groups based mainly on their gender and sexual identities, and how, in turn, such groups use or can use the law in their pursuit toward equality. My primary focus will be on Family Law, although in some instances I will explore its intersection with evidentiary and criminal law issues as well as with legal theory.

Without further introductions, I would like to begin discussing marriage equality, an issue that seems to intensify every day as courts and legislatures take action on the matter.  Throughout the history of the United States, marriage has been a divisive subject. States have used its regulation to sustain patriarchal, racial, religious and heteronormative compliance. At every proposed change to its structure (from the role/rights of a particular spouse to who is actually eligible to reap the legal privileges of marriage), different constituencies have reacted strongly. For example, let’s think back on the reactions to challenges to anti-miscegenation statutes, reforms to treat women as chattel, and marital rape. Undoubtedly, the controversy has always stemmed from the fixation of our legal system on using marriage as a proxy to grant rights and privileges, and, most importantly, as a mechanism to segregate and stratify citizens.

The preferred strategy to challenge this caste system has been to fight for inclusion under the rubric of a conjugal union. However, we should question whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or just a quick fix that serves some and leaves others behind; or even worse, a strategy that would create such a backlash that would leave a large group of people vulnerable.

The recent gay-marriage controversy in Oklahoma epitomizes this disjunction. On January 14, a federal judge ruled that Oklahoma’s ban on gay marriage is unconstitutional.  A couple of days later, Republican lawmaker Mike Turner announced that his party would look into the possibility of abolishing marriage as a way to circumvent the Court’s decision and safeguard the “traditional” notion of marriage.

Proposals to disengage the state from the business of regulating marriage are not new. In fact, I have been one of its most fervent proponents. Yet, there are many reasons for believing in marriage deregulation. I do, because I firmly maintain that true deregulation would be the appropriate solution for attaining a more egalitarian society, as it would result in what Professors Alice Ristroph and Melissa Murray have denominated familial disestablishment (the state recognizing the existence of diverse family arrangements and abstaining from favoring one type of family over others).

Other proponents, like Rep. Turner, advocate deregulating marriage on a “pro-marriage” basis. The ultimate goal of these proposals is to preserve the institution for the heterosexual couple. Turner does not wish to deny or take away from heterosexual couples the privileges that they have been enjoying for so many centuries.  Rather, he seeks to preserve the label of “spouse” as one exclusive to heterosexual couples.

What I suspect Turner has in mind is a scheme that does not truly disengage the State from regulating marriage, but that would regulate marriage indirectly through the regulation of the family. Abolishing marriage requires amending a considerable amount of statutes and regulations. For instance, in the federal system alone there are more than a 1,000 laws that use marriage as a proxy in one way or another to grant privileges/rights or impose obligations upon the spouses. If you are not willing to give up those legal benefits but do not wish to have the State granting marriage licenses, there are basically two ways in which it can be done: 1. replacing the marriage proxy with new proxies that resemble the heterosexual couple; or 2. granting benefits to marriages officiated by a particular religious or civil body other than the State.

In any case, that system would not guarantee that gay couples would be denied access to the same benefits that heterosexual couples currently do. If the second option is chosen, gay couples would only have to find a religious or civil body that would celebrate their marriage. On the other hand, if the first option is the preferred one, gay couples would still have access to “marital benefits”.

Even though courts, for the most part, have been avoiding the question of whether gays should be a protected class, they have found that under the rational basis test, treating gays and heterosexuals differently is unconstitutional as it does not further any legitimate governmental  interest. Therefore, those new proxies cannot be based on sexuality. They could, however, be based on having kids and being in a committed long-term relationship.

A lot of gay couples fit this bill.  Thus, the State would not be able to deny them benefits under that scheme. Yet, that would mean that gay and straight couples without children would not be able to enjoy those privileges.  At the same time, it could disincentive some gay couples from marrying since they might not be able to enjoy the traditional benefits of marriage because they do not want children or simply cannot afford them, or because the added social value of being recognized by the State as a “couple” would be completely lost.

A proposal like this would constitutionally leave vulnerable more people than our current scheme. Moreover, this type of reaction unmasks what is really behind the regulation of marriage: the fact that we still adhere to an unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children. The law is a mere tool to channel people into this euroheteropatriarchal behavior.

A perfect example of this channeling function of the law is how the queer movement changed its narrative from embracing diversity and celebrating queerness to the commonplace slogan of we are just like you. This strategy has been highly criticized within the queer community for prioritizing marriage equality over other pressing issues, for advancing an agenda that only benefits a small group of the community (the one that complies with societal norms except for their sexuality), and for channeling people into a heterosexual model of living and experiencing romantic-sexual relationships. Furthermore, it has been condemned inside and outside the queer community for not advocating for legal recognition and access to government support programs for a wide range of relationships, households and families regardless of kinship, conjugal status or citizenship, and for failing to advocate true separation of church and state in matters including regulation and recognition of relationships, households, families, sexual lives and gender choices. Then again, even under the “marriage equality” agenda a lot of people are left vulnerable. Even worse, they are invisibilized.

