Week 1
What is the law?
The law is the set of formal rules backed by the coercive power of the state, and is institutionally represented by legislatures and agencies. Its formal codification distinguishes it from other dimensions of legal practice (enforcement, compliance, and interpretation). It delineates the set of actors internal to a given regime of inequality production, and clarifies their relationships to each other.
What is primordialism?
The primordialist perspective on ethnic identity holds that such identities are fixed, enduring, and “outside” of social and legal processes. An implication of this view is that the law will have a marginal impact on group concepts and relations. Its primary activity in this domain will thus be redistributive, as it reallocates resources between essentially obvious groups. It is opposite to constructivism, which asserts that “ethnicity” is drawn from the social, economic, political, and legal contexts in which individuals exist, and is particularly affected and often strengthened by political competition; legal institutions have causal power here.
What is social rights constitutionalism?
Social rights constitutionalism is an approach to constitutional design that includes social and economic rights, such as right to education or healthcare, in the constitution. As Marshall argues, constitutional rights can be divided into three basic categories: civil rights, such as a right to property; political rights, such as a right to vote; and social rights, which ensure a basic standard of living. Advocates of social rights constitutionalism, such as Marshall, argue that civil and political rights are meaningless if citizens do not have a right to some basic level of economic welfare and security. However, especially in lower or middle-income countries such as India or Colombia, a key question in the scholarly literature is whether constitutionalizing social rights significantly increases their enforcement in practice.
What is the closed shop?
The closed shop is a workplace arrangement in which only members of a specific union can be hired as employees. By contrast, in open shop workplaces, employees are not required to join a labor union, and in agency shop workplaces, all workers must contribute dues toward negotiating their shared contract. In the U.S., the law is a major force limiting union membership: The Taft-Hartley Act of 1947 outlawed closed chops, and the Supreme Court ruled in Janus that agency shops violated workers’ rights to free speech. By contrast, in countries that allow closed shops, such as Iceland, unionization rates are much higher.
What is forbearance?
Forbearance refers to the (1) intentional and (2) revocable nonenforcement of the law; in other words, authorities exercise forbearance when they have enforcement capacity (they can crack down on offenders), but do not do so. Holland describes how forbearance can become a form of social policy in contexts of housing underinvestment (contrasting Peru's "skeletal" policy with Chile's "substitutive" policy) at the behest of politicians concerned about the electoral costs of enforcement. Forbearance is a relatively precarious solution to persistent inequality, given that it relies on the self-interest of officeholders who may lose future elections.
Compare the dynamic and constrained views of the court, and identify an author associated with each.
The dynamic court view holds that courts are powerful proponents of social change, and is contrasted with the constrained court view, which asserts that courts are weak relative to other branches of government, and independently powerless. Both terms are defined by Rosenberg, who argues that the unfolding of the Civil Rights Movement provides evidence for the constrained view. Legal liberalism, as articulated by O’Donnell, is associated with the optimistic, dynamic view: according to this vision, the legal system possesses the capacity to actually remediate inequality.
What is categorical inequality?
Categorical inequality emphasizes the degree to which societies are durably stratified into groups. Scholars of this type of inequality, like Tilly, think about inequality in institutional rather than individual terms, rooting its causes in exploitation and opportunity hoarding rather than differential ability. This can result in a narrow focus on fixed, unchanging boundaries, rather than overlapping axes of marginalization.
What is disparate impact?
Disparate impact is a term in U.S. law that identifies discrimination on the basis of race or other identities by looking at the unequal effects of a practice across different groups. In McCleskey, the U.S. Supreme Court ruled that statistical evidence of disparate impact in the criminal justice system was not sufficient to prove racial discrimination. Instead, the Supreme Court ruled that only discriminatory intent—or evidence of intentionally racist treatment—was sufficient evidence of discrimination. Scholars of critical race theory such as Crenshaw have sharply criticized this approach for misunderstanding racism as an intentional, individual act, rather than a systemic, pervasive phenomenon.
What is Title VII?
Title VII is a provision in the Civil Rights Act of 1964 that requires all employers to practice “equal opportunity” and requires federal contractors to take “affirmative action” to achieve equal opportunity. Title VII is an important provision in U.S. employment law because it has become key to challenging discrimination but did not clearly define what equal opportunity meant or how it would be enforced. One model, as Dobbin argues, was corporate enforcement, such that personnel departments played a major role in defining what equal opportunity required.
