Congressional Black Caucus' "Marshall Plan" - The Jobs and Justice Act of 2018

Recently, the Congressional Black Caucus announced its “Marshall Plan for Black America”, otherwise known as The Jobs and Justice Act of 2018.  The following is a brief synopsis of its contents, categorized in economic justice terms as proposals to address a) racially asymmetric transaction costs and externalities, b) racially asymmetric market information, c) racially asymmetric market competition, and d) racially asymmetric market rationality.

According to neoclassic economic ideology, the extent which the free market meritocratically distributes goods and services depends on the extent which every person is a fully informed and responsible participant with sufficient financial and human capital to compete in any industry they choose.  But not only is the market imperfect, people of color are disproportionately discouraged from participating in the system, without capital with which to compete, without adequate educational opportunities and subject to false stereotypes, and subject to a disproportionate share of society’s private and publicly produced transaction costs and externalities.  The Jobs and Justice Act addresses issues related to each…. - DreSmith

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Andre Smith
Hamilton (New School) & Darity (Duke) on a "Federal Job Guarantee"...

Sandy Darity and Darrick Hamilton are two of the leading proponents of a “Federal Job Guarantee” where Americans (citizens?) who want to work are entitled to a job provided by the federal government, should the private sector stock prove insufficient.  In this piece, they retrace the history of the idea to show that it has been supported by a wide array of interests, from avowed racists such as Huey Long, as well as civil rights icons like Bayard Rustin.  Administrative law professors such as myself may recall Thurgood Marshall’s dissent in Board of Regents v. Roth (1972) expresses his belief that citizens have a property and liberty right in federal employment.  Sadie Tanner Alexander, the first black woman to receive a Ph.D in economics, the Caucus of Black Economists and other highly respected figures have endorsed the idea.  Now that wealth and income inequality has become a topic of scholarly and popular conversation, progressive programs from the New Deal era may be re-booted... DreSmith

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Edward J. Littlejohn (Wayne St.) on "A History of Slavery, Race Laws, and Cases in Detroit and Michigan"...

While many black folks are tired of hearing about slavery, there are still fundamental misunderstandings about it which disconnect its brutality then from racial economic subjugation today.  African-Americans are playing a game of Monopoly in which we were prevented from participating at all for two hundred rolls of the dice only to be let in the game under the same rules but without reparations and after the most valuable properties and immense wealth had been acquired therefrom. While the typical narrative on race deals with New England and the Ante-Bellum South, Professor Littlejohn draws the connection between slavery, law and current racial caste in the North-Midwest, i.e., Detroit and Michigan... - DreSmith

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Michael LeRoy (Illinois) on Reinvigorating the Klu Klux Klan Act of 1871...

By re-invigorating Section 1985(3) claims, otherwise known as The Klu Klux Klan Act of 1871, Michael LeRoy proposes a means for attaching liability to white supremacist persons and organizations who participate in violent acts designed to exclude Black folks and other discrete groups from economic opportunities.

Professor LeRoy breaks it down into four categories: 1) Racial Conspiracy Formed and Acted on in the Workplace--Employee Victim, 2) Conspiracy Formed Outside the Workplace--Employee Victim, 3) Conspiracy Formed in the Workplace--NonEmployee Victim, 4) Conspiracy Formed Outside the Workplace--NonEmployee Victim.

In each of the above circumstances, the perpetrators can be held financially responsible under section 1985(3), even if the employers themselves did not encourage, promote or accept the benefits of the harassment.

Professor LeRoy does not touch upon it, but I wonder whether such claims also rise to the level of a conspiracy or combination to restrain trade, as prohibited by the Sherman Anti-Trust Act, and for which the victims receive treble damages. 

It also seems that Professor LeRoy's thoughts ought not be limited to events tied to the workplace, that liability can attach in a broader array of situations, so long as the purpose is to thwart economic opportunities for subordinated groups.  DreSmith

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[Whoa!] Kimani Paul-Emile (Fordham) on "Blackness as Disability?"

An extremely thought-provoking piece, Kimani Paul-Emile (Fordham) explores the question whether negative connotations associated with “blackness” activate federal law prohibiting discrimination against those with disabilities (the ADA)?   Is blackness a disability?

If so, Professor Paul-Emile concludes that “The entire conceptual, practical, normative, and doctrinal apparatus of disability law, on the other hand—from reasonable modifications, balancing of benefits and burdens, and mandated integration—provides a more muscular approach to combating racial inequality and discrimination against black people.”

