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Category: Law and Inequality

Gallacher on Cite Neutrality

The law should be freely accessible to all, but in many ways it is not. Ian Gallacher’s Cite Unseen is a brilliant piece that works to solve this problem on two levels: 1) it offers keen insights about the legal profession, and 2) exposes an easily avoidable injustice perpetuated by the legal system’s inertia and neglect. It turns out that 1) explains a lot about 2), as I’ll try to show below.

1) I believe Richard Posner has called the Bluebook a “hypertrophy of ritual”–an elaborate manual of propitiation as involved (and useless) as the pyramid tomb of a Pharaoh. Given the near-universal availability of hyperlinking and searchable texts, why does anyone still bother with figuring out whether a committee report needs to be in small caps or italics? Gallacher suggests that the answer may by psychological:

Law school is place of almost existential doubt, a world in which the Socratic teaching method replaces knowledge with questions and understanding with incomprehension. For many law students, The Bluebook is a binary state refuge in the dismal swamp of hypothetical ambiguity that can be law school classes, replacing . . . blurred doctrine with a sharp focus, and principles with rules.

An almost Linnaean taxonomy (reflecting Langdell’s geological approach to precedents) vests law with the trappings of science. Just as a posh Etonian can spot a Cockney pretender on the basis of any one of thousands of well-trained social gestures, the elect can instantly identify the work of an outsider who writes “F. 3d” instead of “F.3d”.

Many of us are annoyed by this aesthetic tic masquerading as scientific precision. But where’s the injustice?

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Philadelphia Story: Is Appearance a Positional Good?

phanatic.jpgTravel & Leisure magazine recently released a survey concluding that “Philadelphia is home to the least attractive people in the United States.” Defending this cruel and implausible judgment, a survey organizer said “We were asking people to vote on attractiveness, not unattractiveness. Travel & Leisure editors believe there are a lot of attractive people in Philadelphia.”

Can someone rank-order attractiveness, and then plead that any unattractive results are mere byproducts of a contest that should only concentrate on winners? I’ll admit that my last post too easily assumed that appearance-improvement is likely to degenerate into positional competition. But I still think surveys like T&L’s inevitably result in losers as well as winners. And I think one needs to prove the widespreadness of a quite rarified aesthetic theory to convincingly demonstrate the opposite–even outside the confines of a ranking survey.

As I recall from an Alain de Botton book, Plato and Kant had divergent aesthetic theories. (And I hope the philosophers out there forgive me for citing a popularization I read years ago.) Kant suggested that a judgment of beauty had to participate both in the objective and the subjective:

Running through Kant’s various characterizations of judgments of beauty is a basic dichotomy between two apparently opposed sets of features. On the one hand, judgments of beauty are based on feeling, they do not depend on subsuming the object under a concept (in particular, the concept of an end which such an object is supposed to satisfy), and they cannot be proved. This combination of features seems to suggest that judgments of beauty should be assimilated to judgments of the agreeable. On the other hand, however, judgments of beauty are unlike judgments of the agreeable in not involving desire for the object; more importantly and centrally, they make a normative claim to everyone’s agreement. These features seem to suggest that they should be assimilated, instead, to objective cognitive judgments.

By contrast, Plato’s position was far more objective . . .

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Any Deserving Uninsured?

Judging from some bloggers’ response to the Frost family featured on the radio last week, that question appears to be on the table. I found David Lazarus’s story a compelling example of the anxiety that lack of stable health insurance can cause. Having just been diagnosed with diabetes, he’s worried about the future:

[T]he quirks and complexities of the insurance system border on madness. Through my employer, I have about as much insurance coverage as anyone. . . . I have to wonder where else my private-sector insurance will fail me in years ahead. And what happens if I get fired tomorrow? With a preexisting condition, I’m virtually uninsurable in the individual insurance market. Will diabetes leave my family destitute?

The terrifying possibility of my own loss of coverage gives me an acute sense of what the uninsured must deal with, the dreadful awareness that you and your loved ones are only one medical misstep from catastrophe. That’s unacceptable for any person who lives in the wealthiest, most advanced nation in the history of the world.

