Michael Sandel’s book-length essay, The Tyranny of Merit: What’s Become of the Common Good?,1 is not overtly a work of sociologically informed dystopian fiction, like its intellectual forebear, Michael Young’s The Rise of the Meritocracy.2 Nonetheless, it can most readily be understood, and questioned, by thinking about the weaknesses and ambiguities in its portrayals of its very small cast of unnamed stock characters (Winner of Today’s Nonideal Pseudo-Meritocratic Race; Triumphant Victor in an Ideal Meritocracy; The Less Educated Worker) and settings (Globalized Economy; Financialized Economy; Technocratic Governance). Sandel purports to describe not only what happens to his characters, and why they do what they do and feel what they purportedly feel, but also what we might do to get them to change. He tries, for instance, to account for why the “Winners” of both rigged and ideal meritocratic races think too highly of themselves and hold others in contempt. And he seeks to explain the turn of “Less Educated Workers” away from center-left champions of “increasing opportunity” toward right-wing authoritarians who alone appreciate and respond to their well-deserved resentment of the meritocratic elite. But his descriptions of both his characters and the political and economic settings that they inhabit are often murky and have, when clear enough to interpret, no more than a measure of surface plausibility. Worse, perhaps, his prescriptions for change sometimes feel empty and apolitical. Some mythical “we” should undergo some magical cultural transformation that leads this amorphous “us” to respect—and somehow credibly “show” that greater respect—for the work done by all those around us.3 And when he makes what strike me as more credible claims—that we will only be able to manifest this respect in a meaningful way by altering the material conditions of the Less Educated Workers—the policy prescriptions he offers to alter those conditions4 seem to be tossed out far too breezily, with little appreciation for the complexity of the proposed policy solutions.
I. WINNERS IN TODAY’S AMERICA ARE MERELY WINNING A PSEUDO-MERITOCRATIC RACE
Sandel is rightly interested, above all, in exploring the social costs of ideal meritocracies,5 but he does briefly defend the commonplace claim that meritocracy is a mirage in our nonideal world, even if some of the most stringent ascriptive (e.g., gender- or race-based) barriers to educational opportunity have diminished.6 Sandel’s picture is (too) simple: Adult privilege (in the globalized American economy?)7 derives predominantly from access to elite education, access which in turn derives not simply from “talent and effort”—as would be the case in a perfected meritocracy—but from access to subtle and unsubtle privileges (i.e., cultural capital, SAT tutors, legacy admission preferences, etc.)8 that leads to the overwhelming concentration of slots at elite educational institutions going to children of parents with very high incomes.9
It is plainly true that rich parents are much more likely than poorer ones to send their kids to highly competitive colleges—though it would help cement the claim that class privilege is readily transmitted even in the absence of straight-up financial transfers by “educational inheritance” to know the percentage of kids born to rich parents who go to highly selective colleges, rather than the percentage of kids at highly selective colleges who come from rich households. However, the claim that adult privilege follows more or less inexorably from winning the pseudo-meritocratic college admissions “race” is not just underdeveloped in the book. It is actually quite contested. Sandel correctly notes that there is a substantial premium (roughly eighty percent) for earning a four-year college degree,10 but, as he also notes, most four-year colleges are not especially selective.11 And he never confronts the quite substantial debate over whether attendance at elite, highly selective colleges rather than less selective ones substantially increases lifetime earnings,12 and if it doesn’t, whether selection for privileged positions in the economy is less easy for the rich to “game” than selection for college.
Across the board, Sandel makes no effort to engage quite live questions about whether the growth of inequality over the past half century is dominantly driven by burgeoning wage inequality at all—even on the contestable assumption that wage inequality is most plausibly related to meritocratic ideology or practices—rather than by changes in the share of national wealth that goes to owners of capital rather than labor of any (high-status or low-status) form, and particularly inherited wealth. Whether one buys Thomas Piketty’s arguments or not—I almost entirely don’t, but there’s no quick-and-dirty explanation of my hesitations—it seems irresponsible to make claims that privilege increasingly flows to the educated elite rather than to owners of capital (and particularly to those who inherit wealth) without tackling claims like Piketty’s.13
Similarly, if one treats the three decades after World War II as some sort of Golden Age for Less Educated Workers (at least white males), as Sandel often does,14 it seems unduly partial, at best, to attribute the high levels of privilege white male workers enjoyed at the time to the incomplete development of meritocratic institutions or ideology. There was, for instance, a substantial decline in union membership between its 1954 peak (34.8% of wage and salary employees) and its 1975 levels (21.8%),15 even though neither globalization, financialization, nor increasingly meritocratic college admissions were part of the landscape for much, if any, of that period. Again, it is unlikely that observers will agree on what sustained the ability of white male American workers to prosper during that period—and even whether to characterize the question largely in terms of whether what we should be trying to explain is their capacity to earn economic rents or to earn a fairer share of aggregate social product. Still, it is worth noting that this was a period in which there was substantial pent-up demand (left over from the Depression and World War II) for mass-produced products (e.g., automobiles, appliances) that American producers were atypically able to meet, because, unlike potential competitive suppliers around the world, the United States had sustained little damage to its economic infrastructure during the war. Moreover, mass production typically occurs in plants where plant-specific skills (rather than skills acquired through more general education), knowledge of customary practices, and high levels of cooperation among workers are highly valued; each of these features of post-war “primary” labor markets almost surely were more favorable to less educated (often unionized) white males than alternative production processes that began to displace mass production in the 1980s.16
II. HUBRIS AND LACK OF EMPATHY AMONG THE WINNERS OF AN IDEAL MERITOCRATIC CONTEST
Sandel shows some concern that a disturbing proportion of the Winners of the meritocratic contest are unhappy stress cases,17 but his dominant concern—appropriately enough given his focus on the malign impacts of a culture that extols the privileged and disrespects the bulk of workers—is that working so hard to win the contest begets arrogance and hubris. Because they have worked so hard to succeed, they are unable to see the role that luck played in their success and are unable to recognize that they could readily have wound up in a less privileged position.18 The inability to imagine that one could have been the other in turn dampens the empathy that leads to an increasing and more appropriate sense of solidarity.19
Once more, I find Sandel’s account a mite ambiguous and a good deal more unpersuasive. People can be lucky in the sense that their success owes to random variations in outcome given identical inputs. Think, for instance, of two equally qualified and skilled software engineers who each pick between offers from the same two companies by flipping a coin, and although they do identical work at their jobs, one picked the company that ultimately benefitted her with a massively remunerative IPO. Or, alternatively, they can be lucky in the sense that John Rawls emphasized (and Sandel echoes)20: neither deserves either to have the talent to be an engineer or to live in a world in which those software engineering talents are in demand. But, although it strikes me as credible that recognition of the first form of luck might diminish one’s hubris, there is no reason that I can discern to think that recognizing that one doesn’t morally merit being “special” will make one feel any less special or any more likely to believe that one’s actual self could have wound up just like the less privileged.
