Latest Scholarship

April 27, 2011

In Passing: Keith Aoki

Cross-posted from IntLawGrrls.

How to begin paying my respects to Keith Aoki?
Keith (above) worked across the hall from me these past 4 years. He'd joined us as a Professor of Law at the University of California-Davis in 2007, having been the Philip H. Knight Professor of Law at the University of Oregon.
It was always a delight to visit with Keith, to share in his ever-present cheerfulness as we mulled questions of law, politics, and myriad other areas.
Emphasis on "myriad."
Keith's expertise won renown in many fields:
► Law and social science.
Local government, intellectual property, Asian American studies, cultural geography, agriculture, critical theory, to name a few. This sampling of publications illustrates his breadth of intellectual endeavor: Seed Wars, Cases and Materials on Intellectual Property and Plant Genetic Resources (2008); "(In)visible Cities: Three Local Government Models and Immigration Regulation" (co-authored, 2008); and "Is Chan Still Missing? An Essay About the Film Snow Falling on Cedars and Representations of Asian Americans in U.S. Films" (2001).
► Art, too.
As explained at page 73 here: "In the mid-1980s" Keith, holder of bachelor's and master's degrees in fine arts, "decided to leave the bohemian art demimonde to go to Harvard Law School." Keith drew wonderful cartoons. Some made their way into graphic accounts of law, such as Bound by Law? Tales from the Public Domain (2006). Bound is available free online via a Creative Commons license -- a fact that hints at Keith's generosity, to colleagues, students, everyone. A couple years ago Keith gave a hard copy to my then-preteen son, who absorbed it avidly and is now wont to cite chapter and verse of copyright law. (Keith co-authored Bound with James Boyle and Jennifer Jenkins, the latter of whom remembers him here. Other remembrances are here, here, here, and here.)
Keith's creative expression included playing bass in a band, the Garden Weasels, and that avocation contributed to the forthcoming graphic book by him and his co-authors, Theft! A History of Music.
In addition to valuing his friendship, I've been particularly grateful for Keith's unflagging support for the California International Law Center at King Hall, the law school initiative founded 2 years ago. He was a member of our CILC Faculty Council, served on CILC committees, and helped immensely with program suggestions and speaker invitations.
Keith passed away yesterday morning, at age 55. He is survived by his wife Mona, their 9-year-old twin daughters, and a world of friends. We will miss him beyond words.


April 25, 2011

Elitism and Education (Part IV): Admission Office Bias Against Rural Students?

In a prior post about Thomas Espenshade and Alexandria Walton Radford’s book, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life, I mentioned Ross Douthat’s assertion that “the downscale, the rural and the working-class” whites were most disadvantaged in elite college admissions. In this second installment about the book and Douthat’s 2010 column comments on it, I want to discuss the rural issue, which Douthat characterizes as bias against rural or “Red America.” Douthat wrote:

“[W]hile most extracurricular activities increase your odds of admission to an elite school, holding a leadership role or winning awards in organizations like high school R.O.T.C., 4-H clubs and Future Farmers of America actually works against your chances.”

In his response to Douthat’s initial column, Espenshade clarified that rural-oriented extracurriculars are not the only ones whose value is discounted by admission offices. Espenshade wrote:

“These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors. Participating in these activities does not necessarily mean that applicants come from rural backgrounds. The weak negative association with admission chances could just as well suggest that these students are somewhat ambivalent about their academic futures.”

As a related matter, Espenshade clarifies that applicants from “Red” states have better odds of getting into an elite university than those from more populous states, many of which are “Blue.”

“Compared to otherwise similar applicants from California, those from Utah are 45 times as likely to be admitted to one of our elite colleges or universities. The advantage for applicants from West Virginia or Montana is 25 times greater, and nearly 10 times greater for students from Alabama. Because top private schools seek geographic diversity, and students from America’s vast middle are less likely to apply, it stands to reason that their admission chances are higher.”

This part of Espenshade’s response essentially skirts the rural issue by ignoring the fact that entire states are not rural, even if they are popularly perceived as “Red.” In short, Espenshade gets the scale wrong. If the goal is geographic diversity beyond a very superficial level, we should be considering not an applicant’s state of origin, but rather county of origin. I would guess that those being admitted from Montana are far more likely to hail from Billings, Bozeman, Missoula or Kalispell, less likely to have grown up in Columbus, Harlowton, Derby, or Plentywood. As Douthat points out, admitted Alabamans hardly represent meaningful geographic diversity and do nothing to enhance socioeconomic diversity if they are products of elite institutions such as Indian Springs School in Birmingham, which is a feeder institution to the Ivy Leagues. Further, Salt Lake City, Montgomery, and Charleston are metropolitan areas, not exactly the hinterlands.

