Category Archives: Economic Justice

Why Does Income Inequality Persist?: The Argument from Choice

So I was diverted a bit over the past few days, but have not forgotten my promise to complete my series on income inequality.  Obviously, the answer to the title question comprises a series of causes, and I have spent the past few weeks explicating only one.

I noted that some readers might legitimately argue that people make bad choices which result in their status at the lower end of the income spectrum, and that they should be held to the consequences of the choices they made. After all, they reaped whatever rewards they perceived to be available as a result of those choices.  This objection to my argument probably is the most common argument against any sort of significant redistributive policies, and frequently features the TV watching welfare mother who has kids so she can be supported by the state and not have to work.

I don’t think anybody denies that there are abuses in our system of social welfare.  But study after study shows us that this is anything but the rule.  Most people want to support themselves.  If you have any doubt, look at the statistics on the number of working poor.  Many of these people would be no worse off quitting their jobs and living on state assistance.  But they don’t.  As I have been at pains to point out, most people are like you and me.  They have pride, and that means self-support from self-respect.

So, if not choice, why do people wind up at the bottom?  Well, we’ve seen that circumstances of birth are powerfully determinative.  Other forms of bad luck play their roles as well; personal or family illness, disability, and the like.  But it is also true that a lot of people make bad choices.  The argument from choice doesn’t go away.

I agree with the argument from choice.  Pace Hume, Kant’s notion that as autonomous beings we should –indeed, we must – experience the consequences of our decisions strikes not only a chord with me but, I think, with most of us. (The problem with Kant – and I think Hume got it right, here – is that once you start to unravel the theory in real life and see it play through human nature, it doesn’t work.)  So if I agree with the choice argument (and many people who make the choice argument will make exceptions for certain kinds of bad luck), what have I been talking about?

Try this. Compare two nine-year old children.  Jimmy lives in Compton, California, and Susie, in Scarsdale, New York.  Jimmy’s father abandoned the family, and his mother dropped out of high school.  She works hard.  Too hard for Jimmy’s welfare. She’s out of the house before dawn, waking Jimmy and his three siblings for school, but leaving them otherwise to fend for themselves, and home well after a healthy nine year old should be in bed. While Jimmy’s dad is gone, Jimmy does have an uncle.  But his uncle went to prison when Jimmy was six. As much as his mom tells him to go straight home from school, Jimmy likes to hang around a bit with the older boys, some of whom have had problems with the law and almost all of whom spend as little time in school or doing homework as possible.  Many of these boys also have missing fathers, and none have parents who got past high school.  Like Jimmy, some have family members in prison.  They do know of one girl from the neighborhood who went to USC on a scholarship a few years back, and of a few kids who started community college, but that’s about it.

Susie lives in Scarsdale. Susie’s dad is an investment banker.  Mom worked at a big New York law firm before having kids, and now largely is home but also does some volunteer work for several civic organizations.  Susie has a younger brother, and while the schools in Scarsdale are good, they both attend private school.  Summers are spent in camp in the Adirondacks, and at the family’s home on Martha’s Vineyard.  I don’t think I need to say much more.

Do we mean the same thing when we talk about choice for Jimmy and for Susie?  Should we?  I don’t think so.  You see, we have permitted the perpetuation of a society in which Jimmy doesn’t have a lot of good choices and what good choices he has are obscured by his environment.  Who is there to help Jimmy sort the good from the bad?  Where are the examples for him of those who made good choices and reaped their rewards?  Susie, on the other hand, has good choices all around her. While it certainly is possible for her to make bad choices, her life circumstances are such that she will likely make good choices even if she were blindfolded.  And, should she make bad choices, she has a very substantial net to catch her and redirect her. (Does Jimmy deserve his circumstances?  Does Susie?)

The point is simple.  Before we hold people to the consequences of their choices we have, I think, a social obligation to ensure that they have enough good choices that are reasonably visible to them to justify doing so.  Simply setting out an array of bad choices, and holding people responsible because bad choices are what they make, seems to me wrong, immoral, and unfair.

Lawrence Mitchell

Why Does Income Inequality Persist? Putting it All Together

So today I’d like to begin the process of putting together the last few weeks of conversation on the subject of income inequality.  Recall that we started with two basic propositions.  One is the universality of vulnerability, and the ease with which those who have succeeded have a tendency to deny (or at least not to see) their own vulnerabilities.  This leads to a problem:  those who succeed tend to attribute the failure of others to succeed to moral failings rather than to structural vulnerabilities.

