Rumors may circulate and persist within some circles. There would be cranks, there always are, who claim to see in others or themselves certain qualities of race. But no court, no official, and no one outside of certain fringe communities would give these claims any credence. Like other past hysteria, racial accusations would be accorded the same seriousness as black magic and witchcraft are today.

Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock in White Advantage (2014).

Id. at 11 (“And in the absence of government intervention, race will continue to matter in many of the same ways it has mattered during the country’s history, long after electing a president who is black—or Latino or Asian for that matter—becomes a regular event.”).

Id. at 4-5.

See, e.g., Mary Pattillo-McCoy, Black Picket Fences: Privilege and Peril Among the Black Middle Class (1999); Amartya Sen, The Idea of Justice (2011); Unequal Chances: Family Background and Economic Success (Samuel Bowles et al. eds., 2005); Janet Currie, Inequality at Birth: Some Causes and Consequences, 101(3) Amer. Econ. Rev. 1 (2011); Ian F. Haney López, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 Yale L.J. 1717 (2000); Diane S. Lauderdale, Birth Outcomes for Arabic-Named Women in California Before and After September 11, 43 Demography 185 (2006); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).

Roithmayr tidily sums up the argument in the introduction of her book:

[T]his book argues that racial inequality reproduces itself automatically from generation to generation, in the everyday choices that people make about their lives. Choices like whether to refer a friend (or the friend of a friend) for a job or whether to give one’s child help with college tuition turn out to play a central role in reproducing racial gaps. Even if all people everywhere in the US were to stop intentionally discriminating tomorrow, those racial gaps would still persist, because those gaps are produced by the everyday decisions that structure our social, political, and economic interactions. Put another way, racial inequality may now have become “locked in.”

Roithmayr, supra note 2, at 4-5.

John Rawls, A Theory of Justice 64 (1999). For an excellent recent treatment of the problem of the family in the attainment of equal opportunity, see Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (2014). “Without necessarily even meaning to do so, parents pass along habits of appearance, vocabulary words, [and] ways of speaking, . . . which can give children substantial advantages. Parents give children advantages by engaging them intellectually, teaching them about the world, and, especially, instilling in them a sense of self-worth and efficacy.” Id. at 49.

George Bernard Shaw, The Case for Equality, in Writing of Today: Models of Journalistic Prose 218, 218 (J.W. Cunliffe & Gerhard R. Lomer eds., 1915).

General equality of opportunity was an impossibility to Shaw, but he suggested that one thing could be made equal among persons: “The fact is that you cannot equalize anything about human beings except their incomes. If in dealing with the subject you would only begin by facing that fact, it would save you a very great deal of trouble in the form of useless speculation.” Id.

Roithmayr’s project may be seen as a hopeful plea for future action of the very sort Shaw saw as futile. Much of the futility that Shaw observed, however, derived from his view of the impossibility of individual equality, whereas Roithmayr is more concerned with group inequality. For a discussion of the latter, see Samuel Bowles et al., Group Inequality, 12 J. Eur. Econ. Ass’n 129 (2014). It is with the group, not the individual, in mind that Roithmayr wrote (in an earlier article), “if we can’t figure out how to radically reconfigure the way that our institutions distribute advantage and disadvantage, inequality is likely here to stay.” Daria Roithmayr, Racial Cartels, 16 Mich. J. Race & L. 45, 79 (2010).

Roithmayr, supra note 2, at 25-29, 35-37.

Id. at 82-92.

Id. at 69-81.

Id. at 38-48.

Id. at 55-68.

Id. at 35-37, 69-81.

Id. at 4.

Id. at 103-20.

Id. at 121-34.

Id. at 135-50.

Id. at 6-8, 11 (“[I]ssues of class are, in the US, issues of race. . . . Owing to discrimination, those families who can afford to pass down wealth for college educations and housing down payments tend to be disproportionately white.”).

Roithmayr, supra note 2, at 4-5, 8.

Id. at 4-5 (“Even if all people everywhere in the US were to stop intentionally discriminating tomorrow, those racial gaps would still persist, because those gaps are produced by the everyday decisions that structure our social, political, and economic interactions.”).

Id. at 74-75, 80.

For comparison, take Wendy Leo Moore’s usage of the same title for her 2007 book. Wendy Leo Moore, Reproducing Racism: White Space, Elite Law Schools, and Racial Inequality (2008). Despite sharing (part of) a title, these books reflect very different approaches to the study of racial inequality. Moore’s book, which takes an empirical ethnographic approach, aims to show how racist ideologies are reproduced in American law schools and legal education. Roithmayr’s approach also originated with an analysis of race in law schools and legal education. See Daria Roithmayr, Locked in Segregation, 12 Va. J. Soc. Pol’y & L. 197 (2004). But generally Roithmayr seeks to apply more social scientific models to explain why economic and social disadvantages persist across racial groups, even without “active” racism (for lack of a better term).

Roithmayr, supra note 2, at 111-13.

Id. at 110-11. While readers may be familiar with the QWERTY keyboard and the VHS versus Betamax stories of path dependency, the discussion of the Polya urn will be new to many. These accounts are expanded upon infra text accompanying notes 150-152.