There is, however, a black nationalist critique of the concept of blackness as disability.  Blackness as disability symbolically chafes those of us who conceive of ‘blackness’ as something other than a creation of white people, who choose blackness as a political identity, who see it as a functional concept designed towards and defined by the dismantling of global white supremacy.  Not only is that conception of Blackness harder to fit within the definition of disability within the ADA, the one that does may unintentionally reproduce the ‘myth of black inferiority’. 

Given the ineffectiveness of other federal civil rights laws to create meaningful change (see recent data on the widening of the racial wealth gap, and other metrics describing racial subordination], and given the limits on progressive coalitions described by Derrick Bell’s “interest convergence” theory, Professor Paul-Emile’s brilliant treatment of race and disability law leaves a bittersweet taste in the mouth of one who she intends to help.  For the good it is designed to produce, it can be interpreted to give to whites the creation of blackness, control over its continuing definition and parameters, as well as the position of savior through legislation and integration.  Similarly, Brown v. Board of Education was premised on the notion that segregation from whites is debilitating to and stigmatizing towards blacks, while segregation from blacks is not debilitating to or stigmatizing towards white children.

Again, this is one of the more thought-provoking pieces of critical race scholarship produced in many years.  - DreSmith

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[Must read, must cite] Lincoln Quillian, et. al., (Northwestern, Harvard) on "Racial Discrimination in Hiring Over Time"...

These researchers from pre-eminent universities find that the degree of racial labor market discrimination/exclusion has remained pretty much constant since 1989.  These findings not only call into question the United States’ commitment to ending racism, they may also undermine progressive coalitions and the political capital spent on enacting anti-discrimination laws.  They seem to verify Derrick Bell’s Interest Convergence Theory, which insists that whites will fight for civil rights when it is in their interest to do so; however, because the sale of labor is competitive, reducing labor market exclusions is not an interest on which blacks and whites converge.  I refer to this legal-economic dynamic in terms of an “imperfectly ‘free’ market” as ‘asymmetrical imperfect market competition’. - DreSmith

“We observe no change in the level of hiring discrimination against African Americans over the past 25 years, although we find modest evidence of a decline in discrimination against Latinos. Accounting for applicant education, applicant gender, study method, occupational groups, and local labor market conditions does little to alter this result. Contrary to claims of declining discrimination in American society, our estimates suggest that levels of discrimination remain largely unchanged, at least at the point of hire.”

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Daniel Tokaji (Ohio State) on "Vote Dissociation"...

Professor Daniel Tokajia (Ohio State) advances “Vote Dissociation” as a third component of the ‘individual’ right to vote, the first two being rights to participation (think voter suppression) and against dilution (think gerrymandering).  Tokajia seeks to combat the growing, proven tendency for government to respond only to monied interests.  The right to vote without concomitant influence over government is hollow.  Professor Tokajia explicitly identifies voting rights as the precursor to all others, including civil and economic rights...

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Distributed CostsAndre Smith
Leo Martinez (UC-Hastings) on "Latinos and the Internal Revenue Code"...

I have written several pieces on race and taxes, including one book and another on the way.  Yet, I am guilty of perpetuating the binary race model of black/white, without much consideration for how neutrally worded tax laws may affect Asians or Latinos, asymmetrically.  I have cited a few statistics here and there, as well as cited some of the few works out there, like Mylinh Uy’s “Tax and Race: The Impact on Asian Americans”, Asian American Law Journal (2004). 

“It bears emphasis that there is a dearth of scholarly work exploring the intersection of Latinos and taxation.”

Leo Martinez’ recent work, “Latinos and the Internal Revenue code:  A Tax Policy Primer for the New Administration”, Harvard Latinx Law review (2018), helps close that gap.  This work follows one that escaped me while writing my first book, “The Internal Revenue Code and Latino Realities:  A Critical Perspective”, University of Florida Journal of Law and Public Policy (2011).  When discussing 20th century poll taxes in my book, Tax Law and Racial Justice (2015), I should have included his identification of 19th and 20th century poll taxes in Texas designed to disenfranchise Latino residents. Just as taxation was used to exclude free blacks from lucrative labor markets in the Ante-Bellum South, Martinez points to the 1850 California Foreign Miners Tax, designed to exclude Latinos from the California Gold Rush. 