Returning to the finding regarding the impact of rural-type extracurriculars, I find it problematic for several reasons, even with the career-orientation spin that Espenshade puts on it. My annoyance is attributable to my own education in a poor rural school where—guess what?—the only extra-curricular activities were Future Homemakers of America, Future Business Leaders of America (we learned typing and two-column bookkeeping, not portfolio management), a science club (this, ironically, although the school’s science curriculum was so limited that it offered chemistry and physics only on alternate years), basketball, and cheerleading. In the nearly three decades since I graduated, the school has acquired an ag/vo-tech shop program, begun participating in Future Farmers of America, and expanded its sports offerings. In just the last couple of years, it has added music/band. Apparently, only the last of these curricular changes makes students there any more appealing to elite college admission officers.

At the risk of taking this too personally and thus undermining my argument, I’ll continue to use myself as an example. As a high school senior, I applied only to the University of Arkansas, where I was admitted and given a scholarship based strictly on “the numbers.” Had I known I “should” apply to an elite college and done so, I apparently would have looked incredibly uninteresting to those making admission decisions—even though I had held leadership posts and won awards in all of my school’s organizations, participated in 4-H (a community activity, not a school one), and had a 4.0 GPA (no AP courses on offer). My ACT score that was probably in about the nation’s top quartile (no prep course—didn’t know they existed and would have had to travel hours to reach one).

I’m hopelessly biased, of course, but I think I was a pretty interesting 17-year-old—regardless of how this dossier might have looked to an elite college. Certainly I was ambitious, but because my parents were working class, I had very limited knowledge of how to get ahead in the world, and my high school did not then have a counselor. In terms of diversity of life experience, I would say I offered a great deal to the nation’s elite colleges.

As a white class migrant in academia, I suspect I am relatively rare—especially among my generational cohort. As a rural, working-class student with promise, however, I am sure that my 17-year-old self was/is not alone. How many such working-class white students—especially rural ones with credentials that are even less cognizable to and appreciated by admission officers—might get ahead and achieve their potential if they had the sort of opportunities and encouragement that gets them in the pipeline to an elite college (or, for that matter, any college)? We must ask the same question re: working class minority students, of course, but at least we know that elite college admissions officers are on the lookout for them. Those same admissions personnel don’t appear to be looking for—or perhaps even to know how to identify—working-class whites, rural or not. Read more here. If they do, they appear to dismiss them as uninteresting or unworthy, using the euphemism “career-oriented.”

Justice Powell wrote of the value of diversity in Bakke v. University of California Regents (1978):

“[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.”

Ironically, Powell was quoting a Princeton University admissions officer, who is also quoted in Espenshade and Radford’s book. In Bakke, Justice Powell also referred to diversity as a “tenet of Harvard College admissions,” writing:

“Fifteen or twenty years ago … diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players, biologists, historians and classicists; potential stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans, but also blacks and Chicanos and other minority students.


[T]he race of an applicant may tip the balance in his favor just as geographic origin or life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students at Harvard College depends in part on these differences in the background and outlook that students bring with them.”

Thus, the rural-urban axis was at one time prominently recognized in relation to diversity, and the rural-urban divide has only become more marked in the several decades since Bakke. Yet Espendshade and Radford’s study suggests that elite college admissions offices know precious little about the far rural end of the rural-urban continuum. They don’t seem to know, for example, that extra-curricular activities are extremely limited at many rural schools, and they tend to put those that are mostly available in the death knell category: “career-oriented.” Admission officers are perhaps not aware of the impact of spatial inequality and isolation, rural poverty, and other aspects of rural disadvantage (e.g., limited curriculum) on students’ lives, as well as on their college aspirations and applications. Or, maybe they are aware are and just have a “too bad,” “tough break” attitude.

If geographical context is beyond the knowledge of those assessing the presumably rare applications from rural students—those effectively denying these students access to elite education and its apparently snowballing benefits—how can the expansive view of diversity endorsed by the Bakke Court be achieved? Just as admission offices seem to know little of the realities of white working class, so they know little about the rural sub-set of that group. This blind spot seems to me one more reason that elite colleges should affirmatively seek to admit rural and other white working class youth. If we don’t facilitate their class migration, how are we going to know what we know—and what we don’t know—about the lived realities of these socially and spatially removed groups?