Id. at 132-33. Although Roithmayr is neither the first nor the only legal scholar to approach racial discrimination and inequality from an antitrust perspective, she has been a prominent and inventive developer of the cartel approach. See, e.g., infra note 31 and accompanying text. Robert Cooter may have been the first to use a cartel framework to make the connection between antitrust and antidiscrimination law. Robert Cooter, Market Affirmative Action, 31 San Diego L. Rev. 133 (1994). Roithmayr acknowledges Cooter’s early contribution and views her work as an extension of his “ideas about discriminatory cartels.” Roithmayr, supra note 2, at 31. David Bernstein also has used the cartel approach in his works on race. See David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (2001); David E. Bernstein, The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans, 74 Tex. L. Rev. 781 (1998) [hereinafter Law and Economics]; David E. Bernstein, Philip Sober Restraining Philip Drunk: Buchanan v. Warley in Historical Perspective, 51 Vand. L. Rev. 799 (1998); David E. Bernstein, Railroad Unions, Racism, and Labor Regulations, 5 Independent Rev. 237 (2000). In these works, Bernstein describes how racist cartels—for example, “a cartel of racist whites” and whites-only labor unions—were able to better extend their capacity to exclude blacks and other minorities from housing and labor markets with government support in the first part of the twentieth century. Bernstein, Law and Economics supra, at 825. For more recent work combining anticompetitive and antidiscrimination approaches, see, for example, Ian Ayres, Market Power and Inequality: A Competitive Conduct Standard for Assessing When Disparate Impacts Are Unjustified, 95 Calif. L. Rev. 699 (2007); Darrell A. H. Miller, Racial Cartels and the Thirteenth Amendment Enforcement Power, 100 Kentucky L. J. 23 (2012).

Roithmayr, supra note 2, at 4-5, 9-10. While acknowledging basic redistribution arguments—for example, “that regardless of unfairness, and regardless of the inequality between black and white, between the have and the have-nots, we ought to do as much as we can to eliminate racialized poverty”—Roithmayr offers to “those who oppose redistribution, the antitrust analogy . . . [:] It suggests that whites stacked the decks in their own favor, by rigging the rules of the game.” Id. at 133.

Id. at 157. “In the absence of restructuring, the everyday processes that we take for granted—referring our friends for a job, choosing a neighborhood with well-financed public schools, giving our children money for college tuition—will continue to reproduce racial inequality.” Id. Here one senses that Roithmayr advances the monopoly framework less as a descriptive account than as a persuasive stratagem. “The lock-in story of inequality accomplishes a great deal if it persuades us that we ought to move quickly toward the more inclusionary path, before locked-in racial disparities become a permanent and unchanging part of the American landscape.” Id.

Roithmayr is rightly credited as the principal developer of the lock-in model to racial inequality and as an early advocate of the cartel approach to discrimination. See, e.g., Daria Roithmayr, Barriers to Entry: A Market Lock-in Model of Discrimination, 86 Va. L. Rev. 727 (2000); Daria Roithmayr, Locked In Inequality: The Persistence of Discrimination, 9 Mich. J. Race & L. 31 (2003); Roithmayr, supra note 31, at 204; Roithmayr, supra note 10; Daria Roithmayr, Them That Has, Gets, 27 Miss. College L. Rev. 373 (2008).

Roithmayr, supra note 2, at 5-6, 59.

Id. at 5. In the acknowledgements, Roithmayr thanks her brother, who “helped me to translate what had been overly technical jargon into something more comprehensible. I’ll never go back to the technical writing,” she writes, “now that I’ve crossed over.” Id. at x. Her prose often has a Malcolm Gladwell-like quality—for instance, where she describes “the benefits of being cool, or perhaps more accurately, the costs of being uncool” as a way of understanding the switching cost dynamics associated with her lock-in model. Id. at 138. This language is intended for a general readership and is effective in that regard. Sometimes, however, the language runs the risk of being too loose.

Id. at 5. Among other questionable practices, Roithmayr indicates, Microsoft pursued a policy of charging computer manufacturers a licensing fee for every computer they produced, even if those computers did not use Microsoft’s Windows operating system. “If manufacturers wanted to load another operating system onto the computer, they had to pay twice—once to Microsoft, and once to the developer of the alternate operating system.” Id.

“Consumers wanted to buy an operating system with the widest range of software available. In turn, software authors wanted to write software for the operating system with the most customers.” Id.

Id.

Id. at 5-6. “Other competitors could not possibly overcome the software company’s advantage. Notably, Microsoft’s monopoly advantage lasted long after the company stopped engaging in anticompetitive behavior.” Id. at 6.

Id. at 6. “Like Microsoft, whites engaged in early anticompetitive conduct to get ahead in key markets—jobs, education, and housing, to name the most relevant. That early unfair racial advantage now reproduces itself through increasing returns, by way of positive feedback loops that are embedded in every day social structures like the family and the neighborhood.” Id. at 60.

Id. at 6. The distinction is important in terms of grasping the dynamics of the anti-competitive conduct.

See Jean Tirole, The Theory of Industrial Organization 346 (1988).

Presenting doctrinal arguments for liability and regulation of racially discriminatory cartels would have made the book more useful to lawyers (but perhaps less accessible to lay readers, the target audience). See, e.g., Miller, supra note 28, at 40 (arguing that Section 2 of the Thirteenth Amendment empowers “Congress to prevent racialized cartels”); Darrell A. H. Miller, White Cartels, the Civil Rights Act of 1866, and the History of Jones v. Alfred H. Mayer Co., 77 Fordham L. Rev. 999 (2008); see also Ayres, supra note 28 (discussing the relationship between disparate impact litigation and a firm’s exercise of market power to extract rents from employees or consumers belonging to protected classes).

Roithmayr writes: “In the early twentieth century, racial cartels were mostly informal white organizations with little state support,” but “[a]fter World War I, the role of government in cartel conduct increased dramatically.” Roithmayr, supra note 2, at 36. She notes that state action—at the municipal, state and federal levels—was enlisted in residential segregation: “The Home Owners’ Loan Corporation, which offered low-cost mortgages to whites moving to the suburbs out of the inner city, used redlined maps to determine where and to whom to provide mortgage support. The Federal Housing Administration adopted similar racial restrictions.” Id. at 36-37. Moreover, Roithmayr observes, “[s]ome of the most progressive social policies adopted by New Deal legislators functioned essentially as massive racial cartel anticompetitive supports favoring white workers.” Id. at 37. White southerners “collaborated with members of the Roosevelt administration to exclude blacks from Social Security, by exempting agricultural workers and domestic workers.” Id. at 37. Beyond these historical examples, Roithmayr delivers a searing indictment of the state with regard to, inter alia, present incarceration practices and Clinton-era welfare reform policies. Id. at 103-07.

