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Christina Ho
excerpted Wrom: ALPTCXLYRWTQTIPWIGYOKSTTZRCLBDXR
Relations and Markets , 13 Stanford Law and Policy Review 323-345,
323-327 (2002) (87 Footnotes)
I. ESTABLISHING THE ANALOGY
The argument that well-intentioned measures often backfire has become
a virtual trope in race relations literature. One hears example upon
example from authors who announce the backfiring of ameliorative
interventions in race relations (who themselves constitute a backlash
phenomenon of sorts). According to Bob Zelnick, majority-minority
districts, having siphoned off the largely Democratic minority voters
from surrounding regions, are responsible for turning those district
seats over to the very same white Republicans who then rolled back civil
rights once they swept Congress in the 1990s. Stephan and Abigail
Thernstrom blame school desegregation for accelerating the "white
flight" that cemented hypersegregated conditions in central city
areas. Finally, Justice Powell in Regents of the University of
California v. Bakke recites the worry that affirmative action programs
have set back racial progress by reinforcing the tendency to judge
others by their racial or ethnic membership.
These claims are reminiscent of the arguments made by economists who
study the effects of protective market regulation. Take the example of
compulsory product warranties. In response to the proposal of compulsory
warranties as a measure to safeguard consumers, most economists would
say "warranties only hurt consumers by raising prices."
Likewise, debtor protection, whether judicial or legislative, is
invariably blamed for reducing the financing options available to the
disadvantaged borrower. As Cass Sunstein points out, these arguments
constitute a powerful attack on regulation by generally claiming that
"[r]egulation has ... been ineffectual, and even counterproductive,
imposing costs not only on those who are regulated, but on its intended
beneficiaries as well."
The descriptions of backfiring in both antidiscrimination measures
and in protective market regulation are closely related in several
rhetorical aspects. In both contexts, harmful quantity effects (in the
form of lower quantities provided) are said to offset benefits along
another welfare dimension, usually quality or price. For instance, in
discussions of the minimum wage, it is de rigueur for opponents to
predict that while pay may improve for the fortunate few who get the
minimum wage jobs, there will be a shortage of those jobs, leaving many
low-wage workers relegated to working in the "uncovered"
sector while waiting for a chance in the covered sector. Analogously,
one complaint about magnet schools in the inner city is that while the
quality of education may improve for those minority students admitted,
it does so at the cost of excluding the many more who are wait-listed,
even while spots remain empty, reserved for the white pupils needed to
achieve target racial "balance." As in the market context,
improved circumstances result in limited availability.
Further, the phenomenon of backfiring in both discrimination and
market contexts seems to highlight the need for comprehensiveness in
enforcement. For instance, regulatory agencies regularly pair the
imposition of a regulatory burden on producers with a limit on how much
producers can hike up prices. In one example, the Massachusetts
Department of Food and Agriculture plugged all loopholes in its plan to
subsidize local milk producers for the purpose of ensuring a ready
supply of milk: the plan forced distributors to pay in-state milk
producers at a rate higher than it paid out-of-state producers while
simultaneously requiring the distributors to disgorge the money that
they saved every time they bought from the now-cheaper out-of-state
suppliers. However, the agency, knowing that the supplier-distributor
had still other channels for avoiding the regulatory burden, also
proscribed consumer price increases above a certain level to prevent the
distributors from passing the new costs on to consumers. The agency
demonstrated a sensitivity to the possibility that their attempts to
ensure a ready supply of milk to state residents would backfire if the
passed-on costs made milk prohibitively expensive for consumers. It
designed its regulatory scheme with an eye to covering all the areas
into which the distributors might divert their self-serving energies to
avoid the regulatory intent.
Economists have long recognized the persistence with which market
forces adjust to reestablish equilibrium and circumvent simple
regulation. However, people studying antidiscrimination law have now
also come to acknowledge that the targeted tendencies can resurface in
other areas if regulation does not cover enough ground. John J. Donohue
III and Peter Siegelman note that employment discrimination in firing is
alleged and litigated at a vastly higher rate than discrimination in
failure to hire. The uneven regulatory intensity, say the authors, may
produce "a net disincentive to hire minorities and women."