The second is trust, by which I have meant trust in the fairness of our social, legal, and political institutions.  As I have been at pains to illustrate over the past week, that trust is misplaced, not necessarily because those who form and run those institutions are ill-intentioned but, rather, because fairness in our highly diverse and (relatively) tolerant society really almost requires that fairness mean structural and formal liberty and equality.  As we have seen, formal fairness can be terribly unfair.

Now, we can tolerate this situation.  Philosophers far smarter than I have argued that it is the best of all possible worlds.  But remember that maintaining a system built on formal and structural fairness has the effect – if not the intention – of replicating the status quo.   While not impossible, it is very difficult to move out of the status in which your circumstances of birth have placed you.  And that, I think we all agree, is terribly unfair.

The question is, what to do about it?  It is very difficult to shift the social positions of so many Americans without damaging the interests of others.  Well, remember that I early on defined what I call the selfishness surplus.  That surplus amounts to the benefits received by the successful that they would not have received in the absence of a social structure that so heavily privileges morally irrelevant birth circumstances.  It might be possible to quantify this measure – to figure out what you would have had had you been rich or poor.  But I doubt it.  So we have to find a second best.

Sociologists tell us that education is the second most important determinant – after the circumstances of your birth – of social status and economic success.  But educational opportunities are limited by the circumstances of your birth.  So, it seems, perhaps the best way to ameliorate structural unfairness, unleash the social mobility that is our nation’s promise, and remain within the reasonable bounds of a philosophically liberal society grounded in liberty and equality, is to do a whole lot more to ensure that top quality education is available to all Americans.

While my solution might sound disappointing after all this, it is actually quite disruptive in a way that might make even this modest reform unattainable.  In the first place, it might well require a restructuring of the way we fund education. Few dimensions of our social life are more local than taxing and funding for education.  Of course we know that wealth is distributed highly unevenly among localities.  So it seems to me that we need some central taxing and distributional authority, aided by local practices, but not bound to the situation on the ground.  As should be obvious, this would also require greater taxation, perhaps a dedicated education tax, most likely imposed by the federal government, that would form the corpus of a fund dedicated to providing top quality education evenly across the United States.

I know that money isn’t the whole answer.  We know that some high-spending school districts provide far less quality in their education than some lower-spending districts.  And perhaps this means that we would have to tax less, just redistribute more.  But this would only work with a truly expert central agency that could work with localities to develop best practices that could actually help our children achieve the social mobility we prize.  Some will succeed.  Some won’t.  But at least they should have the chance.

There’s a lot more to this of course.   I provide more detailed analysis in my book, Stacked Deck:  A Story of Selfishness in America

There could be one last objection to all of this, one that I haven’t addressed and that I will take up tomorrow as sort of an afterword.  That is the issue of choice.  I have left it for last because I don’t really believe that most people choose to be unsuccessful.  But I know that there are those who do, and it forms an argument that often is used to defeat counter-arguments for providing greater help to the unsuccessful.

Lawrence Mitchell


Formal Fairness Continued

First, let me express my gratitude to those of you who have stuck with me this far. I’m hoping to wrap up this segment on income inequality this week, or at least early next week, and turn to some fundamental economic problems, foremost among them why corporations behave badly.  But today I promised a few more examples of the unfairness of formal fairness, so here they are.

We’ll start with another due process case.  George Eldridge was disabled and, as was his right, received benefits under the Social Security Act.  Four years into his benefits, he was informed by the state agency that distributed the aid that they had, tentatively at least, decided his disability had ended, and thus were going to discontinue his benefits.  He was given the chance to respond in writing, and to make his case at a hearing after his benefits had terminated.  In the year between the time Eldridge contested the decision and the actual hearing took place his benefits were discontinued, his mortgage was foreclosed, and he and his family lost their home.  Their furniture was repossessed.  The entire family had to sleep in one bed. (I don’t know where they put the bed.)

Eldridge challenged the process as inadequate, claiming that due process – fairness – required a hearing before his benefits were terminated.  After all, the Supreme Court required a pre-termination hearing for welfare recipients.  Nope, said the Supreme Court.  Disabled people need less than welfare recipients.  They probably have other resources on which to live during the waiting period.  (The Court did note evidence that suggested that disability recipients on average were rather close to the poverty line but, whatever. And, heck, if they don’t have other assets, they can always go on welfare. The Eldridges themselves had, as the Court knew, no other resources.) ‘Nuff said.

