|Stephen P. Berzon, Ana Avenda o, Jonathan B.
Forman, Kent Greenfield, Patricia A. McCoy, Ann M. O'Leary, Michael
Selmi, Marion Crain, How Law Constructs Wealth Patterns , 15
Georgetown Journal on Poverty Law and Policy 509 (Summer, 2008)
Stephen Berzon: Good morning. It struck me yesterday
listening to Bob Kuttner's opening talk and then listening to the
previous panel how, to some degree, history has a way of repeating
itself. Back when I was first starting to practice law in the late
1960s and working in legal services, I can recall participating in
many programs that addressed the various legal issues surrounding
There was a huge effort at that time, made as part of the War on
Poverty, to deal with wealth inequality from a legal perspective.
There were thousands of outstanding poverty lawyers around the
country who were litigating these issues. It may seem hard to
believe now but every year, for about a ten-year period, the Supreme
Court had one, two or three major poverty law cases on its docket,
and they were major issues of the term: cases like Rosado v.
Wyman, King v. Smith, Goldberg v. Kelly, one that I was
fortunate enough to argue, California Department of Human
Resources v. Java, Mathews v. Eldridge, Dandridge v. Williams--I
could go on and on. When was the last time the United States Supreme
Court heard a significant poverty law issue?
So it is very welcome that in this panel we are beginning to
revisit and reopen these issues, and what is particularly exciting
is we are not doing it strictly from a legalistic framework but from
a legal policy framework, which I think is very important.
Our panelists bring to the table a myriad of experience in a
variety of different areas. I'm going to introduce them briefly.
Their biographies are set forth in your material; I will introduce
them in the order they are going to speak.
Jonathan Forman is the Alfred P. Murrah Professor of Law at the
University of Oklahoma where he specializes in tax, pension and
elder law. Professor Forman has written extensively, not only
scholarly articles but in the public press, and he previously served
as tax counsel to Senator Daniel Patrick Moynihan, whom as all of
you know, was a major player on the Senate Finance Committee for
many years. Professor Forman earned his law degree from the
University of Michigan.
Ana Avenda o is associate general counsel of the AFL-CIO. She is
also the director of the Immigrant Worker Program at the AFL-CIO,
and she was a major player in the immigration policy debate
occurring in Washington and throughout the country these past few
years. Ana has previously worked in private practice, worked at the
National Labor Relations Board and worked for the United Food *510
and Commercial Workers. She has been a U.S. Worker Representative to
the International Labor Organization, and she is a graduate of
Georgetown Law School.
Our next panelist is Professor Kent Greenfield. He is Professor
of Law at Boston College Law School. He specializes in business law
and economic analysis of law. He is an expert in the American
corporation and how corporate law impacts upon wealth inequality,
and he has written extensively in the field. He is a graduate of the
University of Chicago Law School and, among other clerkships, he
clerked for Justice David Souter on the United States Supreme Court.
Patricia McCoy is the George J. and Helen M. England Professor of
Law at the University of Connecticut in Hartford, where she teaches
banking and securities regulation, corporate governance, retirement
security law and consumer finance law. She has written extensively
about predatory lending and particularly about subprime mortgage
issues. She is a graduate of Boalt Hall, the University of
California law school in Berkeley, and she clerked after her
graduation for an outstanding federal judge, Robert Vance, who, as
we will all remember, was tragically assassinated by a letter bomb
because of his civil rights decisions.
Ann O'Leary is our final panelist. Ann is presently Deputy City
Attorney for the City of San Francisco. She works on impact
litigation in the City Attorney's affirmative litigation unit. She
also specializes in campaign and election law for the City. She was
a law clerk for Judge John Noonan in the Ninth Circuit, and she is
also a graduate of Boalt Hall. Prior to coming to California, she
worked in the White House during the Clinton administration, and she
was legislative director for Senator Hillary Clinton for several
years. Ann has recently written an article on family medical leave
and how it does not serve the needs of poor women, and she is going
to talk about that today.
So why don't we start with Professor Forman who is going to talk
to us about tax policy and its effects on wealth inequality.
Jonathan Forman: [FNa2] Thank you for this opportunity to
share my thoughts with you on how to reduce wealth inequality. In my
remarks today, I will talk about how government policies influence
the distribution of income and wealth, and I will offer some
recommendations about how our tax and transfer systems can be
reformed to promote greater economic justice.
In a complex society such as ours, the distribution of economic
resources is determined by a combination of market forces and
government policies. Markets arise automatically from the
interactions among people and institutions and, here and there,
government policies intervene to influence the operations of markets
and their ultimate outcomes. Needless to say, policymakers cannot do
much about market forces. Adam Smith's laws of supply and demand are
as immutable as Newton's laws of thermodynamics. But policymakers
can influence how governments intervene in the economy.
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*511 In that regard, governments influence market outcomes in
three ways: through regulation, through taxation and through
spending. Government regulation defines and limits the range of
markets and so influences the shape of the initial distribution of
income and wealth. Government taxes and spending also influence the
distribution of income and wealth. Most clearly, taxes and welfare
programs are the primary tools for redistribution.
As many panelists have explained, there is substantial inequality
in the distribution of earnings, income, consumption and wealth in
the United States. The distribution of consumption is the least
unequal, while the distribution of wealth is the most unequal.
Earnings and income fall in between. Pertinent here, household
income inequality has increased dramatically over the past few
decades. For example, in 2005, the average household in the richest
20 percent of American households had almost fifteen times as much
income as the average household in the bottom 20 percent of
households, but that is up from ten times as much in 1975. [FN1]
Worse still, the richest 5 percent of American households, had more
than twenty-six times as much income as the typical household in the
poorest 20 percent, and that is up from fifteen times as much in
Wealth inequality is even more unequally distributed. In 2004,
for example, as *512 we heard yesterday, the top 1 percent of
American families had 34 percent of the wealth of the country and
the top 20 percent had 85 percent of all household wealth. [FN3]
Meanwhile, the bottom 80 percent had just 15 percent of household
wealth and the bottom 40 percent of American households had way
under 1 percent of the wealth in the country. [FN4] Worse still,
wealth inequality is perpetuated through countless generations as a
substantial portion of wealth is passed on through inheritance.
* * * *
It is probably impossible to measure the full impact of the
government on the distribution of economic resources. In particular,
it is difficult to estimate the impact of government regulation
on the distribution of economic resources. We simply do not start
from a Hobbesian state of nature only to have government impose a
regulatory framework on it. Rather governments define and limit the
realms of market competition. These activities both enhance the
ability of markets to create wealth but they also influence how that
wealth is distributed.
For example, government grants of patents not only encourage the
creation of tradable properties, they also make sure that patent
holders can get quite wealthy; the same goes for copyrights and
trademarks. My example for this week is that Elvis Presley last year
earned $49 million, and he has been dead for forty years. *513 But
he had copyrights and other rights in his products that go on to his
next generation of family.
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Regulations also grant monopolies to utilities, to broadcasters
and to liquor stores and it is difficult to estimate the impact of
that on the distribution of income and wealth.
On the other hand, we get a very good idea about how taxes and
transfers influence the distribution of income and wealth. According
to the Census Bureau, the current mix of government tax and transfer
policies reduces household income inequality by about 20 percent.
Is that enough? I don't think so. We have a very unequal society
and we need to do more. Now, it is unlikely that we can all agree as
to a particular distribution of income and wealth that is
fair or morally justified, but given how unequal things are today,
there is a lot that government can and should do to achieve greater
In particular, as many of the speakers have said, we should focus
our efforts on increasing the economic rewards for low-income
workers. This will increase *514 their participation in the
workforce, their productivity, their incomes, and, ultimately, their
wealth. In the regulatory arena, for example, we recently helped
low-income workers by raising the minimum wage. I hope that we will
eventually index the minimum wage for inflation so that we never
again see a year, or in this case, an entire decade, without any
increase in the minimum wage.
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Several of the other panelists earlier today and on my panel are
going to talk about regulation so I will confine the rest of my
remarks to how we can improve economic justice by using the tax
system and the transfer system.
First, let us consider taxes. Over the years, the federal
government has increased its reliance on individual income taxes and
payroll taxes, and it has decreased its reliance on corporate income
taxes, estate and gift taxes, and other sources of revenue.
In effect, there are now two taxes on earned income: income taxes
at rates up to 35 percent and Social Security payroll taxes at rates
of 15.3 percent. The cumulative effect of those two taxes is to
discourage work and subject many workers to essentially confiscatory
tax rates. Meanwhile, the taxes on wealth and on investments have
fallen dramatically. The maximum tax on dividends and capital gains
is just 15 percent and the estate tax is scheduled to disappear. In
short, as Warren Buffet, one of the richest men in the world, said
this week, he faces a lower tax rate than his secretary. [FN6]
*515 If it were up to me, I would combine the income tax and the
payroll tax into a single comprehensive income tax system with a
broad base and low tax rates on earned income. In particular, I
would repeal most of the special tax breaks for investment income. I
would repeal the special rate for capital gains and dividends. That
would raise $130 billion a year, and we could lower the rates on
earned income. [FN7] I would also keep the current estate tax or,
alternatively, replace it with an annual wealth tax. A number of
European countries already have wealth taxes. Those systems have
high exemptions to make sure that those of us without much wealth
pay essentially no wealth tax but the very wealthy do pay a lot of
wealth tax, perhaps even 2 or 3 percent of their wealth each year.
Even a modest wealth tax, according to New York University economist
Edward Wolfe, could raise about $40 billion a year. [FN8]
We should also redesign our welfare system. Right now we have
eighty-five separate federal programs that provide income-tested
benefits to low-income families. [FN9] To keep costs down, virtually
every single one of these programs has a phase out mechanism, and
what that means is that the beneficiaries are ultimately subject to
extraordinarily high confiscatory tax rates. Those families earning
between $10,000 and $40,000 a year can face taxes on their income,
payroll taxes, the loss of food stamps, the loss of Medicaid and the
loss of housing allowances. They can face marginal tax rates that
hit 88 percent, and in some cases their marginal tax rate can even
exceed a 100 percent. [FN10]
I believe that we should replace most of the current welfare
system with a system of refundable tax credits. The general idea is
to "cash out" as many welfare programs as possible--from food stamps
to housing subsidies. And we should use that money to pay for a
system of refundable earned income tax credits, personal tax
credits, child care tax credits and health care credits.
First, to encourage work we should have a $2,000 per worker
earned income tax credit computed as 20 percent of the first $10,000
of earned income. Along the same lines, Congressman Charles Rangel,
Chairman of the House Ways and Means Committee, recently proposed
doubling the earned income tax credit for workers without children.
A $2,000 per worker earned income tax credit would act as an earning
subsidy, and earning subsidies tend to increase work ethics. They
also tend to increase employment opportunities. By increasing the
compensation paid to low-wage workers at no cost to their employers,
*516 earning subsidies actually increase the demand for low-skilled
workers and provide better incomes to those low-skilled workers when
they enter the workforce.
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We should also replace personal exemptions, standard deductions,
child tax credits and much of the current welfare system with a
system of universal $2,000 per person refundable tax credits. If
that sounds like McGovern "demogrants," it was a good idea then and
it is still a good idea. Giving every family $2,000 per person would
really help out single mothers. A single mother with two kids would
get three $2,000 credits, that's $6,000. Assuming she is working a
full-time minimum wage job, she would get another $2,000 earned
income tax credit--that's $8,000, and she would be well over the
poverty level when you put all that together.
