Developing a taste for not being discriminated against.

• Author: Case, Mary Anne
• Position: Symposium on 'Pervasive Prejudice?' by Ian Ayres and 'Crossroads, Directions, and a New Critical Race Theory' by Francisco Valdes, Jerome McCristal Culp and Angela P. Harris

PERVASIVE PREJUDICE? UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION. By Ian Ayres. ** Chicago: University of Chicago Press, 2001. 433 pp. + xi.

CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY. Edited by Francisco Valdes, ([dagger]) Jerome McCristal Culp ([double dagger]) & Angela P. Harris. ([section]) Philadelphia: Temple University Press, 2002. 414 pp. + xxi.

Let me begin these reflections prompted by Ian Ayres's Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination and Crossroads, Directions, and a New Critical Race Theory, edited by Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris, (1) in the classic style of outsider jurisprudence, with a story of my own experience. (2) Ian Ayres's Fair Driving (3) changed my life more directly than any other piece of legal scholarship has before or since. At the time he published this, the first installment of his empirical research into the higher prices car dealers tended to offer black and female customers, I had just begun teaching at the University of Virginia School of Law, where Ayres was then a visiting professor. I had moved to Charlottesville, Virginia from my native Manhattan anticipating that I would need to make many changes in my life, not the least of which would be the acquisition of a driver's license and a car. Getting the driver's license proved surprisingly easy. A decade later, however, I have yet to buy a car. There are many reasons for this, but I fear one of them is that among the things I read before heading out to the car dealerships to negotiate a purchase, in addition to standard informational material such as Consumer Reports, was Ayres's work. Fair Driving impressed on me the likelihood that, at the very least, I as a woman would be given a less favorable opening bid from the dealer than a man and that there was a good chance my final deal could be less favorable as well. I have an extremely strong taste for not being discriminated against. While I generally try not to be paranoid about the extent to which my sex may factor negatively into the way I am treated, Ayres's reinforcement of my suspicions was enough to paralyze my purchasing power. Not that I was too paralyzed to negotiate. To the contrary, I attacked the negotiations with more than my usual toughness (this in genteel Charlottesville) and in short order was offered deals knowledgeable friends urged me to take, better deals than some males of my acquaintance had been offered. But still, I was suspicious and unsatisfied. For me the question was not whether I could get a better deal than a man, but whether I could get a better deal if I were a man, a question I could not satisfactorily answer. (4) Just the thought of some dealer saying to himself, after I had signed on the dotted line, "There's another extra hundred bucks from another sucker female," was enough to cause me to find every offered price unsatisfactory.

From this personal experience I draw the two main themes I shall explore herein: first, the need to examine and articulate far more precisely the victim's preferences and concerns in shaping remedies for many of the kinds of discrimination Ayres and the Crossroads reader address; and second, the relationship of anecdote to data. One of the most striking contrasts between Pervasive Prejudice? and Crossroads is that the former centers on the perspective of the perpetrators of discrimination and the latter on the perspective of the victims. (5) By this I do not mean that the former is written primarily by a white male (6) and the contributors to the latter are almost all people of color or white women. Rather, I mean that Ayres's main concern is to establish to what extent and why discriminators discriminate, while the Crossroads reader stresses, in classic critical race theory fashion, the voices from the bottom and how discrimination affects them.

Taking seriously the emphasis on "Crossroads" and "Directions," Frank Valdes urges, in his contribution to the reader he helped edit, the need for "postsubordination vision as jurisprudential method," for "shifting the focus to visions, agendas, and projects of substantive security" so that "critical legal scholars from varied subject positions constructively can begin coalitional OutCrit theorizing by imagining and articulating the substantive end goal of our respective yet collective antisubordination activities and communities." (7) Valdes notes that "it sometimes is useful to imagine and spell out for onesself (and others) not only what the project is 'against' but what also it is 'for.'" (8) Ayres similarly imagines his book to be potentially the beginning of a much larger project of research. After setting forth the results of his "intensive investigation of a smaller set of markets" and suggesting that "discrimination may occur in a wide range of retail markets," (9) Ayres ends his book by urging that "[g]overnment should more systematically test for disparate treatment across a wide variety of markets. (10) I agree with Ayres that obtaining and disseminating such information would be quite valuable. But because I also agree with Valdes in particular that spelling out what we are for is useful, and with critical race theorists more generally that listening to the voices from the bottom is necessary, let me urge as well that more systematic data gathering, testing, surveying, analysis, and theorizing should also be done from the perspective of the victims of discrimination in the retail markets.