At times, Sandel emphasizes to a greater extent the failure of the Winners of the ubiquitous meritocratic contests to recognize the contribution of others to their success, and it is somewhat clearer why recognizing those contributions would directly foster solidarity in a fashion that appreciating that one might have been less fortunate in an alternative universe does not. But two interrelated problems with this observation seem salient: First, one need not ignore the importance of others in one’s own success if one believes that their contributions are already adequately compensated. The parents who know full well that they could not do their jobs without the help of their nanny may well believe that they have compensated the nanny for her contributions.21 And, second, it is not at all lucid why Sandel believes that these hypothetical parents are any more likely to ignore the nanny’s significance if their privilege arises from prevailing in the meritocratic contest than if it arises from inheritance, or if they are not privileged at all but are themselves modestly paid health service workers. The connection between recognizing that we are dependent on others (i.e., others taught us, others helped create the infrastructure that makes our efforts feasible, etc.) rather than wholly self-created and dampening one’s arrogance is much less lucid to me than it sometimes seems to be to Sandel. Someone can readily believe that she deserves the privileges that could only be feasibly bestowed upon her in a world where others were needed to create the goodies she believes she earned and believe that one is meritorious because of one’s contributions to what one fully understands is a collective project. I do not think that star basketball players feel particularly less deserving (or more prone to think of the “common good”) than star tennis players—even though LeBron James unambiguously needs what many in the media so chillingly often call his “supporting cast”22 simply to play the game—while, in the moment when they are competing, if not over the course of their lifetimes, tennis players are less transparently reliant on others.23
III. THE LESS EDUCATED WORKER TURNS TO RIGHT-WING AUTHORITARIANISM
In many ways, the most interesting and important claim in the book is the claim that meritocracy is significantly to blame for the embrace of Donald Trump in the United States (or Brexit in the United Kingdom, and perhaps, though this is disturbingly ambiguous in the book, the growth of far-right authoritarian nationalist parties throughout Europe, most notably in Hungary and Poland).24 The story is elusive but I think it goes something like this:
Meritocratic reward structures did not merely deprive Less Educated Workers of conventional material goods. Although growing conventional material deprivation (and anxiety about longer-term material conditions) may have motivated some of the reaction to the Establishment of both political parties—neither of which seemed willing, or perhaps able given their addiction to customary policy instruments, to abate the economic decline of (many) Less Educated Workers—economic decline alone accounts for relatively little of the appeal of Trump.
Meritocracy as an ideology—the widespread publicly articulated belief that privilege was distributed to the deserving and that those who are less privileged have failed for reasons that can only be attributed to their own shortcomings—deprived Less Educated Workers of what observers like Rawls would certainly have considered an important “primary good,” the self-respect one gains from being held in esteem by one’s community.25
It is not simply intrinsically troubling that Less Educated Workers are treated with less respect, and therefore deprived of appropriate levels of self-esteem; Less Educated Workers (partly and ambivalently?) resent the dominant picture of them as unworthy of higher levels of respect and deeply resent the elites who they rightly perceive push the narrative.
The resentment is directed in part against those who directly participated in the widespread propagation of meritocratic ideology. Unfortunately, the center–left parties—and Obama is a particular offender in Sandel’s picture26—were, in fact, significantly responsible for fostering the belief that as long as needless barriers to achievement were removed, we would be in a just world where those around us would have gotten what they deserved.27 But it is directed against the center–left not just because center–left politicians are partly responsible for disseminating the meritocratic ideology that intrinsically devalues Less Educated Workers’ contributions, but because center–left politicians largely ignore the justified resentment Less Educated Workers feel at the open snootiness displayed by the Winners of Today’s Pseudo-Meritocratic Race and the resentment they feel at meritocrats’ claims to justified privilege, while Trump (and allies) embrace the righteousness of this resentment.28
I am dubious that Sandel has adequate grounds to reject some of the more conventional explanations for the embrace of Trump by Less Educated Workers, that he thinks are only of limited use.29 But I suspect my hesitations on this score are familiar and commonplace enough to warrant only brief mention.
If, though, it is indeed the case that Trump voters are significantly motivated by racist beliefs (and some of the clearest distinctions between Trump voters and opponents are on issues of race30), then Sandel’s implication that this racism is secondary and must somehow be derivative of resentment against educated elites, even though these voters echo racist beliefs that clearly precede the rise of the sort of meritocracy Sandel describes, is a mite hard to swallow.31 (The same goes for the strong—and again, completely historically familiar—anti-immigration nativism as well as the heavy reliance on the conspiracy theories that Trump incessantly trucks in.) And, although I am sympathetic at some broad level to the idea that we can both overstate the distinction between facts and values32 and overestimate the degree to which a significant number of Trump voters would renounce their commitments if they lived outside a misinformation bubble,33 I think Sandel is also making a terrible mistake minimizing the role that misinformation has played in the turn to right-wing populism.34
What strikes me as more interesting, though, in responding to Sandel’s psychobiography of the Less Educated Workers, is that he arguably mischaracterizes the form that their resentment actually takes, and he unduly thinks that whatever negative feelings his Less Educated Workers have are responsive to ideas, to meritocratic ideology, particularly as it is articulated in the comments of public officials, rather than to material conditions. I am not arguing in the second regard that they are unhappy merely because they are materially deprived—that is a distinct point and one I resist, because I believe that psychic states in addition to those derived from the consumption of material goods count, whether because self-esteem that arises from feeling respected is an important “primary good” or whether, in some utilitarian sense, people simply find it pleasurable or preferable to be held in higher esteem. What I am arguing is that the negative feelings that we observe are in significant ways what traditional Marxist historical materialists (of whom I am not one) might well have called superstructural, and that it is important to recognize that both meritocratic ideology itself and whatever counter-ideology the Less Educated Workers are embracing may simply be derivative of underlying economic conditions.