The next case is a real oldie but goodie, discredited among most legal thinkers, but nonetheless worth revisiting because it echoes in contemporary cases.  It also departs from the fairness of due process to reexamine the fairness supposedly implicit in the notion of freedom of contract that last we visited in the case of James Gallagher.

It probably goes without saying that industrial working conditions around the turn of the twentieth century – the era of the great Triangle Shirtwaist factory fire and other horrors – were less than ideal.  Evidently the work of bakers could be dangerous, and quite exhausting. Responding, the New York legislature passed a law limiting the number of hours bakers could work to ten hours a day or sixty hours a week. The Supreme Court ruled that the law was unconstitutional. Why? Because, among other reasons, it limited the bakers’ freedom of contract.  Maybe they wanted to work seventy, or eighty, or one hundred hours a week.  Who was the New York legislature to limit their individual abilities to bargain with their employers? (Recall our discussion of autonomy and its mythology a few weeks ago.)

I trust I don’t have to say much more about this.  The notion of a fin de siecle factory worker bargaining with his or her employer is risible.  The state was attempting to equalize bargaining power by imposing limits on the employer’s unlimited power, to make the situation more fair.  But, in theory, fairness in contracting allows each party freely to exercise autonomy.  So be it.

Tomorrow, I’ll start pulling all of these strands together to show how it is that – despite what often are our best intentions – our foundational ideals of liberty and equality help, in practice, to sustain serious income inequality.

Lawrence Mitchell

Why Does Income Inequality Persist? Formal Fairness Can Be Unfair: The Constitution

Thank you for your kind indulgence of the past two entries.  I suspect that, over time, I will be venturing a bit more into the personal realm.  As I think is true of all of us, my personal and intellectual concerns are often quite linked.  But, for now, back to business.

When last we left fairness, I showed how formal fairness could be terribly unfair in the contexts of marital relationships and business dealings. Those are what we lawyers traditionally call the private sphere.  (I should note that the practice of distinguishing between the private and public spheres came under substantial and – in my view – justified – attack as tolerating greater unfairness in the private sphere.  It’s that darned liberty (autonomy) again.)  Today, in keeping with tradition, I will address a case in what is called the public sphere.  That is the realm in which we deal with the government, and reasonably often, the Constitution comes into play.

Our Constitution requires that, prior to the state’s use of power, it provide the person against whom that power is to be used something called due process.  It would be hard to exaggerate the number of tenure files filled with papers attempting to define what this means, and there are scores and scores of Supreme Court opinions on the subject.  The reason is obvious:  due process is a broad concept.  It requires that the state provide that process which is due.  But how much process is due, and of what does it consist?  Does it require the same kinds of protections for a criminal defendant facing the death penalty as it does for a person about to be deprived of a driver’s license?  Well, no.  Obviously the contexts are very different.  And due process is sensitive to context.  Or so the Supreme Court says.

Here’s a relatively old case. As you read the facts, think of the ways it echoes in contemporary arguments, arguments about fairness in access to birth control, fairness in marriage equality, shucks – even fairness in making political contributions! (I didn’t comment on last week’s horrendous Supreme Court decision because my thoughts seemed superfluous in light of the extensive commentary.)  There are lots more cases like this.

James Ingraham was a fairly rambunctious eighth grader who could be somewhat disruptive in class.  Needless to say, he presented a bit of a problem for his teachers.  Unfortunately for James, he attended school in Florida, a state that, at least in 1977, permitted corporal punishment in its schools.  Now, don’t get too worried.  All that was generally permitted was a couple of paddles on the tuchus.  James had had some experience with these paddlings before.  But, one time, the teacher hit him so severely that he had to miss a few days of school to deal with the injury.

James sued, arguing that the school (which, as a public school, is an instrument of the state) was required to provide him with due process to determine his guilt or innocence before whacking him.  The Supreme Court agreed.  But what process was due?  An informal give and take between student and teacher, providing James with the opportunity to establish his innocence.