We also need to think about child care, as has been mentioned. It
is another way of subsidizing low-income workers. We should make the
child care tax credit refundable and perhaps even have it replace 50
or 80 percent of the child care costs for low-income workers.
Finally, we need universal health care. Here we should cap the
exclusion for health care benefits that most upper middle income
people get from employer-provided health insurance and convert the
tax benefit into a refundable tax credit that would help the people
who do not have health care, cannot afford health care and would not
get it unless we do something about it. Obviously there is more to
do to have a universal health care system. Here again, a universal
health care system is also a wage subsidy that could have a great
impact on the inequality of income in America.
In conclusion, I believe that the government can and should
intervene in the free market to reduce economic inequality. We
simply do not have to settle for a *517 society in which the top 5
percent of Americans earn dozens of times as much income as the
bottom 20 percent and have hundreds of times as much wealth. In the
words of James K. Galbraith, "The economy is a managed beast. It was
managed in such a way that this was the result. It could have been
done differently." [FN11] Let us work together to find different and
better ways to manage our economy and to reduce economic inequality.
Ana Avenda o: I am going to focus my remarks today on work
and workers and, more specifically, on the growing low-wage labor
market and the various ways that law functions not only to entrench
inequality but, unfortunately, to promote and feed it.
What jobs are we talking about when we talk about the low-wage
labor market? It is an interesting question because the answer is
different today than it was fifteen years ago, than it was thirty
years ago. Today the jobs in the ever growing low-wage labor market
are in agriculture, construction, child care, home health care,
building services, hospitality, and meatpacking and poultry. The
demographics of this labor market are also changing. Right now about
25 percent of all low-wage workers are foreign-born workers. [FN12]
I want to focus first on the jobs that are part of this labor
market because one of the things that I notice in my work all the
time is that the transformation of the market as far as the kinds of
jobs that are now low-wage jobs is often ignored. Here is what I
mean by that. In the 1970s, meatpacking workers in the United States
earned the highest average manufacturing wages-- higher than auto
workers on the average--and meatpacking workers in the 1970s were
part of the middle class. [FN13]
Today, meatpacking workers are not part of the middle class but a
part of what Katherine Newman and Victor Tan Chen call the missing
class, workers who are just a paycheck away, a divorce away, one
health care crisis from poverty. [FN14] We don't need to discuss why
that is on this panel today. I raise this issue only to remind us
that there is nothing inherent, natural or pre-determined about the
skills or the job itself that determines whether it is a low-wage
Jobs in the low-wage labor sector have long been defined by
systematic violations of wage and hour and other employment laws.
The last time the Department of Labor conducted an industry-wide
compliance investigation in 2000, it determined that the poultry
industry, for example, was 100 percent out of *518 compliance with
the Fair Labor Standards Act. [FN15] Department of Labor
investigations in the garment sector and in agriculture and
construction also revealed massive and systematic violations of wage
and hour laws. [FN16]
Instead of implementing any viable mechanisms to remedy these
systematic violations, the Department of Labor under the Bush
administration has simply ignored them. Over the last three decades,
and mostly over the last six years, the Labor Department has
significantly reduced the resources that would go to enforcement.
From 1975 to 2004, the budget for the Wage and Hour Division has
decreased by 14 percent and enforcement actions decreased by 36
percent. [FN17] By 2007, the Department's overall budget wage and
hour law enforcement was 6.1 percent less than before President Bush
took office. [FN18] Today, there is one labor inspector for every
110,000 workers covered by the Fair Labor Standards Act. [FN19]
What this means, and the reality for low-wage workers, is that
there is no viable system of labor inspection in the United States
today. The Bush administration has essentially neglected its
enforcement role and that is no accident. In fact, Secretary of
Labor Chao has abandoned audits and compliance investigations in
favor of what she calls "compliance assistance programs," which
instruct employers about their obligations under the law.
Without a viable system of labor inspections, workers are left
with two established mechanisms of being able to enforce labor
standards. One is complaint-based enforcement actions and the other
is collective bargaining. Under current conditions, neither is
within the reach of low-wage workers. Worker complaint-driven
systems--in other words, private enforcement--have proven
particularly ineffective for low-wage and foreign-born workers who
face serious barriers to pursuing complaints with the Department of
Labor or the courts, including language barriers and lack of
knowledge of U.S. labor and *519 employment laws. Additionally,
private lawsuits are simply not available to low-wage workers
because they cannot afford access to the courts.
The other option available to workers right now is the
traditional collective bargaining model and, again, you have heard
about the state of the American labor movement and labor law this
morning, and you are going to hear about it again this afternoon,
but the reality is that today, workers in the United States do not
have the ability to form unions because the law in both theory and
in practice does not allow freedom of association.
So what is the answer for low-wage workers? What do they have to
look forward to? What can they do? There are three basic responses.
First, we have to reform the labor law. The Employee Free Choice Act
is fundamental. It has to happen and it needs to happen, not today
but yesterday. Second, we need to elect a president with an
administration that is going to restore one of the fundamental
functions of government: enforcement of the law. Third, we have to
think around the law. Not rely on the law to support and enforce the
work that we are doing but figure out new ways to circumvent it.
One of the ways that we have been doing that at the AFL-CIO is
working in collaboration with worker centers around the country.
These are groups of unorganized, mostly immigrant workers, who work
in the industries that Judy described earlier where there is no
right to collective bargaining: domestic workers and independent
contractors, for example. Last summer, our executive counsel passed
a resolution allowing these worker centers to affiliate with our
central labor counsels and state federations. [FN20]
The goal here is to work together; to bring these parallel labor
movements together to enforce labor rights in a way that we may not
be able to do right now. Our belief is that by working with workers
who are not organized in the traditional sense of bargaining and who
are also, in many instances, disenfranchised, by bringing them into
the larger labor movement we are lifting standards for all
workers--a very fitting project. I am happy to answer any more
questions about this or anything else later. Thanks.
Kent Greenfield: [FNa3] I am here as an evangelist for the
idea that corporate law matters. It ought to matter to those of us
in the room who count ourselves as progressives, who count ourselves
as people who care about income and wealth inequality. I am
particularly aiming my comments at law students here because I want
to talk about corporate law in ways that you are probably not
hearing in school.
I believe that corporate law is part of the problem and can be
part of the solution to economic inequality in the United States and
indeed the world. Of the hundred most powerful economic actors in
the world, more than half are *520 corporations. [FN21] If we can
figure out a way to make corporate law, the rules of corporate
governance, more progressive and more attuned to these needs, then
we have a tiger by the tail and we might be able to use this tool in
a very impressive and important way.
I will echo most of the scholars who have spoken before me to say
that corporate law is not part of the natural order. It did not come
from heaven or from nature that shareholders are supreme and that
shareholders ought to be the stakeholder of the firm to whom
managerial duties are owed. That is a choice of the law that we have
made as a polity, or actually that Delaware has made for us as a
polity, over the last century. It has not always been that way in
the United States. It is not that way now in other countries and we
could choose differently. Such changes would have an effect because
corporate law is part of the problem.
Why do I say that? If you have been to law school or know enough
about law to know what the black letter of corporate law is, it is
that shareholders win. When we think about shareholders and
managerial duties, we think of them as owners. In fact, we have been
using that language here today. I think it is language that is
misleading and that we should banish. Shareholders are not owners.
They are one of a number of investors of the firm. But the law says
that when managers have to make a decision between benefiting
communities or benefiting shareholders, the shareholders must win.
When the managers have to make a decision between benefiting
employees or shareholders, the shareholders must win. When the
managers must make a decision between doing something that benefits
the environment or the shareholders, the shareholders must win.
One of the problems with this rule is that a rule that
shareholders win is a rule that says rich people win. Almost 60
percent of all the capital wealth in the United States is owned by
the richest 1 percent of Americans. [FN22]
Shareholders win in part because management, to the extent that
it can, transfers wealth from labor. The Economic Policy Institute
has suggested that if capital income, or the percentage of returns
to capital, were the same now as they were in 1979, wages would be 5
percent higher. [FN23] From the standpoint of a concern about
poverty in America, part of the problem is that shareholders win,
and part of how they win is that they squeeze wealth from
This is made worse these days with the increasing concentration
of share ownership by institutional investors. Sixty percent of the
stock market is now *521 owned by institutional investors: hedge
funds, insurance funds, mutual funds and the like. [FN24] Those
shareholders have special incentives to maximize the profit returned
in the short term. Thus, not only do we have a trend toward more
shareholder primacy, we have a trend toward more short-termism.
Management is squeezed to say, "We need to focus more and more on
share price as the proxy for our success." They are also squeezed
temporally to say, "We cannot look at the long term, we must look at
the short term because if we look at the long term, we're going to
be punished now."
A couple of data points to underline my argument here: the
typical share turnover for Fortune 500 companies is now over a 100
percent, meaning that the typical share for a big company in the
United States is held for less than a year. [FN25] If you have a
plan to fight global warming, to build human capital among your
employees by offering technology training or--for that matter--to
obey the law, and the returns on these projects are going to be seen
more than a year out, then you are likely to be punished in the
market today for making that decision. In fact, in a recent study of
corporate executives, 80 percent admitted that they would make a
decision that would hurt the company in the long term in order to
meet short-term expectations from Wall Street. [FN26] So
short-termism and shareholder primacy are both symptoms of a problem
that finds its roots in corporate law.
We can add to that a story about CEO pay. The average CEO for a
Fortune 500 company makes about $10 million a year, equaling about
10 percent of corporate profits. [FN27] In 1965, the CEOs of major
U.S. companies earned twenty-four times that of an average worker.
By 2007, this ratio had ballooned to 360 times the average worker.
[FN28] In other words, a CEO earns more in one day than what the
average worker earns in 52 weeks. The median CEO saw his total
compensation increase 186 percent between 1992 and 2005, while the
median worker saw wages rise by only 7 percent. [FN29]
While it is certainly true that there are examples of situations
where this excessive compensation is inconsistent with shareholder
benefit, I believe that by and large it is a product of the focus on
shareholders and short-term profits. Executive compensation has
become the carrot that shareholders use to entice management to
focus primarily on shareholder value (and consequently to disregard
other stakeholders). In this view, high executive compensation is
evidence of shareholder primacy. When executives are called on to
justify their high salaries, they point not to the value of the
company in creating jobs or *522 providing useful goods and
services, but to shareholder gain.
While the increase in CEO and executive salaries by itself adds
to economic inequality, the collusion between executives and Wall
Street creates a snowball effect. Neither has an incentive to slow
the push for more and more income for themselves--shareholders keep
getting theirs, managers keep getting theirs and those who gain
their livelihood from wage work are left further and further behind.
Managers are not compensated for how they benefit their employees or
the communities where they do business. Money spent for those things
is regarded as costs, not profits, and those mere accounting
conventions reveal the underlying assumption within corporate law
that shareholders are the only owners and it is their fortunes that
I believe that corporate law is part of the problem.
But I am a dreamer as well as a critic. I think corporate law can
be part of the solution. Now why is that? As I said before, it can
be an incredibly powerful tool. We have been talking about income
and wealth inequality; the largest source of wealth creation in the
United States and perhaps throughout the world is corporations.