Sandel’s account of the Less Educated Worker’s internal psychic state is not always easy to track, but I think the essential picture is fairly straightforward. The basic message that these workers must confront is that the Meritocratic Winners are better, all in all, than they are; what the Winners do is more valuable because the market valuation of work is equated with the worth of the work in the meritocratic culture,35 and the Winners are better people and deserve their privilege because they were the ones who put themselves in a position to do that valuable work through their own efforts and talents, one or both of which the Less Educated Workers must lack. They respond to this message in some part by accepting it and feeling awful about themselves;36 this may be part of what leads to the horrifying and rapidly escalating deaths of despair among working-class Americans.37 But they also respond by lashing out against the Winners, flipping the conventional narrative and treating the Winners as worthless and contemptible.
One of the single most salient pieces of evidence Sandel cites for the idea that Less Educated Workers have developed a resentment-based contempt for the meritocratic elite is that Republican voters increasingly disrespect colleges and universities: 39% believe that colleges and universities have a negative impact on the way things are going in the country while only 33% view them favorably (compared to 67% of Democrats who view them positively and 18% who view them negatively).38 But Sandel selectively cites from the Pew Research Center surveys that are the source of this finding and, if one examines the surveys more thoroughly, it becomes much harder to sustain his claim that the hatred of colleges and universities is a reaction to the perception that they are the center of meritocratic privilege. Republicans may dislike colleges more than Democrats do, but they are also markedly more favorable toward the banks and financial institutions that the elite college Meritocratic Winners go off to so that they can (at least in the world Sandel describes) cash in on winning the college entrance race. Republicans are also considerably less favorable toward unions, although unions are almost certainly the public institution that most clearly stands for the proposition that traditional working-class work deserves both economic and social reward.39 The distinct attitudes toward institutions seem to track the conventional ideological picture of each institution (i.e., universities, unions, and the media are seen as left-leaning, while churches and banks are right-leaning), and attitudes by members of each party toward the institutions most obviously correspond to the supposition that an institution backs, or opposes, one’s ideological positions.
And to the degree that we can observe anything resembling the sort of pure resentment of the elite, rather than a distaste for the subset of elite institutions that perceptibly differ from Republican voters on the standard range of ideological and cultural issues, I think the best evidence is not that the Less Educated Worker resents those who have genuine, discernible skills that they lack (whether for having them or for lording their skills over them). Sandel presents no evidence, nor can I find any, that Less Educated Workers resent highly rewarded athletes or doctors as much or more than others do. Sandel himself notes, but ignores the observation, that his Less Educated Workers most transparently have negative attitudes toward the subset of Winners of the Meritocratic Race whose work contributions are least clear to them. This may well include university professors (at least, non-STEM professors)—I am one and I cannot generally figure out precisely what our contribution is supposed to be—and it also likely includes the incredibly highly paid corporate CEOs and managers of private equity funds or investment banks whose precise contributions are, put charitably, difficult for outsiders to make sense of.40 Sandel pays far too little attention to the data he cites, noting, but ignoring, the implications of Katherine Cramer’s ethnographic work highlighting working-class beliefs that those who have “desk jobs” where they produce “nothing but ideas” are “undeserving.”41 This belief is reflected in another piece he cites, whose most plausible implications I think he misses: Rana Forohar’s argument that privileged folks in “finance” are rightly coded as “takers” rather than “makers.”42 There is less credible evidence in the book that the Less Educated Worker resents those who lord their talents and education over them than those that they perceive are, at core, hucksters and frauds who enjoy privileges without contributing much.
What is more bothersome to me in Sandel’s account is the strong implication that the turn to Trump is grounded at core in a particular idea (that we deserve more respect and credit for our work) that is a natural and justified reaction to yet another particular idea (the ideology of meritocracy, in which both privilege and disadvantage are justified because each flows from a system that, to a greater and greater extent as we perfect the meritocracy and fully allow for “rising,” rewards talent and effort). If it is the case that people, generically, react to hurtful wrong-headed ideas (meritocratic ideology, devaluation, or disrespect for nonelite jobs), then why is it the case that working class men are so much more drawn to right-wing authoritarianism than women? The data is quite clear that there are substantial gender imbalances even though one would expect that partners in heterosexual relationships would have some tendency either to share political views or to settle on one partner’s view after marriage.43 Although Trump carried white men without college degrees by 42 points, according to CNN exit polls, he carried white women without college degrees by twenty-seven percent.44 The key point from my perspective is that women’s working-class jobs (whether blue or pink collar) have been no less devalued by meritocratic ideology than have men’s, but somehow they are (if Sandel’s “idealistic” account of resentment is right) mysteriously less resentful.
Of course, it is totally plausible to me that in some deep psychobiological sense, men are just worse people across the board than women or at least somewhat more prone to authoritarianism. But there is also a perfectly good material explanation of the male turn to Trump: he promises not so much a distinct idea (e.g., your work will be affirmatively valued, the snobs will be under constant mockery and attack) as a reversal of material conditions that have genuinely changed over the last half century. The point is not that he actually can reverse these changing material conditions—coal is certainly not coming back, for instance—but that the root of the Less Educated Male Workers’ alienation is, above all, their declining economic importance and privilege.
They correctly perceive not just an idea or an attitude about their work but material truths. The most central sectors of the economy in which less-educated white men dominated the immediate postwar period (mining and manufacturing) simply are of less significance within the economy at large.45 Even more significantly, men’s role in the household economy has clearly declined quite dramatically as well. In 1970, fewer than 5% of married women outearned their husbands; by 2015, the figure had risen to roughly 24% (with another 7% earning the same amount).46 Roughly one-third of married or cohabiting women outearn their male partners.47 Wages for young (25- to 29-year-old) men fell precipitously from 1970 to 2000; young women’s wages rose dramatically in the same period, before descending slowly after 2001.48 And it is not just the dislocations caused by earning a declining share of income within households that has left men materially unsettled, feeling as though they have lost genuine material power and relative privilege. Younger white working-class men are much less prone to be married, due both to marriage delay and marriage dissolution (74.5% of men between 25 and 29 were married in 1960, compared to only 24.2% in 2013), and the only factor that explains a significant degree of that change is the decline in their wages relative to high-earners’ wages.49 In thinking about this loss of material power and privilege, and why it might be the most powerful root of resentment about the direction that American society has taken, consider findings that men quite typically feel considerable psychological distress not only when wives and other female partners earn more than they do, but when women earn more than 40% of the household’s income.50 Couple this with the perceived sense that white privilege is under siege from what are perceived as illegitimately nonmeritocratic programs aiding people of color (and women).51 Thus, one seems to be able to construct a more materially based account of the Trump movement, one grounded in correctly perceived loss of relative material privilege and importance among less-educated white men.
