Income Equality and Economic Mobility

In his most recent New York Times column, Tyler Cowen writes about two competing goals concerning economic distribution:

Income equality is about bridging the gap between the rich and the poor, while economic mobility is about elevating the poor as rapidly as possible. Finding ways to increase economic mobility should be our greater concern.

I agree completely.  In fact, I find it hard to understand how anyone can be concerned with income equality rather than economic mobility.

First, it seems clear that people should be concerned with economic mobility.  If one is concerned about the poor, the relevant normative question is not how much poorer than the rich they are, but how high their standard of living is.  If the only choice is increasing a poor person’s income by $100 while also increasing a rich person’s by $1000, one should do it.  Otherwise, you do not really care about the poor.

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The Confines of the New Moral Consensus

Riesige Gruppe Wartender, Patienten auf roten Stühlen

The bitter disputes sparked by Indiana’s version of the “Religious Freedom Restoration Act,” and the controversies that provoked the act, are the latest episode in our ongoing culture war. Its sources are twofold: the moral clash between what we call the “Left” and the “Right,” and the increasing scope of government.

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Compensating Differentials Likely Temper Any Growth in Income Inequality

As a law professor, I earn a lot less than my law school classmates who graduated with similar records, and a small fraction of the income earned by those at the very top.  But I am compensated in other ways.  In the loveliest line of the wonderful song “If I Were a Rich Man,” from Fiddler on the Roof, Tevye says that the “sweetest thing of all” from becoming wealthy would be the leisure gained to “discuss the Holy Books with the learned men seven hours a day.” The secular equivalent is what I get paid to do.

My situation illustrates what economists call compensating differentials. I get less income from my job because I get more enjoyment than I would in a job requiring similar skills and education. Thus, as Tyler Cowen and Alex Tabarrock note in a recent video,  the market would pay a sewer inspector a lot more than a lifeguard even if it had to attract equally skilled job takers. Similarly, if a job creates risks of death, injury or ill health, it will have to pay more to workers to compensate.

This simple observation suggests that focusing only on earned income from employment can provide a misleading picture of  any growth in inequality.

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Gay Marriage and Foreign Law

The New York Times runs an interesting story about dueling amicus briefs submitted in the gay marriage case before the Supreme Court about the extent of gay marriage in other countries, especially constitutional and liberal democracies.  The briefs disagree about the extent of gay marriage, in part because they use different measures for how to count the countries.

The question whether the Supreme Court ought to consider the laws of other countries in deciding whether to interpret the Constitution is one that has been actively debated in the law review literature.  I have largely neglected this literature, since it seems so obvious what the correct originalist answers are.  (But see this post by co-blogger John McGinnis, who does write in the area.)  First, considering the present law of other countries is obviously not directly relevant to the original meaning of a Constitution written in late 18th century America. Second, it is theoretically possible that the meaning of the clauses might make what other countries do relevant (for example, a clause that asks whether a rule is practicable), but I have not really seen a persuasive argument that attributes any such meaning to one of our constitutional clauses.

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Doing Time with John Hughes


The fanfare surrounding the 30th anniversary of The Breakfast Club may puzzle some people—anybody, in fact, who wasn’t born between 1966 and 1979 in the United States of America. Those of us who are older (as I am) or younger than that might well have missed “the movie that defined a generation.” The writer-director John Hughes made The Breakfast Club as the second in what became a trilogy of teen movies, in between Sixteen Candles (1984) and the box-office smash Ferris Bueller’s Day Off (1986).

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Deferred Action for Federal Government Accountability


DAPA—short for the clunky “Deferred Action for Parental Accountability,” or maybe “Parents of Americans” (I’ve seen both titles)—is the Obama administration’s 2014 policy seeking to defer the deportations of roughly 4 million aliens who are the parents of citizen children or permanent residents. About half the states, led by Texas, filed suit to block the program. In February, U.S. District Judge Andrew S. Hanen issued a preliminary (and nation-wide) injunction against the implementation of the program. Yesterday (April 7), Judge Hanen refused to lift the injunction and, on the occasion, expressed his annoyance with the government’s “misconduct.” 

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Foreign Law is Irrelevant to the Constitutionality of Same-Sex Marriage

In the same-sex marriage cases both sides have enlisted foreign law in support of their position. A group of scholars led by Harold Koh argues that the recent embrace of same-sex marriage in the law of other Western nations supports finding a right to same-sex marriage in our own Constitution. Another group of scholars, led by Lynn Wardle, observes that many more nations, including in some cases their judiciaries, have declined to interpret their guarantees of equality to mandate same-sex marriage.

Originalists must generally reject the evidence of contemporary foreign law in constitutional interpretation.  Such laws should not be used as authority or indeed given any weight in decision making  not because they are foreign or international, but because they are contemporary and in the ordinary case shed no light on the original understanding of the Constitution.

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Why Higher Education Needs Religious Liberty


Observing from afar the clamor over Indiana’s new religious freedom law, we in higher education are especially attuned to how that state’s colleges and universities have responded.

First, some background. The Indiana law differs in modest, but I think, important and helpful ways from its federal counterpart, the Religious Freedom Restoration Act of 1993. RFRA, which was passed by an overwhelming bipartisan majority, has since been replicated by a number of states—including, by the way, Illinois, with then-State Senator Barack Obama joining all his colleagues in favor in 1998.

There has been plenty of commentary about why so many people have reacted so negatively, but let’s zero in on where Indiana’s college and universities, mostly through statements by their presidents, have come down.

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Korematsu, National Power, and Individual Rights

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

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