Wouldn't it be neat if we thought of the wealth that is created by
corporations as belonging not just to shareholders but also to
employees and communities? We need to change the way we think and
talk about corporations and the variety of different investors in
the firm, including employees. [FN30]
What would it mean if we changed our mindset about
corporations--from being owned by shareholders, to instead being
entities that have a lot of different contributors?
One thing we could do is change the nature of fiduciary duty. I
believe management ought to owe a fiduciary duty to the firm as a
whole and define that as all the stakeholders, all the investors in
the firm. We can enforce that in the same way that we enforce
fiduciary duties now: people can sue. Now usually what that means in
real life is that management has to do due diligence and make sure
that the concerns of the various--now shareholders, in the future
stakeholders--are taken into account.
I believe process will matter. More importantly, process will
matter even more if we change the nature of who makes the decisions.
I believe boards of directors of major publicly-traded companies
should have employee representatives on them. The majority of
countries in the European community have some kind of co-determined
boards. [FN31] In Germany, on the analogue to our boards of
directors in major corporations, half of the directors are elected
by employees, *523 half the directors are elected by shareholders.
Not surprisingly, German workers work fewer hours and make more
money than American workers do. [FN32] This is straightforward. When
we include employees in the processes of management, employees will
Of course politically what this means is that we are going to
have to change the governing jurisdiction. The governing
jurisdiction for most corporate law in the United States is
Delaware. It is crazy that we let a state that has a third of 1
percent of the American population govern 60 percent of the Fortune
500 and over half of all the publicly traded companies in this
country. [FN33] The reason they can do that is because we allow
corporations to choose whatever state they want in which to
incorporate, whether they have any significant contacts there or
Imagine if I were to stand here and say that we should allow
companies to choose which state provides their environmental law, or
worker or labor standards law, or tort law. You would think,
rightly, that I am nuts. But that is exactly what we have in
corporate law. Corporations can choose the law that governs them,
and--not surprisingly--they go to Delaware, which has law that is
very protective of managers and shareholders. If Delaware were to
change the law to force corporations to take into account the
interests of other stakeholders, corporations would simply change
their incorporation to another state.
We should have a federal corporate law statute in order to make
sure that we all have a say in corporate law. Delaware has no
incentive to change their corporate laws because they get a quarter
of their state budget from corporate franchise fees and
incorporation fees. [FN34] Delaware is not going to change the
nature of corporate law in this country; we will have to. We ought
to change it because, unfortunately, corporate norms are
increasingly driving our democracy. I would rather democratic norms
govern our corporations. Thank you.
Patricia McCoy: Retracted by request of the author.
Ann O'Leary: [FNa4] Today I want to talk about how
politics constructs laws in order to think about how law constructs
wealth patterns. I am going to focus on an historical example.
In my work at the federal level when I worked in the Clinton
administration and for Hillary Clinton in the Senate, I focused on
work and family policy issues. As an example of the politics of a
particular social policy, I want to focus your attention on an area
that has had quite a bit of significant improvement in the last
forty years: job-protected pregnancy and parental leave. [FN35] Our
country made great progress in this area when we passed Title VII of
the Civil Rights Act of 1964, the Pregnancy Discrimination Act of
1978, and 1993's Family and Medical *524 Leave Act (FMLA), the first
bill President Clinton signed in office.
Some may think that these laws are enough to claim complete
victory in the area of job-protected pregnancy and family leave.
Unfortunately, many of these laws are more protective of
professional women than they are of low-wage working women. I will
talk a little bit about that and about the context of how that
happened politically and what that means for how we go forward. What
can we learn from the lessons of the past politics that can help us
in trying to correct this problem in the future?
Let me lay out the problem because it is a bit counterintuitive
due to the fact that there has been a lot of attention paid to the
victory of passing these wonderful laws. The fact of the matter is,
if you looked at where were we in 1964, the eve of the passage of
Title VII, women in the United States who had a high school
education or less--so generally the lowest earning wage workers,
certainly the least educated--about 19 percent of those women had
access to paid maternity leave. [FN36] How did that happen? As you
can imagine, it happened thanks to the labor union movement and to
collective bargaining. What was happening to professional women in
1964? In 1964, only about 14 percent of professional women had
access to paid maternity leave. [FN37]
Fast forward to the early 1990s, around the time that the Family
Medical Leave Act was passed. Women with less then a high school
education were receiving paid maternity leave at about a rate of 18
to 19 percent. [FN38] There was really no change from the early
1960s through the early 1990s; you had the passage of Title VII in
1964, you had the passage of the Pregnancy Discrimination Act in
1978, but these laws did not improve the ability of low-wage working
women to access paid maternity leave.
Professional women, on the other hand, went from 14 percent
receiving maternity leave in 1964 to 63 percent. [FN39] Professional
women disproportionately benefited from Title VII and the Pregnancy
Discrimination Act's mandate that women get equal access to the
benefits offered to men. In professional settings, men had access to
paid leave for temporary disabilities, something that most low-wage
workers did not have.
Now you might ask, "If paid maternity or family leave is,
unfortunately, not a federal requirement, how did Title VII or the
Pregnancy Discrimination Act have this effect?"
In response, let's first look at Title VII in 1964. As many
people in this room know, sex as a protected class was added to the
bill at the last minute. Some people think that it was added to try
to destroy the Civil Rights Act. Other people *525 will tell you
that it was added because a group of women had been fighting for
quite some time to ensure that women would be protected on the basis
Leading up to Title VII's passage, there was a group of women in
the labor movement who had been working quite hard to educate the
public that there was some protection afforded to women by state
labor protective laws (laws that were often passed as a result of
advocacy by labor union women). These same laws were oftentimes
vilified--they certainly were overbearing and overgeneralized--but
they did provide women with maximum hours and minimum wages. Some
women in the labor movement said, "Wait a second, before you get rid
of those laws, why don't we think about extending those laws to all
When Title VII was passed, there was a concern that those state
laws were discriminatory on the basis of sex, so those laws were
overturned shortly after the passage of Title VII. Many women who
had some protection against unwanted overtime hours and too little
pay no longer had this protection. In terms of politics, this
created a split in the women's movement between professional women
and low-wage working women.
Then, with the Pregnancy Discrimination Act, we already had Title
VII's equality-based model of "You can have equal rights, if they
are in fact afforded." If you look at the legislative history of the
Pregnancy Discrimination Act, there is really clear analysis by the
members of Congress who were about to pass this law, saying, "We are
not going to provide any affirmative rights to women. We are only
going to provide women with the same rights as those men who have
the ability to take leave if they have a temporary disability."
Where does that leave low-wage workers? For low-wage workers who
work in a place where there is no sick leave, where there is
certainly no short-term disability leave, it means that they get no
protection against pregnancy discrimination. There has been some
split in the courts on this very question, where some courts have
said that where an employer offers absolutely no leave for a
temporary disability there is a disparate impact on women and there
should be some protection, but the trend in the last ten to twenty
years has been that courts have interpreted Title VII to hold that
there is no disparate impact on women with regard to no-leave
policies. This means that women who are low-wage workers and who
work in a workplace where there is no leave allowed for temporary
disabilities are not protected by the Pregnancy Discrimination Act.
Turn to the Family Medical Leave Act where great strides were
made. The FMLA really tried to bring the women's movement back
together to say we really need to be ensuring that we have an equal
basis for leave but we also have some accommodation, there should be
some proactive right to leave. It was a tremendous, first basis in
which there was an agreement that providing everybody with some
unpaid leave was the right way to go. What happened, unfortunately,
is the politics of compromise, which at the end of the day left out
low-wage workers. Only about half of the workforce is covered by the
FMLA and those who are not covered are disproportionately low-income
*526 In order to be eligible you have to work for an employer for
a year. Who doesn't work for an employer for a year? Oftentimes,
women leaving welfare. The average time for a person leaving welfare
to stay on their first job is nine months; therefore they get a job
but they never quite get to that year to qualify. So they are
starting over and starting over but they are never able to access
the Family Medical Leave Act. This is also true if you look at the
small business exemption. Employers who have fifty employees or less
do not have to offer their employees the benefits of the FMLA. About
half the low-wage workforce works for small employers so, again, you
have this disproportionate impact on low-wage workers.
My time is running short, so I just want to say a couple of
things about the lessons we can learn here and what we need to be
cognizant of as we move forward. One of the things that has happened
if you look at Title VII, the Pregnancy Discrimination Act and the
FMLA is at different times, Congress did not consider the impact on
low-wage women. They may have looked at women broadly and certainly
there was so much work to be done for women that there is some
understanding of why they may have not parsed out the impact on
low-wage working women. But the lack of consideration of the impact
these bills would have on low-wage workers remains a problem.
Then there is also what has become the habit of explicitly
ignoring political reality. During the time of the consideration and
passage of the Family Medical Leave Act, women still had access to
welfare as an entitlement. It is very interesting that during the
debate over the FMLA, members of Congress kept referring to the fact
that if it was passed, it would mean that more women would have
access to it and therefore would not have to rely on welfare. Women
would not need welfare because they would have the ability to work
and take job-protected leave through the FMLA. Yet, during the
debate over welfare reform, just three years later in 1996, there
was no analysis of the fact that half of the workforce,
disproportionately low-wage workers, would have no access to the
FMLA even as they were being kicked off of welfare.
Sometimes there is a political need to move forward with a
bill--for example, the political pressure to reform welfare--without
any understanding or analysis of what impact the reform may have as
it interacts with prior laws. What I urge us to think about, as we
do work in all of these areas, is how to not exacerbate the problem
by relying on the current state of the law. For example, there is a
proposal that has been put forth in Congress by Senators Dodd and
Stevens for paid leave, which I applaud; it is fabulous to think
about having a national paid leave. Unfortunately, they model it on
the FMLA, so in order to be eligible for paid leave, you have to be
eligible for the FMLA. Who does that leave out? It leaves out our
low-wage workers. One of the things we need to be really thoughtful
about, as we move forward, is to not make mistakes from the past in
building on our current law and to think creatively.
The other thing that I want to say in terms of an example of the
politics of the *527 possible is that oftentimes we are so focused
on the national level, which we have to do, that we forget how much
progress we can make at the state and local level. Certainly,
California and San Francisco have really led the nation in this
area. Thanks to the labor movement, California passed the first paid
family and medical leave law in the country. San Francisco just
became the first place in the country to pass a law guaranteeing
paid sick leave. So do not forget the state and local level as we
begin to think about what is possible. Thank you.
Stephen Berzon: There is a great deal of food for thought
here, and what I am going to do, much as Catherine Fisk did in the
earlier session, is to try and stimulate an internal debate on the
panel, if I can, or at least draw out the panelists on some of the
points they have made. Then I will open it up to the floor.
One of the things that Ann's talk made me think about as we
approach the new year and the presidential election, is the need to
formulate ideas quickly and move on them. That was done in
California a few years back with regard to programs like paid family
medical leave and others. We did not have a Democratic governor for
sixteen years. When Gray Davis was elected, the labor movement and
others put together a whole series of progressive legislative
measures, and they were moved through the legislature very quickly.
Some, unfortunately, were vetoed. But even in those cases, we came
back the following year with slightly modified bills, and several
were enacted into law. There was a whole slew of changes that
happened because the labor movement and its allies were ready to act
at the very beginning of the new administration.