IV. WHAT IS TO BE DONE?
Once again, Sandel’s ideas are only sketched out briefly, but I take it that he largely ditches the idealism that dominates his descriptive explanation of the turn to right-wing populism and moves toward a more materialist approach when it comes to prescriptive solutions. He notes that the center-left has sometimes paid lip service to honoring work,52 though why he reads these pronouncements as any emptier or less significant in framing people’s perceptions of how they are regarded than he treats all the public rhetoric he cites throughout the book about “rising” and “equal opportunity” and “doing the smart thing” is a bit beyond me. Still, he seems to argue indirectly (quite correctly from my materialist vantage) that, absent material changes in the conditions of the Less Educated Workers’ lives, all of the public “honoring” will do little. (If public rhetoric counts at all, one might imagine that these tributes would be especially infuriating if unaccompanied by material change. “Let them eat words.”)
The book, though, is not intended to be a policy primer, so I suppose it is of little moment that the prescriptions for material change are so sketchily laid out and remain entirely undefended. What forms of protectionism work in his view, and at what cost, if we face the problem of rent-seeking protected industries and workers immunized from market competition becoming increasingly inefficient over time?53 What is the right mix between protectionism and other policies of the sort that have seemingly preserved the manufacturing sector in Germany in the absence of protectionism?54 What about the right mix between protectionism and retraining? Which form of wage subsidy does he think works best, and to what extent will wage subsidies be captured by employers facing less pressure to raise wages?55
But even figuring out Sandel’s aims can be harder than it ought to be. There are innumerable attacks on the (amorphously located) tendency that some “we” have to conflate market value with true human value and to call for more openly “political” and moralized (rather than “technocratic”56) conversations about the worth of various forms of work. There are some really available (and familiar) cheap shots: Can it be that billionaire Sheldon Adelson made immensely more valuable contributions by operating a chain of casinos than teachers, nurses, or firefighters make?57 But it is not at all clear whether Sandel really wants people to be paid in accord with some collective judgment about the moral importance of their work. Should daycare workers make more than working-class folks who staff the gaming tables at the casino (or people who scoop the ice cream that endangers our health) by virtue of the obvious moral significance of their work? Will Sandel’s desire to valorize working-class jobs be realized if we pay in accord with some (likely imaginary) consensus views of the “true” worth of jobs in meeting what is likely an imaginary consensus about the needs we have that, if met, most contribute to true human flourishing? Is he really okay with vast wage gaps between daycare workers (or others now called “essential workers” during the pandemic) and those who produce nonessential goods and provide nonessential services, even though the most commonplace working-class job in the United States is in retail?58 And what do we do if we try to reward daycare work in accord with the moral significance of the work and the labor market is flooded with people exiting retailing of unneeded luxuries hoping to become well-paid daycare workers? What level of active management of the labor market does Sandel anticipate or desire if we attempt to implement some sort of price-wage control scheme?59
V. SOME CONCLUDING THOUGHTS
The Tyranny of Merit: What’s Become of the Common Good? is surely replete with smart, deeply thought-provoking observations. And many of Sandel’s expressed goals are unquestionably laudable. It would be a much better world if privileged people didn’t think nearly so highly of their achievements and recognized that even their most praiseworthy accomplishments hardly entitle them to the sort of admiration that they wrongly think they deserve. It would be better still if they expressed radically less contempt for those who are less privileged and, more particularly, less formally educated—whether they express their contempt directly,60 or more indirectly, by trafficking in what Sandel dubs the “rhetoric of rising”61 in which we imagine a world where winners and losers alike all had the chance to get what they deserve and the “losers” have no one to blame but themselves. It would be better still if the privileged not only swore off contempt but developed genuine appreciation and admiration for those who do different sorts of work than they do and deeply understood the extent to which we are bound together in a complex collective project. And although Sandel is hardly alone in believing that a focus on equality of opportunity is insufficient, he is certainly persuasive that we should care a great deal more about outcomes than we care about whether everyone has had a fair chance to compete for an unduly small number of unduly concentrated prizes.
Alas, when one zooms in from the thirty-thousand-foot view, the book is deeply disappointing. Too often, Sandel’s arguments are too ambiguous to assess and, even more often, he fails to address discordant data and discordant conceptual claims. His account of how the privileged came to embrace their unwarranted world view seems unpersuasive and his explanation of the embrace of Trump is, at best, radically incomplete and probably more accurately characterized as wildly misleading. The book is thin on solutions, and those it briefly offers are not just underbaked as policy proposals but disturbingly thin on normative justification.
Michael J. Sandel, The Tyrannyof Merit: What’s Becomeofthe Common Good? (2020).
Michael Young, The Riseofthe Meritocracy (1958).
See, e.g., Sandel, supra note 1.
From the right, variants of protectionism. Sandel, supra note 1, at 214–16. From the left, a wage subsidy largely funded by a tax on financial transactions. Id. at 216–18.
See, e.g., id. at 121–22, 172–74.
Id. at 23–24, 63.
Globalization—never well-defined at any point in the book—looms throughout as a force (or, more accurately, from both Sandel’s viewpoint and mine, a political practice since the collective decisions to facilitate import competition and outsourced production by U.S.-based multinationals were not inevitable) that facilitates not only increased inequality (increasing elite incomes and depressing working-class wages) but also the degree to which inequality is grounded in the acquisition of highly rewarded “merit”-based positions.
Even if one believed that globalization depressed American wages, it is not at all clear that the Winners of the Meritocratic Race would benefit (rather than, say, U.S. owners of capital on the one hand or diffuse American consumers and workers in low-wage countries on the other). What is quite clear is that Sandel never confronts facts inconvenient to his story: Although it is a matter of considerable academic and popular press controversy, there is indeed some good evidence that globalization (and particularly Chinese entry into the World Trade Organization) depressed manufacturing employment for the first time during this millennium. See Susan N. Houseman, Understanding the Decline of U.S. Manufacturing Employment (Upjohn Inst., Working Paper No. 18-287, 2018), https://ssrn.com/abstract=3192862; David H. Autor, David Dorn & Gordon H. Hanson, The China Syndrome: Local Labor Market Effects of Import Competition in the United States, 103 Am. Econ. Rev. 2121 (2013). However, the wage premium for college grads completely flattens after the year 2000, although it had risen quite substantially in the twenty previous years, see Cong. Rsch. Serv., Real Wage Trends, 1979 to 2018, at 10–11 (2018), during a period when both export and import growth were stagnant and the trade deficit was flat, prior to its dramatic increase post-2000. See U.S. Trade Balance 1970–2020, macrotrends, https://www.macrotrends.net/countries/USA/united-states/trade-balance-deficit (last visited June 19, 2021).