See, e.g., Richard R. W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms, 140-167 (2013) (discussing the state action doctrine and residential segregation achieved through racially restrictive covenants).

Roithmayr, supra note 2, at 29 (“So what is a racial cartel?”).

Id. “For example, OPEC, the oil-producing cartel, restricts the output of oil by its members in order to raise prices for a scarce commodity.” Id.

Additionally Roithmayr in some places discusses race in a manner that seems to take its characteristics for granted (for example, “[w]hen it comes to differences among the races,” id. at 60), and treats the concept of race loosely: “we can only assume that cartel conduct could make use of whites’ group identity, an identity that is both easily observed and freighted with historical meaning.” Id. at 31.

See id. at 69-81 (“How Whites Created Institutional Rules That Favored Them over Time”).

Id. at 25, 35-37.

Id. at 41-48.

Id. at 41.

See Miller, supra note 28, at 23 (quoting John Townsend Trowbridge’s survey of the South in the winter of 1865, published as J.T. Trowbridge, The South: A Tour of Its Battle-Fields and Ruined Cities, A Journey Through the Desolate States, and Talks with the People 427 (Hartford, Conn., L. Stebbins, 1866)).

Southern plantation owners, as Leon Litwak observed, “often effected combinations or understandings among themselves not to contract with any former slave who failed to produce a ‘consent paper’ or proper discharge from his previous owner.” Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery 415 (1979); see also Bailey v. Alabama, 219 U.S. 219 (1911).

“Homeowners’ associations worked together with real estate boards to keep blacks out of housing markets. School boards worked together with local growers to keep Mexicans out of public schools. Working-class farmers worked together with elite planters to disfranchise blacks and eliminate their political power.” Roithmayr, supra note 2, at 6.

Id. at 37 (emphasis added).

Id. at 22-27.

Id. at 37. “In the South, employers maintained segregation via a network of community norms. Outside of agriculture, employers and unions together orchestrated occupational segregation, essentially creating a dual labor market where blacks and whites did not compete with each other. Within particular industries, certain jobs were designated black jobs or white jobs.” Id. at 36.

Id. at 41-48.

Id. at 49-52.

See Laura Gottesdiener, A Dream Foreclosed: Black America and the Fight for a Place To Call Home 63 (2013). Gottesdiener describes how in the early 2000s, the mortgage industry aggressively targeted African-American communities for sub-prime loans, advertising them in black churches and printing promotional material in a language recorded in the computer system as “African-American.” Id.

See, e.g., John Dollard, Caste and Class in a Southern Town (1949); St. Clair Drake & Horace R. Cayton, Black Metropolis: A Study of Negro Life in a Northern City (1993); Arnold R. Hirsch, Making the Second Ghetto: Race and Housing in Chicago 1940-1960 (2nd ed. 1998); Thomas Lee Philpott, The Slum and the Ghetto: Immigrants, Blacks, and Reformers in Chicago, 1880-1930 (1991); Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (1959); Douglas S. Massey, American Apartheid: Segregation and the Making of the Underclass, 96 Am. J. Soc. 329 (1990); Wendy Plotkin, Deeds of Mistrust: Race, Housing, and Restrictive Covenants in Chicago, 1900-1953 (1999) (unpublished Ph.D. dissertation, University of Illinois at Chicago) (on file with author).

See Brooks & Rose, supra note 43, at 23.

Roithmayr, supra note 2, at 38-48.

Id. at 41.

Id. White homeowners’ associations, Roithmayr argues, “looked a lot like a paramilitary cartel”: they divvied up “turf on precisely defined geographic lines,” and they used “tactics like harassment and coercion to keep” blacks out of their neighborhoods, “often terrorizing them physically.” Id. at 35. As she describes them, these homeowners’ associations behaved more like gangs, or perhaps vicious drug cartels, than nonviolent economic cartels. In fact, some homeowners’ associations were more like gangs or terrorists than run-of-the-mill economic cartels. The distinction turned often, but not exclusively, on matters of class. Unfortunately, Roithmayr suppresses issues of class in this part of her analysis, although these issues do resurface later in the book when she returns to housing and neighborhood effects.

“As one prominent NAACP lawyer observed at a 1945 conference, racially restrictive covenants were usually only enforced if some self-selected agitators were especially active in stirring the pot. But another lawyer at the same conference noted that it was expensive to litigate these cases, a fact that dampened the neighboring homeowners’ enthusiasm for doing so.” Brooks & Rose, supra note 43, at 86. In addition, “Robert Hutchins, then president of the University of Chicago, rejected Earl Dickerson’s request that the University not support the white neighborhood association defending covenants in Hansberry v. Lee.” Id. at 86 n.26; (citing Robert J. Blakely, Earl B. Dickerson: A Voice for Freedom and Equality 97-98 (2006)).

See Brooks & Rose, supra note 43, at 123 (“Neighborhood agreements were notable for their failure to meet formal requirements—a spouse’s signature missing here, a typing mistake there, an improper notarization on the next page. . . . [C]ivil rights lawyers all over the country learned to exploit these technical defects in defending their clients from eviction from covenanted properties.”).

See Hirsch, supra note 60, at 30 (“[R]estrictive covenants in Chicago served as little more than a fairly coarse sieve, unable to stop the flow of [the] black population when put to the test.”). Hirsch argued that covenants were regularly violated, seldom challenged and infrequently enforced by courts. Hirsch presented evidence that some judges in the Municipal Court of Chicago refused to uphold covenants, and that many cases were withdrawn, and that those cases that were successfully tried were infrequently enforced. See id. at 30 (describing the collapse of many Chicago racially restrictive covenants in the mid- and late 1940s); Brooks & Rose, supra note 43, at 124 (“At least one municipal judge declared that racial covenants were unconstitutional. This was an opinion that had zero precedential value, but it still served as a straw in the wind about the changing politics of race.”).

