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Sunday, May 14, 2006

The Commodification of Caste

The NYT has a piece today on the dangers of "face-whitening" cream in East Asia.  Apparently many individuals (currently, mainly women) are using "powerful but illegal bleaching agents" to appear paler.  Obviously there are deeply troubling racial and gender dynamics at work here, but I'd like to focus on a dilemma in innovation policy.  What would happen if the cream became much safer, but also much more expensive?  Should we welcome that development?

Obviously, if people insist on using the cream, it should be as safe as possible.  But innovation here would also likely accelerate the commodification of caste. So rather than trying to develop safer whitening agents, wouldn't it be better to ban them altogether? Even a libertarian would have a hard time arguing that this type of "appearance competition" doesn't violate the harm principle. 

A caste-creating process in our midst teaches some valuable lessons.  As Susan Starr Sered and Rushika Fernandopoulle argue in Uninsured in America,

The current American system in which health care is linked to employment is creating a caste of the chronically ill, infirm, and marginally employed. . . . Sick, lacking reliable health care, and locked in employment situations that do not offer medical benefits, they find it increasingly difficult to escape. . . . Illness itself constitutes a physical marker: rotten teeth, chronic coughs, bad skin, a limp, . . . --all of these signal caste in basic ways.

So ill-health is not simply the result of a poor employment situation but also often its cause.  Many employers who offer health insurance will glance at applicants' "physical markers" of lack of health and dental care in the past and refuse to hire them on the basis of unfair presumptions about the cause of that lack of care. When badges of caste become commodified, we have to start thinking about legal intervention to stop self-reinforcing stratification.

Posted by Frank3 on May 14, 2006 at 07:38 AM in Current Affairs, Law and Politics, Legal Theory | Permalink

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Strangely enough I have heard people, in all seriousness, say the same thing about breasts implants for women: that they are a key to success. Even though they are now safer than before, many people (perhaps myself) stigmatize women who have had breast implants as being shallow, but perhaps have inadvertently judged people on how they look, anyway.

Posted by: Anon | May 14, 2006 9:49:27 AM

Wow, interesting stuff, Frank. Two thoughts:

(1) The popularity of hair straightening by African-Americans when American society was officially segregated in the early 20th century (depicted compellingly in the opening scenes of the Malcolm X movie).

(2) I'm not a health law or insurance scholar/expert, so maybe this point is ovvious to those who are.... But in terms of economic theory, insurance stops working as "risk-pooling" when the would-be insurer knows everyone's risk sufficiently precisely. It's possible that the system of private health insurance as we know it won't survive scientific developments (e.g., in genetics) that make individuals' health risks more apparent....

Posted by: Scott Moss | May 14, 2006 12:09:13 PM

I think we should also ban lipstick, high heels, and short skirts. They all accelerate the commodification of gender and caste. What kind of libertarian wouldn't agree with this?

Posted by: Kate Litvak | May 14, 2006 12:48:48 PM

Some very interesting comments. A few responses:

1) To Kate: I should have been clearer and specified that, in my hypo, the safer cream would be far more expensive than, say, the aids to appearance you mention (which are pretty widely available).

I'd also respond that those cosmetics/dressing strategies are not as mapped to a racial caste system as the face cream appears to be. But perhaps an interventionist approach is inevitably trapped in the kind of antinomies Duncan Kennedy mentions in the title essay of this book:
http://www.hup.harvard.edu/catalog/KENSEX.html

Also, I'm just trying to point out some paradoxes in innovation policy. Taken atomistically, technological advances like "safer whitening cream" may seem Pareto-optimal--they enrich the company that makes it and they permit the consumer to look better. But it seems that people are getting hurt in this process. And this may happen on a very micro-level.

2) To Scott--That's a very interesting point regarding the distribution of advantage. We do have some laws against genetic discrimination now, but we don't really know how effective they'll be. One classic objection to genetic discrimination laws is that they focus on one source of "undeserved disadvantage" to the exclusion of others. If insurance companies can't discriminate on the basis of bad genes, why not, say, on the basis of car accidents?

