Social Justice

Martha T. McCluskey Nov. 9, 2010 Most Americans deserve a good economic spanking, says one commentary in a contemporary campaign to explicitly ground free market economics in religious morality (The Impending Economic Spanking).   Paul Krugman recently warned that the bipartisan embrace of austerity politics reflects a morality of self-flagellation more than economic logic (Mugged by the Moralizers). In legal academia, “social justice” tends to be discussed as a question of morals over economics.  Some advocates of Law and Economics have explained its value as a rigorous approach to the policy implications of law, turning debates about justice from abstract and subjective normative principles to more practical prediction and measurement of consequences. (Ulen 1992).   Going further, Kaplow and Shavell’s now-classic Fairness versus Welfare (2001) argues that individual well-being, based on empirically measurable and self-defined tastes and preferences, should be the sole measure of justice.  As law professor Oren Kerr remarked (in a 2008 posting to the Volokh Conspiracy blog), “’social justice’” is a keyword for the point of view that it is more important to work towards an equitable distribution of wealth than it is to foster maximum growth of wealth. Any mature person realizes that those are both laudable goals that cannot, unfortunately, be simultaneously realized.” Advocates of “social justice” tend to accept this framework, while defending the morality of equity over the individualistic and consequentialist goal of economic wealth-maximizing.

Written by Martha McCluskey Nov. 5, 2010 Why was the message of austerity so appealing to economically insecure voters in this week’s election?    A more intellectual version of this passionate opposition to social spending, regulation, and deficits has become conventional wisdom in legal academia, thanks in part to several decades of lavishly funded law-and-economics programs. The populist enthusiasm for austerity helps bring out a striking tension within the familiar efficiency-maximizing ideal of law-and-economics.   Efficiency is supposed to stand for increasing the size of the economic pie – for aggregate growth or maximization of resources (sometimes termed “welfare”) – as opposed to distribution of the economic pie (equity or fairness).   It teaches that soft-hearted liberals and progressives might want to spread the wealth around, based on our concern for some group of have-nots, but we will end up doing more harm than good to those have-nots if we don’t subject our compassion to a hard-nosed rationality that weighs the benefits of redistribution against the costs to growth.   If we choose policies aimed at equity for the have-nots over aggregate growth, we will end up with fewer resources to distribute, with the result of increasing the problem of have-nots.  So, the truly compassionate and moral – and rational – policy is to maximize overall growth, which should make it easier (and fairer) to spread the wealth around. Yet how does law-and-economics teach us to maximize growth?  Typically, by promoting austerity.

Posted by Lisa R. Pruitt A headline in today's NYT proclaims, "'Culture of Poverty,' Once an Academic Slur, Makes a Comeback." Journalist Patricia Cohen writes of a new (or renewed) academic turn to discussions of poverty in relation to culture, and she recalls a time when such discussions became politically incorrect. The reticence was a legacy of the ugly battles that erupted after Daniel Patrick Moynihan, then an assistant labor secretary in the Johnson administration, introduced the idea of a “culture of poverty” to the public in a startling 1965 report. Although Moynihan didn’t coin the phrase (that distinction belongs to the anthropologist Oscar Lewis), his description of the urban black family as caught in an inescapable “tangle of pathology” of unmarried mothers and welfare dependency was seen as attributing self-perpetuating moral deficiencies to black people, as if blaming them for their own misfortune.

Written by Joanna L. Grossman An appellate court in Florida recently struck down the state's ban on adoption by gays and lesbians (the only such law in the nation).  The Department of Children and Families announced last week that it will not appeal the ruling, but the state's attorney general, Bill McCollum, has authority to take the case to the Florida Supreme Court to defend the constitutionality of the statute. The law at issue, Fla. Stat. § 63.042(3), was enacted in 1977, as part of former Miss America and orange juice spokeswoman Anita Bryant's national campaign to "save our children" from homosexuals.  The law provides that "No person eligible to adopt under this statute may adopt if that person is a homosexual."  By interpretation the law was limited to "practicing" homosexuals, but it has been routinely invoked to deny petitions by gays and lesbians to adopt children, even in cases where the adults were already serving as foster parents to the children they sought to adopt. It seems improbable that this law could have survived the U.S. Supreme Court's ruling in Lawrence v. Texas (striking down a Texas law criminalizing same-sex sodomy on substantive due process grounds) and Romer v. Evans (striking down an anti-gay referendum in Colorado on equal protection grounds).  Yet, the Eleventh Circuit Court of Appeals upheld the law against a constitutional challenge in Lofton v. Secretary of the Department of Children and Family Services (2004).