Professor Martinez identifies several federal and state tax laws and policies that asymmetrically affect Latinos.  First, Latino families may receive an unfair share of the dependent care tax credit, since they are more likely to use extend family members for child care than for-profit day-care.  Latinos writ large are also penalized by the Code’s ‘marriage penalty’, which taxes marriages with one spouse working the least, unmarried working couples next, and married working couples the most.  Because Latino marriages are more likely than white ones to have both couples working, they are more likely to be ‘penalized’....

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Nancy Leong (Denver) on "The Race Neutral Workplace of the Future"...

Nancy Leong ponders how virtual reality, in which employee uses an avatar instead of their real person, may bring workplaces closer to a race-neutral ideal.  Professor Leong decries recalcitrant racial bias in economic settings, including the persistence of bias in the platform economies, like UBER and AirBnB, where black customers and service providers tend to be evaluated unfairly.  After recounting several ways employers have tried to limit bias in evaluations, from screens that prevent orchestra directors to see musicians, to blind peer reviews in academia, Professor Leong envisions workplaces that can deploy virtual reality technology to mask the phenotypes of their employees, thus lessening conscious and unconscious bias.  Legally speaking, Leong wonders whether the failure to implement available and affordable masking services might form the basis of discriminatory intent under Title VII jurisprudence.  Also, whether the implementation of industry-standard masking services would insulate employers from Title VII liability.  - DreSmith

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Andre Smith
Su Jin Jez (Sacramento St./Stanford) Debunks a Myth that Educated Blacks Make Poor Financial Decisions…

In Not All College is Equal When it Comes to Race, economist Su Jin Jez identifies flaws in a study done by Emmons and Ricketts that claimed the racial wealth gap was due predominately to “racial and ethnic differences in ‘financial decision-making’.”  Professor Jez joins a growing cacophony of voices who oppose racial comparisons that ignore differences in accumulated wealth.  Black and white people making the same yearly income are not similarly situated, because white people have on average seven times more accumulated wealth.  The difference is lower for lower-income people, but higher for high-income earners.  Specifically, Jez finds that what Emmons & Ricketts consider ‘financial decision-making’ is really just a proxy for wealth.

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William Darity (Duke) destroys the "Myth of Black Inferiority" in Stratification Economics: Context versus Culture...

William Darity successfully trounces the myth of black inferiority, which is perhaps the most pernicious method for maintaining the racial wealth gap, by deflecting attention from and neutering progressive attempts to fix market imperfections that perpetuate racial subordination, and by discouraging black folks themselves from participating vigorously in national and international marketplaces.   The economic impact and redistributive effect of the myth of black inferiority can be described in terms of asymmetrically imperfect market information about and available to black folks.  To the extent it is internalized, the myth of black inferiority represents the asymmetrical commitment to profit maximization.  The lack of social capital due to mistaken distrust of other black people due to the myth of black inferiority fits within the concept of asymmetrical market competition, in that black folks have less financial, political, human and social capital to compete. - DreSmith

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Neil Sobol (Texas A&M) on Legal Financial Obligations (Regressive and Racist Taxes)...

Neil Sobol proposes the Fair Justice Debt Practices Act (FJDPA) as a means to combat the ubiquity of regressive and racist taxes disguised as law enforcement financial obligations (LFOs).  He presents damning statistics, including those demonstrating racial asymmetry, concerning billions of dollars in fines, asset forfeitures, bail forfeitures, surcharges, court fees, incarceration fees, probation fees, collection fees, penalties and interest.  While there are some legislative and litigation strategies to combat their imposition, Professor Sobol offers some relief to victims of oppressive means for collection, including tactics designed to extend and elongate the debt and payment of collection fees to private companies.  DreSmith

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Andre Smith
Peter Edelman (Georgetown) on "Not a Crime to Be Poor"....

Professor Edelman explores policing for profit and the criminalization of the poor.  His book provides helpful analysis and data concerning 21st century Debtors’ Prisons, in which poor people are taxed out of their income and whatever savings to fund law enforcement itself.  To show how poor people are economically oppressed, he identifies fines and fees and surcharges and asset forfeitures and money bail forfeitures and probation fees and collection fees and interest and driver’s license suspensions and child support penalties.  Professor Edelman clearly identifies the racial dynamics at play...