Similarly, Sandel extols European nations that have far higher rates of mobility and stable manufacturing sectors than we have here in the United States, Sandel, supra note 1, at 75–76, 190, failing to note that the U.S. economy is far less transparently globalized than any other advanced economy: imports and exports to and from the United States account for less than 12% of our GDP, compared to roughly 32% in Canada and France, for instance, and 47% in Sweden and Germany. See The World Bank, Exportsof Goodsand Services (% of GDP), https://data.worldbank.org/indicator/NE.EXP.GNFS.ZS (last visited June 19, 2021).
Sandel, supra note 1, at 164–69.
Id. at 10–11, 166–67.
Id. at 197.
Id. at 175–76.
The argument that the gains from elite college attendance appear negligible for already-privileged students (though not for poorer students and students of color) was forcefully made in a study that relied more heavily on quasi-random assignment than less reliable regression analysis in Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College: An Application of Selection on Observables and Unobservables, 117 Q.J. Econ. 1491 (2002).
See Thomas Piketty, Capitalinthe Twenty-First Century (2014).
See, e.g., Sandel, supra note 1, at 29, 75, 197.
Gerald Mayer, Cong. Rsch. Serv., RS32553, Union Membership Trendsinthe United States 22–23 (2004).
For pictures of the post-war economy consonant with these views, see Michael J. Piore & Charles Sabel, The Second Industrial Divide: Possibilitiesfor Prosperity (1984); Michael Piore, Historical Perspectives and the Interpretation of Unemployment, 25 J. Econ. Literature 1834 (1987).
Sandel, supra note 1, at 177–84.
Id. at 61.
Id. at 14, 25, 193–94, 227. It also ostensibly creates a sense that one is atypically virtuous, both in the winners and losers, but I come back to this in a bit. Seenote 23, infra.
Sandel, supra note 1, at 122–25.
Recall the canonical scene in TV’s Mad Men when Peggy complains to Don that he never thanks her or shows adequate appreciation of her contributions: “That’s what the money’s for,” he replies. YouTube (Aug. 17, 2012), https://www.youtube.com/watch?v=77Y6CIyyBcI. My point is not that Don’s response is morally adequate (or even anything but pathologically insensitive); it is the more limited point that it is a response that can readily be made by someone who is perfectly aware that none of us produces anything solely through our own efforts. Sandel never really explains why he believes that those who embrace this libertarian/capitalist view of mutuality are properly said to believe they are self-made or not dependent upon others. In a related way, albeit one that I deliberately mean to sound in a higher degree of unappealing self-satisfaction, it is also perfectly coherent to say that sanitation work is as important as doctor’s work (in fighting disease) but still believe that—to the degree that a particular sanitation worker is more readily replaced by other potential sanitation workers—the harder-to-replace individual filling the doctor’s role plays a more valuable social role.
And James, of course, is doubtless aware that he has won nearly all of his championships when he played on strong teams or teams that had at least some other star players.
There is an additional, potentially serious problem that I see in Sandel’s account of the Winner’s hubris, particularly his claim that material success in the marketplace is inevitably read (by Winners for sure and perhaps in a more ambivalent way by Less Educated Workers) as bespeaking some deeper form of merit. I am genuinely unsure what to make of the claim. It is difficult to assess whether his claims are indeed problematic without going through in detail both his reading of Hayek’s and Knight’s views that success in markets does not in fact signal anything resembling “moral merit” and the normative libertarian claim (made somewhat ambiguously by Hayek and more clearly by Nozick) that privilege is not justified by the merit of the acquirers. Instead, material privilege is justified and legitimate so long as the acquirer received resources from others who are entitled to their initial holdings and then transfer some of these holdings to privileged people, often, but not necessarily, so that those privileged folks will not withhold the labor they are entitled to withhold. Sandel, supra note 1, at 130–43 (discussing FriederichHayek, The Constitutionof Liberty 92–102 (1960), and Frank Knight), The Ethics of Competition, 38 Q. J. Econ. 579 (1923). Nozick explicitly rejected merit-based distributions as “end-state” or patterned (just as he rejected egalitarian distributions); what was appropriate, in his view, was to focus on whether the distribution was arrived at through just means. See Robert Nozick, Anarchy, State, and Utopia 149–82 (1974). But even if Sandel is misreading Hayek, he could be right that views that dissociate privilege from merit are unlikely to be socially stable: Sandel, though, largely asserts rather than defends what strikes me as a nonobvious empirical, sociological claim that the privileged need to justify their privilege as grounded in some deep form of merit both for their own sakes and to ward off some not-very-clearly specified forms of resistance from the less privileged.
Naturally, one should consider the possibility that Trump’s popularity among Less Educated Workers in the United States echoes the popularity of other right-wing ethnonationalist authoritarians like Viktor Orban in Hungary, but one does not observe the same pattern of increasing returns to an educated meritocratic elite in Hungary. One must then either embrace the hypothesis (perfectly plausible a priori) that right-wing authoritarian impulses can have distinct roots in distinct settings or the hypothesis that Sandel has misidentified the roots of the Trump phenomenon. It is worth noting that income inequality in Hungary is much less extreme than in the United States (Gini ratios in the United States during the 2010s have hovered around .41 compared to .31 in Hungary, and Gini ratios in Hungary changed very little between the mid-1990s and the period in which Orban took and consolidated power). See Max Roser & Esteban Ortiz-Ospina, Income Inequality, Our Worldin Data (Dec. 2013, updated Oct. 2016), https://ourworldindata.org/income-inequality#high-income-countries-tend-to-have-lower-inequality.