See Brooks & Rose, supra note 43, at 12 (noting that since “there was no community at all prior to the development, developers wrote the racial restrictions that informed new entrants about the behavior and attitudes that would be expected, and that also informed the disfavored would-be purchasers that they were not welcome. In older urban neighborhoods, where racial covenants emerged after the fact from agreements among the existing neighbors themselves, the case for loose knittedness is somewhat more ambiguous. But the greatest covenant activity appears to have been in middle-class neighborhoods . . . .”).

Id. at 103-104, 185.

Id. at 125.

See Wendy Plotkin, Neighbors and Boundaries: Racial Restrictive Covenants in Chicago, 1900-1948, at 7 (1998) (unpublished manuscript) (on file with author) (“For the most part, the communities that most enthusiastically adopted covenants were more affluent [and] better educated than the white communities not covered by covenants.”). However, as I discuss in other work, some less wealthy neighborhoods used both violence and covenants as part of their strategy to maintain racial exclusivity in their community. This mix of strategy was often born out of mixed motives. That is, neighborhood associations from middle- and upper-class neighborhoods frequently ran campaigns to install covenants in white working class neighborhoods that abutted black communities. The apparent motivation for this behavior was to firm up resistance to residential integration in the “threatened” working class neighborhoods, which served as buffer zones between the more affluent neighborhoods and the black neighborhoods. Individuals in these working class neighborhoods also employed violent tactics (especially bombings) against blacks who attempted to relocate there. Richard R.W. Brooks, Covenants & Conventions 19 n.66 (Nw. Law & Econ. Research Paper No. 02-8, 2002).

See Brooks & Rose, supra note 43, at 125. Brooks and Rose note that “the costs of all these [covenant drives] added up. One association’s campaign in the 1920s cost between $25 and $100 per property owner, a considerable sum in that era.” Id. at 123.

See Brooks & Rose, supra note 43, at 125 (“Thus it may not be accidental that the one major Chicago covenant case—the one that made its way to the history books and the law school casebooks—was instigated . . . by the well-to-do [minority] real estate dealer Carl Hansberry, together with Harry Pace, then the president of the Supreme Liberty Life Insurance Company. The Supreme Liberty Life Insurance Company was a Chicago institution much involved in African American real estate mortgages. It was especially important in the 1930s and later, given African Americans’ difficulties in securing FHA loan qualification; its longstanding general counsel was NAACP lawyer Earl Dickerson. After taking advice from Dickerson, Hansberry joined Pace to break the covenants of the Washington Park neighborhood . . . just south . . . [of] the University of Chicago . . . .”). Hansberry first contested the neighborhood covenants “when a cooperating white woman sublet a covenanted apartment to him and his family, claiming that they were cousins.” Neighbors successfully sued her, however, forcing the Hansberrys to move. The following year, with a mortgage from Supreme Liberty Life Insurance Company, the Hansberry “family purchased a covenanted apartment building through another white intermediary, this time a real estate speculator. . . . The Hansberry case immediately attracted the attention of the Chicago Defender newspaper, which among other things sharply criticized the otherwise progressive University of Chicago for its role in trying to keep the neighborhood white.” Id. at 126.

See Brooks & Rose, supra note 43, at 205-06 (“Oddly enough, at least some of the older racially restrictive covenants had acted as de facto benevolent quotas in the 1920s, ‘30s and ‘40s, even though they were certainly not so intended. This was because . . . the neighbor-driven covenants had generally taken effect when some supermajority of the neighbors had signed, while potentially leaving the remaining residences open to minority members. Obviously the older neighborhood racial covenants had not aimed at integration—quite the contrary, the signatories would have been happy to have 100 percent if they could have gotten it. . . . [R]acial covenants in fact existed in some integrated neighborhoods like the Shelleys’ [from Shelley v. Kraemer], and they might possibly have had the effect of stabilizing those neighborhoods racially by cabining the white residents’ worries about other white neighbors’ potential defections. This is not to make excuses for the older racial restrictions, but only to point out that their existence had many twists and turns, and that some of their techniques might have been used for more sympathetic purposes. Clearly the traditional racial covenants—including the neighbor-driven ones—had enormous down sides, most directly in closing off minority housing opportunities, and even more importantly and perniciously, solidifying the idea that racial mixing caused housing values to decline.”).

Roithmayr, supra note 2, at 49-52.

Id. at 53.

Id.; see also id. (“White homeowners created a wholly separate segment of the housing market for themselves, a segment with higher property values, wealthier neighbors, and superior housing stock. White Democrats strengthened their political power in Texas, having put aside their class differences under the banner of white supremacy.”).

Id; see also id. (“Homeowners’ associations and Texas political parties used a potent mix of violence, harassment, and legal coercion. Identity organized much of this collective action. Defecting homeowners, real estate brokers and political parties were punished severely for crossing racial lines. And often cartel members’ own shame and guilt kept them in line without the need for external punishment.”).

Id; see also id. (“Thinking about a homeowners’ association as a cartel highlights that the association acted to undermine fair competition for housing and for access to public schools. Whites rigged the game to their advantage, in much the same way cartels ordinarily do.”).

Id.

See sources supra note 28, such as Miller and Ayres, for examples of how government intervention may be justified through existing antitrust and antidiscrimination doctrine to remedy racial inequality.

Roithmayr, supra note 2, at 6 (“This book will argue that white economic advantage has become institutionally locked in . . . . This unfair advantage, acquired early in our nation’s history, has now become self-reinforcing and cumulative. A number of institutional feedback loops parlay earlier advantage into continuing advantage.”).

Id. at 60.

Id. at 57.

Id. at 57-68.

John Karl Scholz & Kara Levine, U.S. Black-White Wealth Inequality: A Survey, U. Wis.-Madison Dep’t. Econ. & Inst. Res. Poverty 10 (June 9, 2003), http://www.ssc.wisc.edu/~scholz/Research/Wealth_survey_v5.pdf [http://perma.cc/W2Q4-TYNQ] (“Most estimates, however, fall between 60 and 90 percent. When coefficients estimated from a sample of blacks are used to predict white wealth, estimates range between 12 and 84 percent, with most falling between 20 and 35 percent.”).