What I have in mind is this: For some time, the motives of one who discriminates, including the so-called taste for discrimination, have been the subject of a well-developed taxonomy. (11) We now understand, for example, that some sellers may have a personal aversion to contact with blacks; (12) they may prefer to discourage black customers altogether and pay a price in lost sales to do so. Others may not mind the contact so long as it leaves blacks in a one-down position; they may actually prefer to have some black customers, so long as they can have the satisfaction of overcharging them or treating them shabbily. Still others may have no personal aversion to blacks, but believe their core clientele has such an aversion; they may discourage black customers to curry favor with white customers or to retain what for them is a high-class, lily-white image from which they hope to profit monetarily. And there are others who overcharge or underserve black customers, not out of animus, but because they believe them to be suckers more likely prepared to pay inflated prices or to put up with shoddy treatment. Additional forms of statistical discrimination include merchants acting on the belief that blacks are more likely to rob (and therefore need to be followed around), less likely to buy (and therefore need less sales attention), more likely to default on credit (and therefore should be extended worse terms or no credit), and less likely to tip well or be repeat customers (and therefore need not be treated as courteously). In addition to spelling out these important varieties of discriminatory intent, economists have modeled the costs and the price of discrimination in an elaborate literature. As I shall discuss below with reference to Ayres's work, it is well understood that the effective remedy for discrimination may depend on where in the taxonomy of discrimination a particular actor falls. (13)

I have been surprised not to find in the literature a comparably well-worked-out taxonomy on the taste for not being discriminated against, a taxonomy that focuses on the victim's perspective rather than the perpetrator's. (14) To be sure, a careful reader of Ayres's work will observe that he mentions most of the major components such a taxonomy would contain. For example, he notes that not only price and product quality, but also "discretionary aspects of service" may vary depending on a customer's race or gender. These discretionary aspects, Ayres notes, can include quantifiable and less quantifiable transaction costs such as longer waiting time, less friendly or accommodating service, and less willingness to accede to special requests. (15) As I shall explain below, a more systematic enumeration of these components, including their monetary and less tangible costs, as well as survey and other research on the relative importance and value of each to consumers, would, in my view, be a useful part of "planning the journey" Valdes calls for. (16)

I realize that the sort of thing I am here advocating may not be the kind of postsubordination vision Valdes is most interested in. It may be too limited in its horizon: It is a vision of the second best, not of the world after the revolution. According to Ayres, "[s]ome civil rights advocates seem to worry that even acknowledging the possibility that discrimination may have a variety of causes undermines the moral claims that discrimination is wrong." (17) Similarly, some of those represented in Crossroads may worry that my call for an increasing emphasis on distinguishing among the variety of effects of discrimination may not only undermine the moral claim that all effects of discrimination are harmful, but also give a falsely conciliatory impression that victims are prepared to tolerate some forms of discrimination in return for being exempted from others. Of course the antisubordination communities represented in Crossroads would say of their postsubordination vision of consumer transactions what Jerome Culp said in response to me when this symposium was first presented at Law and Society in Vancouver--"we want it all." That is to say, when we enter consumer markets, we want a low price that is also a fair price on goods structured to suit our needs and preferences purveyed to us by sellers that welcome us and treat us well. But just as, like Ayres, I think that "acknowledg[ing] the possibility of multiple causes" (18) is an...