Seriously?  Leave aside the fact that due process generally requires that the judge and executioner be separate people (The Mikado, this isn’t.)  What is the Court assuming here?  It is assuming that James can exercise sufficient autonomy to provide himself with a meaningful defense.  It is assuming that the teacher has sufficient distance from his or her anger with James (and knowledge and experience of his priors) that he or she can dispassionately assess James’s claims.

In my view, this simply is ridiculous.   But the Court seemed satisfied that this process was fair to James.  Please give it some thought.  I’ll provide a few more examples tomorrow, before beginning to tie together all of the strands of the preceding weeks.

Lawrence Mitchell



Why Does Income Inequality Persist? Formal Fairness Can Be Unfair

Today I’m going to give an example of how formal fairness works in the business context.  This is especially important because business is one realm in which we generally think we should leave the parties to themselves.  Business is business, a contract is a contract.

But maybe not.  We have many occasions to test these propositions (remember the former student I wrote about last week, the one whose father was deprived of earned commissions?)  We usually find them tested when we feel that we ourselves have been treated unfairly.  But unless our own ox is being gored, we tend to revert to these maxims.

James Gallagher worked in real estate.  He worked for Eastdil Realty, where he was also a member of the board of directors and an officer, and president of a subsidiary.  We shouldn’t pity Mr. Gallagher.  He was quite successful.  At one point his commissions even reached $1 million.  The company gave James, and the other Eastdil executives, the chance to buy stock in the company.  The plan was written, as many executive stock plans are, to discourage valuable employees like James from leaving the company.  It provided that if an employee stopped working for Eastdil within twenty-four months, the company could buy back the stock at book value. (Without getting into details, please assume that book value is about the lowest form of value you can put on a share of stock.)  If he stopped working for Eastdil after twenty-four months, the company could still buy back the stock, but under a formula that approached its real economic value.

James bought 8.5% of the company’s stock, which made him the third largest shareholder. Powerful, but not powerful enough.  Twenty-three months after James bought his stock and signed the agreement, he was fired.  The company then demanded the right to buy back the stock at book value, which was $89,000.  If James had worked for Eastdil for another month, the stock would have been worth $3 million dollars.  Yup.  You got it.  The others fired James opportunistically, just before the higher value kicked in, so they could keep the value of his stock.  They basically took – one might say stole — the $2.9 million that James lost.

Too bad.  That’s what the New York Court of Appeals, New York’s highest court, said.  James signed a contract.  The contract permitted what happened.  So be it.

Really?  Leave aside for the moment the question of whether or not James was treated fairly.  Look at the messages the court is sending to our society.  First, fairness is a matter of form. James didn’t have to buy the stock or sign the contract.  He did.  He gets what he bargained for.  Forget that fact that James probably trusted his business partners – that was his problem, says the court. Forget the fact that James probably assumed that, contract aside, the basic rules of free contracting don’t permit blatantly opportunistic behavior.  They do.   Is this the kind of society in which we want to live? Is this fair? It is, under a strict reading of American liberal theory. (Freedom of contract is an instantiation of our exercise of our liberty.)

What do you think?

Lawrence Mitchell

Why Does Income Inequality Persist? Fairness and Trust

So I have spent some time on fairness and some on trust.  I now want to put them together to show how fairness simply doesn’t work the way we would want it to if its goal were to provide some compensation for structural vulnerabilities.  Today will be conceptual.  Tomorrow, I’ll tell some true stories to illustrate the point.  I hope you’ll bear with me because today’s post is a bit dense.  I promise to reward your patience tomorrow.

Again, I must start with a qualification – a very big qualification.  I am not going to point fingers, blame anybody, or come up with a big conspiracy to keep the disadvantaged down.  Blame may be – certainly is – due in some cases.  There might even be conspiracies.  But these are not important.  The truly important point is that the kinds of unfairness I will be discussing are intrinsic to American ideology – ideology that we more or less all accept.  This ideology is, in fact, our secular religion, and is the (rather weak) glue that binds us together as a nation.

The ideology simply is American liberalism.  I don’t mean political liberalism, with a big “L”, contrasted with conservatism.  What I mean is the philosophical liberalism that is the core of our Constitution and our political and legal institutions, liberalism that Hume and Smith would have recognized as the fundamental Enlightenment ideals.  The twin underpinnings of this liberalism are the familiar liberty and equality.

