In a recent issue of this Review, Spencer Bowley explains why interest convergence, which once improved Black American fortunes, now stands to benefit the working class in the United States. Bowley reviews historical parallels, current international conditions, and case law on poverty as a suspect class to show how competition from China and a pent-up desire from middle- and working-class people may motivate the ruling class to make unprecedented concessions in favor of workers and the poor.
We agree and in fact see little reason to believe that interest convergence need confine itself to the field of minority rights alone. Indeed, we posit that the class-forward movement Bowley foresees has already begun, mainly in the form of legislation dating to the early months of the Biden Administration aimed at increasing blue-collar jobs and strengthening the social welfare safety net, plus a few tentative steps in the State Department to strengthen ties with allies against the China threat.
Competition with China is apt to be more long-lasting and threatening to U.S. hegemony than was the Russian kind that prompted Derrick Bell’s and Mary Dudziak’s observations years ago. Moreover, the working class may be more discontented today than were U.S. minorities with children in segregated schools in 1954. Pressure from above—from elites and State Department officials concerned with Chinese advances—will thus likely combine with pressure from below—from discontented blue-collar people, trade unionists, and populists of different stripes—to set the stage for significant advances for those occupying the lowest rungs of the salary ladder.
This comment briefly reviews the role of China in Part I. Part II discusses the rise of blue-collar populism of both the left and right. Bowley discusses both forces diligently. We merely point out that they are apt to be even more powerful, concerted, and enduring than he assumed. Part III puts forward an additional reason, based on Marxist economics, for predicting that corporate power will find it in its own interest to reduce the wealth gap in an age of rising competition from China.
I. China: The Reality and the Threat
As Bowley puts it, China is claiming success in “eradicating absolute poverty” and carrying out massive infrastructural improvements that aim to benefit all its citizens. Since Bowley wrote Learning from History, uncommitted nations in the developing world have taken note of China’s accomplishments and quietly begun exploring trade, economic, and strategic relations with that country. For example, Iran negotiated a broad coalition with China covering trade, culture, politics and mutual security, and Brazil entered into an immense deal to sell iron ore as well as agricultural products that China needs to feed its growing population.
China has even begun purchasing farmland in Latin America, with the likely intention of hiring local workers to staff the new acreage, and may be looking to acquire farms in economically depressed regions of the United States. China is also giving Latin American countries vaccines as a means of gaining political leverage in that region.
Little of this has escaped the attention of the U.S. foreign policy establishment, which seems as wary of the Chinese threat to our hegemony today as their State Department and Department of Justice counterparts were in the Cold War days of Soviet competition. For example, former Trade Ambassador Robert H. Lighthizer recently warned that without firm pressure and the threat of harsh tariffs, China is apt to forge far ahead in technology and industry. And as we write, a major China scholar noted that that country stands ready to fulfill Afghanistan’s needs in the wake of U.S. withdrawal and the resulting disarray, while a Chinese political leader warned a visiting American Deputy Secretary of State that his country’s rise cannot be stopped. On the hundredth anniversary of China’s communist party, President Xi announced much the same.
II. Domestic Rebellion and the
Rise of Populism and People’s Lawyers
Bowley also points out that blue-collar populism is beginning to challenge the wealth gap, official elitism, and other manifestations of class bias, thus adding an additional source of pressure for reform. We agree and make a further observation—namely that populism of both the left and the right varieties potentially weigh in the same direction. A number of conservative organizations warn that liberal programs are calculated to line the pockets of liberal activists and heads of corporations, and that real change needs to start at the local level, should incentivize people to work, and must include ordinary workers (and not their unions) and members of organizations like the National Guard. Likewise, a member of The New York Times editorial board noted that the United States needs to increase spending on K-12 education, infrastructure, and other programs favored by blue-collar people and the middle class to “counter China’s $1.2 trillion Belt and Road plan.”