Cross posted to ClassCrits Blog, SALTLaw Blog, and Legal Ruralism.

April 17, 2011

Elitism and Education (Part III): Working Class Whites and Elite College Admissions

(Parts I and II of this series appeared in August, 2010 here and here.)

Ever since Ross Douthat discussed No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life in a July 2010 column, I’ve been fretting about some of the book’s findings.  This 2009 book discusses the authors' exhaustive study of college admissions, with particular attention to elite colleges.  Among the conclusions of Princeton sociologists Thomas Espenshade and Alexandria Walton Radford is that whites and Asians needed higher grades and SAT scores to gain admission, while blacks and Hispanics were favored in the admissions process.  Stated thusly, I am not troubled by the finding.  But then Douthat makes a related point, about the consequences of this fact on “lower-class” whites:

For minority applicants, the lower a family’s socioeconomic position, the more likely the student was to be admitted. For whites, though, it was the reverse. An upper-middle-class white applicant was three times more likely to be admitted than a lower-class white with similar qualifications.

Douthat goes on to explain that this failure to admit more working- and other “lower-class” whites may be “a money-saving tactic.”  Specifically, “Espenshade and Radford suggest that these institutions, conscious of their mandate to be multiethnic, may reserve their financial aid dollars ‘for students who will help them look good on their numbers of minority students,’ leaving little room to admit financially strapped whites.”

Douthat characterized this as “unsurprising,” noting also that the “downscale, the rural and the working-class” whites were most disadvantaged in the admissions process.  I will discuss the “rural” part of his assertion in a future post, but for now I want to focus on the working-class white part, geography aside.

I initially blogged last summer about Douthat’s column on my Legal Ruralism Blog here, but I was a bit skeptical of his summary so I ordered the Espenshade and Radford book.  By the time it got to me, the NYT had published Espenshade’s response to the Douthat column.  An excerpt follows:

We find that applicants who demonstrate a strong commitment to career-oriented extracurricular activities while in high school have a slightly lower chance of being admitted to a top school.  This outcome affects only students who have won awards or assumed leadership positions in these activities, not those known for their extensive involvement.

I do not understand the distinction Espenshade is making between leadership and awards on the one hand and extensive involvement on the other.  I would expect the two to go together, and I am unclear as to why winning awards and being a leader would be looked on less favorably than extensive involvement. In any event, Espenshade continues:

These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors.

Espenshade thus challenges Douthat’s association of these activities with rurality.  Espenshade asserts instead that such activities “could just as well suggest that these students are somewhat ambivalent about their academic futures.”

This is consistent with what Espenshade and Radford say in their book, presenting the “bias,” if you will, as one against students whose interests run to what they characterize as “career-oriented.”  In a somewhat similar vein, they find that holding a part-time job during high school also hurts one’s admissions prospects.

In response to Espenshade’s clarification, Douthat points out the difference between admissions and acceptances, stating:

It’s a question of admissions offices looking at students who went to the effort of applying to elite schools (an act that already suggests a strong interest in an academic future of some sort) and downgrading their chances, for whatever reason, because they excelled in ROTC or the 4-H club or a co-op work program.

While I found Espenshade’s clarification helpful and agree that Douthat initially failed to provide adequate context, I tend to agree with Douthat’s point that the current system is not achieving optimal diversity.  If we really want diversity, shouldn’t we admit proven high school leaders with good grades and such, regardless of the nature of the extra-curricular activities in which they demonstrated their leadership?  I also must admit that I’m not really sure what sort of high school activities do not look “career-oriented.”  (But maybe that comment reflects both my age and my place of origin …)  It is, after all, high school.  Perhaps involvement in the arts or some such seems more impressive and more academic?  But opportunities to participate in the “right” enrichment activities may not be available in all schools or all communities.  Further, working class families may not be able to afford the costs associated with participation of some enrichment activities, just as educational travel may be beyond their reach.

In addition, it seems just plain wrong to me to hold against an applicant the fact s/he held a part-time job.  Where I come from, a part-time job is a reflection of industry, not lack of ambition.  (It is also often a reflection of need.)  I suppose, however, that more affluent parents discourage their children from working for pay because it diminishes the time they would have to invest in their studies and in the “right” extra-curricular and enrichment activities.  (For a fascinating discussion of the different child rearing priorities and practices of the white working class compared to the professional/managerial class, read the “Learning Class at Your Mother’s Knee” section of Joan Williams’ 2010 book, Reshaping the Work-Family Debate: Why Men and Class Matter.)

