Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A recent panel at the Milken Institute decried a grave injustice. Jeff Greene, a billionaire real estate investor, noted that a single mother who weighed “over 300 lbs” received welfare of about $600 a month. “She could barely take care of herself, much less her kids,” lamented Greene. The redoubtable Niall Ferguson swiftly summed up the problem:
Why, he wondered, was Greene letting this lady off the hook? Why doesn’t she get up off her fat lazy butt and get a job?!, he demanded, with his Scottish brogue in full Braveheart mode. “Taking from the successful and giving from the unsuccessful.”. . . Loud applause ensued from the Wall Street-friendly crowd, most of whom paid several thousand dollars for a conference ticket.
Contrast the target of Ferguson's wrath with the "stateless superrich," whose "second, third, or fourth homes" are often vacant as they "spend a few months in St Moritz, before moving to their trophy mansion in London, and then on to their luxury villa in Sardinia for the summer months." Some worry that "their children will become indolent spongers, who will blow their inheritance 'recklessly and lose their ambition or even their health.'" But they tend to employ "legions of charge-by-the-hour gurus" who can help make crucial decisions about, say, "how to divvy-up seven properties between three" heirs. That is job creation par excellence.*
Fortunately for Ferguson, global trends in housing indicate that "the successful" are not ceding much ground to the "unsuccessful." Property prices in "superprime" areas keep rising, as do ultra-high-net-worth individuals' real estate investments elsewhere. Meanwhile, tens of thousands of individuals in Hong Kong live in cages (or "coffin homes"). In Utah, storage units are turned into makeshift residences. Maybe they could move to Oregon---if "80 percent of the repossessed homes in the Portland area" weren't off the market.
As "unsuccessful" individuals move away (or into closets), they leave more room for the "successful" to roam. One property consultant exulted to the FT that "The more money you have, the more rootless you become because everything is possible." But that freedom depends more and more on another kind of rootlessness, dispossessions large and small that leave a growing class of "unsuccessful" unable to resist the will of those with thousands of times more purchasing power. David Harvey evokes the struggle for space:
Finance capital can run around the world—it’s what I call the “butterfly” form of capital—but the butterflies have to land somewhere. And where do they land? Well, they land in Manhattan, a lot of them, and they build these vast complexes . . . . And I think we struggle where the butterfly lands. . . .
I came in to Kennedy airport at 6 o’clock in the morning early this month, and I got on the E-train, and at that time it’s packed with mainly women of color, obviously exhausted, going in to Manhattan to wake the city up . . . . And they’re living way, way out there. They’re the people living on less than $30,000 a year, and they’ve been effectively expelled from the city. . . . [T]here are a million people in New York City who try to get by on less than $10,000 a year. Half of the population of New York City earns less than $30,000 a year.
Harvey discusses the slogan of a "right to the city" in a provocative new book. I prefer to think of the state's duty to provide well-distributed opportunities and support. However formulated, we need to think more clearly about the political economy of space. There are aspects of human experience, such as living space, education, and health care, that should not be directly proportional to one's bank account.
Creeping Space Concessions
Given the psychology of last-place-aversion, there may be a large middle class constituency for continuing redistribution away from the poor and to the top. Even some forms of Christian theology eagerly envision a "terrible fate reserved for most and radiant promise for a few." However, minds may change as space concessions affect the workplace as profoundly as the wage and rights concessions employees are already accustomed to.
Unwilling to pay for space for "cookware, shoes and other personal items" like pictures of family, corporations are implementing the "officeless office"--otherwise known as the backpack and laptop. The new office order makes precarity visceral, advertising the dispensability of those workers unable to grab the few remaining "real offices." And pity the poor workers who must make a business trip in coach, squeezed ever closer together to make space for bars, showers, and "fine bone china" in first class. At least they might be able to genetically engineer their children smaller, to avoid such discomforts.
The geography of spatial concessions has become a staple not only of less developed countries' slums, but of futuristic literatures of America. For example, in "Ready Player 1" (2011), masses live in "stacked mobile homes." In Gary Shteyngart's Supersad True Love Story (2010), a fused homeland security and property development apparatus razes high-rises in Manhattan to make way for "triplexes" for the stateless superrich. Shteyngart also imagined a popular movement in a park violently dispersed by police. Life has imitated that art, both in New York and in Oakland, where "stay away" orders are an increasingly popular police tactic.
The political economy of spatial concession is an emerging field. One critical step is to name and describe these concessions as part of a unified and planned effect of policies and markets, rather than just unfortunate, unintended consequences. A growing literature has begun that process:
[N]eoliberalism has been less an ideological programme on behalf on free markets than a ‘quest for high income on the part of the upper classes’. Much of this high income, withdrawn against asset bubbles, has been . . . ‘fictitious’ in that it represented a claim on future wealth that neither had been nor was to be produced....
Consider the machinations of just one Wall Street bank, which paid out over $5 billion in bonuses in 2006, only to lose three times that amount by early 2009. Thousands of mortgagors will lose their homes, while employees and executives enjoy their fortunes. Let us concede, for the sake of argument, that each group equally caused the world-historic waste of capital, energy, and effort known as the housing bubble. Why is only one side paying?
The investments of today's "stateless superrich" can be as much extractive as enabling. Who, for instance, could determine how much of Wal-Mart's profits to attribute to ingenious supply chain management, and how much to bribery and wage theft? Recognizing our fundamental inability to quantify these types of distinctions (as well as the pivotal role of luck in human affairs), states must begin to put limits on the suffering and indignity of the growing number of "unsuccessful" players in today's economy.
Disability rights scholarship provides one exemplary response. The Universal Design (UD) movement in architecture (“design[ing] . . . products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”) pays dividends not only for the disabled, but for all users of well-planned structures. As Ani Satz's inspiring work on vulnerability and disability has shown, any one of us could be struck by disease or disability that could radically affect our lives. Larger hallways and bathrooms (as well as more diverse airplane and train seating arrangements) do more than empower the disabled. They also shelter the 99% from the more extreme forms of cramping and crowding that are a natural consequence of fractal inequality. The interests of the disabled and NUHNWIs (non-ultra-high-net-worth individuals) converge here.
*Ferguson may also want to credit the obese (and the obesity lobby) for creating demand for larger public transit seats and other products. From a purely economic point of view, this may be as much of a contribution to economic growth as demand for private wealth advisors.