Now everybody knows that, at least in practice, neither liberty nor equality is absolute.  Liberty exists for each of us only to the extent that, in our exercise of it, we don’t interfere with the liberty of others, at least too much.  And equality – well, equality itself is simply a kind of comparative word.  To say that two non-numeric things are equal is, without more, meaningless.  We have to ask in what ways they are equal.  In liberal philosophy at its most threadbare, we mean that people have equal liberty, the equal opportunity to exercise their autonomy.  It is, of course, precisely this equality that limits liberty, for at some point our unrestricted exercise of our liberty would impede that of others.

I suppose, keeping with the great American philosopher John Rawls, as well as my own conclusions, one can see liberty and equality as consisting of a kind of political fairness.  (Rawls actually uses his understanding of fairness to get to these principles which themselves come to instantiate fairness.)  But Rawls’s notion of equality is a little richer than the threadbare liberal view I presented above, and so is mine (although mine is richer than Rawls’s).  Without getting into it for the moment, I suspect most of you would also think of equality as consisting of a bit more than I’ve stated, if for no other reason than that, simply by looking around you, you can see people who are unable to exercise their liberties because of significant inequalities.  Even those who believe that our understanding of civic and political equality should be nothing more than equal opportunities to take advantage of the world around us should see that disadvantage – vulnerability – may impede the abilities of others to do so.

One of the most important things that binds our society together is our trust in the fairness of our system.  That is now to say, our trust that our society provides us with the equal opportunity to enjoy our liberty.  It is that trust in our system that allows us to believe in the myth of the American Dream that I wrote of several weeks ago, the myth that anybody can rise in station simply by dint of talent and hard work.  It is our trust in this fairness that keeps us living in peace.

But we trust too much.  The liberal philosophical notion of liberty and equality as fairness leads to political and social institutions that are formally and structurally fair but in fact can lead to unfairness by perpetuating the status quo.  Formal and structural fairness takes no account of permanent and structural vulnerability.  Even when we try to shape our laws and norms to be fair in substance, we ultimately fail by reverting to formal and structural fairness.  I will illustrate these points tomorrow.

Lawrence Mitchell




Why Does Income Inequality Persist? Two Kinds of Trust

I have been at some pains to demonstrate that vulnerability is a universal condition, at once personal and societal.   The mere recognition of the latter fact should be enough to paralyze every one of us who spends a moment in thought.  The simple act of getting out of bed in the morning subjects you to danger from others, if in fact you are even safe in bed.  Making coffee requires trust that your coffee maker won’t explode, your water is drinkable, and your coffee is, in fact, coffee.  Yet people, whom, to us, are nameless and faceless, provide all of these things.  How do we function?  How do we survive in a complex society in which we must trust those we cannot know and who do not know us, those to whom we are vulnerable but are unlikely to care about us as individuals?

The answer is trust.  Now I know this sounds peculiar.  Most people give trust only gradually, if not grudgingly, and only to people they know.  But two kinds of trust are at play here and it is the latter without which we could not survive.  The first kind of trust, the trust we place in those we know and whom we have reason to believe care about us, is what I shall call interpersonal trust.  The second kind of trust, the trust that lubricates all social interaction, I shall call institutional trust.

 I’m not going to spend any time talking about interpersonal trust.  We all intuitively understand that attitude.  More interesting, because it’s more complex, is institutional trust.  You see, we don’t actually trust the CEO of our bank or its employees any more than we trust the pharmacist behind the counter at our favorite chain drugstore or even the woman who inspects the chicken we’re going to eat tonight.  We can’t trust them because we don’t even know who they are.  We only know that such people exist.  What we trust instead is the institutions that create the incentives and safeguards to ensure that they behave in a trustworthy manner.

What are these institutions?  Well, social norms are one. If you become a pharmacist, you know you have a role to play.  You know that people are relying on your judgment and caution.  You have a set of professional norms to which you are acculturated in your education and which are amplified by your professional association.  You take pride in these norms and your compliance with them validates you as a member of your profession.  To some degree or other, all of us are subject to the norms surrounding the various roles we fill, whether professionally or in personal relationships.  These norms – the violation of which might subject you to formal sanction (as is true, for example, with lawyers and doctors) or might at the least subject you to criticism and perhaps ostracization – create very powerful incentives to behave as you would if you were in fact trusted.  (I have also made the argument that the very fact that you know you are trusted stimulates trustworthy behavior.)