If focused on the distribution of primary goods or what Amartya Sen or Martha Nussbaum would call “capabilities,” the distinction between what Sandel calls “distributive justice” and what he calls “contributive justice” blurs considerably. See Sandel, supra note 1, at 206. For good exemplars of their discussions of capabilities, see Amartya Sen, Inequality Reexamined (1992), and Martha Nussbaum, Womenand Human Development: The Capabilities Approach (2000). If having the respect of the community is a primary good or capability, and what we are interested in distributing are primary goods (i.e., those goods necessary to fulfill any of a wide set of particular life plans) or capabilities (i.e., the capacity to achieve “functionings” necessary for human flourishing), then the failure to ensure that respect is widely distributed should be seen as a failure of distributive justice.
Sandel, supra note 1, at 67–68, 70–77, 89–90, 93–94.
See, e.g., id. at 68–70. I will return to question Sandel’s failure to confront what I see as the credible claim that the ideology of meritocracy—if not ideology in some more generic sense—is at its core what materialists would call superstructural and epiphenomenal. For now, I am making a somewhat narrower point: I am not sure to what degree Sandel believes that an ideology or set of understandings of the world gets created by the public pronouncements of political leaders. See, e.g., id. at 152–53.
There is, once more, a good deal of ambiguity in the book as to whether Trump merely pays lip service to resentment of elites or whether some of the policies that he either claims to favor or, in fact, does what he can to enact (e.g., trade dampening, anti-immigrant?) actually meet the purported desire of Less Educated Workers to be held in greater social esteem.
There is also an argument, id. at 25–27, whose precise content largely escapes me, so I have trouble figuring out whether I find it plausible. In this argument, Less Educated Workers experience humiliation, in part in response to the meritocratic message that each of us is responsible for our material success or failure, as individuals and as part of a devalued social class. Trump’s open obsession with humiliation—if not the particular humiliation of those in his base, at least the humiliation of a nation that he repeatedly emphasizes has been humiliated by its bad trade deals or losing some measure of sovereignty when being subjected to international protocols designed to combat climate change—resonates with the base’s more general concern with the horrifying experience of humiliation and their desire to lash out against those who have humiliated us. If I have the argument right—and I am not at all sure that I do—a shared concern with any sort of humiliation is enough to connect Trump with his base.
Id. at 18–19, 198–99.
There is solid evidence that the best predictor of embracing Trumpian authoritarianism is ethnic antagonism; one ignores the degree to which Trump leads an ethnonationalist backlash to multiculturalism at great peril. See Larry M. Bartels, Ethnic Antagonism Erodes Republicans’ Commitment to Democracy, 117 PNAS 22752 (2020).
Republicans generally are less than half as likely as Democrats to believe that Black Americans face substantial discrimination. Polling data from 2017 revealed that more than three quarters of Democrats, but only a quarter of Republicans, believed that Black Americans face serious levels of discrimination in the United States. See Perry Bacon Jr., The Identity Politics of the Trump Administration, FiveThirtyEight (May 4, 2017), https://fivethirtyeight.com/features/the-identity-politics-of-the-trump-administration/.
Trump voters increasingly embrace the implicit or explicit view that Black disadvantage is the fault of Black Americans: In a 2020 poll, a mere nine percent said that they believe that it is a lot more difficult to be a Black person in this country than to be white, compared to seventy-four percent of Biden voters. See Voters’ Attitudes About Race and Gender Are Even More Divided than in 2016, Pew Rsch. Ctr. (Sept. 10, 2020), https://www.pewresearch.org/politics/2020/09/10/voters-attitudes-about-race-and-gender-are-even-more-divided-than-in-2016/.
And Sandel pays inadequate attention to his own observation that Trump backers typically embrace the meritocratic ideal but feel that it is predominantly being breached by center–left programs favorable to people of color (e.g., affirmative action, “welfare” as they understand it). Sandel, supra note 1, at 72, 205.
It is not at all clear that meritocratic ideology is any more respectful of the work done by working-class people of color, yet it is white working-class people alone who have turned to right-wing authoritarianism. Sandel needs to say much more about why he believes this to be the case. I will return to discuss his blindness to the fact that the Trumpian turn is not just radically stronger among whites but stronger still among white men.
Seeid. at 109–10. “Facts” are value-laden in both obvious ways (e.g., we are all deeply subject to confirmation bias; we may choose to investigate and learn facts about issues of normative concern to us) and more subtle ones (e.g., our ideas about when a proposition has been adequately verified depend on aesthetic or normative judgments about what constitutes sufficient verification). A very good, extremely accessible summary of some of the philosophical and some of the sociological literature both critiquing and embracing the fact/value distinction can be found in Philip Gorski, Beyond the Fact/Value Distinction: Ethical Naturalism and the Social Sciences, 50 Soc’y 543 (2013).
I think it is an interesting aspect of our political culture that it may turn out to be of little moment that the “commonsensical,” starting-point, general proposition is that our disagreements over inevitably particular and heterogenous values or ends are irreparable, but we could come to agree on facts, which are ultimately universal even if epistemological limits on our capacity to discern universal truth may make such agreement elusive. No one in this commonsensical view can tell me whether I want to travel from Stanford’s campus to San Francisco as fast as possible or by taking the route that I judge prettiest, but there is an answer to the question of what the fastest route is, assuming no change in traffic conditions.
Still, many of the most intense political debates we actually witness appear to rest on factual rather than normative disagreements: My self-identified progressive students and Federalist Society students may often articulate the same “value” (e.g., police should use deadly force only when doing so averts an unreasonably high risk of death or grave injury), but the progressive students are much more certain in each particular publicly mooted case that the policeman who caused death was not following that stricture and are prone to believe that those who disagree with them “on the facts” or even express doubt about whether there is good information about what the facts in a particular case really are have somehow betrayed vitally important commitments.
