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Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016).

Inclusion, Exclusion, and the “New” Economic Inequality by Olatunde C.A. Johnson (hereinafter The “New” Economic Inequality) addresses key questions that have arisen in this difficult era of austerity, retrenchment, and increased economic insecurity in rich countries. These questions include: where does racial inequality fit in the high-profile discourse about the (re)discovery of economic inequality? And, in a world of extreme and growing economic inequality, what kinds of inclusionary practices contribute to remedying racial inequality?

I read this article because I’m working on a research project1 about the role of law in implementing inclusionary practices. This project concerns inclusionary practices in Europe and Latin America, while The “New” Economic Inequality focuses on the legal customs, traditions, and remedial instruments of the United States. Fortunately, the article’s critical analyses of the limitations of historic “remedies” for racial inequalities in the U.S. and of the absence of race from much of the contemporary discourses of economic inequality are of broader significance, as are the article’s insights into the importance of place-centred remedies to struggles for racial equality.

A comprehensive introduction to the article contextualises and sketches the contours of the “new” economic inequality as it has been elaborated in recent academic and popular literatures and points to the uneasy fit of racial inequality within this discourse. The obduracy of racial inequality in the United States – as evidenced by social and economic measures including wealth, criminalisation, security, health, education, and racialized unequal access to other key public and private goods – does not comport well with the narrative of economic inequality as a “new” phenomenon. That narrative positions economic inequality as a radical change that has recently diminished the lifestyles and life chances of an almost universal middle class, the former beneficiaries of the credit-fuelled consumer society of the mid-twentieth century. If the problem of inequality that dominates contemporary social policy conceptualises economic inequality as a new situation that ruptures the fabric of an imagined time/space of equality and social mobility, where does that leave racial inequality, an aspect of American life that positioned Black and African-Americans as a perpetually excluded “other,” juxtaposed against an ostensibly universal norm of equality?

Johnson eschews the idea of subsuming contemporary racial inequality within some notion of the economy as generating a shared, “pan-racial” experience of structural inequity. Instead, The “New” Economic Inequality explores the historical-spatial underpinnings of racial inequality and the struggles to stop it, focusing in particular on the often complex and tense relationship between inclusion (anti-discrimination) claims based on race, gender, and other grounds of historic exclusion, and the sedimented distributional entitlements associated with the “democracy of opportunity” tradition in the U.S.2

Part I of the article outlines how concepts of space and place illuminate the processes and consequences of exclusion through class, race, and ethnicity and the implications of such exclusion for social (im)mobility. It draws on key studies of the impact of residential segregation by class and race on intergenerational (im)mobility. Relying on Patrick Sharkey’s work, for example, The “New” Economic Inequality documents (i) the huge and persistent differences in neighbourhood poverty experienced by low-income white and African-American residents of major U.S. cities, (ii) the significant impact this differential has had on access to publicly provided goods such as education and private market-based opportunities to secure good jobs and accumulate wealth, and (iii) the enduring, multigenerational effects of these differences.3

Part II of the article then reviews different legal instruments for tackling unequal places and remedying the opportunity deficits they create. The revival of integration litigation based on fair housing law is an interesting development, especially in the wake of the Supreme Court’s recent holding that racial integration is a core purpose of the Fair Housing Act and that the legislation supports disparate impact claims. A more intriguing aspect of the remedies discussion is Johnson’s survey and assessment of non-litigation strategies to address inequalities of place and race. These strategies include the use of governmental programming and spending regulations to require agencies and grant recipients actively to promote fair housing4 and sustainable communities.5 But perhaps the most interesting alternative to litigation discussed in the article is the “community benefits agreement” (CBA), an example of a regulatory compact through which the plans of developers and investors to (re)manufacture urban space are made conditional on agreements with local community coalitions and governmental organisations (municipalities, economic development agencies) to deliver inclusionary benefits such as decent wages, good jobs, affordable housing, sustainable environmental conditions, parks, and schools.

Johnson is careful not to suggest that the CBA offers much more than a limited intervention, suitable only in some circumstances, for the legacies — and enduring problems – of economic and racial exclusion. But her analysis does highlight a potentially exciting dimension of this type of intervention. As Johnson writes: “what is novel as a regulatory approach … is the shift … to a framework in which redistributive demands are made of private power and public goods. The aspiration of the CBA framework is not simply inclusion in structures of opportunity presumed to be operating correctly, but the remaking of the terms of how those structural arrangements distribute opportunity.” (P. 1662.)

Ultimately, what I most liked about Inclusion, Exclusion, and the “New” Economic Inequality is the article’s insistence on the importance of positioning racial, gender, and ethnic inequality as “a necessary disruption of the current interest in economic inequality,” a disruption that demands a rethinking of regulatory regimes and policy practice, a rejection of “narratives of integration” into the failing economic institutions of the early twenty-first century, and a new focus on “remedying the failures of the past, while responding to an evolving economic and racial order.” (P. 1665.)

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  1. Funded by the British Academy, Award number: PM150186.
  2. Joseph Fishkin and William E. Forbath’s recent work frames this tradition as a mode of constitutional political economy consisting of three key elements: “restraints against oligarchy”; “a political economy that sustains a broad middle class, wide open and broad enough to accommodate everyone”; and an inclusion principle “that democracy of opportunity must extend to all the people across lines of race and other invidious group-based distinctions,” see e.g., Joseph Fishkin & William E. Forbath, Wealth, Commonwealth, & the Constitution of Opportunity (U. Tex. L., Public Law Research Paper No. UTPUB632, 2015), available at SSRN.
  3. Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality 67 (2013).
  4. Affirmatively Furthering Fair Housing Final Rule, 24 C.F.R. Parts 5, 91, 92, et al. (2015), cited at Johnson P. 1658.
  5. Johnson illustrates this point with the Sustainable Communities grant programme administered by the Department of Housing and Urban Development in collaboration with the U.S. Department of Transportation and Environmental Protection Agency, see sources cited at footnotes 60 and 61 in Johnson’s article.
Cite as: Toni Williams, Responding to Economic Inequality: The Place of Race, JOTWELL (November 11, 2016) (reviewing Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016)),