Another important institution is the law.  At its best, the law provides incentives for you to act as you would were you entrusted by someone you knew.  Some of you might immediately disagree.  Our laws, you might say, don’t generally require the caring and thoughtful behavior that personal relationships of trust require.  Quite true.  The obligations imposed by law are generally rather minimal.  But they are enough to keep us safe from those upon whom we rely.  Take simple traffic laws.  You might rely on peoples’ self-interest to keep them from running stop signs.  Nobody wants to die in an automobile accident.  But, pace Hume and Smith, sometimes people misperceive their self-interest.  (I’d rather take the risk of an accident than be late for a job interview.)  Or, if you think that my parenthetical simply expresses a rational view of self-interest, then their self-interest diverges from the common good.  (I will take the risk of an accident, which also imposes risks on others, because it is more important to me at this moment that I not be late and I really don’t care much about those others anyway.)  Perhaps.  But you are (for most of us most of the time) brought back to the world of careful drivers because you don’t want to get a ticket for running the stop sign.

You can play with many different examples.  Much of the time, perhaps all of the time, your compliance with these social norms and laws comes down to self-interest.  But – most of the time (and that’s an important qualification I’ll get to in future posts) –the rest of us don’t care why you behave as you do.  We only care that you behave in a manner that protects us all.  When social norms and laws are functioning, institutional trust can flourish and society can prosper.  And yes, institutional trust has a huge economic function.  Just imagine the costs you’d have to incur to protect yourself if we didn’t have this infrastructure of incentives.  We’d never make it out of our caves.

I hope this is enough to illustrate an important reason why, despite universal social vulnerability, we manage to get by.  The role of trust in the context of income inequality is an important one, and multifaceted.  I will begin that discussion tomorrow.

Lawrence Mitchell

Why Does Income Inequality Persist? Vulnerability is a Social Disease

The examples I’ve given of vulnerability so far are fairly specific – youth, illness, poverty, etc.  Yet I’ve been talking about vulnerability as a universal condition.  Today I’d like to be more specific about what I mean.  Simply put, vulnerability is an inescapable social condition.

First let’s take an extreme case of life in isolation, off the grid, self-reliant and self-sufficient.  Are you invulnerable?  Of course not.  As a simple natural matter, you remain vulnerable to disease, weather, animals, and the like.  And, if you assume other people in the world, you remain vulnerable to them as well, if only remotely, because you don’t know whether and when others might covet your possessions.  (I am very careful to use the word “possessions” rather than property.  The latter is a legal concept, designed to protect you precisely from such intrusions.  The only reason you can claim something as your property is because the state says you can and is willing to enforce your right to claim it.)

But few of us live like that.  Most of us live among others, in society, whether that society consists of family, village, city, state or country.  (I know I’m using political subdivisions here, which don’t necessarily correlate with society, but bear with me – it’s just for ease of reference.)  Life in any sort of society makes you vulnerable simply because others around you might cause you harm.  This, too, is a fairly primitive level of vulnerability, but it’s real.  But life in society creates far more complex vulnerabilities.  Each of us is dependent upon others for our food, our shelter, and ultimately our survival.

Take the example of one of my favorite T.V. shows, Gilligan’s Island.  Each of the castaways had their own role in ensuring the welfare of all.  The Professor figured out how to design shelter, create the tools needed in everyday life and, from time to time, the inevitably unsuccessful means of escape.  The Skipper and Gilligan provided the “muscle,” exploring the island, finding food, etc.  Mary Ann cooked.  I’m not quite sure what the Howells and Ginger did, but you get the idea.

So it is in our society.  Each of us relies on so many others.  But our reliance is more challenging than that of the characters in Gilligan’s Island.  Unlike them, we don’t know most of the people on whom we rely.  We don’t know the people who grow and package our food, who produce our medicines, our clothes, and our cars.  We don’t know the people who design and build our bridges, or fly our airplanes.  We don’t know the people who are charged with protecting our money in banks or our pensions in the stock market. But we are vulnerable to all of them still, perhaps even more vulnerable because we lack the close connections that would give them an emotional desire to care for us and to ameliorate our vulnerabilities.

Social vulnerability is pretty scary when you stop to think about it.  You might even wonder whether it is safe to get out of bed in the morning.  But you do.  And you do rely on others in every dimension of your life, you do accept the vulnerabilities of social life, mostly without even thinking about it.