Some aspects of the Espenshade and Radford study fly in the face of the pervasive notion that we are a nation in which social mobility is attainable for everyone, including working-class whites--indeed, maybe especially for them because they enjoy white privilege.  Maybe the lesson is that lower/working class folks are only supposed to ascend the socioeconomic ladder one rung at a time.  It’s OK if working-class whites get to college—maybe we even want them to—but perhaps we think they do not belong at elite colleges.  Maybe an elite education is actually a rung or two farther up the ladder, rungs reserved for a future generation, for the kids or grandkids of the generation that first makes it to college.

It nevertheless saddens me that this thwarting of class mobility for working-class whites is partly a consequence of the absence of admissions officers who actually know something about working-class families, not only their fiscal limitations but also the ethic of industry associated with them.   Otherwise, why would career-oriented activities be held against these students who—by engaging in such activities—may be hedging their bets in the event they don’t “make it” in higher education or, as the case may be, even get admitted to elite colleges.

Must everyone who gets into an elite college be either pre-ordained by (1) circumstances of birth into relative affluence or (2) the all-too-rare and lucky racial or ethnic minority who gets an affirmative action slot?   To my mind, the tunnel vision of elite college admissions officers is one more reason to be concerned about the relative absence of class migrants—including white class migrants (read more here)—from influential positions, including the ranks of college admissions officers.

Cross-Posted to ClassCrits Blog and SALTLAW Blog.

April 12, 2011

Bayh-Dole @ 30: Mapping the Future of University Patenting (UC Davis, April 29–30, 2011)


For the last thirty years, the Bayh-Dole Act has framed the relationship between US universities ad industry, promoting the flow of publicly-funded research toward private-sector development.  In doing so it has also fostered, or at least epitomized, the university’s turn to intensive intellectual property production, protection, and licensing.  It has been both hailed as a much-needed modernization of ivory tower culture and attacked for its corrupting effects on the university’s commitment to open knowledge.  Our conference moves beyond predictable ideological pronouncements to discuss the complex empirical evidence about the success and shortcomings of Bayh-Dole, and the equally complex challenge of how to define “success” and “shortcoming” in the context of the university’s mission. 


FRIDAY, April 29
(Buelher Alumni & Visitors Center, AGR Room)



Dean Ron Mangun, UC Davis Division of Social Sciences

Dear Kevin Johnson, UC Davis School of Law


Is University Patenting Technology-Specific? 

Speaker: Dan Burk (UC Irvine) 

Comments:  Pamela Samuelson (UC Berkeley); Mario Biagioli (UC Davis)

Response:  Mark Lemley (Stanford)


Managing University Intellectual Property in the Public Interest

Speaker: Alan Bennett (UC Davis)

Exporting Bayh-Dole: Identifying the Institutional Connections in Patent Commercialization

Speaker: Shubha Ghosh (U Wisconsin, Madison)

Comment: Anupam Chander (UC Davis)


Reception and Book Party

Alain Pottage & Brad Sherman, Figures of Invention, Oxford University Press, 2010


(King Hall 1001, Kalmanovitz Appellate Courtroom)


Accountability and Government Rights: Agency Implementation of the Bayh-Dole

Speaker: Arti Rai (Duke)

Bayh-Dole and Entrepreneurship Reconsidered: University Versus Inventor Ownership

Speaker: Martin Kenney (UC Davis)

Comment: Keith Aoki (UC Davis)



Transcending the Tacit Dimension: Markets, Relationships, and Organizations in Technology Transfer

Speaker: Peter Lee (UC Davis)

Bayh-Dole, Research Tools, and the Scientific Enterprise

Speaker: David Winickoff (UC Berkeley)

Working Knowledge:  The University Envisions Innovation

Spaker: Brian Kahin (CCIA/Harvard)

Comment: Andrew Hargadon (UC Davis)



The Patenting of University-Based Research in Australia

Speaker: Brad Sherman (Griffith University, Brisbane)

Federal Funding and Innovations in Bionanotechnology: US-China Comparisons

Speaker: Tim Lenoir (Duke)

Comment: Madhavi Sunder (UC Davis)



Synthetic biology: Reconstructing the Public in the Wake of Bayh-Dole

Speaker: Alain Pottage (London School of Economics)

The Digital Commons and Bayh-Dole

Speaker: John Wilbanks (Creative Commons)

Comment: Joseph Dumit (UC Davis)



Concluding Remarks

Speaker: Pamela Samuelson (UC Berkeley)


REGISTRATION IS FREE BUT SPACE IS LIMITED.  Please reserve your seat by following this link:

Information about the event including directions can be found at If you have other questions or require assistance please email Charles Adelsheim.