And, although it certainly would have been possible to defend a laissez-faire policy toward COVID-19 by taking a particular controversial value-laden stance about how to value excess deaths, particularly but not exclusively of older people or others with lower life expectancies, the typical laissez-faire position was significantly grounded in factual (mis)representations of the expected death rate. The legal academy’s leading libertarian, Richard Epstein, first estimated that the disease would kill 500 in the United States, then corrected a calculation error to estimate it would kill 5,000. As this estimate is now wrong by two orders of magnitude, we need to reflect on the centrality of factual dispute in our political discourse. See Richard A. Epstein, Coronavirus Confusion, Hoover Inst. (Mar. 16, 2020), https://www.hoover.org/research/coronavirus-pandemic. And, somewhat similarly, in late March, Scott Atlas predicted in a Hoover Institution briefing that deaths would drop dramatically within three weeks, see Scott W. Atlas, Scott W. Atlas on COVID-19 and Health Care, Hoover Inst. (Mar. 26, 2020), https://www.hoover.org/events/scott-w-atlas-covid-19-and-health-care-hoover-virtual-policy-briefing, and added in July, just weeks before a second spike in deaths, that increases in case numbers were not bothersome because death rates were not rising and would not rise significantly even though case rates were rising. See Dr. Scott Atlas Disputes COVID-19 Fear Mongering Tactics from Our Health Officials,” KUSI News (July 2, 2020), https://www.kusi.com/dr-scott-atlas-disputes-covid-19-fear-mongering-tactics-from-our-health-officials/. There may be genuine factual disputes about how well some ideal policy could protect those with the highest levels of vulnerability to COVID-19 and disputes about the long-term impact of the disease on those who never experience significant symptoms that would bear on disputes about what level of shift in certain forms of conventional activity (mandated or voluntary) is appropriate, but estimates of very low fatality rates or frequent statements that the pandemic has or is about to run its course are simply wrong, and yet embracing them as a way of resolving disputes seems easier than arguing over, say, how to value lost lives.
The main evidence Sandel cites for this proposition is evidence that college-educated Republicans—even those with strong science backgrounds—are no less likely to be climate change “denialists.” Sandel, supra note 1, at 110–11. I am not at all persuaded this is especially relevant. Almost no one is educated enough to assess the actual technical literature on climate change: Republican denialists are not getting to their preferred position by directly examining and rejecting the scientific papers that undergird the strong consensus position. If you believe, as Sandel appears to, that there are better and worse views of the probability that there is substantial climate change caused predominantly by high-carbon-emitting human activity, then the beliefs of educated Republicans are caused in significant part by repeated exposure to untrue material.
I understand that it is disquieting to disclaim the sort of weakly embraced “false equivalence” narratives that seem to flow naturally from the idea Sandel seemingly weakly supports—that everybody’s “facts” are so value-laden that we should treat all factual claims made by all participants in political debate as equally sketchy. I think this is a terrible error. There is radically more outcome-altering voter suppression by Republicans than voter fraud (let alone voter fraud favoring Democrats); climate change is real and there is currently no good evidence that it is not significantly caused by human activity; America relatively outpaced almost all Asian countries and a large number of European countries in terms of both death counts and economic disruption from COVID-19; it is simply false that the CDC found that more than eighty percent of those who wear masks got COVID-19 and that the Mueller Report stated that President Trump had not obstructed justice (whether correct or not in reaching its conclusions); Hillary Clinton did not traffic children (neither did a wide range of allegedly co-conspiring celebs and politicians), but the Trump associates convicted of crimes actually did violate the law; California wildfires were not set off by lasers housed in space operated by members of a Jewish cabal; Sandy Hook was not a “false flag” event; Trump’s 2016 electoral college victory was not historically large and his inauguration crowd was smaller than Obama’s; the 2020 election was not “stolen” nor were the Capitol rioters Antifa supporters. Inhabiting a discursive world in which all of these true propositions, among hundreds of others, are denied almost surely has consequences. Again, one need not reject the recognition that those in politically left bubbles are exposed to false information as well, nor minimize the inevitable distinctions in interpretation of murky events, to reject claims of equivalence.
Id. at 137–40, 191. Sandel frequently describes the view that we should rely on markets to meet policy goals and treat the maximization of GDP or market value of goods as a measure of policy success as technocratic, Id. at 19–22, 207, though he sometimes describes it as “consumerist,” focused on meeting the ends we have as consumers to derive pleasure from the goods we appropriate and use, rather than “productivist,” focused on meeting the ends we have as producers to do work we feel is valuable and valued by others around us. id. at 208–11. On other occasions, he describes technocratic governance, more conventionally, not in terms of its affection for a particular policy instrument (markets), but in terms of its reliance on expert decision-makers rather than democratic and dialogic methods. Id. at 104, 108–10.
I don’t think Sandel’s rather idiosyncratic definitions of technocracy-as-market worship in the book are of much moment to any of his significant arguments, but they are a bit puzzling. Technocrats frequently seek to displace both democratic decision-making and consumer sovereignty, believing that experts have a better idea than either voters or consumers what steps need to be taken to meet objective interests. A good technocrat would not trust voters (and legislatures) to produce optimal safety regulation (e.g., they would be subject to the availability heuristic that would make them overinvest in preventing readily recalled hazards), but he would not trust consumers to protect themselves appropriately against risk either.
Id. at 72–74, 77.
Id. at 199–202.
Id. at 104.
Sharp Partisan Divisions in Views of National Institutions, Pew Rsch. Ctr. (July 10, 2017), https://www.pewresearch.org/politics/2017/07/10/sharp-partisan-divisions-in-views-of-national-institutions/. Although only 33% of Democrats view the impact of banks and financial institutions positively, and 54% view it as negative, 46% of Republicans have a positive view of banks and financial institutions and only 37% have a negative one. Likewise, 33% of Republicans have a positive view of unions, compared to 59% of Democrats; however, 46% of Republicans have a negative view of unions, compared to just 22% of Democrats.
Sandel himself believes that those making a fortune in finance play little or no role in the real economy (e.g., in helping allocate capital efficiently). Sandel, supra note 1, at 216–19. This might be true, but to the extent that it is important to Sandel’s argument to accept that it is more likely true than not, the claim is quite thinly developed and defended. For a well-balanced, if somewhat dated, summary of the literature addressing the importance of financial institutions to economic development, see Ross Levine, Financial Development and Economic Growth: Views and Agenda, 35 J. Econ. Lit. 688 (1997).
But, if as he explicitly says, the fortunes made in finance are akin to fortunes made gambling, Sandel, supra note 1, at 221, it is not clear how they play any role in fostering social inequality. If there is a casino filled with only rich folk playing against one another, those outside the casino are not affected at all, although the relative fortunes of the rich may be altered. One needs some sort of explanation (that Sandel does not offer) of how the financial sector extracts income from the masses to make sense of the claim that financialization has played a pernicious role in generating inequality, rather than simply a claim that it draws some folks away from doing useful work, suppressing overall growth.
Id. at 203–04.
Id. at 220–21.