Written by Joanna Grossman As millions of young athletes hit the playing fields this fall, we should take stock of all the strides that have been made towards gender equity in athletics -- and all that could still be done.  A new book by Deborah Brake, University of Pittsburgh School of Law, does this brilliantly.  Getting in the Game: Title IX and the Women's Sports Revolution (NYU Press 2010) is a detailed, compelling, and readable account of Title IX and the ongoing quest for gender equity in sports. In the book, Brake considers Title IX's impact on athletics from its passage in 1972 through 2010.  An iconic law that has inspired everything from blogs, sit-ins, and t-shirt slogans to vicious backlash, Title IX is widely credited with opening the doors to the massive numbers of girls and women now participating in competitive sports.  Yet, few people fully understand the law's requirements, its enforcement mechanisms, or the extent to which it has succeeded in challenging the gender norms that have circumscribed women's opportunities as athletes and their place in society more generally.

Every now and then I have to turn off the news, totally, foregoing even my beloved The Daily Show with Jon Stewart. It’s my sanity break, imposed to give me a mental holiday from everything over which I feel helpless. This most recent interval without hyperbolic headlines brought to light a sad, new question: have we become ungovernable?

Dr. Martin Luther King, Jr. observed in 1963 that "it is appalling that the most segregated hour of Christian America is eleven o'clock on Sunday morning."

“I dreamed I saw Joe Hill last night….” Organized labor is struggling.

Written by Adrien Wing In 1776, Abigail Adams wrote her husband John Quincy that he and the other men considering a declaration of  independence  should “remember the ladies.” Of course, we know that the men of that era did not do so in the declaration or subsequent constitution, and we remain without gender equality in our governing document up until today. The east African nation Kenya now joins the list of modern era countries that have not forgotten gender equality on paper, even though there are numerous deeply rooted patriarchal practices such as polygamy and female genital surgery, among others.

Written by Lisa R. Pruitt In a recent post, I commented on what the film “Winter’s Bone” might reveal about white privilege.  There I discussed Ree Dolly, the film’s heroine, in the overwhelmingly white context of Taney County, Missouri, where the median household income is about 75% of the national median.  (In neighboring persistent poverty Ozark County, which seems more reflective of Ree’s milieu as depicted in the film, the median household income is about 65% of the national figure).  Now I want to discuss Ree’s whiteness and socioeconomic disadvantage in a broader context. What if Ree goes off to Southwest Missouri State in nearby Springfield, Missouri?  or even the University of Missouri?  First, should she be the beneficiary of affirmative action in getting there?  In my opinion, absolutely.  (Read a recent discussion regarding the lack of white, lower class and rural privilege in college admissions here and here).  She would bring diversity of life experience to the student body, and she represents extreme socioeconomic disadvantage.

Written by Lisa R. Pruitt This story, "Placing the Blame as Students are Buried in Debt," caught my attention when it appeared in the New York Times in May.   The report features Cortney Munna, a 26-year-old NYU grad who is buried under $100,000 of student debt.  Journalist Ron Lieber tells us that Ms. Munna would "struggle" to make her student loan payments if she had to, but she's been deferring them since her 2005 graduation, in part by taking night classes.  Lieber writes: "This is not a long-term solution, because the interest on the loans continues to pile up. So in an eerie echo of the mortgage crisis, tens of thousands of people like Ms. Munna are facing a reckoning. They and their families made borrowing decisions based more on emotion than reason, much as subprime borrowers assumed the value of their houses would always go up." This story, which also appears under the headline, "Another Debt Crisis is Looming, This One in Student Loans," discusses the range of stakeholders who could be blamed for the situation in which Ms. Munna and many others find themselves:  the universities, the parents, and--of course--the lenders.  At one point Lieber suggests a "shared failure of parenting and underwriting."  He continues: "How could her mother have let her run up that debt, and why didn’t she try to make her daughter transfer to, say, the best school in the much cheaper state university system in New York? 'All I could see was college, and a good college and how proud I was of her,' [her mother] said. 'All we needed to do was get this education and get the good job. This is the thing that eats away at me, the naïveté on my part.'”