Or consider the story of a potential whistleblower who finds his insurance gone along with his job. How many such stories must be told before we can all agree there is a problem?

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Diversity?

Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything “extra mild.” Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It’s like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:

White elite eduated male

White elite ed. female

African American ed. elite male

African Americna ed. elite female

White non elite female

White non elite male

African American non elite female

African American non elite female

The ranking is, no surprise, consistent with social comfort and, let’s face it, given that there is no evidence that one group is better at law teaching than another and that law professors can “interpret” resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it’s the former and it’s not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother’s occupation?

2. How much school did your father and mother complete?

3. How much student debt have you accumulated?

4. How many people do you know at an Ivy League school?

5. Ever worked at McDonalds, washed cars, or bagged groceries?

6. Anyone in your family on welfare.

7. Has anyone in your family done time?

8. Ever been out of the US?

9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.

Global Inequality: Legitimation Crisis?

Fractal inequality continues apace: the Wall St. Journal reports that the global wealth gap is getting bigger:

According to a study to be released tomorrow by Boston Consulting Group, the world’s wealth grew by 7.5% in 2006, reaching $97.9 trillion. The study also showed that the wealth gap between the haves and the have-nots continued to widen over the past five years, with much of the global wealth gains going to the wealthy.

Pope Benedict XVI offers wisdom on the topic:

Capitalism should not be considered the only valid model of economic organization. . . . The emergencies of famine and the environment demonstrate with growing clarity that the logic of profit, if predominant, increases the disproportion between the rich and the poor and leads to a ruinous exploitation of the planet. . . . When the logic of sharing and solidarity prevails, it is possible to correct our route and point it toward fair and sustainable development.

Of course, people like Gary Becker might view such sentiments as merely the product of “simple jealousy and envy,” and intellectuals’ “remove[] from the real world.” Views like Becker’s are enormously powerful, but perhaps someday he will recognize that the legitimacy of globalization depends on its fulfilling basic human needs–and not some abstract measure of wealth maximization:

While the supporters of an exclusively private-sector driven globalization may resent the idea of vesting tax-raising authority for the first time in history into a global agency, they cannot fail to notice that the very process they support undercuts, in an ironic twist, their own position. It does so by rendering the gap in wealth more obvious, and the fairness of the existing global distribution, more questionable. They will ultimately realize that their self-interest lies in supporting some form of global action to deal with both poverty…and inequality.

(From Branko Milanovic, Global Income Inequality: What it Is and Why it Matters.)

Is Flatter Freer?

Bill Henderson’s excellent posts on the bimodal distribution of lawyer salaries have sparked a lot of commentary in the blogosphere. But the stratification of lawyers’ salaries shouldn’t be surprising–inequality pervades the economy. As Robert Frank and Philip Cook observed in The Winner Take All Society (in 1995), professionals like lawyers, doctors, and dentists need clients–and those most adept at serving the interests of the 1% or so in control of over 40% of the nation’s financial wealth are going to prosper. The bimodal distribution of dentist incomes was observed even by the mid-1990s.

How does rising inequality affect career choices? I found this excerpt from Daniel Brooks’s book The Trap pretty compelling:

In 1970, when starting teachers in New York City made just $2,000 less than starting Wall Street lawyers, people who wanted to teach taught. Today, when starting teachers make $100,000 less than starting corporate lawyers and have been priced out of the region’s homeownership market, the considerations are very different. It may be counterintuitive, but talented young people actually have less control over their lives in a society in which they can get rich quick because, in such a society, the consequences of not getting rich quick become much more serious. When a middle-class income no longer buys a middle-class life, things that rarely or never make one rich become harder and harder to pursue. When it comes to the distribution of wealth, you’re freer when it’s flatter.