So I think your comment contextualizes the post well--there are lots of undeserved disadvantages out there. And it's very unfortunate if a) those undeserved disadvantages are totally socially constructed, as in the case of discrimination on the basis of appearance, and 2) people have to put themselves in danger (or debt) to overcome such disadvantages.

Posted by: Frank | May 14, 2006 1:39:37 PM

"there are lots of undeserved disadvantages out there. And it's very unfortunate if a) those undeserved disadvantages are totally socially constructed, as in the case of discrimination on the basis of appearance, and 2) people have to put themselves in danger (or debt) to overcome such disadvantages."

I am a classic example of this. Before my parents divorced many years ago, despite my autism, I received medical, dental, and orthodontist care. My very crooked teeth were straightened to perfection.

Then, my parents divorced, and my father and new step-mother refused to cover my medical and dental care. I became a single mother with no education. I was trying to use my horse jumping skills (the only skills I had) to create employment, but still had no medical or dental insurance and I was living in abject poverty. A horse I was training for a wealthy person for whom I was providing extremely low cost training services (to show I was worthy of being hired full time), reared and knocked out one of my front teeth. California's Medical program fixed it, but what I got was very substandard dentistry. The tooth was the wrong size, color, and destroyed my previous orthodontist care.

The tooth was fixed in 1980, and the one I got is about 5 shades of white lighter than my other teeth (a magnetic metallic fake white), sticks out at an angle because the dentistry was not done properly, is made of an inferior metal alloy I am allergic to, and creates spaces (gaps) on each side between my other teeth -- in sum, creating a cosmetic disfigurement.

Besides having had an ongoing and continuous metal alloy infection going from the tooth up into my gumline for more than 26 years (it is very red-black and about 3/4 inch wide), the cosmetic disfgurement (combined with the autism I already have) has resulted in very negative reaction to my physical appearance from about 99% of the people who see me causing extreme consequences, including:

1. More than 26 years California bar denial on pretextual disability discriminatory grounds that no one will hire me causing default on my student loans (taken to rise out of poverty) and loss of ability to keep housing and shelter;

2. More than 4 years Florida Board of Bar Examiner exclusion from even making an application, which is still continuing with ongoing delay even though the Supreme Court of Florida finally Ordered FBBE to accommodate me in the Bar application process (but I don't really think I will ever get my bar admission in Florida either);

3. For every 2000 employment positions I apply for, I am lucky to be offered just one, because they always accept me on paper but as soon as employers see my consmetic disfigurement on appearance at interview I am rejected (many times without even being given the chance to demonstrate my significant skills and abilities). This includes a large Tampa area law firm joining hands and praying to God someone else would hire me but not them, going 3 hours for a skills-based interview and upon seeing my appearance being rejected out of an office interview, etc.;

4. The same effect when I try to apply for governmental survival benefits, with rejection of my cosmetic disfigurement causing no one wanting to assist me (my last SSDI/SSI application has delayed more than 4 years);

5. Being cited, convicted, and losing my Florida driver's license and being found unable to "see," i.e. blind, because of the rejection cause my appearance of the disfigurement (I had a very clean and safe driving record for the entire 37 years I drove, have 20/20 perfect vision, and lost my ability to earn a living transporting horses while trying to achieve my bar admission because of this, and the blindness findings were made up out of thin air since nothing in the record remotely suggested I could not "see");

6. Being admonished and issued an Order to Show Cause for "willful contempt" by the same District Court Judge who authorized the euthanasia of Terri Schiavo because of my disabilities, with the basis for the willful contempt findings (before any evidentiary hearing) being that he oversaw the Tampa Division listing me as an "attorney" "representing" my husband (who is an attorney) in the CM/ECF and on PACER over my protests that I am not an attorney yet, then using that listing as basis for an attorney disciplinary referral on both my husband and I, under threat of incarceration);

7. I have even been denied housing and told to leave social gathereins as soon as aothers are revolted by my consmetic disfigurement; in sum, I am instantly hated upon first visual sight of my appearance, and for someone to go through life this way being hated for their appearance by everybody is an extremely traumatic blow psychologially.