Why do you do this? You do, because you have no choice.  Few of us would choose to leave modern society and live off the grid. But you do, as well, for another important reason.  The cure to the social disease of vulnerability is the salve of trust.  We accept our social vulnerabilities, and do so without the kinds of self-protective behaviors that our vulnerability would justify, because we have developed sufficient trust in our institutions – including the institution of law – that we feel reasonably safe.

I’ll talk about trust tomorrow. It is terribly important as a social lubricant.  At the same time, trust can be dangerous if it is misplaced.  I will argue that, at least in the context of the broad issues of social justice I have been addressing – income inequality in particular – trust is misplaced.

Lawrence Mitchell


Why Does Income Inequality Persist? Blind Justice

In this and the next several posts, I’m going to talk about the ways in which two perversions of moral psychology blind us to the vulnerabilities of others whom we choose not to help, or resent helping, because they are “undeserving.” (The notion of the undeserving poor often reminds me of Alfie Doolittle’s wonderful argument to Henry Higgins that, as a member of that category, he actually needed more than the deserving poor.)  These perversions, producing blindness, find their way into our laws, laws that are supposed to help.

These (related) perversions are (i) we (the currently wealthy and powerful) fail to understand the degree of our own vulnerabilities (with the flip side of failing to understand the role of luck) so that we fail to see the vulnerabilities of others; and (ii) we see only the vulnerabilities of those who are not like us, at least in the sense that they are obviously and painfully vulnerable.  We help the people in the much smaller category (ii) (which includes the sick and the young and the old), but not the people in category (i), who may also be deeply needy.

Let’s turn to an example, or really a thought experiment. Say you are walking through a crowded shopping mall during the Christmas season, and come upon a young child, alone, crying, and bewildered, who tells you he can’t find his mom.  What do you do?  Now let’s say you are approached by a middle-aged man, clean-cut and in a nice suit, who tells you that he last saw his wife in Neiman Marcus but now he can’t find her and would you please help him.  What would you do?

Chances are pretty good that you’d immediately help the child, at least by taking her to the security desk and waiting while they paged her mother.  Chances are, I think, equally good that you’d turn away from the middle-aged man as fast as you could.  Why?  The child is obviously vulnerable, really almost helpless.  The man looks perfectly capable and there is something creepy about his request, such that you suspect an ulterior motive.

This is what I’m talking about.  We help the child because we see the vulnerability.  We don’t know anything about the man; perhaps he has early dementia, or had some minor surgery that morning that left him woozy, or any one of a number of things that might have impaired his ability to find his wife.  But we don’t see it, and we probably don’t even ask.  The child is unlike us, in that she is a child.  Our moral impulse to help works because all of us were children and can empathically connect with her fear, and because she obviously is vulnerable, needs our help, and we are there to give it.  The man, not so much.  He is like us.  We should be able to identify with his frustration.  But he shows no signs of vulnerability.  We thus assume that, like us, he is temporarily invulnerable.  He doesn’t need our help.

In future posts I’ll show how our laws are based on these perversions, how our justice is blind to vulnerability.  As a general matter, we provide formal and procedural help to those who we perceive to be invulnerable, and we provide real substantive help to those we perceive to be vulnerable.  Examples of the former include the due process in administrative law where government benefits are at issue, and our laws of “fairness” in matters of marital law and corporate law.  Examples of the latter include the Americans with Disabilities Act, and Social Security.  The problem is that formal and procedural help generally don’t help all that much.

The examples I’ve given of vulnerability are situational and transitory.  But it is important to understand that vulnerability is intrinsically a social condition.  We rely upon one another to fulfill so many of our needs.  We are, partly as a result of this and partly as the simple condition of living in society, also dangerously exposed to harm from one another.  Tomorrow I shall discuss vulnerability and its correlate, trust, in the context of modern American society.

Lawrence Mitchell

Why Does Income Inequality Persist? Of Vulnerability, Empathy, and Otherness

Today I’d like to focus a bit more on the concepts of vulnerability and empathy, because the way I’m using them (and the way Hume and Smith used “sympathy,” which is more or less how we use empathy), may not be completely obvious.  I’ll also show how empathy and vulnerability, misunderstood, can lead to a dangerous branding of people who really are like us as “other.”