Federal family medical leave is an example of something not done
very well in that regard. Many of you will remember what actually
happened with the Family Medical Leave Act. As Ann mentioned, the
bill that was enacted in the Clinton administration has many
failings. The reason is that the bill was initially passed by
Congress during the George H. W. Bush administration. It was
proposed as an easy sell: employers simply had to give employees
time off to care for sick children, and they did not have to pay
anything. There were even those who thought President Bush would
sign it, but if not, at the very least, it would create a campaign
Bush, of course, vetoed it, and there weren't the votes to
override the veto. But then Bill Clinton won. He had fifty-eight
Democratic senators in 1993 and an overwhelming Democratic majority
in the House of Representatives. Why not, in 1993, try instead for a
modest paid family leave bill? But that was not put forward.
Rather, the same unpaid leave bill that Bush had vetoed was passed
overwhelmingly and signed by President Clinton. As a result, there
is still no federal paid family leave in this country.
So what we have to do when we are putting together ideas in 2008
is to look ahead to what we really want to do in 2009, if we are
fortunate enough to change the politics, because the best time to do
this is right at the beginning of a new administration and Congress.
Let me just raise some questions for the panelists. Professor
Forman, you had a *528 number of interesting proposals for changing
the tax system. But it seems to me that there are countervailing
reasons why we may not want to eliminate the separate tax for Social
Security, because there is a concern that if we do that and Social
Security becomes just like any other government program, we may lose
support for it. So at the very least, isn't it a no-brainer to
change the payroll tax system so that those who are the wealthiest
keep paying the Social Security payroll tax on all their income? We
have this unbelievably regressive tax right now where someone who
makes $60,000 or $50,000 or $40,000 is paying close to 7 or 8
percent on their earnings, and somebody who is making millions is
probably paying one-tenth of 1 percent on theirs.
Jonathan Forman: I have mixed feelings about this
particular issue, mostly because I think that payroll taxes and
earned income bear too much of a burden already. The payroll tax
base is actually only 39 percent of gross domestic product. [FN40]
What is left out? Earnings over the $97,500 cap in 2007 is one of
the big items, but really the biggest item in my mind is investment
income, which escapes completely. Trust fund kids do not pay any
Social Security taxes. I once wrote an article where I basically
asked what was fair about the fact that Bill Gates and I pay the
same amount of Social Security tax. [FN41]
I would also add here that my mentor, the late Senator Daniel
Patrick Moynihan, used to say, "Remember, these are social insurance
programs." He was concerned when we took the cap off of the Medicare
payroll tax that it would become more like a tax on all earned
income, rather than a social insurance program. As a tax lawyer I
will tell you that one of the dangers of taxing earned income more
is that people can relatively easily convert it into investment
income by being involved in partnerships and corporations and taking
stock options instead of salary. I am very sympathetic, yes, anybody
who makes more than $97,500 should pay more tax. But Bill Gates
should pay in a lot more to support elderly retirees than I do.
Stephen Berzon: Ana, I have a question for you about the
enforcement of labor laws. My question is really directed to
enforcement of overseas labor laws. I just came back from China last
Thursday, and I met with a number of people in the environmental
area in China. One of the things I learned is that China EPA has
only a few hundred people doing enforcement throughout China, while
the United States EPA, if we take both in-house people and contract
enforcement people, has over 100,000 doing enforcement.
I have no reason to think, although I did not get the numbers,
that it is any different with respect to China's wage and hour laws.
China's wage and hour laws are not what ours are, but if enforced,
they would make a meaningful *529 difference in Chinese society.
There are a number of articles in the Chinese press on a regular
basis about employers in the provinces, which is where the factories
are, who are cheating and not paying workers what they are required
So what about changing American law and allowing Chinese workers
to bring lawsuits in the United States against American
companies--not Chinese companies, although they can name them
too--who have goods manufactured for them overseas and who then
choose to sell those goods in the United States. Those goods are
made by workers who are not being paid the lawful wage that they are
supposed to be paid in their own country. What about laws that would
allow class action suits here for such workers?
Ana Avenda o: That is a very creative idea and I am sure
the trial lawyers would love it. I think that Chinese workers would
face the same challenges that American workers now face in being
able to access the courts, but it is certainly an interesting
suggestion. I don't know if it is feasible.
Stephen Berzon: It is a level-the-playing-field kind of
idea. Employers that make goods in the United States are subject to
lawsuits--and there are many such cases. This legislation would
simply provide that if you are going to sell goods here that are
made overseas, there ought to be the same enforcement mechanisms.
Logically it ought to sell.
Ana Avenda o: Logically it does. One of the challenges
that workers face through private enforcement of wage and hour laws
right now is that federal class action law requires that plaintiffs
opt in, which makes it very difficult to reach workers. In crafting
legislation and public policy, and also in my work in the
immigration field, we are very conscious of the fact that it is not
feasible to give foreign workers any more benefits, for example,
than workers get within the U.S. Your idea is very interesting, but
under the current system, I am not sure that Chinese workers would
be getting all that much.
Stephen Berzon: Why not push hard now for an opt-out in
federal wage and hour cases, instead of an opt-in? The opt-in system
is something that has been in the law for a long time and it has not
worked very well. Shouldn't this be something that is front and
center in terms of change?
Ana Avenda o: It should be. The whole issue of labor
standards is something that has been largely ignored and not just
this past Congress but for several Congresses now. I mean we saw
this in the immigration reform debate. That debate was not framed
around workers' rights at all. It was not concerned with labor
standards and looking at changes in the laws--the Fair Labor
Standards Act, opt-out classes instead of opt-in, reforming the
independent contractor system--all that absolutely should be front
and center because I think you are right, it is going to have to go
into whatever agenda we are able to push with the new administration
and it is going to have to be done quickly.
Kent Greenfield: There is actually an area in corporate
law that could help answer your question. There is a doctrine,
thought to be dead, called the ultra vires doctrine. It says
that if a corporation acts beyond its powers, *530 shareholders can
bring an injunctive action. Every corporation chartered in the
United States has one obligation according to its incorporation
documents and according to state law: to obey the law. Historically,
corporations were chartered for specific purposes. Now what the
statutes say is they are chartered for any and all lawful purposes.
My argument is that a shareholder activist could bring an injunctive
action in the state court of the state that chartered the
corporation to enjoin the corporation to obey the law wherever it is
disobeying the law, including China or Vietnam or Texas or Mexico or
Jonathan Forman: If I could have a brief comment: this
employee/independent contractor issue is a very important issue in
tax policy, in pension policy, in who gets Social Security benefits
and to what level they have to pay them, and in health care
coverage; and it is something that I hope we can jump on at the
beginning of the next administration.
Stephen Berzon: It is critically important in labor
organizing because you can have a labor union for employees, but for
people who are independent contractors, it is an anti-trust
violation for them to act in concert. That is why Judy Scott was
talking earlier about various changes that have been made in state
laws to take so-called independent contractors and, for certain
purposes, convert them into employees.
Kent, I think you raised a terrific idea with respect to looking
at corporations and corporate reform in an entirely new way.
Obviously, this is going to be very difficult to get passed at the
federal level. So my question to you, Kent, is how politically can
we do this? And how would it work as a practical matter if you had a
board of directors that, say, had worker representatives on it,
would these be majority vote situations? How would it play out, and
can you see examples where this would make a real world difference?
Kent Greenfield: As I said in my talk, the majority of
countries in the European Union have some mechanism for
co-determination of their boards of directors. There is a range of
different mechanisms. In some countries, the employees elect
essentially a board of delegates and the board of delegates elects
the board members. In some countries, it is done through the trade
unions. In some countries, it is done directly. The specifics do not
matter as much as the need to do it. A friend of mine said to me
recently that the best answer to "How?" is "Yes." I want to say yes
to the idea and we will work out the specifics.
Note that we spend millions of dollars each year on this
incredibly byzantine mechanism of shareholder voting. I guarantee
you that employee voting is going to be much more efficient and much
less costly than shareholder voting and probably will make much more
of an impact.
As to whether it will have an impact generally, it is admittedly
difficult to do cross-country comparisons. But within Europe, the
most recent study I saw comparing countries with
co-determination--some kind of worker representatives*531 on
boards--and those countries without: those with it had lower income
inequality, fewer days lost to strike, higher labor productivity and
lower unemployment. [FN43] As I said in my talk, it is not so
surprising that if we can include the concerns of employees and
their communities into the fabric of decision making, corporations
are going to spin off fewer externalities and they are going to take
into account the interests of workers more. I hasten to say that in
this new structure there will still be no one on the board who has
any incentive to stick a knife in the belly of the company.
Everybody will be laboring together to make the company more
profitable and more productive.
Stephen Berzon: There is some history of this in the
United States. Chrysler was about to go out of business, and there
was a massive bail-out by the federal government. The government was
not going to let Chrysler fail, and one of the trade-off provisions
was that there had to be representation for the United Auto Workers
on Chrysler's board of directors. Doug Fraser, president of the UAW,
sat on the board of directors. Similarly, United Airlines, when they
had their employee stock ownership plan, had worker representatives
on their board.
It would seem intuitive that if you are going to have worker
representatives in the room participating in board discussions about
important issues affecting workers, that it is at least more likely
that the impact on workers will actually be discussed, and that
board members acting collegially might be more likely to try to
ameliorate those concerns.
There have been a number of great ideas expressed here, and it
seems to me that if we are going to have any chance of doing any of
them, educating the candidates and asking for their support ought to
be done now, not after they get elected. They are going to be out
campaigning and in primaries. I would think that to the extent that
people have ideas and political ties, the time to ask candidates to
get on board with various proposals regarding wealth inequality is
For example, when I heard Bob Kuttner yesterday, I started to
think about why the unemployment insurance system is as inadequate
as it is. When unemployment insurance was passed in the 1930s, the
employer paid a very small tax for each employee up to the first
$8,000 of income. In the 1930s, that was a large sum. There really
were very few Americans who were making $8,000.
But in most states right now, employers are still just paying a
very small tax on the first $8,000 of income, and that has never
been changed. That is one reason the system is so starved. Obviously
with this sort of social insurance program, we not only help workers
who are one or two paychecks away from falling into poverty, but
equally important, we stabilize purchasing power. We provide the
means for workers to keep spending money, which has a snowball
economic *532 effect on local businesses and on the entire
So my question to Ann is: what specific kind of reforms would you
like to see Congress tackle in the first several months of 2009,
just as they did in 1993? If we were to have a progressive Congress
and a progressive president, what would you like to see done, and
what should be done in January, February, March or April of 2009?
Ann O'Leary: If I can speak first to your first
point--what we should all be doing now. It is important for all of
us to be sharing our ideas and not only thinking about ideas for a
campaign but really ideas of what needs to happen if a different
administration comes in, what type of policies need to be on the
table. That is why these conferences are so important, to begin
thinking about these areas of policy.