NEVER do my considerable education, skills, and abilities in either the legal profession or equestrian world matter, not at all. I don't even get to "try out." They might as well be non-existent, because I am always judged negatively by my cosmetic disfugurement appearance.

The point I am making is the same as brought out on this thread, but I am only adding how extensive the damages to one's life can be -- and why? What for? I am deserving of all this punishment just because I was impoverished and lacked proper medical and dental care, exacerbating my pre-existing disabilities and creating a life-destroying consmetic disfigurement?

I can truly say I do not understand any of this, and I am still living with the poisoning from the metal alloy, as well as now a staph infection on my neck for which I have not been able to afford medical treatment for over 2 years. No doubt, the staph infection has worsened because when no one will hire me and I cannot get my driver's license back or the bar admission I worked so hard for, I am unable to afford to wash my clothes very often, causing even more infection from sweat around the collar of my shirts.

It is a self-perpetuating downward spiral. To think I was a single mother who just took out the student loans, worked 16 hours a day or more to graduate law school, in good faith and with a lot of hard work bought into the American Dream, and lost it all because of these barriers I will never be able to overcome. How long should someone have to go on being unable to afford to achieve the bar admission to remedy all this? Isn't sixteen years long enough? And isn't more than 3 years driver's license suspension on a perfectly clean driving record without even a parking ticket on it long enough?

Or am I forever doomed to the trash heap of American society because my poverty and lack of medical and dental care has forever done me in in terms of ever having a decent job, medical and dental care, stable secure housing, a driver's license so I can work, to remain free from unjustified involuntary institutionalization or incarceration resulting from the backlash of law enforcement or a judge who is revolted by my disfiguring appearance and equates that with appearance with criminality?

It is a very scary world to be cosmetically disabled and autistic relegated to the bottom with no hope. And it is truly "with no hope."

Posted by: Mary Katherine Day-Petrano | May 14, 2006 2:30:43 PM

"26 years California bar denial" = "16" years

Posted by: Mary Katherine Day-Petrano | May 14, 2006 2:35:26 PM

Frank: Ah, I get it now. We should ban not just any lipstick, shoes, and skirts, but _expensive_ lipsticks, shoes, and skirts – the ones that quickly and reliably signal the social status and cultural background of the wearer. Once we are at it, let’s also ban high-end tennis rackets, cars, and baby strollers. Expensive houses too. And boats! And, of course, first-class cabins on airplanes and all jewelry.

Too many people are buying those things to signal their status, which wastes social resources and perpetuates the esthetics of the ruling class. Stupid, stupid people. As soon as we ban all those expensive things, they’ll immediately stop looking for status symbols.

Wait, I forgot to add the words “Pareto-optimal” in some random place.

Posted by: Kate Litvak | May 14, 2006 5:46:50 PM

I don't think I was trying to condescend to anyone regarding their consumption decisions. I'm not saying "stupid, stupid people"--those are your terms. Rather, I am trying to propose a way of ameliorating a social dynamic that tends to lead to wasteful competition.

I really don't think that trying to stop the reinforcement of what appears to be a racial caste system leads to the Harris Bergeron-like reductio ad absurdum you are describing. Lines can be drawn.

As for Pareto-optimality--I presume this line is meant to critique academics' tendency to throw around jargon in order to convey authority. Such a rhetorical strategy does tend to generate unfortunate and unnecessary marginalization and exclusion. But I prefer it to sarcasm and ridicule any day.

Posted by: Frank Pasquale | May 14, 2006 6:11:59 PM

I think, to use some jargon, Litvak is "performing" callous, detached libertarianism. A common tactic for marginalized orthodoxies. Or perhaps the performance is more designed to draw attention to the under-theorized problem of sharp tongued female academics and collegiality.

