Tuesday, March 12, 2013
We don't talk about economic inequality much these days in constitutional law--at least not as much as we should. And we certainly haven't heard enough about poverty, its causes, and its solutions in politics. ConLawProf Mike Zimmer (Loyola, Chicago) is out to do something about that in his excellent piece Inequality, Individualized Risk, and Insecurity, recently posted on SSRN and based on his Thomas E. Fairchild Lecture at the University of Wisconsin Law School last April.
Zimmer's core argument connects the dots between inequality in today's economy, government policy, and money in politics--in a way that we don't often hear, even in discussions about campaign finance reform. (Sure, there's plenty of talk about the vast amounts of money in politics, but we don't often connect that to poverty and economic inequality.) Here's Zimmer:
The thesis of this paper is that our extreme inequality in part results from government policy, that much government policy is the result of the undue influence of money in politics, and that, before any reform is likely, the dominance of money in politics must be substantially reduced. An important question is how that dominance can be reduced; however, the ansewr to that question is far from clear.
Zimmer takes us through the current state of economic inequality and connects that to government policy. He limits his focus to labor policy, but still he manages a wide-ranging discussion, tying federal labor policy to Supreme Court rulings (in Ricci v. DeStefano, Wal-Mart Stores, Inc. v. Dukes, AT&T Mobility LLC v. Concepcion, and even Ashcroft v. Iqbal) to show how the Court has aided and abetted Congress in tamping down labor rights at every turn. Again, Zimmer:
In sum, putting these decisions together, employers with collective bargaining agreements have a strong incentive to require an arbitration clause shifting all statutory claims to arbitration but at the same time precluding jury trials and class actions. That same incentive exists for employers without a union representing its workers.
If, somehow, an employee with a federal statutory claim is able to avoid having it shunted into arbitration, the Supreme Court has erected formidable procedural barriers to it reaching trial. Until recently, employment discrimination cases were not likely to be dismissed before the summary judgment stage, which was typically triggered once discovery was complete. In Ashcroft v. Iqbal, the Court moved up the possibility of dismissal to the earlier pleading stage before any discovery typically takes place.
Zimmer then persuasively ties federal policies that create inequalities to money in politics, again examining the Supreme Court's complicity (in Citizens United). He calls for campaign finance reform, but, recognizing that "the prospects . . . are not good," he alternatively suggests an economic equality social movement. Zimmer says the Occupy Movement is a start; so is popular culture (with, e.g., Steven Colbert's efforts to highlight the problems with super-PACs).
Zimmer's piece, with its tying-together of everything from poverty and extreme inequality to labor policy to campaign finance to social movements, is a joy to read. Highly recommended.
[Image: Vincent Van Gogh, The Potato Eaters, Google Art Project]