In terms of family leave, certainly one of the most important
things to do is to really think about paid leave and doing it in a
way that helps low-wage workers, not just those who are eligible for
the FMLA. There are really a couple of different ways you could
think about doing it. One is to incentivize states to continue the
action that they are already beginning. If you look at what has
happened so far, we passed a law in California; Washington just
became the second state in the country to pass a paid family leave
law. New Jersey is about to do the same thing. So one of the first
things the federal government could do immediately is begin to
assist states by providing some real financial incentives, whether
it is through paying for the administration of these programs or
matching the funds that are provided to employees as part of paid
One of the political difficulties happening in the states, and
this happened in California, is that these paid leave proposals are
paid through a payroll tax. In California we have something called a
temporary disability insurance system. There are five states in the
United States that have temporary disability insurance systems and
they are funded through a payroll tax that is split between
employees and employers. For the paid family leave, there was a lot
of resistance from the business community to pay for it, so what
ended up happening is that the individuals who were pushing for this
said, "If employers won't pay for it, the employees will," so the
family leave bill in California is paid 100 percent by an employee
payroll tax with the employer not contributing to it.
So it is really important for the federal government to begin
playing a role in encouraging more states to do what is already
happening. There are about twenty-four states that have some type of
legislation pending right now on this issue. The next step will be,
are we ready for a national program and if so what does it look
like? The political will may not be there immediately, but the
education and the experience of what is happening in these states
will lead, hopefully, toward a national paid leave program.
Stephen Berzon: If states are moving towards payroll tax
financing, the way the unemployment insurance system was set up in
the 1930s is an interesting model. To get the states to participate,
the federal government passes a tax on all *533 employers and then
provides the employer with a 90 percent tax credit if the state the
employer is in has an unemployment insurance program with an
equivalent payroll tax to fund the insurance benefits. The remaining
10 percent is then refunded back by the federal government to the
states to pay for the administration of the program.
Ann O'Leary: Exactly. It is really important to think
creatively about those types of structures and what has worked and
not worked in the past. Everything is on the table right now and it
is a matter of both being able to figure out substantively how to do
it and then really it is political will. I think there is political
will in some states but not in all, and that is what the federal
government can work on.
Stephen Berzon: If I can just throw one more idea on the
table. Back in the late 1960s, early 1970s, there was a legal
services program with literally thousands of lawyers who were
thinking through these issues, strategizing and developing ideas,
advising clients and the like. Unfortunately that program has been
starved and changed and emasculated over the past twenty-five years
or so, but just hearing the ideas at this table, it would be a major
accomplishment if we could get far more lawyers working on these
One development that is relatively new is that some city
attorneys' offices like Ann's in San Francisco, and the Office of
the City Attorney in Los Angeles, have set up units to work on these
kinds of issues. Creative ideas about how to expand representation
and to look at wealth inequality in a systematic fashion would be
So why don't we open it up for questions? The floor is yours.
Q: Thank you all. This has been really wonderful. I'm not
a lawyer but you have successfully motivated me to be one--really
provocative and insightful comments. But what I was thinking about
during this panel was that there could have easily been a panel here
today on how law has constructed race and then connecting that to
the racial disparities in wealth that we have talked about today.
That is my excessively broad question, if anyone wants to comment on
it--if there are specific topic areas that show how race and wealth
inequality flow together or just talk more broadly on the
construction of race, racism and racial disparities and how it
connects to wealth.
Kent Greenfield: I will say something from the corporate
law perspective. If we were to measure institutions based on the
risks that lack of diversity creates for groupthink and the
repetition of mistakes and bad decisions, corporate boards have got
to be number one on the list. Because most corporate boards of most
large, publicly traded companies are staffed with white men of a
certain age and of a very elite social status. [FN44] Diversity
matters; not just about race and gender but *534 class and
perspective as well. If we wanted to start with a list of
indictments in terms of lack of diversity, I think corporate boards
ought to be high on the list.
Ann O'Leary: It is interesting that if you look at the
women's movement and also civil rights related to race, some of the
things that have happened are similar; that in the women's movement
oftentimes there is a real focus on professional white women. When I
was talking about what happened prior to 1964, there was a broad
labor coalition of both African Americans and white women who were
fighting together to get the type of labor protections they thought
they needed. I don't think that carried forward necessarily. One of
the things that needs to happen when you are looking at these issues
is to ensure that you are considering the impacts of both race and
class and that does not happen enough.
The other thing that is parallel is that looking at what issues
are focused on--so for example in the women's movement right now
there is a really big focus on workplace flexibility--they are
usually discussed in terms of professional women, lawyers, doctors.
Those are real issues, I know--speaking as a new mother--but they do
not often talk about workplace flexibility for low-wage working
Similarly, sometimes there is so much emphasis on affirmative
action related to higher education, which again is a really critical
issue but it impacts more the elites in our country, rather than
individuals of all classes and backgrounds. One of the really
important things to think about is where our political dialogue ends
up happening, and it often happens at a class level that does not
impact everybody equally. It is really important as we begin to look
at these issues to ask both the race-based questions and the
Stephen Berzon: Ana, have you seen a racial connection
with regard to the immigration work that you've done?
Ana Avenda o: I was just going to say that. The issue of
race has been, unfortunately, largely glossed over in the
immigration reform debate and that is really to the detriment of
workers and ultimately to the detriment of having a fair, just and
equitable immigration reform law. What has happened is that--I do
not want to label any particular group of people, but the
pro-immigrant groups do not like the phrase that immigrants are
"taking the jobs," of African Americans especially, and so there has
been a big effort to deny that or say that it is not true.
The reality is that on the ground, as we have seen in these
industries that are increasingly staffed by immigrant workers,
workers are seeing the jobs that their parents did--for example in
poultry in the south, meatpacking, jobs that were stable jobs, that
provided a reliable source of income for the African American
community--are now actually filled by immigrant workers. So the
reality of what the community is living everyday is not reflected in
the policy or the discussions that we are having.
In our view, the answer is not to blame the immigrants,
obviously, but to focus on what is causing this transformation and
how race is playing a part in the transformation and how it is
continually being used to divide workers and to divide communities.
The folks in the anti-immigrant crowd--the Federation for *535
American Immigrant Reform, the VDAREs, the closed borders crowd--
they are a group of nativist, xenophobic, racist pigs, but they have
a spokesperson. They have Lou Dobbs, who has painted all these
images of Latinos, shown on TV like rats crawling over the fence and
invading our country. Essentially, race is behind everything that we
do in both labor and particularly immigration reform debates.
Michael Selmi: [FNa5] My question is geared towards Kent
and Ana. My sense is that the stories are more complicated than are
being portrayed here and I know part of it is lack of time in a
major conference but I also think it is one of the things that
contributes to the policy stagnation that we have in Washington.
In terms of Kent's story with the shareholders, you mentioned
institutional investors but what you left out in the story is that
the largest institutional investors are pension funds and some of
those are union pension funds who are investing in these companies
and seeking to increase their gains, often at the expense of
employees. It seems that there is something wrong with that, but
that does not seem to be part of the story that we focus on.
On immigration reform, what has happened in Congress is a classic
example of why they cannot do anything when an issue becomes
complicated, because it seems the reason it stalled is because
Republican business and agricultural interests are not supportive of
any reform. They want the system as it is and that means we will get
no immigration reform. Because these stories are so complicated it
makes for very difficult politics and when we treat them more
simplistically, we overlook the political aspects. This is more like
a comment followed by a question mark.
Kent Greenfield: Mike, I agree with you completely that
one of the problems I see is that pension funds, once they buy up a
lot of shares to protect themselves for the long term, they start
acting like shareholders and the pension fund managers are evaluated
based on whether the value of the fund grows in the short term. One
of the legal amendments I would like to see is some relaxation under
ERISA law--now I am putting people to sleep--so a change in
ERISA law to allow pension fund managers to be more robust in their
view of fiduciary responsibility.
Ana Avenda o: There is no other issue that is as
emotional, polarizing and complicated as immigration reform is right
now. The bill failed for a whole host of reasons. Of course I do not
know if, at that particular moment, they wanted reform or not, but
it was a terrible bill to begin with and it is not a bad thing that
What we are dealing with at the present moment with immigration
reform is that you are right: the business community, with the help
of the Bush administration, is getting done through regulations,
through the administrative process, what it could not do in the law.
Very soon, we are going to see a change in the regulations that
govern H-2A workers, agricultural workers. Their wage rates are
going to go down. Their conditions at work are going to decrease
*536 significantly, and this is not done through legislation, but
through the issuance of new regulations.
They did the same thing very recently with the Social Security
No-Match Letter in which they tried to use, through this regulatory
process, a new phony enforcement mechanism. All of this is really
being done to address the employers' concerns and also to address
the right wing of the party, the anti-immigrant wing that
continually wants to see more and more immigration enforcement.
Q: I'm not an attorney, so perhaps this isn't an
appropriate question but let me ask it anyway. We live in a world in
which women, for example, are a protected class in law and African
Americans and other minorities are also considered a protected
class. That wasn't always the case, of course, and that status for
each of those constituencies or groups emerged in the course of a
long-term legal strategy in connection with a long-term social
movement. My question is: what should we be thinking about to
ultimately make working people a protected class?
Stephen Berzon: That is a great question. There was
actually a Supreme Court case in the 1970s--it was the Dandridge
case if memory serves me right-- where the Court came very close to
making distinctions based on wealth a suspect classification. [FN45]
That could be revisited.
Peter Edelman wrote a wonderful law review article in the
Hastings Law Journal about fifteen years ago about why wealth
should be a suspect classification. The American Constitution
Society, which is a co-sponsor of this program, has been attempting
to promote progressive constitutional change over the longer run as
both politics and, subsequently, the Supreme Court begins to change.
Jonathan Forman: This goes back to the question you
raised, which is what is it that the new administration should do to
hit the ground running. I think what we should do and could easily
be passed--it would not look like it cost a lot of money--would be
an employee bill of rights. It would protect employees, independent
contractors and part-time workers. Think about what rights they
should have. That would be the first thing that I would do in 2009.
The most important thing we should hopefully do in 2009 is some kind
of universal health care benefit, but that is going to take at least
Marion Crain: [FNa6] We need to wrap up but I want to
piggyback onto Michael's question. This is one of the panels that
Praveen, Heather and I struggled to put together--not because there
were not plenty of wonderful people out there, and *537 you are the
best of the best and we got you—-but because we could not find a
coherent theme. Praveen was really good about holding my feet to the
fire and saying that the coherent structure was "law and how it
structures wealth," and he was absolutely right.
One of the most exciting things for me amidst all the depressing
statistics from this morning and yesterday has been hearing what is
essentially a consciousness-raising session from these different
silos of law that do not normally talk to one another and realizing
how much in common we have, how much great work there is going on
out there, how much passion for the work there is. I am thinking
along the same lines as Michael, and obviously you, Stephen, about
how we mobilize that energy.
It is not enough in my view to say we need a good politician; or
that we need some political party to take this up. I think we need
to take the reins-- whether that means reinvigorating the legal
services movement in some new form, whether it is academic centers
like this one, whether it is labor unions or all of the above--to
make class a mobilizing force for all of us. And not just the
lawyers but everyone. So if anyone has any great ideas about
vehicles for mobilizing, now would be a good time to throw them out
on the floor.