Id. at 13 (“Empirical specifications vary significantly across studies, which makes it difficult to understand how demographic variables influence wealth accumulation. Interpretation of coefficients is also complicated.”).

Some researchers use a basic regression model with race indicators as one of many control variables. See, e.g., Dalton Conley, Being Black, Living in the Red; Race, Wealth, and Social Policy in America (1999); Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (1995); Jesse Owens Smith, The Politics of Ethnic and Racial Inequality: A Systematic Comparative Macro-Analysis from the Colonial Period to the Present (3d ed. 2003); Erik Hurst et al., The Wealth Dynamics of American Families, 1984-94, Brookings Inst. (1998), http://www.brookings.edu/~/media/Projects/BPEA/1998%201/1998a_bpea_hurst_luoh_stafford_gale.PDF [http://perma.cc/X8TV-35R2]. Others use a regression decomposition approach, running race-specific regressions (for example, on whites only) to predict black wealth or vice versa. See, e.g., Joseph G. Altonji & Ulrich Doraszelski, The Role of Permanent Income and Demographics in Black/White Differences in Wealth (Nat’l Bureau of Econ. Res., Working Paper No. 8473, 2001), http://www.nber.org/papers/w8473.pdf [http://perma.cc/5HT5-CN54]. In theory, the choice should not matter, but regrettably for these models, it often does. Finally, others use nonparametric approaches to avoid the linearity constraint placed on income and wealthSee, e.g., Robert Barsky et al., Accounting for the Black-White Wealth Gap: A Nonparametric Approach, 97 J. Am. Stat. Ass’n. 663, 672 (2001) (using a nonparametric approach to find that income alone accounts for sixty-four percent of the wealth gap between blacks and whites).

Scholz & Levine, supra note 86, at 12; id. at 36 (“There is a consensus that labor income accounts for the majority of the racial wealth gap, which suggests that wealth inequality in the population is likely to be strongly related to inequality in labor income.”). Yet some studies do find that earnings play a larger role in wealth accumulation in the lower half of the wealth. See Barsky et al., supra note 88; Scholz & Levine, supra note 86, at 12-13.

Education and wealth are, of course, highly correlated. Differences in education predict differences in earnings, and these differences could then cause differences in wealth. Hence, looking at the effects of education on the wage-gap may provide a useful view on the wealth gap. Focusing on highly educated men, Dan Black and others find that measurement error in the census education measure leads to a modest portion of the wage gap. Dan Black et al., Why Do Minority Men Earn Less? A Study of Wage Differentials Among the Highly Educated, 88 Rev. Econ. & Stat. 300, 307 (2006). Beyond census measurement error, they observe one pattern for Hispanic and Asian men (that is, their wage gap with respect to white men is attributable to premarket factors—primarily differences in formal education and English language proficiency), id. at 311-12, and another pattern for black men (that is, premarket factors explain only a fraction (roughly one-quarter) of their wage gap, except “[f]or a subsample of black men born outside the South to parents with some college education, [wherein] these factors do account for the entire wage gap”), id. at 300.

See, e.g., Annamaria Lusardi, Financial Education and the Saving Behavior of African-American and Hispanic Households (Sept. 2005) (unpublished manuscript), http://www.dartmouth.edu/~alusardi/Papers/Education_African&Hispanic.pdf [http://perma.cc/6Q7W-VSPJ] (citing Emily C. Lawrance, Poverty and the Rate of Time Preference: Evidence from Panel Data, 99 J. Pol. Econ. 54 (2001) for the proposition that blacks and Hispanics are more impatient than whites).

The savings rate among blacks generally is lower than that of whites, but this difference largely goes away when income is taken into account. One study that specifically attempted to isolate black-white differences in savings rates observed that in one formulation, the wealth gap would fall by only one percent if black households saved at the same rates as whites. Maury Gittleman & Edward N. Wolff, Racial Wealth Disparities: Is the Gap Closing? 4 (Levy Econ. Inst. Working Paper No. 311, 2000).

Id. at 8.

Id. at 9.

See, e.g., Francine D. Blau & John W. Graham, Black-White Differences in Wealth and Asset Composition, 105 Q.J. Econ. 321, 332-33 (1990); Nancy A. Jianakoplos & Paul L. Menchik, Wealth Mobility, 79 R. Econ. Stat. 18 (1997).

Gittleman & Wolff, supra note 92, at 8; Scholz & Levine, supra note 86, at 28-29; Ronald L. Straight, Wealth: Asset-Accumulation Differences by Race—SCF Data, 1995 and 1998, 92 Am. Econ. Rev. 330, 332-33 (2002); Edward N. Wolff, Recent Trends in Wealth Ownership, 1983-1998, at 7 (Jerome Levy Econ. Inst., Working Paper No. 300, 2000).

See Oliver & Shapiro, supra note 88, at 152; Robert B. Avery & Michael S. Rendall, Lifetime Inheritances of Three Generations of Whites and Blacks, 107 Am. J. Soc. 1300, 1300 (1997); Blau & Graham, supra note 95, at 321; Gittleman & Wolff, supra note 92, at 2; Jianakoplos & Menchik, supra note 95, at 19; James P. Smith, Racial and Ethnic Differences in Wealth in the Health and Retirement Survey, 30 J. Hum. Res. S158, S158 (1995); cf. Altonji & Doraszelski, supra note 88, at 6 (“[T]he legacy of discrimination could lead to a link between intergenerational transfers and income that is stronger for whites than for blacks.”).

“The evidence about the effect of inheritances on the median wealth gap is scant, although we suspect that inheritances have little or no effect on the wealth of the median household, instead playing a larger role at the upper end of the wealth distribution.” Scholz & Levine, supra note 86, at 14. “Fewer than half of all households in the [study sample] report having received an inheritance. Therefore, the median inheritance amount for both whites and blacks is zero.” Id. at 46 n.25.