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Distributed CostsAndre Smith
[Fiyah!] Olatunde Johnson (Columbia) on "Equality Law Pluralism"....

Professor Johnson seeks to link antidiscrimination law and economic equality, finding that the legal regime since Constance Baker Motley's direction of the NAACP's Legal Defense Fund has become harmfully binary.  Race issues in the scholar-court system are being cabined, limited and subverted for class.  Interest divergence is at play at major pressure points in the system.  In response, Johnson advocates the exploration of state and local regulatory regimes that can be manipulated towards greater economic inclusion, on smaller yet poignantly race and class specific ways. 

Exciting work.

I wholeheartedly endorse the quest for “equality law pluralism”.  Consistent with Professor Johnson’s scholarly call to action, the legal conception of racism as asymmetrical market imperfections is designed to “advance new regulatory regimes … that seek to link questions of identity inclusion to economic inequality and the distribution of public goods.”  Whether it moves “beyond the formalist, liberalist assumptions of traditional civil rights regimes”, I cannot tell.  I hope AMI moves what was past to the present. - DreSmith

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M. Isabel Medina (Loyola-New Orleans) on "Why Arizona’s Prohibition of Ethnic Studies Violates Equality"...

This article from Isabel Medina should be read in conjunction with Maxwell Stearns’ piece on the five (not three) tiers of Equal Protections scrutiny.  The level of scrutiny is triggered by the use of race in statutes.  However, the question lingers what scrutiny to apply when the state seeks to foreclose the use of race in government.  Here, Arizona bans ethnic studies as representations of ‘racial hatred’.  Except, ethnic studies do not teach racial hatred, they improve educational outcomes and provide for a fuller more accurate historical pedagogy.

Medina argues that the Arizona statute should receive strict scrutiny, even though it does not reference a particular race the consequences it seeks are clearly racial in nature.  Maxwell Stearns might argue that ‘strict scrutiny’ is unnecessary, that the Court can scuttle laws it doesn’t like under “rational basis with teeth”, i.e., an inquiry into whether the law actually accomplishes its stated goal or whether the goal itself is stupid.  Here, the Court could very well hold that Arizona legislature had no rational basis to believe that ethnic studies courses inspire racial hatred.  The Court has recently engaged in similar legislative second-guessing in the Voting Rights Act case, Shelby v. Holder.

I offer a third route, upon which the Court scrutinizes the law to determine the extent the law remedies imperfections in the structure of the free market (proffered by the government defendant), including those relating to race, versus the extent the law creates or maintains asymmetries in the market relating to race.  With respect to education, the supposed free market depends on everyone having complete and correct information.  To the extent information provided in public school about or available to people of color is less accurate and less available, the market fails to deliver goods and services on a meritocratic basis.  Ethnic studies courses, therefore, fix rather impair the structure of the free market. 

Because the Arizona law against ethnic studies does not fix any serious imperfection in the marketplace (asymmetrical or otherwise), it must be set aside to the extent it is designed and will have the effect of exacerbating misinformation in the commercial market place, and asymmetrically so as it comes to people of color. - DreSmith

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Maxwell Stearns (Maryland) on the Equal Protection Clause and "Obergefell, Fisher, and the Inversions of Tiers"...

Professor Stearns explores the Supreme Court’s Equal Protection jurisprudence, the tiers of scrutiny specifically, and finds that there are five levels of scrutiny (rational basis, rational basis with teeth, intermediate, strict lite, and strict) when most commentators and the Supreme Court itself recognize only three (rational basis, intermediate, strict).  From a critical perspective, the Court chooses the scrutiny based on whether it wants to uphold or repeal the legislation in question; strict or rational basis with teeth to invalidate, and rational basis or strict scrutiny lite when approving.  From a formal perspective, Professor Stearns is frustrated by the Court’s lack of predictability regarding how categories are selected, particularly when a neutrally worded law as an obviously unstated purpose. 

I suggest a more ‘realist-economic-critical race’ approach, where the level of scrutiny is in part determined by, one of Professor Stearns’ ‘justificatory triggers’ ought to be, the degree with which the legislation in question creates or exacerbates asymmetrical market imperfections relating to race, gender, etc. (rationality, competition, information, transaction costs). 

Importantly, legislation can also be defended by the extent which it corrects market imperfections, including inequitable asymmetries relating to group subordination. 