Kent Greenfield: One of the things that we need to do a
better job of is framing. Here is a frame that I have been toying
with and let me throw it out, as you suggested. What about the
motto, "Abundance for all"? We want abundance in America. We are an
incredibly rich country. There is plenty of wealth to go around; it
Stephen Berzon: I would like to see it start in law
schools. What I would like to see are clinics where students are not
just handling divorces or consumer problems or the like--as
important as such representation is--but where students are also
dealing with systemic problems involving wealth- and poverty-related
issues. If we could get law professors mobilized to start writing
articles and teaching classes that are germane to these issues, that
would be a sea change. I believe many law students come to law
schools very motivated, very idealistic. They really do want to help
people. If they are progressive, they want to have a law practice
that is consistent with their values. Somewhere in their three law
school years, they lose that, and, even if not, in recent years
their attention has been directed primarily toward what is going on
overseas. Certainly, international human rights issues are very
serious problems, but we also have to figure out a way to direct law
students' attention to our severe wealth inequality problems here at
Ann O'Leary: I want to put a plug in for what we did in
the San Francisco City Attorney's office and how we did it because I
think it is an important lesson. One of our attorneys from our
office went to an American Constitution Society national convention
and heard a speaker much like you have heard today--a professor from
Yale University, Heather Gerken, who was talking about what you
could do at the local level. She began talking to Heather about what
more we *538 could be doing. At the time, our office had a nice
history of doing affirmative work but we did not have a particular
focus on it nor were we thinking about how we might make that
happen. As a result of that conversation--something much like this
where two people got together with an idea--our office has now
established a partnership with Yale Law School and Boalt Hall School
of Law at Berkeley where students are working with our office on
ideas generation and working with professors, connecting academics
Also in our office we are very consciously looking outwards to
the community and we are connecting with community-based
organizations in San Francisco that work on predatory lending issues
particularly. The Yale students are doing the research with us and
we are really able to make some progress.
I encourage and challenge all of you to think about the
institutions that you are involved in and how you might be able to
partner with somebody in this room or otherwise, or in your local
community or your local law schools. There is a lot we can do and it
just takes an idea and some willpower and the institutional ability
to do it.
Stephen Berzon: I want to thank the panel. This has been a
very stimulating panel. I know there are more questions. If anyone
wants to come up and talk with the panelists for a couple of minutes
before lunch or at lunch, I know they will be delighted to do so.
Thank you very much.
[FNa1]. Partner, Altshuler Berzon LLP.
[FNa2]. Alfred P. Murrah Professor of Law, University of
[FN1]. Author's computations from U.S. CENSUS BUREAU, HISTORICAL
INCOME TABLES--HOUSEHOLDS, tbl.H-2: Share of Aggregate Income
Received by Each Fifth and Top 5 Percent of Households, All Races:
1967 to 2007, http://
www.census.gov/hhes/www/income/histinc/h02AR.html (last visited Aug.
[FN3]. EDWARD N. WOLFF, RECENT TRENDS IN HOUSEHOLD WEALTH IN THE
UNITED STATES: RISING DEBT AND THE MIDDLE-CLASS SQUEEZE 11, tbl.2
(Levy Econ. Inst. of Bard College, Working Paper No. 502, 2007).
[FN5]. U.S. CENSUS BUREAU, CURRENT POPULATION REPORTS P60-232,
THE EFFECTS OF TAXES AND TRANSFERS ON INCOME AND POVERTY IN THE
UNITED STATE: 2005 6 tbl.3: Share of Aggregate Household Income by
Quintile and the Gini Index: 2005 (2007), available at
http://www.census.gov/prod/2007pubs/p60-232.pdf. Before government
taxes and transfers, the richest 20 percent American households
received 53.83 percent of household income, while the poorest 20
percent received just 1.5 percent and the Gini index was a sizeable
0.493. Taxes and transfers increased the relative share of income
held by the bottom three quintiles at the expense of the share of
income held by the top quintile and the Gini index fell to 0.418.
Figure 4 provides a graphic interpretation of this data.
[FN6]. David Ellis, Buffet Talks Tax Reform with Sen. Clinton,
CNNMONEY.COM, June 27, 2007,
[FN7]. JOINT COMM. ON TAXATION, ESTIMATES OF FEDERAL TAX
EXPENDITURES FOR FISCAL YEARS 2007-2011 26, tbl.1 (2007),
available at http://
[FN8]. EDWARD N. WOLFF, TOP HEAVY: THE INCREASING INEQUALITY OF
WEALTH IN AMERICA AND WHAT CAN BE DONE ABOUT IT 3, 42-43 (2002).
Wolff based his estimate on the Swiss wealth tax system, with
marginal tax rates from 0.05 to 0.30 percent and an exclusion of
[FN9]. COMM. ON WAYS AND MEANS, U.S. HOUSE OF REPRESENTATIVES,
108TH CONG., 2004 GREEN BOOK: BACKGROUND MATERIAL AND DATA ON
PROGRAMS WITHIN THE JURISDICTION OF THE COMMITTEE ON WAYS AND MEANS
[FN10]. Daniel N. Shaviro, The Minimum Wage, the Earned Income
Tax Credit, and Optimal Subsidy Policy, 64 U. CHI. L. REV. 405
[FN11]. JAMES K. GALBRAITH, CREATED UNEQUAL: THE CRISIS IN
AMERICAN PAY 167 (University of Chicago Press, 2000) (1998).
[FN12]. See RANDY CAPPS ET AL., THE URBAN INSTITUTE,
TRENDS IN THE LOW-WAGE IMMIGRANT LABOR FORCE, 2000-2005 2 (2007),
available at http:// www.urban.org/url.cfm?ID=411426. See
also Marta Tienda, Don't Blame Immigrants for Poverty Wages,
AM. PROSPECT, May 2007, at A10, available at http://
[FN13]. John Brueggemann & Cliff Brown, The Decline of
Industrial Unionism in the Meatpacking Industry, 30 WORK AND
OCCUPATIONS 327, 328 (2003).
[FN14]. KATHERINE S. NEWMAN & VICTOR TAN CHEN, THE MISSING CLASS:
PORTRAITS OF THE NEAR POOR IN AMERICA (2007).
[FN15]. U.S. DEP'T OF LABOR, POULTRY PROCESSING COMPLIANCE SURVEY
FACT SHEET 2 (2001), available at
[FN16]. For an overview of wage and hour violations in these and
other sectors, see IMMIGRANT & NONSTANDARD WORKER PROJECT, NAT'L
EMPLOYMENT LAW PROJECT, HOLDING THE WAGE FLOOR: ENFORCEMENT OF WAGE
AND HOUR STANDARDS FOR LOW-WAGE WORKERS IN AN ERA OF GOVERNMENT
INACTION AND EMPLOYER UNACCOUNTABILITY (2006), available at
http://www.nelp.org/document.cfm? documentID=762; HUMAN RIGHTS
NETWORK LABOR CAUCUS, LABOR AND EMPLOYMENT RIGHTS: RESPONSE TO THE
PERIODIC REPORT OF THE UNITED STATES TO THE UNITED NATIONS COMMITTEE
ON THE ELIMINATION OF RACIAL DISCRIMINATION (2008), available at
Catherine K. Ruckelshaus, Labor's Wage War, 35 Fordham Urb.
L.J. 373 (2008), available at
[FN17]. ANNETTE BERNHARDT & SIOBHAN MCGRATH, BRENNAN CTR. FOR
JUSTICE, TRENDS IN WAGE AND HOUR ENFORCEMENT BY THE U.S. DEP'T OF
LABOR, 1975-2004 1-2 (2005), available at
[FN18]. Judd Legum et al., Labor--Bush Priorities Hurt
Workers, Help Employers, THE PROGRESS REP., June 14, 2006.
[FN19]. Rebecca Smith & Catherine Ruckelshaus, Solutions, not
Scapegoats: Abating Sweatshop Conditions for All Low-Wage Workers as
a Centerpiece of Immigration Reform, 10 N.Y.U. J. LEGIS. & PUB.
POL'Y 555, 560 (2006-2007).
[FN20]. Press Release, AFL-CIO, AFL-CIO and NDLON, Largest
Organization of Worker Centers, Enter Watershed Agreement to Improve
Conditions for Working Families (Aug. 9, 2006),
[FNa3]. Professor of Law and Law Fund Research Scholar, Boston
[FN21]. In a comparison of major corporations (listed by sales)
and countries (listed by gross domestic product), fifty-two of the
largest 100 entities were corporations and forty-eight were
countries. By this measure, Wal-Mart is larger than Sweden or
Norway; General Motors was slightly larger than Saudi Arabia; Exxon
Mobil was larger than Turkey; Home Depot was larger than New
Zealand. See SARAH ANDERSON ET AL., FIELD GUIDE TO THE GLOBAL
ECONOMY 69 (rev. and updated, 2005).
[FN22]. LAWRENCE MISHEL ET AL., THE STATE OF WORKING AMERICA
2006/2007 78-79 (2007). For a more extensive survey of the data,
including several charts, see Kent Greenfield, Reclaiming
Corporate Law in a New Gilded Age, 2 HARV. L. & POL'Y REV. 1,
[FN23]. MISHEL ET AL., supra note 170, at 88.
[FN24]. Greenfield, supra note 170, at 9.
[FN25]. LAWRENCE E. MITCHELL, THE SPECULATION ECONOMY: HOW
FINANCE TRIUMPHED OVER INDUSTRY 277-78 (2007).
[FN26]. Id., at 1, 278.
[FN27]. MISHEL ET AL., supra note 170, at 204.
[FN28]. SARAH ANDERSON ET AL., INST. FOR POLICY STUDIES AND
UNITED FOR A FAIR ECONOMY, EXECUTIVE EXCESS 2007: THE STAGGERING
SOCIAL COST OF U.S. BUSINESS LEADERSHIP 5 (2007), available at
[FN29]. MISHEL ET AL., supra note 170, at 204.
[FN30]. For a comprehensive treatment of these ideas, see KENT
GREENFIELD, THE FAILURE OF CORPORATE LAW: FUNDAMENTAL FLAWS AND
PROGRESSIVE POSSIBILITIES (2007).
[FN31]. Co-determination, the practice of having employee
representatives on company boards, is widespread in Europe.
"Employees in 18 of the 25 European member states have the right to
have their interests represented in their company's top
administrative and management bodies." REBECCA PAGE,
CO-DETERMINATION IN GERMANY--A BEGINNER'S GUIDEE 31 (2006). For an
excellent overview, see THE EUROPEAN COMPANY--PROSPECTS FOR WORKER
BOARD-LEVEL PARTICIPATION IN THE ENLARGED EU 64-65 (Norbert Kluge &
Michael Stollt eds., 2006) (chart of co-determination forms around
[FN32]. GREENFIELD, FAILURE OF CORPORATE LAW, supra note
178, at 24.
[FN33]. Id. at 107.
[FN34]. Id. at 108.
[FNa4]. Deputy City Attorney, San Francisco, California.
[FN35]. Many of the points in this talk are discussed at greater
length in Ann M. O'Leary, How Family Leave Laws Left Out
Low-Income Workers, 28 BERKELEY J. EMP. & LAB. L. 1 (2007).
[FN36]. Id. at 6 (citing KRISTIN SMITH ET AL., U.S. CENSUS
BUREAU, CURRENT POPULATION REPORTS P70-79: MATERNITY LEAVE AND
EMPLOYMENT PATTERNS: 1961-1995, 14 fig.4 (2001), available at
[FN40]. VIRGINIA P. RENO, NAT'L ACADEMY OF SOCIAL INSURANCE,
FINANCING SOCIAL SECURITY (PowerPoint presentation, slide no. 30,
[FN41]. Jonathan Forman, Bill Gates and I Pay Equally--and
This Is Supposed to Be a Fair System?, LOS ANGELES TIMES, Dec.
