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Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849 (2013).

Thomas Mitchell’s article, “Growing Inequality and Racial Economic Gaps,” argues that reforms to the technicalities through which law constitutes real estate assets and relations may provide a foundation for progressive steps towards racial equality. Published in 2012 as part of a Howard Law Journal symposium on Protest and Polarization, this article starts with a sobering account of the intensification of racialized economic inequality in the US, within a general trend of increasing economic inequality since the 1970s. The first part of the article shows these developments are largely attributable to the large and growing wealth differentials between non-Hispanic whites and the Hispanic and African American populations. By 2009, according to Mitchell, the net worth of the median non-Hispanic White household was 20 times larger that of the median Black household (as compared to the 12:1 ratio in 1988 reported in Oliver and Shapiro’s landmark study1 and 18 times larger than the net worth of the median Hispanic household). Moreover, Mitchell reports that despite their losing some wealth during the Great Recession, White non-Hispanic households in 2009 generally owned more wealth than they had “for many if not most years between 1984 and 2009” whereas Black and Hispanic households owned “less wealth … than in any year since … 1984” (P. 860).

The second part of the article traces the relationship between rising economic inequality and shrinking intergenerational economic mobility in the US. Again Mitchell synthesizes some potent data to cast doubt on conventional wisdom. It transpires that the American education system no longer enhances social mobility (if ever it did) and indeed “may well be contributing to growing income and wealth inequalities” (P. 865); that the extent of occupational mobility in the United States is no more than average amongst industrialized countries; and that the level of intergenerational income mobility is demonstrably worse than that of neighboring Canada and below the norm for industrialized countries (P. 867).

It should not be forgotten that the 20th century witnessed considerable economic mobility gains for African Americans, thanks largely to the mass social movements that secured hard won civil and labor rights. By 2000 the African American poverty rate, although still an atrocious 30 percent, was more than 60 percentage points lower than its 90 percent level in 1940, and black men in full-time work earned 73 percent of the wage of comparable white men– up from the derisory 43 percent of the white male dollar they had earned in 1940 (P. 867-8). Today, however, as Growing Inequality reports, rates of intergenerational upward mobility of income are considerably lower and rates of intergenerational downward mobility of income are much higher for African Americans than white Americans (P. 868).

After surveying ideological, institutional and interest based barriers to the success of a mass social movement capable of mounting a substantial and sustained material attack on economic inequality and the power structures that maintain it, Growing Inequality suggests that strategies that rely on mass mobilization or that directly target equality enhancing legislative change are unlikely effectively to address racial inequality under present conditions. Mitchell advocates, by contrast, creative strategizing and coalition building for reforms to “technical” laws and legal institutions that have been under-utilized in civil rights struggles. The article’s most interesting example of deploying “lawyers’ law” and legal processes against racialized economic inequality is the recent development of a uniform act on partition law as it applies to “heirs’ property”. Mitchell has published elsewhere on how the default rules of partition law have caused extensive dispossession of land in many areas of the US, with a particularly devastating impact on African Americans’ efforts to achieve economic security and build family assets.2 More than forty years of policy activism directed at legislatures made very little headway on changing the rules on forced partition sales, but a recent strategy of targeting the organization responsible for developing national model law statutes has had more success. Some three years after first accepting a proposal to reform partition law on forced sales, the National Conference of Commissioners on Uniform State Laws (generally known as the Uniform Law Commission) in 2010 promulgated a model act on the partition of heirs’ property. This model act was drafted by a committee chaired by Mitchell and builds on the work of civil rights organizations, public interest groups and others representing the interests of the rural poor who have suffered considerable economic harm from the default partition rules. Approved by the American Bar Association in 2011, the Uniform Partition of Heirs Property Act has been enacted in Alabama, Georgia, Montana and Nevada and is under consideration in another four states.

Mitchell reports that in addition to changing the legal regime in a way that should slow down land loss through partition sales, this strategy of engaging with the technicalities of property law has generated new coalitions and increased access to knowledge of how to effect law reform through the NCCUSL process. Given that knowledge about how “lawyers’ law” reform processes work is usually tightly held within the circle of the more powerful interests that repeatedly use such processes, this widening of access has potentially significant consequences.

Beyond the data and its case studies, the article offers plenty of scope to debate the meanings and aspirations of racial economic equality as well as strategy, tactics and goals. And in this 50th anniversary year of the U.S. Civil Rights Act, Growing Inequality and Racial Economic Gaps is a telling reminder of how much change must occur to bring into view Dr King’s goal of “genuine equality, which means economic equality”.3

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  1. P. 858, citing to Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A new perspective on racial equality (1997). []
  2. E.g. Thomas W. Mitchell, From Reconstruction to deconstruction: undermining black ownership, political independence and community through partition sales of tenancies in common, 95 Nw. U. L. Rev. 505 (2000-2001). []
  3. March 18, 1968 speech to supporters of a sanitation workers strike in Memphis, Tennessee, quoted in United for a Fair Economy, State of the Dream 2014: Healthcare for Whom? – Enduring Racial Disparities, available at http://faireconomy.org/dream/2014. []
Cite as: Toni Williams, By All Means Possible, JOTWELL (October 6, 2014) (reviewing Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849 (2013)), https://equality.jotwell.com/by-all-means-possible/.