Posted by: Bart Motes | May 14, 2006 7:11:54 PM

Frank, I have some questions:

How do you identify this "wasteful competition?" Do you know it when you see it? How? So far, you have suggested that goods sold at high prices that improve appearance are the characteristics of such competition. I took Kate's point to be that surely these characteristics are insufficient to intervene upon individual's consumption choices. Surely she is right on that front, as her counterexamples demonstrate.

One way to distinguish Kate's examples is to suggest that that consumption is wasteful when "it seems like people are being hurt in the process." But that hardly seems persuasive, or principled. I also confess that I do not know what you mean you say that the harm may occur "at a micro level." Does "micro level" mean that the consumer "thinks" he is better off but "really" isn't? Perhaps you have some sensible principle upon which one might decide when competition that admittedly is satisfying consumer preferences is a good thing, and when it is not. You hint that this is possible ("lines can be drawn"), or at least what you have in mind. I am curious what lines you have in mind that would allow us to identify tranactions that are not truly pareto optimal.

Posted by: Joshua Wright | May 14, 2006 8:54:59 PM

Frank: people who propose to ban cosmetics because it "tends to lead to wasteful competition" don’t need reductio ad absurdum. They’ve successfully reduced themselves to absurdum, leaving the rest of us to enjoy the results.

Oi, I’ve forgotten to cite some big name.

Posted by: Kate Litvak | May 14, 2006 10:44:15 PM

Frank: Aren't you just critiquing a society for valuing pale skin, which you find valueless? If so, your long-term objective should be to eliminate the preference. How do you do that? Innovation! If everyone can have pale skin cheaply, then it will no longer be highly valued nor a sign of caste. Your proposal, on the other hand, seeks to eliminate the preference for pale skin by fiat. That simply doesn't work.

Posted by: PK | May 15, 2006 1:21:23 AM

First, I'd like to thank Kate for suggesting a marvelously egalitarian principle of not citing "big names." That is a good first step toward assuring that the educated and uneducated can participate on a level footing in debates.

More seriously, as to Joshua's & PK's points--

1) PK: I think the racial dimension is what really gets to me here. It's not just that skin color is objectively valueless...it wouldn't really be a big deal to me in a world without racism. But we can't really responsibly imagine that world being our world any time in the near future. The unfair valuation of people on the basis of skin tone seems almost universal.

You may be right about innovation eventually bringing down the cost of "pale skin," and essentially cheapening the attribute to the point where "fashionable people" don't want it anymore. Raustiala and Sprigman have a good paper on fashion (called The Piracy Paradox) where they make a similar argument about rapid copying in the fashion industry. But I argue that that process in iteself can create a pretty wasteful process of status consumption:
http://www.concurringopinions.com/archives/2006/03/and_a_fashionis.html

Finally, while we're waiting for the new, safer cream to go off patent, those able to afford it are able to leverage that advantage in many arenas of competition that those who can't, can't. Max Mehlman presents a good picture of how pervasive such leveraging can be in an article on genetic engineering published in Iowa in 2000.

2) Joshua: For this example, I think the line can be drawn on the basis of color and race.

But you're right, I have many more fish to fry. In response to that point, I'm going to draw on an abstract for a paper I want to write on "primarily position enhancing information." (Much of this is inspired by economist Robert Frank's work; I'm trying to apply his insights to some areas of health care and IP)

To the extent that information is used as a tool for competing in zero-sum games (like legal disputes or testing or, perhaps in the case of the cosmetics mentioned here, a partner), it is unclear whether the production of more information is either efficient or equitable.

For instance, imagine the development of a test-preparation course that guarantees its students 20 points more on the relevant test, in exchange for $100,000. Though the number of students may be small, and hard-working, they will nevertheless manage to leverage financial advantage into educational advantage.