25, 1998, at B-9.
[FN42]. See GREENFIELD, THE FAILURE OF CORPORATE LAW,
supra note 178, at 73-105.
[FN43]. See SIGURT VITOLS, PROSPECTS FOR TRADE UNIONS IN
THE EVOLVING EUROPEAN SYSTEM OF CORPORATE GOVERNANCE (European Trade
Union Institute for Research, Education and Health and Safety Report
No. 92, 2005) available at
[FN44]. A 2002 survey found that 82% of the director positions on
Fortune 1000 companies were held by white men while 14% were held by
women, 3% by African-Americans, 2% by Asian-Americans, and 2% by
Hispanics. See Gary Strauss, Good Old Boys' Network Still
Rules Corporate Boards, USA TODAY, Nov. 1, 2002, at 1B.
[FNa5]. Professor of Law, George Washington University.
[FN45]. Dandridge v. Williams, 397 U.S. 471, 485 (1970) (holding
that "In the area of economics and social welfare, a State does not
violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect. If the
classification has some ‘reasonable basis,’ it does not offend the
Constitution simply because the classification ‘is not made with
mathematical nicety or because in practice it results in some
inequality."’ (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.
S. 61, 61, 78 (1911))).
[FNa6]. Director, Center on Poverty, Work and Opportunity and
Paul Eaton Professor of Law, University of North Carolina.
15 Geo. J. on Poverty L. & Pol'y 509
Hastings Race and Poverty Law Journal
Hastings Race and Poverty Law Journal Third Annual Symposium:
Economic Justice; Growing Inequality in America
*159 WEALTH INEQUALITY PANEL
Andy Barlow, James Head
PROFESSOR ANDY BARLOW: What makes wealth so significant is that
the accumulation of wealth or the disaccumulation of wealth is a
measure of advantages or disadvantages over many generations. Unlike
income, which is a measure of the momentary situation in a market,
when we are looking at wealth and equality, we are looking at
long-term advantages and privileges as well as long-term
disadvantages of people. It is a very important social measure of
inequality for that reason.
The other thing that makes it important is that private ownership
of wealth is becoming increasingly important for people's life
We can see this in many different areas. In education the
decreasing subsidies for public education require people to use
private assets to receive an education. Many of you students know
that full well. In healthcare we are seeing the destruction of
employer benefits coverage for healthcare and the replacement with
people having to use their private assets to receive quality
healthcare. In housing, we are now seeing people having to rely
almost entirely on parents being able to help their children receive
mortgages for homes. The use of private wealth becomes essential for
gaining access to more private wealth. That is, to be able to
purchase a house. With retirement funds, we are seeing the
replacement of government subsidy. Even social security is up on the
chopping block of course, and the importance of the accumulation of
private wealth for retirements.
And so when we start looking at the enormous and staggering
historical reality of America, which is this gigantic and almost
mind numbing racial gap in wealth ownership, we have to take into
account that we are living in a period where we are seeing the rapid
destruction of social subsidies, of public entitlements, and the
replacement with policies in which private wealth ownership becomes
increasingly important for life chances. And these have very
dramatic racial consequences given the inequality in the *160
ownership of wealth. And these have very dramatic effects given the
racial inequalities in the ownership of wealth.
Bluntly, I think we can say this: a society that privatizes what
was once publicly subsidized social entitlements is a society that
is giving new life to White privilege. It is a society in which the
ownership of wealth is not a neutral fact, but it is a racial fact.
What we are then seeing with the destruction of public entitlement
programs is the unleashing of politics in which the haves will do
whatever they can to maximize their positions at the expense of the
have-nots. We see more and more the use of local politics to split
apart suburbs and urban areas. We see many, many different forms
which this takes.
But I think the other side of the coin needs to be mentioned at
the same time, which is that the increasing focus on private assets
is precisely because the notion of the welfare state is under
attack. That is, the increasing focus on private assets as a way to
ensure one's life chances. Whether it be through retirement, or
healthcare, or education or housing, it is part of the process of
the destruction of the philosophy that the government must play some
role in regulating corporations, and in subsidizing in some ways the
distribution of wealth downwards from the rich at least to the
middle, though never very much to the poor.
But what we are seeing at this moment is a very dramatic shift
that is not happening only in the United States and is not happening
only in the Bush administrations or even the Reagan administration.
It is actually a very large secular change in the role of government
that we are seeing in all of the most developed countries and
actually in many of the less developed countries as well.
The destruction of the notion of the government's regulatory
apparatus, the destruction of government as playing a role in
subsidizing and redistributing wealth downward, and the Keynesian
philosophies of the welfare states are under attack everywhere. The
first thing we have to do is account for the general trend toward
this attack. This is where we need an analysis of globalization to
fully understand what is taking place today.
What I mean by globalization is of course a very complicated
matter because the world has been global in its interactions for
many centuries. But we are in a new era of globalization in which
new technologies have enabled a much more rapid movement of people,
capital, and things around the world. We are living in a period
where time and space have become increasingly irrelevant in social
life. This is the new phenomena with which many people are
grappling. But it seems to me that we also have to immediately see
that these new technologies, as with all technological revolutions,
are mainly appropriated by powerful entities, like corporations and
*161 states, because they are the ones who can appropriate these
Transnational corporations have taken advantage of the new
technologies to create new divisions of labor all over the world and
are very extensively moving capital at an amazing rate all over the
place looking for the best market chances. It is this flavor of the
new mobility of capital that is the most significant thing we need
to pay attention to. Corporations, because they can move so quickly
to take advantage of new market conditions, have gained great
leverage over both workers and states-over workers in the sense that
corporations can credibly say to many workers, "Either accept lower
wages or cuts and benefits or we are out of here, and we are going
to go find some workers who will take lower wages and benefits."
This is really happening, even though the fantasy for many Americans
out of here is offshore investments when in fact, out of here
usually means away from unionized cities, to de-unionized,
un-unionized suburbs in the south.
But the ability of corporations to move has had a major effect on
the social wages. The other ability that corporations have to move
is to threaten governments, and to say to governments, "Either
deregulate us, cut taxes, do away with expensive subsidies that we
have to bear a part of the cost of, or we are out of here." And you
can even hear in the type of political rhetoric that Arnold
Schwarzenegger is using in California right now this precise
language, where he says, "Look Nevada and Arizona are now competing
with California, for these businesses and unless we create a
pro-business, anti-labor environment in California, we will lose
these businesses to Arizona and to Nevada." This is the new dynamic
The result has been virtually the abandonment of the conception
of the welfare state, the end of the era in which the government is
supposed to regulate business in order to prevent the market from
destroying itself. It is the end of the era in which government
subsidizes the middle class, to some extent even the poor, in order
to maintain social stability. We have already reached the end of
this. I actually think the point where that was reached was the
moment when Bill Clinton signed the Personal Responsibility Act of
1996. It took that bipartisan agreement to attack the welfare
system, and Bill Clinton proudly announced it at that moment when he
said, "This is the end of the era of big government."
So I do not see this as something where we are looking at
different parties and seeing different philosophies. What we are
seeing is actually a very major and secular and long-term change in
the role of the state in society.
*162 I think what we are seeing replace the welfare state is
something that a sociologist named Jill Quadagno once dubbed, "The
private accumulation state." The role of government is increasingly
focused on enabling individuals and corporations to accumulate
wealth--and so the focus of tax shelters.
If you want to get a good education the government will provide
you with some tax shelter. But whether you get a good education
depends on your ability to accumulate wealth. If you want healthcare
the government will provide you with a tax shelter. But your access
to healthcare will depend on your ability to accumulate wealth. The
job of government now is increasingly focusing on the idea that
welfare is a personal matter in which individuals must take care of
their own well-being by accumulating their own wealth.
The job of government also of course is to deploy an army and a
police force to assure that the private accumulation of wealth can
go on. And those people who cannot accumulate wealth of course are
then invited into the one remaining large social program available
to them: the prisons of America.
I think this type of analysis has some important implications for
strategies for trying to equalize the opportunities of people of
color and whites.
First, while I absolutely support programs that seek to increase
African-American and Latino access to wealth, and I think that many
of the things that we are going to discuss in this panel will focus
on that and I think they are very important proposals, we have to
take up those discussions in the context that the new focus on
private wealth is part of the attack on civil rights. It is not a
separate discussion. People are now focusing on private wealth. The
focus on private wealth is coming about precisely because of the
attacks on equal employment opportunities and the attacks on
everything under Title VII, as well as the ending of affirmative
action as a credible force in many workplaces. We are left with the
hope that maybe we can figure out some strategies for self help,
being that the state is no longer available to play a role in
breaking, or at least in some ways challenging, white privileges as
it did in the 1960s and 1970s to some extent.
And so we need to have a nuanced sense of the strategies for
trying to equalize wealth ownership for people of color and whites
in the context of taking up the renewed call for dealing with all of
the forms of racial inequality that people are facing and the demand
for the state to take action against them, and not leave this as a
The second thought I have about this is that I believe history
has demonstrated fairly conclusively the very simple principle that
*163 it takes wealth to make wealth. Those people who start out with
wealth accumulate wealth much more readily than those people who
start out without wealth. While I think we can make some gains and
should struggle to make some gains in remedying the inequalities of
wealth ownership, I believe that what we will probably see in the
regime that I call the private accumulation state unfortunately is a
continued widening of the racial gap in wealth ownership. We have
already started to see this; we have preliminary data that suggests
that between 1996 and 2003 African Americans lost ground to whites.
The data that I have suggests that between 1996 and 2002, African
Americans lost 16.1 percent of their proportional assets to whites
during that very short period.
It remains to be seen, of course, how these strategies work out.
But I am quite pessimistic that strategies that focus on wealth
accumulation alone will be able to overcome the enormous inertia
that happens when people who have wealth are capable of expanding so
many times more rapidly their market chances compared to people who
have limited or no wealth. This is especially true being that the
issue is not just wealth ownership, but of course the political and
institutional arrangements that enable those with wealth to operate
in a much more privileged environment than those who do not have
wealth. So, while people of color are going to be fighting just to
get to the point where their bank loan practices are equal to those
of whites, whites with their greatly larger amounts of wealth are
going to be able to use the existing loan practices to make even
more rapid gains.
I focus my comments mostly on the very large picture and use a
simple analysis of black and white in this, and it is very important
that we understand that when we start dealing with Latinos and Asian
Americans, the picture gets much more complex. I want to mention
briefly some of the complexities of the picture I see when we add in
Latinos and Asian Americans.
One is that the categories Latino and Asian are extremely broad
categories that actually are racial categories. That is, they are
categories created for the purpose of categorizing people or making
them unequal. And when we look inside those categories at the people
who are coming to the United States and what they experience, we
find many nationalities and even among similar nationalities, we
find different waves of immigration who have had different class
experiences. And so, if you compare Chinese immigrants of the 1940s
and fifties with Chinese immigrants in the 1980s, you are dealing
with the same nationality but completely different levels of assets,
educational backgrounds, etc.
One of the things that we have to be able to do, and this is a
very complex discussion to be able to have, is to be able to *164
acknowledge what is racial and what is not racial about the
different strategies for different groups. What might work very well
for the Cuban Americans' immigrant community in Miami during the
1950s and 1960s will not work for the Marielistas of the 1980s and
1990s, for example.