White households are only slightly more likely than non-white households to have received intergenerational wealth transfers, but those that have received transfers receive a substantially larger amount. Mark O. Wilhelm, The Role of Intergenerational Transfers in Spreading Asset Ownership, in Assets for the Poor: The Benefits of Spreading Asset Ownership 140 (Thomas M. Shapiro & Edward N. Wolff eds. 2005). There is some evidence that non-white families spend less on their adult children for every extra dollar of resources than white families do. See, e.g., Joseph G. Altonji & Ernesto Villanueva, The Marginal Propensity to Spend on Adult Children, B.E. J. Econ. Analysis & Pol’y, Feb. 2007, at 36-37 (observing that for every extra dollar of resources, white parents spend about four cents on their adult children, whereas non-white parents spend about three cents). The source of the wealth gap must lie elsewhere.

Roithmayr, supra note 2, at 60.

Id. at 57 (emphasis added). “White families pass down far more than families of color, and family transfers contribute a great deal to racial wealth differences, particularly at the bottom and top of wealth brackets. . . Indeed, racial differences in parental wealth are a central factor in the contemporary racial wealth gap.” Id. at 61 (footnotes omitted).

Id. at 62.

Blau & Graham, supra note 95.

Oliver & Shapiro, supra note 88, at 109-11.

Id.

See, e.g., Oliver & Shapiro, supra note 88; Thomas M. Shapiro, The Hidden Cost of Being African American: How Wealth Perpetuates Inequality (2004); Joseph G. Altonji et al., Black/White Differences in Wealth, 24 Econ. Perspectives 38 (2000); Robert Barsky et al., supra note 88; Kerwin Kofi Charles & Erik Hurst, The Correlation of Wealth Across Generations, 111 J. of Pol. Econ. 155 (2003); David Low, Quantifying Explanations for Black-White Wealth Inequality (New York Univ. Working Paper, 2013), http://www.econ.as.nyu.edu/docs/IO/28319/BlackWhiteWealthInequality.pdf [http://perma.cc/23C8-TM8K]

Dalton Conley, Getting into The Black: Race, Wealth & Public Policy, 114 Pol. Sci. Q. 595 (1999).

Id. at 596.

Altonji & Doraszelski, supra note 88.

Id. at 6-7.

Id. at 40.

Id.

Roithmayr, supra note 2, at 83-92.

David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 Stan. L. Rev. 1915, 1931 (2005) (emphasis omitted).

Charles & Hurst, supra note 106, at 1173-79.

Roithmayr, supra note 2, at 71. These rules may be informal, like social etiquette, or formal and subject to legal enforcement—and sometimes both. “Sometimes institutional rules are both formal and informal at the same time—in certain places in the US, both legal and social norms prohibit smoking.” Id.

Id. at 74 (“Mental models are the internal stories that people use to make sense of their world and interpret their environment. . . . Those mental models filter experience and perceptions in a way that constrains people from considering significantly different ways of doing things.”).

Id.

Id.

Id. at 78 (“The committee reasoned that because an applicant could take the bar multiple times, everyone would pass sooner or later, and thus the bar posed no meaningful measure of the quality for which schools wanted to screen.”).

Compare, e.g., Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004), with Ian Ayres & Richard R.W. Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 Stan. L. Rev. (2005), and David L. Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study, 57 Stan L. Rev. 1855 (2005), and Wilkins, supra note 114.

Roithmayr, supra note 2, at 78 (“Jerold Auerbach and others have documented the connection between these suspect rules and the desire to exclude certain groups from law schools.”).

Id. at 80.

Id. (“Some have pointed out the way in which the mental model of merit that ranks people by grades or performance both reflects and rationalizes a system that disproportionately awards resources to one group. According to this argument, we justify the exclusion of people of color from law schools by arguing that white students deserve admission because they did well on the LSAT and got good grades.”).

Id.

See Pierre Bourdieu, Homo Academicus 69 (Peter Collier trans., Stanford University Press 1988) (1984) (discussing academic power and the production and reproduction of social structures, particularly in law, where knowledge works “in the service of order and power” as opposed to academic disciplines where knowledge scrutinizes “order and power, aiming . . . at analyzing them as they are, at analyzing the nature of social order and the state”).

Roithmayr, supra note 2, at 80 (“The world does change, as do people’s mental models. Some schools briefly experimented with waiving the LSAT for undergraduates from their home institutions with certain qualifications, and an American Bar Association committee has voted twice in straw polls to remove the LSAT requirement, in part for the reasons discussed. But the ideology of merit dies hard, and is likely to persist so long as whites continue to enjoy disproportionate admission.” (citation omitted)).

Id. at 89.

Id.

“In particular, research demonstrates that compared to whites, black and Latino job seekers have networks that are smaller in size and have fewer links per person to potential employment.” Id.

See id. (“Social networks for ghetto residents are much smaller and the contacts that they do have are less likely to be employed or fully employed than people of color from low-poverty neighborhoods.”); id. at 91 (“As the foregoing discussion makes clear, the key problem is that networks are segregated by race and also by class.”).

Id. at 89 (“It comes as no surprise to learn that as an empirical matter, owing to historical discrimination, blacks and Latinos are far more likely to reside in the layers of hierarchy at the bottom, far from direct access to employment. At the same time, black and brown networks are less likely to be well connected to people further up the referral hierarchy. Owing to the self-reinforcing dynamics of networks, people of color are more likely to remain at the bottom of the hierarchy over time, and are at greatest risk for becoming (and remaining) a marginalized class if circumstances push a referral network below its critical threshold.”).

Id. at 91.

Roithmayr argues: “Social psychologists tell us that . . . networks remain segregated simply because like tends to attract like. Social psychologists call this attractive force ‘homophily.’. . . In addition, people form their social networks in places—neighborhoods, schools, workplaces—that tend to be segregated . . . even in communities where there is little or no intentional discrimination.” Id. (citation omitted).

