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Category: Symposium: Bottlenecks

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Notes from Abbrevia: A Response to Bottlenecks

Imagine two worlds. In one world—let’s call it Expansia—a writer writes 260 thoughtful and engaging pages exploring his chosen topic. In the other world—Abbrevia—a writer has at most 1000 words of blog post to respond to the first writer.

Welcome to Abbrevia. Responding adequately to Joey Fishkin’s wide-ranging and incisive book Bottlenecks is no easy task. Doing so in a blog post is impossible. Undoubtedly the right answer to this quandary is to take Fishkin’s work as a jumping off point for a related set of ideas. This is an ideal approach for a blog post. Alas, dear Reader, this contribution to the symposium takes a different tack. What follows is my attempt to identify five of my favorite things about Bottlenecks, and then to list five of my lingering questions.

1. For starters, a stylistic note: Bottlenecks is beautifully written. It’s full of accessible prose, pithy articulations of complex philosophical ideas, and evocative imagined worlds that illustrate key concepts. Some of these imagined worlds Fishkin invents, and some he culls from the philosophical canon; in both cases, his alternative universes are far more effective than my Expansia and Abbrevia. The “big test” society is emblematic: This is a world, drawn by analogy to Bernard Williams’ warrior society, and not so very far from our own, in which everyone’s opportunities for many different kinds of lives are all determined by a single evaluation at a particular age. The big test makes vivid the idea of a bottleneck, which limits opportunities both for those who fail (because they can’t reach the opportunities on the other side) and for those who pass (because it shapes their preferences and ambitions).

2. Relatedly, Bottlenecks is a story about equal opportunity with far more emphasis on the opportunity than the equality. For everyone who ever wondered if equality theory or antidiscrimination law is leading us towards the dystopian world of Vonnegut’s Harrison Bergeron—where everyone is literally weighed down in direct proportion to her talents, whether mental or physical—Fishkin’s account offers a lucid answer: We should care about equality to the extent that it serves the goal of expanding individual opportunities (and inclinations) to pursue diverse concepts of the good—to become, per Raz, “‘part author of his life.’” An illustrative passage is this:

“A pluralistic opportunity structure . . . provides the structural conditions for the kind of freedom that makes autonomy possible. It is the difference between seeing only one path that leads to anything of value—a path one must pursue at all costs—and seeing many paths, leading to different lives marked by different combinations of forms of human flourishing, so that one must decide for oneself what to value and pursue.”

Reducing inequalities is thus instrumental to freedom, rather than the primary end we are seeking—at least as I read Fishkin.

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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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Bottlenecks: Applying the Theory (some responses)

I want to respond here to several thoughtful posts about Bottlenecks: A New Theory of Equal Opportunity from participants in this symposium, each of which applies the theory to a novel domain: legal education, health, and the whole field of economic policy that affects wage inequality.

So let’s start with legal education.

Lea Shaver, in one of her posts, focuses on bottlenecks in legal education: to become a lawyer, you need a good LSAT score, a fair amount of money (borrowed or otherwise), and you need to pass the bar exam. At most schools, you also need to go to school during the day, precluding other work and life obligations. I basically agree with all of this. The LSAT is similar in many ways to the SAT, although in my view, as a bottleneck it is by far the less problematic of the two. Why? Because if you can’t score well on the LSAT, the only career path you’re locked out of is law, whereas if you can’t score well on the more general SAT, a very large swath of all careers may be closed to you (although some alternative routes exist).

From the point of view of opportunity pluralism, the largest question I’d ask about the current structure of legal education is: Why is it so uniform? Why do all law schools appear to be using basically the same criteria, and chasing the same students, with increasingly finely-calibrated scholarship-based pricing? More radically, why is nobody pursuing models of legal education that are smaller-scale (and quicker and cheaper) than a JD, yet offer graduates the opportunity to provide some more limited set of legal services? (These also could function as Lea’s intriguing suggestion: programs that partially feed into JD programs, the way community college programs partially feed in to 4-year college programs.) What’s stopping this sort of thing? Read More

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Unions as Bottlenecks?

As I noted in my first post, Bottlenecks suggests that equality of opportunity requires substantial economic equality. I read Fishkin’s second principle as doing a lot of work here. A sufficiently robust set of welfare and income supports would make a far more diverse set of life plans realistic for citizens, and would reinforce families’ and individuals’ diverse views of the good.

What policies does this require? In addition to substantial tax-and-transfer redistribution, Fishkin also notes that opportunity pluralism might support public and private efforts to limit salary differentials within particular firms (p203), though he doesn’t develop the idea in detail. In this post, I’d like to pick up that line of argument, and suggest that opportunity pluralism would support quite robust wage-compressing institutions that limit pre-transfer income inequality. I’m thinking here of unions, which have traditionally been a very effective means to greater economic equality.

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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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Legal education, opportunity, and bottlenecks

Joseph Fishkin’s Bottlenecks offers a new theory of equal opportunity. (See symposium posts here and here.)

What does it mean for legal education?

One of the major contributions of the book is to offer a new social justice perspective from which to evaluate a wide variety of laws and policies, both public and private. The book invites us all to treat opportunity not just as a catch phrase, but really deeply explore its meaning and ramifications.

If we reform legal education not only to attract more students but also to promote social justice, how should we think about legal education’s role in the broader opportunity structure?

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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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Opportunity Pluralism, Class, and Distributive Justice

At the outset, let me say how happy I am to be a part of this symposium, and how much I’m looking forward to our conversation. Joseph Fishkin’s Bottlenecks strikes me as an important and urgent addition to thinking on equal opportunity, particularly in a liberal egalitarian vein. I’m planning at least two posts. This first post will summarize Fishkin’s argument (as I understand it), then raise some questions about the relationship between opportunity pluralism, class, and distributive justice. Another will consider whether opportunity pluralism supports or even requires more robust wage-compressing institutions, in particular labor unions. Time permitting, and depending on other commentators’ interventions, I may also post some thoughts about opportunity pluralism and employer responsibility under antidiscrimination law.

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