The tendency of married women to adopt their husbands’ more politically conservative views is explored in Laura Stoker & M. Kent Jennings, Life-Cycle Transitions and Political Participation: The Case of Marriage, 89 APSR 421 (1989); Karen M. Kaufmann & John R. Petrocik, The Changing Politics of American Men: Understanding the Sources of the Gender Gap, 43 Am. J. Pol. Sci. 864 (1999).
Zachary B. Wolf, Curt Merrill & Daniel Wolfe, How Voters Shifted During Four Years of Trump, CNN (Nov. 7, 2020), https://www.cnn.com/interactive/2020/11/politics/election-analysis-exit-polls-2016-2020/.
In 1948, 1.4% of the GDP was generated by non-oil and gas–related mining; sixty years later, in 2018, it was 0.3%. Motor vehicle manufacturing accounted for 1.9% of GDP in 1948 and, as the post-war durable goods boom intensified, accounted for 3% of GDP in 1955; it was down to 1.2% by 2000 and has fallen modestly since then to 0.8%. For the 1997–2019 data, see GDPby Industry: Value Added by Industry as a Percentage of Gross Domestic Product, Bureau Econ. Analysis, https://apps.bea.gov/iTable/iTable.cfm?reqid=150&step=2&isuri=1. For the 1947–1997 data, see GDPby Industry (Historical): Value Added by Industry as a Percentage of Gross Domestic Product, Bureau Econ. Analysis, https://apps.bea.gov/iTable/iTable.cfm?reqid=147&step=.
Nathan Yau, Who Earns More in American Households?, Flowing Data, https://flowingdata.com/2017/09/25/who-earns-more-income-in-american-households/ (last visited June 19, 2021).
See Americans See Men as the Financial Providers, Even as Women’s Contributions Grow, Pew Rsch. Ctr. (Sept. 20, 2017), https://www.pewresearch.org/fact-tank/2017/09/20/americans-see-men-as-the-financial-providers-even-as-womens-contributions-grow/. Moreover, women with more education than their male partners outearn them more than half the time. Id.
See Steven Ruggles, Patriarchy, Power, and Pay: The Transformation of American Families, 1800–2015, 52 Demography 1797 (2015).
Men feel heightened levels of stress as well, when they are the sole breadwinners; the minimum stress point is where they earn 60% of the family income. See Joanna Syrda, Spousal Relative Income and Male Psychological Distress, 46 Personality & Soc. Psych. Bull. 976 (2020).
It is also the case that the material shifts—declining economic centrality within the household—interact with ideological and personal predilections to foment authoritarianism. There may well be a psychological connection between traditional attitudes about gender and authoritarianism. See, e.g., Bill E. Peterson & Eileen L. Zurbriggen, Gender, Sexuality, and the Authoritarian Personality, 78 J. Personality, 1801 (2010). If men with traditional attitudes toward gender are predisposed to authoritarianism and feel that their traditional gender roles are under threat, latching on to authoritarian figures like Trump may seem unsurprising.
Sandel, supra note 1, at 72.
See, e.g., id. at 205.
A fairly standard argument that protectionist policies are not just statically inefficient but have more severe long-term costs in suppressing innovation and longer-term efficiency can be found in Stefanie Lenway, Randall Morck & Bernard Yeung, Rent Seeking, Protectionism and Innovation in the American Steel Industry, 106 Econ. J. 410 (1996).
As noted above, auto manufacturing accounts for less than one percent of the U.S. GDP, compared to twenty percent in Germany. Across the board, there are a variety of interesting distinctions between the U.S. and German economies, some of which may be policy sensitive, that might account for distinctions in their capacities to retain a manufacturing sector. Germany has more middle-sized, family-owned manufacturing firms that may be less likely to outsource or to sell to multinationals; German policy tends to favor job security (at reduced wage rates and hours that have arguably depressed advances in living standards in a fashion that might not meet Sandel’s aims); non-college-educated Germans by and large receive what appears to be better technical education, and, to the extent that Germany has adopted “industrial policies,” they have emphasized high-end niche industrial production and entrance into new technological fields. For a quick and accessible summary, see Steven Rattner, The Secrets of Germany’s Success, 90 Foreign Affs. 7 (2011).
For a good (if older) summary skeptical of the efficacy of wage subsidies in both increasing employment and wages, see Anne Alstott, Work vs. Freedom: A Liberal Challenge to Employment Subsidies, 108 Yale L.J. 967 (1999). Although Sandel’s book is not intended to be a policy primer, I would have welcomed more acknowledgement of the complexity of the policy problems that get treated so cavalierly.
Seenote 35, supra, for some comments on what I see as the ambiguity in Sandel’s use of the term “technocratic.”
Sandel, supra note 1, at 139.
Of people defined as working class in the sense closest to the one Sandel uses (folks without bachelor’s degrees), eight percent work in manufacturing, compared to roughly twenty percent who work in retail, selling a mix of necessities and goods a self-respecting moralist might well define as trivial from the perspective of human flourishing. See Tamara Draut, Understanding the Working Class, Demos (Apr. 16, 2018), https://www.demos.org/research/understanding-working-class. Another twenty percent work in professional and related services; this sector is heavily healthcare-oriented but also includes huge numbers of jobs in the financial sector.
Ambiguity about the degree to which pay should be tied to the moral worth of work is hardly the only significant ambiguity about aims that Sandel displays. How do we balance the goal that preoccupies him in this book—reintegrating Less Educated Workers by supporting their work, both economically and more spiritually—with other worthy goals? Should we really try to keep the coal mining industry alive, despite the significant environmental costs of using coal to meet energy needs, just because “disrespect” for coal (and the “overvaluation” of both environmental scientists’ expertise and the tastes of the college educated for higher environmental quality) is one of the most salient grievances the Trump base presses? And, if, as I think is the case, the sense of resentment felt by many in the Trump base actually extends beyond the sense that their “work” is devalued to what might be the even more potent sense that their culture is devalued, are we obliged to back off proposals to regulate gun ownership more restrictively because those proposals, too, are regularly coded as attacks on less-educated gun owners by “coastal elites”?
See Sandel’s wonderful citation of Joan Williams’s stinging rebuke of those who talk of “flyover states” or “trailer trash” in Sandel, supra note 1, at 202–03.
Id. at 59–80.
Mark Kelman, the James C. Gaither Professor of Law and Vice Dean at Stanford Law School, has utilized the insights and tools of neoclassical and behavioral economics, cognitive psychology, and political theory to explore a wide range of legal and policy controversies. He has paid particular attention to antidiscrimination law, criminal law, taxation, and the regulation of takings.