The event is sponsored by the Center for Science & Innovation Studies, UC Davis Division of Social Sciences, UC Davis School of Law, King Hall Annual Fund, Science and Technology Studies Program.


Download the flyer.


April 12, 2011

False Dichotomies of Class (Part I): Mobility versus Mobilization

Martha McCluskey wrote a couple of weeks ago on the ClassCrits Blog about some questions regarding class that arose at Martha Fineman’s recent workshop, Masking and Manipulating Vulnerabilities, at Emory Law School.  To summarize, McCluskey asked whether it is “problematic to analyze class as a category of inequality without directly engaging questions of labor rights?”

The genesis of that conversation at Emory was my speculation regarding the reasons for resistance to class analysis regarding whites and, by extension, resistance to the vulnerability paradigm.  Like my other recent work on class, my comments at Emory  focused on class mobility and did not engage issues of collective mobilization.  I thus believe the clear answer to McCluskey’s question is “no.”  Class mobility (think class ascension, although the sad trend these days is downward mobility) and class mobilization (as through unionizing and labor rights) seem to me different paths to empowerment of the working class and poor.  I see these as able to reside comfortably, side-by-side, on parallel tracks.  Indeed, now that McCluskey (echoing others at the Emory workshop) has voiced this issue, I find myself surprised that we do not see more law professors writing about class (im)mobility in a way that separates the issue from racism. That is, I am concerned that socially conscious progressives see challenges to upward mobility as stemming primarily, even solely, from bias against minorities.  If this is the case, we are failing to see that whites, too, are increasingly victims of the inequality gap and its attendant barriers to upward class migration.

We socially conscious progressives are attuned to the need to achieve higher educational attainment for racial and ethnic minorities.  We understand the need to facilitate their class ascension, to integrate more of them into the professional/managerial class, to bring them to the big table of law- and policy-making, in part so that we can benefit from what they know from personal experience.  Affirmative action programs have long been aimed at this outcome—and rightfully so.  We don’t just talk about unionizing minority populations, which presumes that they will stay working class, albeit in a materially more comfortable way.  We talk about diversifying the pipeline into the upper middle class, a/k/a the professional/managerial class.  We grieve the fate of minority children who could have become our political and business leaders—if only they had enjoyed something approaching equal opportunity.

Why, then, do we pay so little attention to class mobility among poor and working class whites?  Why would we limit ourselves to working for their mobilization—as in unions—rather than their upward mobility? Perhaps we have taken for granted white folks’ ability to transcend class boundaries because whites are not the victims of racism.  To quote Joe Bageant’s Deer Hunting with Jesus:  Dispatches from America’s Class War, we’ve been snookered by the “myth of the power of white skin.”  That is, we may buy into the “unspoken belief that if a white person does not succeed, his or her lack of success can be due only to laziness.”  We recognize racism as among the many factors that impede class mobility for racial minorities, but we don’t credit the structural barriers—or cultural bias against poor whites (see here and here)—when assessing the prospects of working class whites.  Yet many poor and working class whites face the same sorts of structural and cultural obstacles that burden minorities:  crummy schools, inadequate health care, a dearth of educated role models in their communities, and low expectations.

Yes, tragically, racism is alive and well in this country.  But minority status is not the only force that holds back working class young people who have the sheer native ability and ambition to get a college degree—or even go well beyond it.  Socially conscious progressives are smart enough to know this, but I see very few acknowledging it.  Which brings us to the State, hardly an innocent bystander of the “class war” to which so many insist on turning a blind eye.  To pick up Martha McCluskey’s metaphor, of course the different classes are not just layers in a cake with as much do with one another as with the cake pan (a/k/a the State).  No, the inferior education, health care and other dwindling supports to which the working class have access directly implicate the State and its grossly uneven distribution of resources.  Relying on local funding (as opposed to state and federal funding) of myriad services is just one component of this.  As President Obama recognized in his 2010 State of the Union address, “the success of our children cannot depend more on where they live than on their potential.”  Yet sadly it often does.  Read more here and here.    