And so that is what I wanted to just tip into this discussion
right away. When we get past the aggregate discussions of race, we
are going to have to get much deeper into the questions of how
class, nationality, and ethnicity play out in different wealth
One last thing--I think one of the more interesting and important
statistics about accumulation of wealth--is that the top fifth of
whites own 72 percent of all the net assets of whites. This is
because wealth inequality is so gigantic. My recollection is that 45
percent of whites have no assets. I am sorry, I am just doing that
off the top here. For African Americans, the top twenty percent of
African Americans own 94 percent of all the personal wealth.
And so what we see is a much greater gap in wealth ownership
among African Americans of different classes than among whites. This
goes back to the kind of data that was presented in the first
presentation as well. One of the positive implications of that then
is that wealth ownership and the struggle for wealth assets is less
of an issue on the agenda of many African Americans because of the
lack of those assets. Struggling for those assets, while it is a
very interesting and important strategy in the present period, needs
to be put in the context that the new emphasis on wealth ownership
is part of an effort to replace the idea of the government as
responsible for protecting people from discrimination. It is part of
the welfare state, with the notion that individuals have to fend for
themselves in the new laissez faire world. Thank you.
PROFESSOR JAMES HEAD: I like to look at wealth inequality in
terms of a reality point. I am sure many of you know Chris Rock the
comedian. In his latest television concert special he makes a number
of comments on the issue of wealth. I think this is demonstrative of
how this issue has risen to the top in terms of people's priorities.
One of the things that Chris Rock says is when you look at who's
wealthy and who's rich, "Bill Gates is wealthy, and Rick James is
rich. Or at least he was." For those of you who are probably much
younger than I am and are wondering who Rick James is, that is
probably a separate conversation. But Chris' point is that rich in
fame and short-term income (musician) and wealth in long-term income
and assets (Microsoft) are very different. Chris ends by saying "I'd
rather be Bill Gates than Rick James."
*165 I want to talk a bit about some of the strategies that are
beginning to bubble up around the issue of economic development and
wealth accumulation. I very much agree with Professor Barlow
regarding the notion of trying to really wrestle with and understand
what we mean by wealth inequality. The questions that his comments
raised for me, or questions that I would pose to you regarding this
subject, are: Is this a class issue? Or is this a race issue? Is
this a private issue? Or is this a governmental issue? In reality it
is all of those things. And until we are willing to admit that it is
all of those things, we will have difficulty and will be sidetracked
by how to approach this issue and, therefore, how to address it.
We should be moving towards a wealth equality, asset development
strategy that has both private and governmental components to it. I
do not think that we can get there without it. In fact, we currently
support substantial wealth and asset accumulation for wealthy
Americans through our federal budget and tax structure. If you look
at what is happening for those who are wealthy in this country, a
report by the Corporation for Enterprise Development (CFED) that was
released last year took a look at the kinds of tax breaks and
subsidies that are offered to Americans by the government. It found
that there were over $350 billion in tax breaks and subsidies that
are awarded to Americans in this country each year. However, 5
percent of the wealthiest Americans get 90 percent of these
benefits. The biggest of these tax breaks is the home mortgage
deduction interest tax that we who own homes get. This is a dollar
for dollar deduction from your taxable income for interest on your
home mortgage. I would ask any of you, myself included, are you
willing to give that up? My answer is "No." I would love to have
other people be able to take advantage of this asset benefit, and it
is a substantial economic driver in this country--it drives the
mortgage industry, the home building industry, and the home
furnishing industry, to name a few. The bigger house you can buy,
the bigger mortgage you have, the bigger that deduction and so on.
When you compare this tax break, I think that the home mortgage
deduction was about $150 billion or $160 billion of this $350
billion. The earned income tax credit, however, which is available
to poor families, is about $8 billion a year. And that is a program
in which less than twenty percent of those who are eligible for it
take advantage of it. What becomes evident is that we have a tax
code that is not designed to help poor Americans benefit from and
If you notice what happens in the shell game of how we look at
this, there are recent proposals now on the table in the Senate *166
around the Federal Budget and some of the social programs. One of
the discussions was around trying to increase the amount of money in
the budget for childcare, which we need. There has been some
agreement to do that in the Senate but at the expense of the earned
income tax credit. The thought is that they are willing to increase
the childcare subsidies in the budget, but they want to actually
remove the ability of immigrants to take advantage of the earned
income tax credit, all under the goal of keeping budget spending in
check. So much of the movement is not towards expanding
government-sponsored asset opportunities towards the poor, but
rather to take existing ones away.
When I think about this issue I think about it in terms of some
of the advances that have been made around economic development and
its strategies and approaches to moving towards wealth accumulation
and asset development. Again, I agree very much with Professor
Barlow about the way this gets phrased because in many instances
this idea of asset development has created a real tension within the
civil rights community and public interest community, as to whether
by moving in this direction we are basically raising the white flag
as it relates to issues such as earned income, guaranteed benefits,
and the kinds of programs that have been in place for those at the
very bottom, like the welfare benefits, food stamps, subsidized
housing, and health coverage. I would submit that many characterize
it that way. I think that we have to see these as complementary
because there will be families and individuals who can move through
the maze of governmental programs and identify opportunities that
will allow for asset development. There are others who will not be
in a position to do so and we should provide the safety net that
will help to keep them in a place where they can find decent
housing, put food on the table, and find decent employment.
So in the Community Economic Development Movement we tried a
number of things in the 30 plus years of this movement. We started
with traditional ideas that if you could improve neighborhoods and
communities through housing development and through commercial
development, you could provide a road map for viable neighborhoods
and viable communities and increase the economic stability of
families and move families out of poverty. But what we found was
that as we built these new houses, as we renovated the communities
and built new commercial space, within a span of five to ten years
they were deteriorating at a very fast rate. That was because we did
not pay any attention to the income needs of individuals and
families that were necessary for people to be able to maintain what
we were developing.
*167 So we then decided to focus on income. And we began to do
work around increasing income levels, increasing employment skills
levels, and providing more education for individuals and families in
low income communities and communities of color. But we also found,
especially in down economic times, that there were limitations to
this strategy. People who were hired last were laid off first when
the economy went bad. Also, the work that economists and
sociologists like Thomas Shapiro and Melvin Oliver did told us that
income was only one component, and likely not the right one to focus
on in order to help people move up the economic ladder. In their
book, "Black Wealth/White Wealth," Shapiro and Oliver make a
compelling case that while income disparities between Blacks and
Whites have decreased, wealth disparities have widened and continue
to contribute to the economic inequality between the races. They
argue that the focus should be on wealth and assets as the primary
way to address issues of economic inequality and poverty. So we in
community development then began to move toward wealth building and
asset development strategies. I want to give you a couple of
examples of what this looks like.
One strategy is if you can accelerate the ability of people to
achieve savings, you can also help them through financial education
and other approaches to teach them to use those savings to build
wealth and accumulate assets (buy homes, invest in business, become
entrepreneurial, and upgrade skills and education). And the way to
accelerate savings is to match every dollar that a person puts in
savings with a one, two, three, or four dollar contribution to allow
the person to quickly achieve savings scale.
These are called Individual Development Accounts, or IDAs. These
have been experimented with for about ten or fifteen years now and
have proven a couple of things. One is that poor people, low income
people, and people of color, given an opportunity, will save in
greater numbers and with greater success than general Americans. The
second is, given an opportunity to invest in some of these
asset-oriented approaches like home ownership, business
opportunities, and education, it does provide an opportunity, a step
forward, in terms of beginning to develop and accumulate resources.
The third is through financial education, in terms of how to handle
savings and how to plan for asset opportunities, a number of
individuals and families had been able to develop current and future
financial plans to integrate with their employment opportunities.
This significantly increased the ability of these families to
maintain and retain these assets, with many being able to achieve
more stable economic and social conditions. And the fourth is that
given an opportunity to have these assets, these families were much
more likely to pass them on to their children for their children
*168 to use them as a stepping stone to develop their own assets. So
there is now an effort to increase the level of these IDA accounts
by seeking federal legislation to fund them and encouraging private
financial institutions and banks to offer them.
IDAs and other savings models have also caused us to explore
making these opportunities available at earlier ages. One place we
have looked is England, where they have been experimenting with
children savings accounts at birth. So there is a project going on
right now through the Corporation for Enterprise Development that
focuses on a number of American cities where for every child that is
born whose parent is participating, that child gets a certain amount
of money placed in an IDA savings account at birth. Thereafter, for
each dollar the parent puts into the account a match of two or three
dollars is added. At some age, whether it be 16, 17, 18 or 21, that
particular child gets access to that account and is able to use the
savings for specific purposes. And having a 13-year-old who is a
consumer, I would opt for the 21 rather than the 16. Children can
use the savings for educational purposes, or other purposes that
will advance their skill levels, like employment training.
A new concept that has also emerged out of the community
development field is around the idea that if we are building assets
in communities through housing and commercial development, we should
also develop ways for residents in those communities to have
ownership in those assets. There is a project in San Diego that was
actually created by the Jacobs Family Fund, a local family
foundation, in which they were the impetus for a $100 million
housing and commercial development project in a low-income racially
mixed community in San Diego. The housing is a mix of market and
affordable housing, and the commercial space includes a major
grocery store as well as a number of smaller commercial spaces for
local and chain businesses. They are now trying to develop a way to
sell shares in the development to the local residents who have been
a part of putting the project together over the seven or eight years
that they have been working on this.
These are called resident ownership strategies to development.
And the idea here is that if you can give families and individuals
ownership in the development, and if the property actually
appreciates in value, then those families will have an asset that
they can potentially use to leverage other assets and build greater
Now there are major hurdles to doing this, some of which are very
much legal. The Jacobs Fund is a non-profit entity, and there are
limitations on the ability of members or directors of a non-profit
corporation to directly benefit financially from the activities of a
non-profit. Thus, they are looking at creating a for-profit limited
*169 liability corporation that would be able to manage this
property and would sell shares to residents through a public
offering. They are currently seeking permission from the State of
California to do this.
These are all approaches to asset development and wealth building
that we should explore. We should not explore them to the exclusion
of the efforts to ensure that the government does not abandon its
responsibility to provide a safety net for those most in need, or
assume that the private market will generate opportunities for
working and middle class citizens to participate in the asset
development and wealth building supported by our tax and other
policies. It will take the government's participation on both ends
to make comprehensive wealth building available to a broader number
In closing there are just a couple of thoughts that come to mind.
One is something that my grandfather used to tell me. He says that
he would often hear the phrase, "It maybe isn't such a great idea to
be rich, because the richer you are the more miserable you seem to
be or can tend to be." My grandfather would then say that while that
may be true, "it's a whole lot better to be rich and miserable than
it is to be poor and miserable." I think he was right about that.
We all aspire to give people an opportunity to move up the
economic ladder if they so desire. Those who feel that they cannot,
will not, or have impediments, we aspire to ensure that they have
basic safety net needs in terms of housing, food, education, and
healthcare. Economic and social thinkers and practitioners have
indicated that those who want more in terms of economic and social
benefits need to have more than employment advancement to anchor
their climb up. Asset development and wealth building strategies are
an important part and necessary to make them successful.