The Law and Economics of Race

Author: 
Robin I. Mordfin

Advances in bank regulation, international trade, or product liability often are grounded in law and economics, a field of study held dear to the Law School. Because social factors can be difficult to quantify, the law and economics lens isn't turned as often on an issue like race.

Law School professors confronted this challenge in May by gathering economists from across the country for the conference The Law and Economics of Race. Their goal was to share research and findings that would provide stronger social science foundations for law and policy affected by race. The Journal of Legal Studies will publish a special symposium issue based on presentations that were made at the conference.

It is no surprise that the Law School's law and economics scholars have taken a strong interest in race-Nobel Laureate and University of Chicago Professor Gary Becker, who has strong connections to the Law School, has long been a leader in applying economics to social issues. His 1971 book The Economics of Discrimination was groundbreaking in its use of economic analysis to demonstrate employment discrimination's economic effects. Employment discrimination was a topic of discussion at the recent Law School conference, but it wasn't the only one.

Presenters at The Law and Economics of Race conference, organized by Richard McAdams, the Bernard D. Meltzer Professor of Law, and Thomas Miles, Professor of Law, also shared breakthrough research on the happiness gap between blacks and whites, employment in black men and women as it correlates to marriage and fertility, and the way race affects which judges are approached to approve or deny wiretap applications, among other topics.

One presenter challenged the popularly held idea that the creation of majority-minority voter districts contributed to the 1994 Republican wins in Congress. Many believe that by drawing majority-minority districts, the districts surrounding those new districts become whiter, and consequently, become more Republican. Ebonya Washington, Professor of Economics at Yale University, found no evidence that this is true while researching her paper The Mythical Tradeoff between Black Representatives and Black Policy Interests. Alternatively, she found that Southern states that created more majority-black or majority-Latino districts saw their delegations grow increasingly liberal.

In a discussion about homogeneity and diversity, Richard Brooks of Yale Law School described his ongoing research into comfort zones and the distance people of different races prefer to keep from each other. Brooks and other researchers placed a group of black men, a group of white men, and a black family on a Martha's Vineyard beach. When other beachgoers arrived, the researchers measured the distances between people and the test groups. The researchers found that men require a larger comfort zone than women. However, the assumption that more diversity would require a larger comfort zone was incorrect.

Betsey Stevenson and Justin Wolfers, both of the Wharton School of Business at the University of Pennsylvania, tackled the abstract topic of happiness by focusing on the measures of subjective wellbeing. Research in the 1970s showed what they called an "astonishingly large" racial gap in happiness. Their preliminary research has shown that the racial happiness gap still exists but is narrowing. Happiness rising with income level occurs less often for blacks than for whites and the greatest gains in happiness were made by people with the highest education levels. The study looked beyond race and concluded that married and divorced people are happier than widowed or never-married people.

Steven Raphael, Professor of Public Policy at the University of California-Berkeley, took a close look at employment statistics for black and white men and women. Today, black women are more likely to work than their male counterparts-and they are more likely to complete their educations. This increase in black women's employment, and a decrease in black men's employment, correlates with a decline in marriage and fertility, according to Raphael. White women are similarly affected by a drop in fertility and increase in employment. Additionally, white women with and without children are more likely to work as white male employment declines.

The employment discrimination discussion also included a presentation by Peter Siegelman, Professor of Law at the University of Connecticut, on his paper The Compromised Worker and the Limits of Employment Discrimination Law. Considering the vexing question of why plaintiffs do poorly in employment discrimination cases, Siegelman offered a new suggestion: that a substantial fraction of all such cases are brought by compromised workers-employees whose own failings could plausibly explain the adverse treatment about which they complained.

Thomas Miles of the Law School took a detailed look at the process of obtaining judicial approval to conduct wiretap surveillance and the role the race of the prosecutor requesting the wire tap and the race of the judge play in the process. In theory, the race of the judge should not play a role in the approval of wiretaps. However, studying the approval of wiretaps in federal criminal investigations from 1997 to 2007, Miles found that black judges receive substantially fewer wiretap applications than other judges, even though black judges do not approve such requests at different rates than other judges.

David Abrams of the University of Pennsylvania Law School looked at the Circuit Court of Cook County and measured the between-judge variation in the difference in incarceration rates and sentences lengths between black and white defendants. He and the coauthors of the research found statistically significant between-judge variation in incarceration rates, although not in sentence lengths. On the same topic of sentencing, Max Schanzenbach of the Northwestern University School of Law examined the role of judicial discretion in the United States Sentencing Guidelines in his paper Racial Disparities, Judicial Discretion and the United States Sentencing Guidelines. He found evidence that the Supreme Court's recent decision to make the Guidelines merely advisory has increased racial disparity.

The presenters demonstrated problems that had not been sufficiently identified earlier, or which still needed more study for understanding. Suggestions for solutions in some areas were put forward, but perhaps the take-away from the conference is how much more remains to be studied. 

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