I admit that I’m interested in class (im)mobility in part because I’m a “class migrant,” one “born and raised working class, who join the upper-middle class through access to ... education” (quoting the definition from Joan Williams’ recent book).  But the struggle for class ascension isn’t only supported by anecdote.  Data indicate that upward mobility for the working class is declining—at least as measured by higher education attainment.  In 1970, 61% of college students were the children of parents whose highest education level was a high school diploma or less—that is, they were “first-generation college.”  By 1990, that figure had fallen to 41%, and in 2000, only 22% of those who attended college were the first generation in their family to do so.  Even taking into account the role played by the rising percentage of people (parents) with college degrees over those three decades (though it remains less than 30%), the data suggest that the working class kid who gets to (let alone through!) college is increasingly rare.  Structural impediments bear a significant part of the blame.  Most obviously and recently, these include dramatically higher tuition for tertiary education, even at state colleges and universities.

In any event, I don’t see how this focus on class (im)mobility—which has both material and cultural aspects (as I shall discuss further in a future post)—precludes attention to organized labor.  I’m all for unionizing those who will remain in the working class, and I would hope that nothing I say be used to naturalize constraints on workers’ power to act collectively.  However much we increase mobility for some, we will always have workers with us, but they need not be poor.  Clearly, collective action is necessary to improve their material circumstances.

But focusing only on organizing the working class is arguably an insult to the extent that it objectifies and distances “them” from “us,” compartmentalizing them below us in the class hierarchy.  To focus exclusively on unionizing the working class overlooks the potential and desire of some to transcend class boundaries (as through higher education) and join the upper middle class.

Surely we want white class migrants among our ranks—just as we want class migrants from minority groups—sitting at the “big table” at which social progressive brainstorm problems, set priorities, and formulate solutions. I am convinced that they (we) could teach us (you) a few things.  Class migrants can remind those in power what generations of them have known:  like the racial privilege enjoyed by those of us who are white, our class privilege causes us to take too much for granted—and it tempts us to take too much individual credit for our own professional and material success.

Cross-posted to ClassCrits, SALTLaw Blog, and Legal Ruralism

April 5, 2011

New John D. Ayer Bankruptcy Chair Honors Leading Bankruptcy Scholar

Professor Emeritus Jack Ayer has long been recognized for his national leadership in bankruptcy law.  The John D. Ayer Bankruptcy Chair honors Professor Ayer for the lasting legacy he leaves in this area.  I was delighted to join other faculty in San Francisco yesterday evening to launch this chair.  Thanks to our hosts, the McNutt Law Group, who have spectacular offices overlooking the Bay and Yerba Buena Island.


April 3, 2011

Widening Spatial Inequality and What to Do About It

Wealth and income inequality have been getting a lot of attention in recent months--at least in the New York Times. Op-Ed columnist Bob Herbert has been especially persistent about keeping the topic on readers' radar screens; read some of his columns here, here, here, and here. Paul Krugman, Frank Rich, and Robert Frank have had a say, too. Wealth inequality was also the subject of a "Room for Debate" feature a few weeks ago.

But geographic analysis of inequality has been little examined in the mainstream media until The Economist Magazine ran a couple of stories about uneven development and spatial inequality in the March 10, 2011 issue. The first "Internal affairs: The gap between rich and poor regions widened because of the recession," analyzes various nations' spatial inequality as measured by income and GDP. This analysis shows that Britain is the nation with the widest geography-based income gap: the per capita GDP is nine times greater in central London than it is in some Welsh regions. The smallest regional spreads, on the other hand, were in Italy and Germany, where "incomes in their most affluent areas are [nevertheless] almost three times those of the poorest." The United States falls at the British end of the spectrum, coming in second for inequality across regions among the nations studied. The District of Columbia, for example, is five times as rich as Mississippi. Further, the situation has worsened in the past few years.

Between 2007 and 2009 real GDP per head in the five richest states actually rose by an average of 2%, but fell by 3% in the five poorest. Both groups outperformed the national average, a fall of more than 4%. (The biggest slumps, both by more than 10%, were in Michigan, the eighth-poorest state, and in Nevada, site of the biggest house-price crash.)