What is the home-voter hypothesis?
The home-voter hypothesis treats home-owners as single issue voters who care almost exclusively about maintaining their home values. Compared to renters, home-owners are well-organized and have high rates of turnout, resulting in electoral outcomes that favor their interest, principally restrictions on development. This disproportionate power to shape local land-use regulations directly contributes to the extent of residential segregation in the United States, exacerbating racial wealth gaps. The home-voter hypothesis might be thought of as a special case of the insider-outsider dynamics described by Rueda in the context of employment.
According to the law and society approach, the law that is written or codified has little capacity to reshape citizens’ activity.
While McCann (the author most associated with this approach), does argue that codified, official law has a limited, partial, and contingent influence on citizen activity, he also asserts that it is a coordination-inducing target for social movements. While its direct effects are limited, written law mobilizes and provides crucial structure to the content of social struggle and citizens’ self-conceptions. These indirect effects amplify the limited consequences of formal litigation on social and economic inequality.
Assimilative policies are always better for “minority” groups.
Though, as Simon argues, the enumeration of salient social cleavages can allow policymakers to identify and remedy problematic inter-group disparities, it may also (explicitly or implicitly) create them. Lieberman and Singh connect such enumeration on state censuses to civil conflict and war, arguing that this process can legitimize and heighten awareness of certain forms of difference, provoking in-group favoritism and out-group hostility. These differential effects may follow partially from the state’s intentions. While the Nazis’ recording of members of the Jewish “race” was motivated by a genocidal desire, other scholars document the relationship between renewed commitments to fighting racism and enumerative projects.
Scholars of critical race theory agree with the dominant discourse of the U.S. civil rights movement.
Although scholars of critical race theory such as Crenshaw broadly agree with the goal of advancing racial equality, they are deeply dissatisfied with the dominant discourse of the U.S. civil rights movement for two reasons.
First, critical race theorists argue that this traditional discourse misunderstands racism as an intentional and rare act committed by individual perpetrators, rather than a systemic, pervasive phenomenon. This approach implies a focus on discriminatory intent, rather than disparate impact, as the threshold for proving racial discrimination.
Second, traditional civil rights discourse embraces colorblindness, as opposed to race consciousness. As an example of this, the concept of merit in college admissions is not a racially neutral category.
What is informal work?
Informal work is work without a labor contract in jobs that would normally be regulated by the state through formal contracts. As Centeno and Portes observe, informal work is often a large share of the economy, especially in “frustrated” states that have low state capacity but seek to impose significant regulations. Although informal work often helps sustain the livelihoods of the poor, it comes with significant costs, since informal workers often lack protections such as health insurance and access to rule-of-law institutions to enforce their rights at work. Paradoxically, as Rueda argues, workplace regulations that strengthen protections for workers in the formal sector can increase employment in the informal sector by making companies less willing to hire formal workers.
Local-level variation in land-use regulation can be accounted for entirely by patterns of wealth and homeownership.
While, as Trounstine argues, homeowners (who tend to be wealthier than non-owners, given the resources needed to purchase these assets) pursue restrictive land-use regimes that (1) maximize their housing wealth, (2) minimize their tax burdens, and (3) maximize the quality of their public services, these two characteristics cannot fully account for the restrictiveness of policies preferred by whiter communities (where the use of services by non-white individuals may be perceived as degrading their value). Though she cites evidence that much of the segregation of Asians and Latinos can be explained by such socioeconomic differences, she finds that high levels of Black-white segregation are a function of the disproportionate support restriction receives from whiter localities. Thus, to use Tilly's framework, land-use regulation is a means of opportunity hoarding, maintaining Black-white categorical inequality in the United States.
Legal liberals assert the law is always the most effective means of redressing discrimination.