Moreover, even if the price of the course goes down, inequity persists until it is universally accessible. This is because the more accessible the course is, the greater the pressure to take it (spreading its cost more generally), and the greater the disadvantage suffered by those who don't take it (increasing the penalty for non-participation). But perversely, once the course becomes universally accessible, it will afford no one a positional advantage, because all will see their scores raised by the same amount. Therefore, the course generates either inequity, or inefficiency (since universal accessibility destroys the only value of the course—the ability to raise one's score relative to others).

The homely example of the test-preparation course suggests a more general theory regarding the development of position-enhancing information (PEI). First, the rise of such information immediately divides society into two groups—those who can afford to access the information, and those who cannot. To the extent that the latter group's relative poverty is not its own fault, the new information inequitably subjects it to yet another disadvantage, whereby others' wealth can be leveraged into status, educational, or occupational advantage.

Moreover, even though the group that can afford access to the PEI is advantaged relative to those who cannot, the development of PEI may be inefficient for that group as well. The benefit of distancing itself from those who cannot afford the information may well be outweighed by the cost of access. And precisely to the extent that this cost is lowered, the positional advantage afforded by the innovation dissipates. In other words, PEI creates inequity when it first arises, and inefficiency as it becomes more universally accessible.

PPEI may exist in many areas--such as performance-enhancing drugs, test-preparation courses, and luxury brands. So I think that there is a good argument for trying to identify when it arises, and perhaps weakening the legal protections that prevent copying of such information.

Posted by: Frank Pasquale | May 15, 2006 7:30:33 AM

Frank, remove the snarkiness and Kate has a serious point. Banning the creams in question would not remove the desire of the Asian women you cite to appear paler, nor their inclination to spend all sorts of money to achieve that. It would just be channeled to other products (e.g., "MAC whitening cream," which is not a real product, I'm just making this up). And if you extend the ban all (expensive) products that would reasonably substitute for bleaching cream, that seems to fall down Kate's slippery slope (would just sale be illegal, or would it be contraband? Possession of foundation with intent to distribute?)

On the analogy to luxury brands, if you make luxury brands (and their associated social cache) too easy to copy, you'll start seeing other ways of marking social status, perhaps private clubs for luxury goods -- pretty soon you'd need to be a member to walk into a Coach store, or something. The effect will merely be transferred. That's not to say the law is powerless in these situations -- Lessig's example of blurring through adoption of a seatbelt-in-taxicabs law is a good example -- but a simple ban may not be sufficient in the face of overwhelming public demand.

Posted by: Bruce | May 15, 2006 11:21:55 AM

This all reminds me that I should read Dr. Seus's "Star-Bellied Sneetches" to my 2-year old more often.

Posted by: Joseph Slater | May 15, 2006 1:13:46 PM

Joseph, there's also the one with the cats that hold other cats' tails -- don't remember the title. But the last cat has no one to hold its tail. Eventually the cats figure out that every cat can have its tail held if every cat holds its own tail.

Posted by: Bruce | May 15, 2006 1:23:08 PM

I agree with Kate and Bruce's point that even if this ban was a good idea, it would not accomplish its goal because transactions would move to the black market or new status symbols would be introduced. But holding that point aside, I still dont know what you mean by drawing a line with respect to color and race.

You seem to concede that some of these transactions make both parties better off, and others do not. I dont understand how the color or race of the consumer helps us decide which is which on any logical basis? The hypothesis must be that in transactions where consumers of a particular race or color are willing to pay for these goods, the transactions "seem" pareto optimal but truly are not (whereas transactions for luxury goods and the like made by others should not be interfered with, presumably?). How is this NOT condescending regarding these consumers' consumption decisions?

Also, I am not sure if I follow what you mean by inefficient in your discussion of PEI.

Posted by: Joshua Wright | May 15, 2006 1:36:01 PM

What kind of libertarian wouldn't agree with this?

Any.

Posted by: Mrs. Libertarian | May 16, 2006 10:39:34 PM

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