Written by Lisa R. Pruitt Progressive law professors talk a lot about privilege, including white privilege.  If we're white (like I am), we try to be aware of it and not re-create it.  Law professors of color remind us that we benefit from it. Writing about rural people in relation to the law, which I have been doing for a few years now, has put me in an awkward position in relation to white privilege.  A lot of my work is about rural disadvantage and class, and I've been told my work is "very white."  The presumption about whiteness in my work is probably because rural places are popularly associated with stasis and homogeneity—and with white people in particular.  But I’ve written a lot about the sort of entrenched, inter-generational poverty that defines what the U.S. government labels persistent poverty, and the reality is that most persistent poverty counties are dominated by a cluster of a single racial/ethnic group:  Latina/o (Rio Grande Valley), African American (the Mississippi Delta and Black belt), American Indian (the Great Plains and Southwest) and, yes, white (Appalachia, the Ozarks plateau, the Texas panhandle).  A few of my articles have discussed racial and ethnic minorities in rural and/or persistent poverty contexts; examples are here, here and here. I have also written about impoverished rural white communities, and I do admit to being concerned about them, too.  Which brings me to Ree Dolly, 17-year-old heroine of “Winter's Bone,” the critically acclaimed indie film that won the Grand Jury Prize for Drama at Sundance this year.  The film is set in the Missouri Ozarks, about 50 miles from where I grew up in the Arkansas Ozarks, so when it began to garner media attention in the run up to its national release, I found myself holding my breath.  Who and what would it show—and how authentic would the depiction be?  Was “Winter’s Bone” going to be the 21st century “Deliverance”?  In fact, “Winter’s Bone” is pretty ugly, a very difficult film to watch.  It is also, I must admit, quite authentic in its depiction of a certain milieu.

Written by Michael Avery Thanks to SALT for an opportunity to serve as a guest blogger.  I'm just finishing up my portion of the annual supplement to Police Misconduct: Law and Litigation, a civil rights treatise that I write together with David Rudovsky and Karen Blum.  This is a good chance to share what's happening in that field with those of you who don't handle those cases or follow that law. For the past forty years (ouch!) I have been suing cops who violate the Constitution when they arrest, search, beat up and shoot people.  When I first got started in this business, cops who thought they might get in trouble for shooting unarmed suspects used to carry throwdown guns, also known as drop guns.  After they shot the guy, they would simply plant the throwdown gun near his hand or in his belt. Now they could say they shot him because he had a weapon and was threatening the officer, or someone else. The cops who didn't carry drop guns had a tendency to see shiny objects that looked liked guns in the hands of the suspects they shot, just before they shot them. This was also a good defense to an excessive force claim by the relatives of the deceased suspect.  The suspect didn't really have to have a gun; the shooting would be legal if the officer reasonably believed that he saw a gun in the deceased's hand.

Written by Adrien Wing The 2012 Project was just in the news today. Quoting the purpose of the organization from its website, it “is a national, non-partisan campaign to increase the number of women in legislative office by identifying and engaging accomplished women 45 and older from underrepresented fields and industries. These include finance, science, technology, energy, health, environment, small business and international affairs.”  It is shocking that the US is 74th in the world in terms of female representation, with only 17% females in Congress and 25% in the state legislatures.  I agree with the 2012 Project that we need to increase the number of women. I think that there are a number of things that need amending in our nation’s approach to this problem and even in the 2012 Project approach. The law remains a logical profession to draw future politicians from. While some of the people in the 2012 Project’s targeted fields such as finance, small business, environment, and international affairs in particular may be likely to  have had legal background,   practicing female lawyers should not be left out. The skill set remains invaluable in so many ways suitable for a legislator.   I would also think that the number of women lawyers potentially interested has got to be significantly greater than the numbers of female doctors or businesswomen.