Bowley observes that the judiciary is beginning to take working class complaints seriously. A few recent decisions suggest that this trend may well accelerate. Just as in the Sixties, when idealistic public-interest lawyers developed innovative legal theories such as warranty of habitability, contracts of adhesion, and no-fault divorce to address social ills, their modern counterparts are devising new remedies for old forms of oppression and challenging practices such as student debt, locating noxious dumps and waste sites in poor communities,  and holding major oil companies responsible for global warming.
The law is generally a conservative instrument and slow to change. But it may be entering a period of renewed activism, not all of it from the left-hand side of the compass. Poor people are beginning to realize that—without change—they are apt to remain poor, unlikely to win a fortune in a lottery or on a talent or game show, and unlikely to be discovered by a talent scout for Hollywood or the music industry. Their future prospects, that is, are for a life much like the one they endure now—or even a little worse.
The United States is not Finland or another mildly socialized society in which a talented and ambitious son or daughter of working-class parents may secure a state sponsored education at a top university and open a business or lead a rich and satisfying life as a machinist in a modern, well-run factory. But by mobilizing and striking while the iron is hot, domestic minorities and the poor may gain concessions from the ruling class, just as Black Americans did for a short time in the wake of Brown v. Board of Education. Think tanks and lawyers, from both the left and the right, are beginning to reinforce their demands, as are the people themselves. A few statistics indicate that those demands are entirely plausible.
A. The Wealth Gap
The United States suffers a wealth gap that international observers and economists are beginning to consider worrisome. The Pew Research Center, for example, noted that the richest 5% of families in the United States nearly doubled their wealth in a recent period, while that of the rest of the population stagnated. In a recent ten-year period, the median net worth of the wealthiest 20% of Americans increased 13% to $1.2 million. By contrast, families in the second quintile of wealth experienced the greatest loss of wealth when the median net worth of those families fell 39% to $19,500 in the same time period. Further, between 1989 and 2016, the ratio of wealth between the richest 5% of families and families in the second quintile increased from 114 to 248.
B. Little Social Mobility Among Classes
Not only are low-wealth families losing ground compared to their richer counterparts, much the same is true for income. Income inequality is greater in the United States than in any other highly developed nation. Saddled with low salaries, the poor in America have few means to invest in the stock market, open a business, or attend a private college. As a result, upward mobility among those classes is very low. A child born to a family in the lowest quintile of wealth is extremely unlikely to end up anywhere near the top.
With class equity and upward mobility in the United States more precarious now than ever, rising populism is not a product of ressentiment or watching too many TV programs about the lives of the rich and famous. The poor and the working class are in genuine distress, with little prospect of relief aside from what the government initiates.
Will the government provide relief? Beginning around 1954 and lasting for two decades, the government did so for minorities. Today, with homeless people, single mothers, and a few of the most “deserving poor,” the Biden Administration is beginning to offer concessions, whether out of idealism, self-interest, or both. Indeed, the system of capitalism may soon find it advantageous to abet working-class hardship, not merely to select groups, but broadly.
III. Critical Economics: Surplus Labor Value and the
Need for New Internal Markets
In an early book, Karl Marx pointed out that capitalism is a type of shell game that requires constant new markets—generally colonies—to sustain and renew itself. He observed that under capitalism, workers do not take home the full value of what they produce. The “surplus value” theory of labor holds that a corporation or business owner, having invested money and undergone risk, takes a certain amount of the value produced by the worker’s labor for profit.
In some sectors, such as manufacturing, this skimming is more overt and the work conditions more exploitive than in others. Contrastingly, in the typical law firm, for example, the work is hierarchical, but the manner in which those at the top of the hierarchy—the partners—exploit the talents of the underlings—the associates—is veiled and socially accepted.
If consciousness is rising in formerly colonized countries as a new power like China is offering solidarity and trading deals more to their liking, an economic powerhouse like the United States will need to create or discover new internal markets to buy the surplus products and services that formerly supported an unstable pyramid. Those new internal markets are likely to be either the current U.S. poor, or else new immigrants eager to consume products like refrigerators, used cars, and American food products at neighborhood convenience stores.