This last point, which is a good place to start since it’s really the whole point of this post, is observable in an extreme example:  European anti-Semitism.  And no example of European anti-Semitism was more extreme than that created by Nazi Germany.

The Nazi propagandists (despite being raised in the land of Kant) understood Hume and Smith quite well.  They knew that human similarities breed intuitive empathy.  In order to effect the removal and extermination of the Jews, they had to destroy this very human link.  They did so by adopting tropes that long had characterized European anti-Semitism , the description of Jews as less than human.  Vermin, rats, even pigs, were labels applied to them (well, us).   This linguistic device was subtle in a special way and, for that subtlety, all the more powerful.  You see, in the Jew-hating trope, Jews weren’t like vermin, or rats, or pigs. That use of simile, while damaging enough, would have conceded the human quality of the victims while tagging them with some characteristics of these animals.  Oh, no.  For the Nazis, as for European anti-Semites preceding them, Jews were vermin, rats, pigs, or whatever.  By describing and, in cartoons and the like, depicting Jews this way, they took away the human characteristics of Jews entirely and, like vermin, rats, and pigs, made them subject to extermination without moral compunction.

Now please understand that I use this example as an extreme case, and only because, like most extreme cases, it provides a very clear and easily understood example.  In no way, shape, or form am I going to accuse anybody (other than Nazis) of behaving like Nazis.  All I mean to do here is to show how terribly vital our human understanding of others is to our identification with them.  And it is that identification which, as Hume and Smith well understood, leads us to caring and thus to moral behavior.

So, let’s step back.  The basic idea is that our moral sense is based on our empathic identification with the pain and sorrow of others.  Do you flinch when you see someone else in pain?  Do you smile in the presence of an exuberantly happy person?  Most of us do, at least from time to time.  We do because we, having experienced pain and pleasure ourselves, empathically identify with the feelings we are observing.  We all react this way, to varying degrees.  We have different sensibilities.  For example, I can’t watch boxing, because my identification with the contestants’ pain is too much.  My eyes still moisten when I hear a recording of Sinatra singing “In the Wee, Small Hours.”  You get the point.

Anyway, it is this very fundamental, almost instinctive, identification with others that allows us to empathize with others’ pain and pleasure.  But it takes more to turn these feelings into thoughtful, moral behavior.  It takes thought.  It takes the use of our imagination to turn these intuitions back into reasons for action. It takes effort.

It takes even more effort with pain than with pleasure.  Smith taught us that we have a greater propensity to feel another’s pain than their joy, but we are more likely to sympathize with their joy than their pain. Why?  Pain hurts. We try our best to avoid it.

Smith put it well:  “Nature, it seems, when she loaded us with our own sorrows, thought that they were enough, and therefore did not command us to take any further share in those of others, than what was necessary to prompt us to relieve them.”

While I generally agree with Smith, I’m going to argue that the deficit in sympathetic pain Nature gave us is, at least in modern American society, insufficient to move us to action.  In my next post, I will discuss our collective failure of imagination.

There’s one last point I’d like to mention before putting this together.  We also tend to empathize more with those closest to us than those more distant.  Those who observed the horrors of 9/11 from the sidewalks of New York had a very different experience than they would have reading about the tsunami on Bali.  Pain, yes.  Deep empathy, yes.  But less deep for the one than for the other.  In a similar vein, just imagine your reactions when your own child is in pain or distress and compare them to reactions when it is a friend’s child, or you read about somebody else’s child in a newspaper.

Now look at what we’re building and why it can be so dangerous.  Dehumanization is the most damaging of all conditions for the health of one’s moral sense.  But take superficial difference (race is a good, but hardly the only, example), pain, and distance and, voila, you start to disconnect strong moral intuitions.

I’ve gone on longer than usual, and I know this is not always easy reading, so I’ll continue tomorrow.  But I will leave you with a story.  Years ago, I had a student who regularly challenged me on points like these, and who belittled my arguments that law and society should be shaped in a manner that attended to the vulnerable.  Several years later, after he graduated, he showed up in my office to ask me a favor.  He told me that his father, a commission salesman, had been fired from his job and his employer was withholding earned commissions.  He complained about the terrible unfairness of this – I agreed – and he asked me what he could do.  Before answering him, I smiled and simply asked: “John, do you now understand what I was getting at in class?”  He looked at me, a bit sheepishly, and nodded.  There you have it.

Lawrence Mitchell