Written by Lisa R. Pruitt I've been thinking a lot (and writing some, too) about the links between poverty and place for several years, spurred by my interest in rural populations and critical geography.  I have become increasingly convinced that place plays a profound role in who is impoverished and who isn't.  Think about how unevenly our own nation is developed and the spatial inequalities that result in terms of access to education, jobs, and both public and private services.  (Some recent articles are here and here). So it's not surprising that this item recently in the New York Times caught my eye:  "Was Today's Poverty Determined in 1000 BC?"  The story by Catherine Rampell reports on a recent study by Diego Comin, William Easterly and Erick Gong.  They gathered "gathered crude information on the state of technological development in various parts of the world in 1000 B.C.; around the birth of Jesus; and in A.D. 1500" and then compared this to current per capita income in today's nation states.   Rampell's report is accompanied by a scatterplot that depicts the relationship between a country's present wealth and the state of its technological development in A.D. 1500.  It turns out that the latter is "an extraordinarily reliable predictor" of the former.

Immigrants partial judicial victory in Arizona against SB 1070 a day before the law was to go into effect did not stop protesters from marching.

Written by Adrien Wing In preparation to be a guest blogger, I read all the previous posts as I felt out of the loop. I am now living half of the year outside the United States. In the spring, I am director of the London Law Consortium, a group of seven law schools holding classes and activities in the heart of the city. In May and June, I am director of the University of Iowa College of Law’s summer program in Arcachon, France, and then I take the students to the Middle East. I always feel culture shock upon returning to the US, even though I have been an international and comparative law person for 28 years, 23 as a professor teaching international human rights and Law in the Muslim world.  I also teach US subjects like Critical Race Theory and US Constitutional Law.  I basically consider almost everything I do human rights, just some is in the US and some abroad. What is most interesting to me in the blogging so far and in the progressive justice community generally, is the lack of global contextualization for most of what happens in the US in many instances. I know it’s hard enough to become expert and stay up to date on even minor aspects of our fields in the US. Yet, I have found that getting comparative angles actually enhances my understanding of the possibilities to consider here, whether currently or in the future. Even if we ultimately reject these options, it teaches us something more about ourselves and our society.  

Written by Adrien Wing If you were a legal advisor to Shirley Sherrod, would you advise her to  accept a new job at the Department of Agriculture? Would you advise her to just accept the apology and promotion, and  get back to the work to which she…

Crowley is duty-bound to keep the peace and trained to deal with conflict; Gates is a professor, he is neither obligated nor trained to keep his cool.

Written by Lisa R. Pruitt The closing line of my recent blog post asked:  "Is even democracy a luxury for the poor?" Shortly after writing it, I came across this quote by Senator John D. Rockefeller IV, featured in the obituary of Senator Robert C. Byrd who died last week.  Regarding the vast federal aid that Byrd garnered for West Virginia over the years, Rockefeller said Byrd knew that “before you can make life better, you have to have a road to get in there, and you have to have a sewerage system.” This comment resonated with me, struck me as accurate.  Yet it ran counter to my thinking about Robert C. Byrd for the past few decades.  While I have always considered Byrd a fine man (well, aside from his Klan membership as a younger man) and appreciated his dedication to the Senate, I saw him primarily as a poster child for the excesses of pork barrel politics.  Rarely was he in the news, it seems, without some mention of the federal aid he was able to channel to West Virginia.  Indeed, his obituary in the New York Times states that he built, "always with canny political skills, a modern West Virginia with vast amounts of federal money."  Elsewhere, it includes this quote from Senator Byrd himself, “I lost no opportunity to promote funding for programs and projects of benefit to the people back home.”  He referred to West Virginia as "one of the rock bottomest of states."