Just as the Massachusetts Food and Agriculture Department foresaw an
escape valve through which milk distributors could frustrate the
regulatory purpose, Donohue and Siegelman perceive a loophole in the
present state of employment discrimination litigation.
Finally, the extent to which backfiring occurs seems to depend, in
both the race relations and the market contexts, on the degree of
"responsiveness" in the target group. In economics, elasticity
of supply measures that responsiveness: namely, how much the quantity
supplied changes in response to a unit increase in price. Whether a
consumer protection measure backfires depends on how much suppliers
decrease the quantity supplied when costs increase. A famous example of
just such a situation is Bruce Ackerman's model of a slum housing
market. In this model, most landlords "have a large fixed
investment in what they sell," and are therefore unlikely to
withdraw their properties from the market upon a moderate increase in
operating costs. This means that imposing housing codes on landlords
will shift their price structure up but will not change the number of
units available to tenants. In such a situation, prices may or may not
rise, depending on whether the marginal tenant would be willing to pay a
premium for a habitable apartment, but the tenants are better off in
utility terms either way.
In the race relations analogue to elasticity of supply, the dominant
group's capacity for racial cooperation may contract in reaction to
additional imposition or pressure. For example, in the political
circumstances surrounding the Civil Rights Act of 1991, many feared that
civil rights groups, by asking for "essentially every civil rights
reform on their wish list," had adopted a strategy that would
potentially backfire. Some predicted, "the media, or enough
Senators and Representatives [would] throw up their arms in disgust at
the groups' greed." That did not happen, however, and many of the
demands were incorporated into the version of the bill that was passed.
This situation bears a loose resemblance to the housing market situation
described by Ackerman: the media and politicians had invested enough
political capital that they were not in a position to retreat from civil
rights reform, even if they had to swallow a few more reforms than they
had initially hoped, just as Ackerman's slumlords, facing a highly
inelastic supply curve, were not in a position to withdraw their
properties from the market. Backfiring can therefore be averted when the
responsiveness of political dominants or economic suppliers is somehow
constrained.
II. STATEMENT OF THE RESEARCH QUESTION
This paper examines whether the appearance of a backfiring argument
in both race relations and the free market is an indicator of some
underlying similarity in the way commentators understand these two
spheres of private ordering. While I will not attempt to model race
relations in the comprehensive way that economists have modeled market
relations, I assert that the backfiring trope suggests there is
something in race relations to be modeled. In other words, racial
subordination is not, as some have argued, a harm like battery, isolated
in incidence, individual in cause. Instead, it is a more complex and
diffuse phenomenon that is not caused by any one individual, but rather
by the aggregation of many different individuals' behaviors. We
understand market relations not as personal but as "structural
tendencies [that] may hold through, rather than despite the free choices
of agents." In a classic formulation, Alan Freeman explains: from
the victim's perspective, racism is a condition; from the perpetrator's
perspective, it is an action. The aim of this paper is to put a thumb on
the scale in favor of the victims' perspective by reference to an area
with an already well-developed theory of the relationship between
individuals and systemic conditions: namely, economics, where "the
ubiquitous element of market freedom does not preclude the working of
definite laws governing the individual and global consequences of
exchange transactions." Through this argument, I aim to show that
those who argue that backfiring occurs in race relations, usually
critics of laws promoting racial justice, are betraying an understanding
about race relations that actually supports more progressive,
interventionist civil rights laws.
In Part III, I examine the economists' explanation of backfiring in
markets to show what backfiring indicates about that system of ordering.
In Part IV, I look at an example of backfiring in race relations to see
if similar explanations can be found in this context. In Part V, I test
my finding about the way in which race relations resembles market
relations by applying it to the affirmative action debate. In Part VI, I
discuss the implications of my finding for legal doctrine and draw from
more theoretical discussions to propose further areas of exploration.
[1]. Health policy staffer, U.S. Senate. A.B., Harvard-Radcliffe,
1995; J.D., Harvard Law School, 1999; M.P.P., Harvard University, 1999. |