The only way to truly achieve a more egalitarian society is a complete obliteration of the marital institution. Doing so will force us to re-examine all the laws that make reference to marriage and scrutinize the real purposes for which the laws were supposedly enacted. Furthermore, it would require us to make sure that such purposes are finally followed by granting protections to all types of families/households/relationships. Only then would we be able to recognize the plurality within our society and allow people to live their romantic-sexual lives without the fear of being subjected to a regulatory scheme that ostracizes them or channels them into something that they are not based on inane beliefs about human nature.


Google Books and the Social (Justice) Contract

In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.


Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.


The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.


Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.



The Hard Questions about Talent, Market Regulation, and the World of Work

Each in his own sharp and perceptive way, Brett Frischmann, Frank Pasquale and Matthew Bodie present what are probably the hardest questions that the field of human capital law must contemplate. Brett asks about a fuller alternative vision for line drawing between freedom and control. He further asks how we should strike the balance between regulatory responses and private efforts in encouraging more openness. Finally, he raises the inevitable question about the tradeoffs between nuanced, contextual standards (what, as Brett points out, I discuss as the Goldilocks problem) versus rigid absolute rules (a challenge that runs throughout IP debates and more broadly throughout law). Frank and Matt push me on the hardest problems for any politically charged debate: the distributive, including inadvertent and co-optive, effects of my vision. I am incredibly grateful to receive these hard questions even though I am sure I am yet to uncover fully satisfying responses. Brett writes that he wanted more when the book ended and yes, there will be more. For one, Brett wanted to hear more about the commons and talent pools. I have been invited to present a new paper, The New Cognitive Property in the Spring at a conference called Innovation Beyond IP at Yale and my plan is to write more about the many forms of knowledge that need to be nurtured, nourished, and set free in our markets.

Matt describes his forthcoming paper where he demonstrates that “employment” is reliant on our theory and idea of the firm: we have firms to facilitate joint production but we need to complicate our vision of what that joint production, including from a governance perspective, looks like. “Employers are people too” Matt reminds us, as he asks, “Do some of the restrictions we are talking about look less onerous if we think of employers as groups of people?” And my answer is yes, of course there is a lot of room for policy and contractual arrangements that prevent opportunism and protect investment: my arguments have never been of the anarchic flavor “let’s do away with all IP, duties of loyalty, and contractual restrictions”. Rather, as section 2 (chapters 3-8) of Talent Wants to Be Free is entitled we need to Choose Our Battles. The argument is nicely aligned with the way Peter Lee frames it: we have lots of forms of control, we have many tools, including positive tool, to create the right incentives, let us now understand how we’ve gotten out of balance, how we’ve developed an over-control mentality that uses legitimate concerns over initial investment and risks of opportunism and hold-up to allow almost any form of information and exchange to be restricted. So yes: we need certain forms of IP – we have patents, we have copyright, we have trademark. Each one of these bodies of law too needs to be examined in its scope and there is certainly some excess out there but in general: we know where we stand. But what about human capital beyond IP? And what about ownership over IP between employees and employers?

So yes, we need joint inventorship doctrines for sure when two inventors work together. But what about firm-employee doctrines? Do we need work-for-hire and hired-to-invent doctrines? Here we arrive to core questions about the differences between employment versus joint ventures or partnerships between people. And even here, the argument is that we continue to need during employment certain firm protections over ownership. But the reality is that so many highly inventive and developed countries, diverse as Finland, Sweden, Korea, Japan, Germany, and China, all have drawn more careful lines about what can fall under “service inventions” or inventions produced within a corporation. These countries have some requirement for fair compensation of the employee, some stake in inventions, rather than a carte blanche to everything produced within the contours of the firm. The key is a continuous notion of sharing, fairness and boundaries that we’ve lost sight of. Intense line-drawing as Brett would have it that is based on context and evidence, not on an outdated version of the meaning of free markets.