The Economist notes that this is merely a continuation of a long-standing trend, and it attributes the phenomenon, in part, to the "dependence of poorer states on manufacturing, which has suffered big job cuts over the past decade." The feature concludes that "the income gap between richer and poorer areas is likely to widen further as government-spending cuts disproportionately hurt less prosperous parts."

One of the story's big attention getters is its comparison of GDP among regions and cities of different nations.

[O]ver a quarter of regions in Britain and Italy and one-tenth of those in Germany will this year have a lower GDP per head than the municipality of Shanghai. All the American states remain richer, but Shanghai looks set to overtake Mississippi by 2015; within ten years half of all the states, including Florida, Michigan and Ohio, could have a GDP per head lower than Shanghai and Beijing.

If the comparison were at the scale of the county rather than that of the state, these Chinese cities would no doubt be shown well out-pacing our nation's persistent poverty counties.

The second Economist feature on spatial inequality, "Gaponomics," takes up the question of what should be done to respond to this problem, particularly in the context of Britain. Instead of investing in particular regions or giving tax breaks to "enterprise zones" in these downtrodden areas, The Economist offers this proposal:

[M]ake it easier for people to move. Given inherent gaps in regional productivity prospects, there is a case for boosting mobility from declining regions to prospering ones. In Britain the main problem is the fetish for home-ownership and high house prices in the south-east, partly the result of severe shortages of supply. Easing planning restrictions below the Watford Gap would be a better way of helping Britons than propping up the north.

As a ruralist, I am immediately suspicious of policies that would aggravate uneven development. Among other things, they ignore those who will remain immobile and inevitably left behind. They also ignore attachment to place as an aspect of the political economy of rural areas in particular.

This story's second proposal is far more palatable: invest in education because it results in "the single biggest reward" for the nation--even if northerners then move south with their enhanced human capital. (Regarding the latter, I am reminded of this book on the rural brain drain).

Back in the United States, a recent New York Times editorial echoes the second of these ideas in relation to New York's funding scheme for education. In "Rich District, Poor District," the editorial staff consider how two of the state's school districts will fare under the Cuomo budget: "Ilion in the economically depressed Mohawk Valley, and Syosset, a wealthy town in Long Island’s Nassau County." Needless to say, it's not a pretty picture. Here' a summary:

The cuts would scarcely affect wealthy districts that rely primarily on local taxes to support lavishly appointed schools. But they would be catastrophic for impoverished rural districts that have been starved of state aid for decades and are still reeling from cuts levied last year .... Already struggling to furnish even basic course offerings, the poorest districts would need to cannibalize themselves to keep the doors open and the lights on.

As the editors express it, the $1.1 million cut Ilion is being asked to take to its $25 million budget "would not even come to a rounding error in the state's richest districts," like Syosset, which is being asked to absorb only a $1.4 million cut to its $188 million budget. But the New York Times editors aren't just arguing that school funding should be more equitable because "it's the right thing to do," they make an argument grounded in economics: Depressed regions like that around Illion "stand[ ] little chance of attracting high-skill jobs if [their] schools are allowed to deteriorate."

Going back to The Economist articles for a moment, I noted that enhanced investment in education is one reason for the income convergence across Germany, even as spatial inequalities become more acute in other nations. The story describes "huge national and European Union funds for infrastructure, R&D and education, as well as the transfer of some manufacturing jobs from factories in the western states to the east." For some reason, Germany sees reasons to take care of its citizens where they are--not to create incentives for residents of the less affluent East to move West. I'd like to know more about those reasons because I suspect they go beyond a sentimental desire to permit people to stay where they are and the attractive orderliness of a more evenly populated. I am guessing these policies are based in part on economic calculations about the value of existing infrastructure and human capital in the historically deprived East. Better understanding those reasons might inform debates in the United States about why regional development and reducing spatial inequalities--not fueling them--makes good sense from myriad perspectives.

Some of my writings mapping the sociogeographic concept of spatial inequality onto legal conceptions of (in)equality are here, here, and here.

Cross-posted to, ClassCrits, and Legal Ruralism.

April 1, 2011

Finding Liability in the Fukushima Disaster

Who should bear responsbility for the nuclear disaster in Fukushima prefecture? Nuclear liabilty law in many states often assigns liability to the operator alone. In an op-ed in the L.A. Times, I note that there were similar claims of limited liability based on law in the Gulf Oil Spill. Both BP and Transocean were thought to have limited exposure. But BP still agreed to a $20 billion fund to help those harmed by the spill.