Should the Court agree with Professor Stearns that the original framework is too malleable and therefore unpredictable, the consideration of asymmetrical market imperfections can be incorporated into the Court’s existing framework, or it can be a part of a new construct—.  I do not offer more specific way with which to determine the extent of the market imperfections, although I trust that any truly realistic and trustworthy econometric model (over which there will and should be relentless argument) provides a more objective, transportable and predictable process than what we now experience.

Except, the consideration of asymmetrical market imperfections cannot occupy the field, so to speak, because it does not deal all that well with claims based on violations of dignity.   Processing the first case applying strict scrutiny to invalidate a law against racial miscegenation through the lens of asymmetrical market imperfections (if the law were neutrally worded, that is) would cut both ways, because the harm would be hard (though clearly not impossible) to describe as a deep affront to the structure of the market, but also because the uselessness of the law can be demonstrated by how little it positively affects market structures.  DreSmith

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Margaret Hu (Washington & Lee) on “Algorithmic Jim Crow", Disparate Impact Relating to Security and Identification Vetting...

Professor Hu "contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on the back end in the form of designing, interpreting, and acting upon vetting and screening systems in ways that result in a disparate impact."


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Aziz Huq (Chicago) on "Disparate Impact and 'Stop and Frisk'"...

The economic impact and redistributive effect of discriminatory policing can be described as the asymmetrical distribution of society’s transaction costs and negative externalities.  It also perpetuates the myth of black inferiority, which represents asymmetrically imperfect information about black folks.  The aggregate trauma relating to unnecessary or abusive interactions with police cause black folks to withdraw from society in many ways, which can be described as asymmetrical commit to market rationality or profit maximization.

Aziz Huq offers a wonderfully thorough critique of the urban policing strategy known as “stop and frisk”.  He extends the conversation from Tracey L. Mears’, The Law and Social Science of Stop and Frisk, 10 Annual Review of Law and Social Science 335 (2014).

I would also note that Professor Huq introduces us to some important empirical studies relating to the racial environment or ecology of the ‘inner-city’.   For example, Patrick Sharkey, Spatial Segmentation and the Black Middle Class, 119 Am. J. Soc. 903, 905-06 (2014).  And, Douglas S. Massey & Jonathan Tannen, A Research Note on Trends in Black Hypersegregation, 52 Demography 1025, 1027-28 (2015).

As well as the government’s role in creating racially segregated and impoverished communities:  Myron Orfield, Land Use and Housing Policies To Reduce Concentrated Poverty and Racial Segregation, 33 Fordham Urb. L.J. 877, 888-89 (2006); Erika K. Wilson, Leveling Localism and Racial Inequality Through the No Child Left Behind Act Public Choice Provision, 44 U. Mich. J.L. Reform 625, 649-51 (2011) (analyzing the ways in which explicit government policies caused racial residential segregation in the suburbs and urban cities). Such policies also existed at the federal level. See Douglas Massey & Nancy Denton, American Apartheid: Segregation and the Making of the Underclass (1993). For a recent accounting in the legal scholarship, see Sarah Schindler, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment, 124 Yale L.J. 1934, 1955-56 (2015) (discussing the role of the Federal Housing Authority in fostering urban racial segregation)....

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Kristin Henning (Georgetown) on "Race, Paternalism, and the Right to Counsel"...

The economic impact and redistributive effect of racially biased public defenders taking on paternalistic roles over their African American juvenile clients can be described in terms of asymmetrically distributed transaction costs and negative externalities, in that incarceration is unevenly and inequitably distributed amongst violating youths.  Also, public defenders who operate under the myth of black inferiority reinforce asymmetrical market information about black people.

Professor Henning laments the prevalence of public defenders in juvenile cases who hold racial biases being expected to look out for the ‘best interests’ of their African American juvenile clients, instead of requiring zealous advocacy, strictly....

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R. A. Lenhardt (Fordham) on “The Color of Kinship”…

Issues regarding family law are a challenge to categorize as asymmetrical market imperfections.  In this article, Professor Lenhart examines the case of Cramblett, in which a white-lesbian couple sued a sperm bank for mistakenly giving them non-race concordant sperm, i.e., a Black man’s sperm.  A ‘wrongful birth’ claim that depends on blaming the blackness of a child for the travails of the parents reproduces the myth of black inferiority.  To the extent the harms the white parents experience are real, losses of social capital represents an asymmetrical transaction cost. - DreSmith

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