But unless the system puts more money into the pockets of blue-collar people and the near-poor, this will not happen. Poor people and immigrants have long realized that the system is skewed against them. Today their complaints are ever louder. It is only a matter of time before national leaders realize that the current situation is unstable and take steps to abet it. Bowley was on the right track, both historically and as a matter of contemporary politics. Slightly less than a year after he began to write, his observations seem even more in order.
See, e.g., Emily Cochrane, Democrats Begin Push to Expand U.S. Safety Net, N.Y. Times, Aug. 10, 2021, at A1 (discussing the Biden Administration’s ambitious budget and legislative plans); N. Gregory Mankiw, Opinion, Can We Afford a Welfare State?, N.Y. Times, Sept. 17, 2021, at A22 (noting the high price tag of social welfare programs).
See, e.g., Yi-Zheng Lian, Opinion, 100 Years Old, and as Strong as Ever, N.Y. Times, July 4, 2021, at SR7 (noting that the United States once again needs allies in impending competition with China); see also Trudy Rubin, Opinion, What Comes Next for Future U.S.-China Relations?, Seattle Times (Mar. 24, 2021, 1:00 AM), https://www.seattletimes.com/opinion/what-comes-next-for-u-s-china-relations/ (noting that the United States is strengthening old ties in an effort to counter the China threat); David E. Sanger & Zolan Kanno-Youngs, To Counter China, U.S. Widen Its Alliance with Australia, N.Y. Times, Sept. 16, 2021, at A17.
See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518 (1980) (positing that Cold War appearances and the threat of domestic violence were the driving forces behind the famous opinion); Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (2000) (demonstrating, with the aid of documentary and archival evidence, that Bell’s hunch was largely correct).
Chris Buckley, ‘The East is Rising’: Xi Maps Out China’s Post-Covid Ascent, N.Y. Times (Sept. 9, 2021), https://www.nytimes.com/2021/03/03/world/asia/xi-china-congress.html (reporting President Xi’s warning to the West).
Alam Saleh & Zakiyeh Yazdanshenas, Iran’s Pact with China Is Bad News for the West, Foreign Pol’y (Aug. 9, 2020, 1:00 AM), https://foreignpolicy.com/2020/08/09/irans-pact-with-china-is-bad-news-for-the-west [https://perma.cc/ZFP3-XVS6] (discussing China’s agreement with Iran).
Kenneth Rapoza, Brazil Is Back to Being a China Story, Forbes (June 4, 2020, 7:00 AM), https://www.forbes.com/sites/kenrapoza/2020/06/04/brazil-is-back-to-being-a-china-story/?sh=77cc5c962f88 (discussing Brazil’s intention to develop commercial ties with China).
See, e.g., Ciara Nugent & Charlie Campbell, The U.S. and China Are Battling for Influence in Latin America, and the Pandemic Has Raised the Stakes, Time (Feb. 4, 2021, 6:07 AM), https://time.com/5936037/us-china-latin-america-influence/; Margaret Myers & Guo Jie, China’s Agricultural Investment in Latin America, Dialogue (June 27, 2015), https://www.thedialogue.org/wp-content/uploads/2015/06/Chinas-Agricultural-Investment-in-Latin-America.pdf (discussing the impending struggle for influence in Latin America); see also Ryan McCrimmon, China Is Buying Up American Farms. Washington Wants to Crack Down., Politico (July 19, 2021, 4:30 AM), https://www.politico.com/news/2021/07/19/china-buying-us-farms-foreign-purchase-499893 [https://perma.cc/Q6UE-B62G].
Ernesto Londoño & Letícia Casado, China Is Giving Latin America Vaccines and Gaining Leverage, N.Y. Times, Mar. 16, 2021, at A1; Ernesto Lodoño, Paraguay Covid Crisis Gives China Leverage, N.Y. Times, Apr. 16, 2021, at A9 (discussing examples of “vaccine diplomacy”).