Even as legal liberals like O’Donnell are optimistic about the capacity of the law to delineate democratic, just societies through the creation of accountability-promoting institutions and through the advancement of order, they are also aware of the possible extent and consequences of flaws in its rule. O’Donnell identifies several potential sources of compromise in the rule of law, including flaws in its content and enforcement, the presence of institutional corruption, the inaccessibility of the judiciary, and territorial inconsistencies in its application. In particular, O’Donnell, like the legal realists, acknowledges that the law “condenses” power relations. Given a deeply flawed set of legal practices, legal liberals might not encourage the marginalized to directly seek legal recompense; instead, they would advise agitation for a change in its terms, and for aligning practice with the ideal.
California v. Bakke and Grutter v. Bollinger effectively outlawed affirmative action.
In Bakke, the Supreme Court upheld the argument that society-wide discrimination did not justify interventions on the individual level, finding rigid quotas (though not “affirmative action”) unconstitutional. This decision was modified by the findings of Grutter v. Bollinger, which established “diversity” as an appropriate consideration for university admissions. Universities and other institutions did continue to practice affirmative action by relying on this justification, though its beneficiaries were no longer primarily or exclusively members of racial (or even gender) minority groups. According to Dobbin, these practices were supported by the work of personnel to link “diversity” to “corporate effectiveness” and “rationality,” as a means of protecting the programs they had elaborated under the prior legal regime. Affirmative action did not disappear: rather, its terms and targets changed.
Constitutional rights are always interpreted as trump cards that cannot overridden.
As Greene argues, there are two distinct approaches to interpreting constitutional rights. One, “rightsism,” views rights as absolute trump cards that the state is bound to protect. Greene identifies the rightsist approach with the U.S. Supreme Court. However, a second approach, “proportionality,” instead views rights as a source of constitutional concern—if a government wants to adopt a policy that infringes upon a right, it can do so, but the policy needs to have reasons that are proportional to the burden placed on individual rights. “Proportionality” is widely used by courts in Germany, India, and other democracies. In his critique of “rightsism,” Greene argues that this narrow conception of rights has prevented the U.S. Supreme Court from acknowledging rights such as a right to education or housing, since these rights would not be possible to enforce absolutely.
Workplace regulations that make it harder to fire employees are good for all workers.
A key distinction, as Rueda argues, is between “those with secure employment (insiders) and those without (outsiders).” (2) Workplace regulations benefit insiders, yet they often increase the size of the informal sector (example of Spain.) Furthermore, stronger workplace regulations, such as just-cause employment, tend to be associated with higher levels of unemployment and atypical work.
A decrease in the strictness of government regulations results in less informal housing.
Though, as Centeno and Portes argue, decreases in regulation mechanically decrease the size of any informal sector, strictness and informality are not perfectly logically correlated. De Soto, as a representative of the libertarian perspective, does attribute widespread lawbreaking and innovative informal practices (like squatting in Peru) to overly burdensome regulations, but this is not the only possible explanation for that outcome. Centeno and Portes argue that levels of informal work are a joint product of regulatory intent and regulatory capacity -- given low levels of capacity, regulatory change is unlikely to effect any material change in housing inequality (though it may transform the legal status of certain practices). Holland finds that real decreases in informal housing are achieved through major investments in public housing -- as it becomes a viable substitute for squatting, regulatory enforcement no longer exacts an electoral cost.
Consider Section 4 of Article 35 of the Chilean Constitution: “Education is governed by the principles of cooperation, non-discrimination, inclusion, justice, participation, solidarity, interculturality, a gender-based approach, pluralism and other principles enshrined in this Constitution. It is non-sexist and is developed in a context-specific manner, considering territorial, cultural and linguistic relevance.” Identify the plausible consequences of establishing this right according to the legal liberalism and legal realism approaches. Which story do you find more believable?
Legal liberalism:
(1) Encodes appropriate, egalitarian principles, and explicitly commits the state to enacting them; corrects potential flaws in the existing law, shifting the burden of upholding the “democratic rule of the law” onto enforcing institutions
(2) Enforcement is likely to be initially thwarted by initial set of power relations: institutionalized sexism and anti-indigeneity, resistance of encroached-upon organizations previously tasked with curricular duties
(3) Provides a legal recourse for students subject to sexism or other forms of marginalization, shifting the locus of struggle to the courts
Legal realism:
(1) Legal activities will be focused on negotiating the definitions of key terms, including “cooperation”, “non-discrimination,” “inclusion,” “justice,” “participation,” “solidarity,” “interculturality,” “gender-based approaches,” and “pluralism,” rather than ensuring egalitarian sentiment is realized
(2) Enforcement will be continually thwarted by set of prior power relations; any benefits will accrue to the relatively privileged among the marginalized
Evidence:
(1) Depends on (time) scale of assessment (decision on one case, or on many cases over decades)?