Id. “Intermarriage and integrated social networks, to say nothing of integrated neighborhoods, would go a long way toward redistributing wealth.” Id.

“Finally, we should note that residential segregation in particular has played a central role in persistent wealth disparity.” Id. at 67.

Id. at 67. Jim Crow policies assured that blacks would have not only inadequate housing, but also inferior neighborhood amenities, from schools and other social services to even inferior water and sewage services. See Werner Troesken, The Limits of Jim Crow: Race and the Provision of Water and Sewerage Services in American Cities, 1880–1925, 62 J. Econ. Hist., 734 (2002). There is evidence that in some cities, such as Memphis, Tennessee, fear of typhoid and other water-borne diseases moving from black to white households motivated officials to install “extensive and equitable [water and sewer] systems that appear to have benefited both whites and blacks.” Id. at 748. However, evidence from other cities, like Savannah, Georgia, reveal that with sufficient segregation officials were able commit “to under-provide African Americans with sewer and water services.” Id.

See Fishkin, supra note 7, at 65-74.

For example, she observes the possibility of competing starting gates. “We can actually trace the starting point for race differences in wealth even farther back,” she writes, “to Jim Crow and slavery.” Roithmayr, supra note 2, at 62. But the Jim Crow period and our long history of slavery are very different points—not to mention the differences within these periods. Are blacks from the American South who trekked north during the great migrations at the same starting gate with West Indian immigrants who moved to northern U.S. cities during Jim Crow—to say the least of poor European immigrants? Identifying the right moment, or starting gate, when comparing the outcomes of two or more groups or individuals may be the biggest challenge to equality of opportunity arguments.

Id. A recent paper by Melinda Miller provides some evidence for this thought experiment. Comparing the outcomes of former slaves generally to those from the Cherokee Nation—which, in contrast to the failed larger promise of “40 acres and a mule,” actually provided opportunities for freedmen to claim land—Miller reports that former Cherokee slaves had greater absolute wealth and experienced a smaller racial “wealth gap” than former slaves of the Confederacy in 1880. Moreover, the children of Cherokee freedmen continued to experience these advantages in 1900. Melinda C. Miller, Land and Racial Wealth Inequality, 101 Am. Econ. Rev. 371, 373-75 (2011); Melinda C. Miller, The One Thing Needful: Free Land and Black Mobility, 1880-1900 (Nov. 2011) (unpublished manuscript) (on file with author), http://economics.yale.edu/sites/default/files/files/Workshops-Seminars/Economic-History/miller-111115.pdf [http://perma.cc/VDF2-PTMW].

Brooks & Rose, supra note 43, at 222, 233 n.4, 252 n.9.

Fortunately, for the truly curious, some answers are available in Roithmayr’s articles. See, e.g., Roithmayr, supra note 10, at 78: “It is important to point out that the racial cartel story appears to be historically specific to African Americans, Mexicans and some Asian groups.” Roithmayr further observes, “other groups like Asians and White ethnic groups (Irish, Eastern European Jews and other immigrant groups) have faced similar anticompetitive exclusion at various times in this country’s history. But important historical differences separate the experience of these groups. . . . Comparatively speaking, Jews and many Asian groups have not experienced either the magnitude or duration of anti-competitive exclusion experienced by these groups.” Id.

Roithmayr, supra note 2, at 13.

Gary Becker’s model of actors exhibiting a “taste for discrimination” opens a succinct and useful discussion of irrational and rational discrimination. Id. at 15-17.

The discussion here is essentially limited to bias and implicit attitudes measured by the Implicit Association Test. Roithmayr raises some of the familiar challenges to (and defenses of) the IAT, including questions about what exactly the test is measuring and the applicability of split-second discrimination in everyday life. Id. at 20-21. Beyond that, psychological models get short shrift here. Although she begins generally by mentioning psychological mechanisms grounded in stereotypes, there is no discussion of stereotype threat—considered in, for example, Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 79 J. Personality & Soc. Psych. 797 (1995), or aversive racism, discussed in, for example, John F. Dovideo & Samuel L. Gaertner, Aversive Racism and Selection Decisions: 1989 and 1999, 11 Psych. Science 315 (2000), or other conscious and subconscious psychological accounts of racial decision making and behavior either by majority or minority group members that might account for persistent inequality across groups. Of course, one book does not need to address every psychological theory concerning race in fine detail (there are quite a few), but the fact that she doesn’t even touch on a number of the more basic theories gives the discussion here an ad hoc quality.

The chapter begins with Richard J. Herrnstein and Charles Murray’s polemic The Bell Curve, which reinvigorated old and ugly debates on race, genetic differences, and measured intelligence. Roithmayr, supra note 2, at 13. After that there is little mention of the topic, beyond a brief mention of Stephen Jay Gould’s discussion of “the darker days of our intellectual history, in which scholars argued that blacks and ‘Mongoloids’ were inferior because of their physiological or genetic characteristics.” Id. at 17. Roithmayr notes that, “as time passed, most if not all of these ideas were thoroughly discredited as scientifically unsupported, although the ideas did reappear in modified and more sophisticated form from time to time, as was true in The Bell Curve.” Id. at 18.

Roithmayr nicely reminds us where the cultural explanations originated. “Anthropologist Oscar Lewis first made the now-infamous argument that a ‘culture of poverty’ explained persistent gaps.” Id. at 21. Senator Daniel Patrick Moynihan, however, may be particularly associated with this claim, which remains popular among a number of conservative commentators. Off. Pol’y Planning & Res.,The Negro Family: The Case for National Action, U.S. Dep’t Lab. (1965), http://www.dol.gov/oasam/programs/history/webid-meynihan.htm [http://perma.cc/4XVR-4XFD].