The mainstream media don’t like to talk about such counterintuitive ideas. But Brooks’s observations ring true with many. In today’s society, your class can determine whether your kids end up in a decent school, whether you have health insurance, even whether you can maintain friendships:

If, as Samuel Butler said, friendships are like money, easier made than kept, economic differences can add yet another obstacle to maintaining them. More friends and acquaintances are now finding themselves at different points on the financial spectrum, scholars and sociologists say. . . . As people with various-sized bank accounts brush up against each other, there is ample cause for social awkwardness, which can strain relationships, sometimes to a breaking point. Many find themselves wrestling with complicated feelings about money and self-worth and improvising coping strategies.

Brooks thinks those coping strategies are hard to come by; he asserts that in a “nation of self-financed higher education, tenuous health-care coverage, and out-of-control housing costs, Adam Smith’s ‘invisible hand’ has hardened into an invisible fist.” Provocative thoughts. I guess there might be some objective harms from inequality.

Authenticity Arms Race

I’ve been concerned about America’s burgeoning culture of cosmetic surgery, and bloggers across the ideological spectrum have commented on the issue (see, e.g., here and here). Meanwhile, the great American forces of libertarianism and self-assertion are steamrollering ahead:

Not only have cosmetic procedures become more acceptable, but they’re being promoted in less sensationalized ways to whole new markets. Increasingly, reality TV’s Cinderella tale of surgical transformation is being replaced with a smart woman’s narrative of enlightened self-maintenance. . . . [M]edia sources now compliment potential customers as mature women who are “smart,” “talented” and “wise.” Such women are supposedly savvy enough to appreciate their own wisdom — but, then again, they should want to soften the telltale marks of how many years it took them to acquire it. “I am not using these injectables to look 25,” Madsen insists. “I don’t want to be 25. I just want to look like me.”

Carl Elliott’s book Better than Well documents a range of people who believe that their “true selves” are most truly expressed in some change of appearance–usually for the younger, slimmer, and stronger (which may be why almost everyone’s avatar on Second Life is so . . . robust).

The aspirations of the people Elliott writes about end up sounding like second-hand dreams (for a mass-produced individuality). Thomas Frank’s Commodify Your Dissent captured the worry well a decade ago:

Consumerism is no longer about “conformity” but about “difference.” Advertising teaches us not in the ways of puritanical self-denial (a bizarre notion on the face of it), but in orgiastic, never-ending self-fulfillment. It counsels not rigid adherence to the tastes of the herd but vigilant and constantly updated individualism.

Thus the latest co-optation of “left” culture by the beauty industry: its “repackaging and reselling the feminist call to empower women into what may be dubbed ‘consumer feminism.’”

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Starvation via Gas Guzzling

The book Hungry Planet compares the average food consumption of families around the world. For example, the Aboubakar family lives on $1.23 per week. It looks like times are getting even tougher for families like these.

The impact of rising food prices on food aid is part of a broader debate about the long-term impact on the world’s poorest people of using food crops to make ethanol and other biofuels, a strategy that rich countries like the United States hope will eventually reduce dependence on Middle Eastern oil.

Some advocates for the poor say rising food prices could benefit poor farmers in developing countries, providing them with markets and decent prices for their crops. But others warn that the growing use of food crops to make fuel, especially if stoked by large subsidies in rich countries, could substantially increase food prices. That could push hundreds of millions more poor people into hunger, especially landless laborers and subsistence farmers, according to a recent article in Foreign Affairs magazine.

Thom Lambert provides good background on the issue. Certainly we should suspect the subsidies that threaten to divert ever more resources from the poor to the rich. But we should also look beyond the mercenary lobbying evident here to a broader range of phenomena afflicting buyers of products with a somewhat inelastic supply when rivals move in with vastly greater buying power.

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The Care/Profit Tradeoff in Nursing Homes

We’re often told that inequality helps keep the US economy efficient. Cut regulation and give high rewards to those at the top, and they’ll work hard to cut costs and compete on quality, providing better and cheaper goods and services for all. Private equity firms like Carlyle Group might be considered the apotheosis of such a market-based approach, taking over companies and forcing them to meet market imperatives.