What about non-competes and trade secrets? Again, my argument is that these protections alternate, they should be discussed in relation to one another, and we need to understand their logic, goals, and the cost/benefit of each given that they exist in a spectrum. Non-competes is the harshest restriction: an absolute prohibition post-employment to continue in one’s professional path outside the corporation. This is unnecessary. The empirics are there to support their absolute ban rather than the fine dance that of balancing that is needed with some of the other protections. Sure it makes life momentarily easier for those who want to use non-competes, but over time, not only can we all live without that harsh tool, we will actually benefit from ceding that chemical weapon in the battle over brains and instead employ more conventional arms. And yet, even in California, this insight doesn’t and shouldn’t extend to partnerships. The California policy against non-competes is limited to the employment context. If two people, as in Matt’s hypo, are together forming a business, their joint property rights in that business suggest to us that allowing some form of a covenant not to compete will be justified. There will still be a cost to positive externalities but the difference between the two forms of relationships allow for absolute ban in one and a standard of reasonableness for the other. And yes, as Brett alludes to, the world is not black and white and we will have to tread carefully in our distinctions between employees and partners.

I completely agree with Matt and Frank that there are fundamental injustices created by our entire regime of work law. Talent Wants to Be Free takes those deep structures into account in developing the more immediate and positive vision for better innovation regimes and richer talent pools. Matt writes that a more radical alternative lies within Talent but “deserves more exegesis: namely, whether we should eliminate the concept of employment entirely.” What if people will always be independent contractors?, he asks. The reforms promoted in Talent Wants to Be Free, allowing more employees more control over their human capital, indeed bring these two categories – employees and independent contractors – closer together in some respects. But far more would be needed to shift our work relations to be more “democratic and egalitarian: a post-industrial Jeffersonian economy.” As both Frank and Matt show, in their own scholarship and in their provocative comments here, this will require us to rethink so much of the world we live in.

Frank Pasquale’s review is so rich that I hope he extends and publishes it as a full article. Frank says that “for every normative term that animates [Orly’s] analysis (labor mobility, freedom of contract, innovation, creative or constructive destruction) there is a shadow term (precarity, exploitation, disruption, waste) that goes unexplored.” I would agree that the background rules that define our labor market, at will employment, inequality, class and power relations, are not themselves the target of the book. They do however deeply inform my analysis. To me, the symmetry I draw between job insecurity and the need for job opportunity is not what Frank describes as a “comforting symmetry”. It is a call for the partial correction of an outrageous asymmetry. And yes, as I mentioned at the very beginning of the symposium, I hoped in writing the book to shift some of the debates about human capital from the stagnating repetition of arguments framed as business-labor which I view not only as paralyzing and strategically unwise but also as simply incorrect and distorting. There is so much more room for win-win than both businesses and labor seem to believe. On that level, I think Frank and I actually disagree about what we would define as abuse. I do in fact believe that many of us can passionately decide to give monetary gains in return for a job that provides intangible benefits of doing something we love to do. Is that always buying into the corporate fantasy? Is that always exploitation? Don’t all of us do that when we become scholars? Still, of course I agree with many of the concrete examples that Frank raises as exploitation and precarious work – he points to domestic workers, which is a subject I have written about in a few articles (which I just realized I should probably put on ssrn - Family Geographies: Global Care Chains, Transnational Parenthood, and New Legal Challenges in an Era of Labor Globalization, 5 CURRENT LEGAL ISSUES 383 (2002) and  Class and Care, 24 HARVARD WOMENS LAW JOURNAL 89 (2001)]. Frank describes a range of discontent in such celebrated workplaces as Silicon Valley giants, which I too am concerned with and have thought about how new hyped up forms of employment can become highly coercive. Freeing up more of our human capital is huge, but yes, I agree, it doesn’t solve all the problems of our world and by no means should my arguments about the California advantage in the region’s approach to human capital and knowledge flow be read as picturing everything and anything Californian as part of a romantic ideal.


Wall Street Journal on the Airline Seat Squeeze

Given the intense controversy raised by my last post on the topic, I thought I’d just bring up this diagnosis of the situation from Rupert Murdoch’s Wall Street Journal:

Airlines’ push to lure high-paying fliers with flatbed business seats and premium economy loungers is leaving economy-class passengers with less space. A push over the past decade by carriers to expand higher-fare sections has shrunk the area devoted to coach on many big jetliners. But airlines don’t want to drop passengers. So first airlines slimmed seats to add more rows.

An interesting idea was floated in the comments section of the piece: fliers could buy 2 seats (or a row of 3 seats for 2 people) to get a bit more space, without shelling out the enormous price of first-class. I imagine this is not controversial for the very wide flier, but has anyone who’s just over the 17-inch one-seat-width tried it? Given how one-sided airline ticket contracts are, it seems unlikely that one could simply assume the full use of two seats.

The commenter mentioned that he bought 2 seats for his father so he’d have his medical equipment next to him. Shouldn’t an airline be accommodating that as a matter of course anyway (if not to comply with the ADA, if only as an expression of some compassion toward the plight of the ill)?