Compare, e.g., Dudziak, supra note 8 (noting that a host of establishment figures were keeping a wary eye on Soviet overtures to developing countries), with Richard Delgado, Rodrigo’s Roundelay: Hernandez v. Texas and the Interest-Convergence Dilemma, 41 Harv. C.R.-C.L. L. Rev. 23 (2006) (same in connection with a Supreme Court decision expanding Latino/a protection in jury trials), and Thomas L. Friedman, Opinion, What Comes After the War on Terrorism? War on China?, N.Y. Times (Sept. 7, 2021), https://www.nytimes.com/2021/09/07/opinion/china-us-xi-biden.html (noting that the President “Xi is turning the whole Western world against China” and that the United States must insist upon fealty from its allies on penalty of suffering a crumbling of the current coalition).
See Zhou Bo, Opinion, In Afghanistan, China Is Ready to Step into the Void, N.Y. Times (Aug. 20, 2021), https://www.nytimes.com/2021/08/20/opinion/china-afghanistan-taliban.html?smtyp=cur&smid=tw-nytopinion (noting that China has been making overtures toward Afghanistan’s new leadership). The scholar even intimated that “Beijing has few qualms about fostering a closer relationship with the Taliban.” See id.; see also Fareed Zakaria, GPS, CNN Audio (Sept. 12, 2021), https://www.cnn.com/audio/podcasts/fareed-zakaria-gps?episodeguid=e88144eb-e060-4b00-8ca0-ada100feaa7d (warning of same danger).
See Chris Buckley & Steven Lee Myers, China Balks at a U.S. Strategy That Marries Collaboration and Confrontation, N.Y. Times, July 27, 2021, at A10 (reporting ominous developments in the world of economic and political competition).
Bowley notes that toward the end of his term, Trump made a few efforts in this direction. Id. at 138-39; see also infra Part III (discussing the possibility of further efforts during the new Biden Administration).
See, e.g., Welfare, Heritage Found., https://www.heritage.org/welfare/heritage-explains/welfare [https://perma.cc/FS5P-RDRY] (last visited Nov. 11, 2021) (setting out the organization’s basic position); David Ditch, Democrats’ Budget Agreement Would Burn the Economy, Heritage Found. (July 19, 2021), https://www.heritage.org/budget-and-spending/commentary/democrats-budget-agreement-would-burn-the-economy [https://perma.cc/3AKC-YVGC] (urging that these programs target the real poor and avoid rewarding avaricious unions); David Ditch, Call Transportation Bailouts What They Are: More Welfare for Labor Unions, Heritage Found. (Feb. 11, 2021), https://www.heritage.org/budget-and-spending/commentary/call-transportation-bailouts-what-they-are-more-welfare-labor-unions [https://perma.cc/NWM5-79M5].
See, e.g., González v. Douglas, 269 F. Supp. 3d 948 (D. Ariz. 2017) (holding unconstitutional a statute that sought to eliminate a Mexican-American Studies program in an inner-city school district that had boosted morale and graduation rate of working-class immigrants). In a previous era, few judges would have upheld the right of mere students to a culturally relevant education.
See Eric Levitz, Has Biden Abandoned Wide-Scale Student-Loan Forgiveness?, N.Y. Mag.: Intelligencer (Aug. 20, 2021), https://nymag.com/intelligencer/article/biden-student-loan-forgiveness.html (discussing forgiveness of student debt).
See Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement 31-33 (2001) (discussing how liberal lawyers fomented a revolution in consciousness regarding environmental hazards in poor communities).
See Climate Change Newsletter, Dentons https://www.dentons.com/en/insights/newsletters/climate-change-newsletter [https://perma.cc/DB59-94WU] (last visited Nov. 11, 2021) (discussing lawsuits to combat global warming).
See, e.g., Eyal Press, America’s Ethically Troubling Jobs, N.Y. Times, Aug. 15, 2021, at SR4 (noting that prison guards, meat-processing workers, and others who perform “dirty work” are beginning to mobilize against unfair wages and conditions).
See Editorial Board, Opinion, The U.S. Is Growing More Unequal. That’s Harmful—and Fixable, Wash. Post (July 16, 2021, 11:16 AM), https://www.washingtonpost.com/opinions/2021/07/16/sharing-the-wealth/?utm_campaign=wp_week_in_ideas&utm_medium=email&utm_source=newsletter&wpisrc=nl_ideas (discussing recent proposals to redistribute wealth and improve the social safety net).