Here Roithmayr thoughtfully and importantly connects structural constraints—like segregation within (or spatial mismatch between) residential and employment sites—to cultural claims. The connection, of course, is important for her favored explanation. Roithmayr, supra note 2, at 23 (“As this book will argue, the best explanations assert that culture and structure reflect and reproduce each other in a positive feedback loop that moves from culture to structure and back again.”).

The key insight is attributed to the economist Glenn Loury, whom Roithmayr identifies as the first to suggest “that persistent racial gaps might be traced to feedback loops, though they weren’t called that yet.” Id. at 23. She writes:

Loury pointed out that residentially segregated neighborhoods produce underfunded schools, and parents with poorly connected social networks decreased a child’s chances of getting a job. In particular, children from those neighborhoods or those parental networks are less likely to get (or have to pay more to get) the training to do skilled work. Accordingly, each generation suffered the deprivations of the prior generation and reproduced them for the next generation.

Id. at 23-24.

Here it might have been useful to introduce Oliver Williamson’s notion of the “fundamental transformation,” wherein the winner of some initially competitive contest (say, for example, a supplier in a competitive bidding process) acquires monopoly or market power, or some other advantage, in future contests. Oliver E. Williamson, The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting 61 (1985). Roithmayr relies more on the language of “switching costs,” Roithmayr, supra note 2, at 113-118, 136-38, which are of course related to the former notion, that is, “transaction-specific know-how and skills and the difficulties of skill transfer mean that it will be costly to switch to an alternative supplier.” Kirk Monteverde & David J. Teece, Supplier Switching Costs and Vertical Integration in the Automobile Industry, 13 Bell J. Econ. 206, 206 (1982).

See, e.g., David Blackwell & James B. MacQueen, Ferguson Distributions Via Polya Urn Schemes, 1 Annals Stat. 353 (1973).

Roithmayr, supra note 2, at 28. Roithmayr here relies on W. Brian Arthur, Increasing Returns and Path Dependence in the Economy (1994) for the description of the experiment. An accessible and engaging discussion of the experiment can be found in Joel E. Cohen, How Is the Past Related to the Future?, Ctr. for Advanced Stud. Behav. Sci. (1982). Going beyond the basic two-color dichotomy, Blackwell and MacQueen extend the result to a continuum of colors. Blackwell & MacQueen, supra note 151.

Roithmayr, supra note 2, at 28.

Id. at 112.

Program and log files on file with author.

Roithmayr, supra note 2, at 28-29.

Id. at 28-29. She continues, “If the early draws favored whites, it should now come as no surprise that the urn is now mostly white.” Id. at 29.

Grayson K. Vincent & Victoria A. Velkoff, The Next Four Decades: The Older Population in the United States: 2010 to 2050, U.S. Census Bureau 1 (May 2010), http://www.census.gov/prod/2010pubs/p25-1138.pdf [http://perma.cc/CCM3-FTSZ].

A white police officer is an ugly bigot if his bias leads him to arrest a slightly intoxicated but otherwise innocent black kid on ‘‘disorderly conduct” charges, but he may be viewed as a decent guy if he gives a pass to a similarly intoxicated yet otherwise innocent white kid. See Ian Ayres, Op-Ed, When Whites Get a Free Pass, N.Y. Times, Feb. 24, 2015, http://www.nytimes.com/2015/02/24/opinion/research-shows-white-privilege-is-real.html [http://perma.cc/L8JY-K3XH].

There is a hint of this suggested in George Bernard Shaw’s solution to inequality through income: “if you equalise income (and that is doing a great deal) you will practically render the whole community inter-marriageable; and I said, and believe, that that would make enormous changes.” Shaw, supra note 8, at 22.

In a related vein, see, for example, Roland G. Fryer Jr. & Glenn C. Loury, Affirmative Action and Its Mythology, 19 J. Econ. Persps. (2005); and Abraham L. Wickelgren, Affirmative Action: More Efficient Than Color Blindness, 10 Tex. J. Civ. Liberties & Civ. Rts. (2005) (each demonstrating distinct efficiencies gained by “color-conscious” affirmative action).

Bernard Williams, The Idea of Equality, in Problems of the Self: Philosophical Papers 1956–1972, at 230-249 (1973); see also Fishkin, supra note 7, at 11-13, 24-82 (offering an extended discussion of Williams’s Idea of Equality in the context of competing theories of equality of opportunity, including his own).

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).

“The way to end racial discrimination is to stop discriminating by race.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1222 (9th Cir., 2005) (Bea, J., dissenting). For some discussion on the origins of the expression, see Eugene Volokh, The Origin of “The Way To Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race,” Volokh Conspiracy (July 17, 2007, 10:30 AM), http://volokh.com/posts/1184684008.shtml [http://perma.cc/W97R-ZZ5N].

See, e.g., J. David Goodman & Al Baker, Wave of Protests After Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, N.Y. Times, Dec. 3, 2014, http://www.nytimes.com/2014/12/04/nyregion/grand-jury-said-to-bring-no-charges-in-staten-island-chokehold-death-of-eric-garner.html [http://perma.cc/N86D-5ECX]; Karen Tumulty, Ferguson, Staten Is-land: Similar Events Bring Very Different Reaction, Wash. Post, Dec. 4, 2014, http://www.washingtonpost.com/politics/ferguson-staten-island-similar-events-bring-very-different-reaction/2014/12/04/bf4a482c-7bd9-11e4-b821-503cc7efed9e_story.html [http://perma.cc/4DTG-M52J]; Reid J. Epstein, Poll: Views of Race Relations Worse Than Before Obama Took Office, Wall St. J: Wash. Wire (Dec. 17, 2014, 12:09 AM), http://blogs.wsj.com/washwire/2014/12/17/poll-views-of-race-relations-worse-than-before-obama-took-office [http://perma.cc/KG8R-RJ5S].

Schuette v. Coal. To Defend Affirmative Action, 134 S. Ct. 1623, 1676 (2014) (Sotomayor, J., dissenting) (citations omitted).

Id.