(2) Recall the conclusion of Grootboom (Mrs. Grootboom died in her “temporary relocation shack,” as others replaced her and the other respondents in the category of the “most desperate”)
Suppose you were given control over the content of the U.S. Census. What kinds of social realities would you enumerate, if you sought to reduce contemporary forms of inequality?
(1) According to Simon, the particular salience of racial cleavages is a case for their enumeration
(2) Following the arguments of Lieberman and Singh, further enumeration along current lines of conflict may inflame current intergroup tensions; new ethnoracial enumeration (the provision of more or different categories) could direct political conflict along those dimensions
(3) Might want to intervene in the law’s elaboration of “race,” as described by Haney-López, by focusing on identifying and enumerating the institutional relationships of exploitation and opportunity hoarding (Tilly) that perpetuate it rather than any given set of individual attributes; we could change the units of enumeration from “individuals” or even “households” to institutionally-produced “communities”
(4) Attend to public demands, and international legal frameworks and systems of discrimination, by thinking about the sets of categories that matter across state contexts and their production (caste case)
Which approach do you think is more conducive to equality and social change, rightsism or proportionality? Why and in which contexts is one approach more desirable?
Arguments in favor of rightsism:
(1) Absolute protections of rights as trump cards ensures protection for minority groups, whose rights might be infringed upon in the name of the greater good.
(2) In a racially divided country, maybe it’s necessary to make rights absolute.
(3) Proportionality creates a slippery slope, such that more and more rights—a right to housing, food, water, education, and healthcare—become constitutional rights and create demands that governments ultimately cannot satisfy. Citizens become disillusioned with rights.
Arguments in favor of proportionality:
(1) Absolute rights create polarizing, zero-sum conflicts, in which one side has a right and the other does not.
(2) Proportionality enables courts to serve as catalysts for social change by weighing social and economic rights.
(3) Proportionality creates more space for elected governments to enact policies and respond to the public’s demands.
Should the United States adopt a just-cause, as opposed to at-will, employment system? How should policymakers weigh potential trade-offs in terms of economic efficiency, equity, and the interests of insiders and outsiders?
Arguments for at-will employment:
(1) At-will employment is associated with lower levels of unemployment. At-will employment reduces incentives for employers to rely on informal or atypical workers.
(2) At-will employment may increase economic efficiency, since employers can fire workers who aren’t performing well in their jobs.
(3) At-will employment may motivate workers to put their best effort into the job.
Arguments for just-cause employment:
(1) Greater economic security, at least for insiders, and more bargaining power for workers.
(2) Stronger protections against discrimination on the basis of race or other identities in firing workers.
(3) Just-cause employment enables workers to speak up in the workplace.
To effectively address housing availability and affordability issues in the United States, should policymakers focus more heavily on demand or supply-side policies? Would you propose the same set of solutions for both issues?
Supply-side policies:
(1) Policies affecting state and providers (to use terminology from Gauri and Brinks); includes direct provision of housing and incentives for developers to construct more affordable units; cannot address availability issues without implementing some supply-side measures, but also affects affordability by increasing the number of availability units at a given level of demand
(2) Extremely effective at reducing informal housing in the Chilean context, and bolstering support for state programs (Holland)
(3) Very low levels of such investment in the United States (in comparison with peer countries) but major infrastructural investments encounter far more political resistance than tax credits/deductions/vouchers – difficult to pass and implement
Demand-side policies:
(1) Interventions that target residents/clients with the goal of increasing affordability (cannot shape availability, except through a potential short-term exacerbation of crisis that triggers a political response in the form of supply-side policies); includes housing subsidies, rental assistance, and mortgage tax credits (like the Home Mortgage Interest Deduction)
(2) Much more developed in the United States (especially mortgage tax credits); preserves some freedom of choice for movers
(3) Moving to lower-poverty communities can have major effects on educational attainment and earnings (MTO experiment)