See Anu Partanen & Trevor Corson, Opinion, Finland Is a Capitalist Paradise: Can High Taxes Be Good for Business? You Bet., N.Y. Times (Dec. 7, 2019), https://www.nytimes.com/2019/12/07/opinion/sunday/finland-socialism-capitalism.html (discussing national experiment with a fully capitalist economy coupled with high taxes, well financed schools, and many reforms in place for workers of all types).
See, e.g., Eric Posner, Opinion, You Deserve a Bigger Paycheck. Here’s How You Might Get It., N.Y. Times (Sept. 23, 2021), https://www.nytimes.com/2021/09/23/opinion/antitrust-workers-employers.html; Thomas L. Friedman, Opinion, China to America: Your Imperial Decline Is Showing, Seattle Times (Mar. 23, 2021), https://www.seattletimes.com/opinion/china-to-america-your-imperial-decline-is-showing/ (observing that “China can still get big things done. America not so much”).
See Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2751 (2014) (coining the term “demosprudence”). Guinier and Torres note that
even though it is commonly defined by its conservative agenda, elements of the property rights movement are aimed at improving the confidence we have that the government works for the common good and not in the service of corporate special interests. We hope to encourage greater attention to the lawmaking (not just election-defining) effects of movements ranging from the abolitionists and suffragettes to the evangelical Christian, property rights, and gun rights movements of today. To that extent, they are worth exploring through the lens of demosprudence because they arguably expand . . . democratic legitimacy.
See Juliana Menasce Horowitz, Ruth Igielnik & Rakesh Kochhar, Most Americans Say There Is Too Much Economic Inequality in the U.S., but Fewer Than Half Call It a Top Priority, Pew Rsch. Ctr. (Jan. 9, 2020), https://www.pewresearch.org/social-trends/2020/01/09/trends-in-income-and-wealth-ineq [https://perma.cc/XX4S-P8ZR].
Id. (setting forth his famous theory of worker-owner relations); see also Richard Delgado, Leticia M. Saucedo, Marc-Tizoc González, Jean Stefancic & Juan F. Perea, Latinos and the Law: Cases and Materials 717 (2d ed. 2021) (explaining the operation of much the same dynamics in connection with Latino farm labor).
E.g., Farnaz Fassihi & Steven Lee Myers, China, with $400 Billion Iran Deal, Could Deepen Influence in Mideast, N.Y. Times (Mar. 29, 2021), https://www.nytimes.com/2021/03/27/world/middleeast/china-iran-deal.html (discussing Chinese plan to achieve influence in the Mideast).
See Robert Leonard & Matt Russell, Opinion, Why Rural America Needs More Immigrants, N.Y. Times (July 21, 2021), https://www.nytimes.com/2021/07/21/opinion/rural-america-immigrants.html (noting that these areas are rapidly losing population and in danger of becoming ghost towns).
See Human Rights and Access to Justice, Am. Bar Ass’n, https://www.americanbar.org/advocacy/rule_of_law/what-we-do/human-rights-access-to-justice/ [https://perma.cc/VXT6-HDQ9] (last visited Nov. 11, 2021) (noting that our system must take action against economic inequality). See generally Thomas Swerts & Walter Nicholls, Undocumented Immigrant Activism and the Political: Disrupting the Order or Reproducing the Status Quo?, 53 Antipode 319 (2020) (discussing examples of immigrant activism).
See, e.g., Tyler Pager & Tony Romm, At an Economic Inflection Point, Biden Leans into an Expansive Populist Agenda, Wash. Post (Sept. 1, 2021, 5:55 PM), https://www.washingtonpost.com/politics/2021/09/16/biden-economy/?utm_campaign=wp_politics_am&utm_medium=email&utm_source=newsletter&wpisrc=nl_politics&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F34b4015%2F614479f99d2fda9d41d1683f%2F596b7196ae7e8a44e7d79279%2F26%2F54%2F614479f99d2fda9d41d1683f.