Here’s a fascinating NYT study of their influence on the nursing home industry, which “compared investor-owned homes against national averages in multiple categories, including complaints received by regulators, health and safety violations cited by regulators, fines levied, [and] the performance of homes as reported in a national database known as the Minimum Data Set Repository.” The findings describe an extraordinary combination of business efficiency and deflection of legal responsibility:

The Times analysis shows that . . . managers at many . . . nursing homes acquired by large private investors have cut expenses and staff, sometimes below minimum legal requirements. Regulators say residents at these homes have suffered. At facilities owned by private investment firms, residents on average have fared more poorly than occupants of other homes in common problems like depression, loss of mobility and loss of ability to dress and bathe themselves, according to data collected by the Centers for Medicare and Medicaid Services. The typical nursing home acquired by a large investment company before 2006 scored worse than national rates in 12 of 14 indicators that regulators use to track ailments of long-term residents.

The law plays an important role in preventing accountability here; “private investment companies have made it very difficult for plaintiffs to succeed in court and for regulators to levy chainwide fines by creating complex corporate structures that obscure who controls their nursing homes.” So perhaps the key “innovation” here was the decision to aggressively reduce care and skillfully deploy legal strategies to prevent any liability for injuries that reduced care caused. It certainly worked well for investors; “A prominent nursing home industry analyst, Steve Monroe, estimates that [one investment group's] gains from [its sale of a nursing home chain] were more than $500 million in just four years.”

I have to confess that I’ve always wondered what business practices could “create the value” that’s resulted in such extraordinary gains at the top of the income scale. The Times has done us a great service by putting a human face on some of them. . . and on the legal strategies that make them possible.

Questionable Advice On Net Neutrality

The DOJ Antitrust Division’s just-released public comment on net neutrality (available here) has been getting a lot of press. Unfortunately, it appears that the shoddy analysis that Jack Goldsmith saw in the DOJ’s torture memos may also be infecting its approach to net neutrality. I just want to raise three worries apparent on a quick read of the document:

1) Pollyanna Prevails: The DOJ document presumes that a laissez-faire approach has done wonders for US broadband access. But just as visitors from Japan and Europe find our cell phones crippled, so too our internet access is lagging. As the WaPo notes, “In sharp contrast to the Bush administration over the same time period, regulators [in Japan] compelled big phone companies to open up wires to upstart Internet providers”–and saw extraordinary results. But (again, on a quick read), I did not see a single reference in the DOJ document on how other countries handle the policy issues the FCC is facing, except for the Canadian Telus dispute (which it called “irrelevant”).

2) Shunning the Scholars: From a quick text-search of the document’s footnotes, it appears that DOJ fails to reckon with the work of a single one of the following prominent pro-net-neutrality scholars: van Schewick, Economides, Frischmann & Waller, Crawford, or Wu.

van Schewick’s work provides an interesting contrast to many of the citations in the DOJ filing:

Barbara van Schewick [argues that there is a] severe threat of discrimination without network neutrality regulation, and that discrimination will reduce application-level innovation. van Schewick’s work is not funded by any of the special interests involved in this issue — nor is it sponsored by the “independent” think tanks that are funded by the special interests involved in this issue.

Even more surprisingly, the DOJ fails to cite the leading legal academic voice against net neutrality, Christopher Yoo.

3) Errant Economism: Economic analysis has its place, and DOJ does cite several economists who claim that network neutrality rules would “skew investment, delay innovation, and diminish consumer welfare.” Even if I were to cede that very questionable claim, is that the end of the issue? Economic analysis is one tool among many for evaluating the normative desirability of a policy proposal. Would the DOJ think FCC Commissioner Deborah Taylor Tate out of line for being concerned about sex and violence as she helps craft these rules? A narrow focus on economics does not help us achieve what the DOJ itself admits is the clear “public policy objective here. . . .: a thriving and dynamic Internet capable of meeting the demands of consumers for fast and reliable access to a rich variety of content and applications.”