Wednesday, December 01, 2021

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 Abstract

Excerpted From: Chrystin Ondersma, Borrowing Equality: Dispossession and the Need for an Abolitionist Approach to Survival Debt, 120 Columbia Law Review Forum 299 (December 2, 2020) (102 Footnotes) (Full Document)

 

ChrystinOndersmaProfessor Atkinson's article is an essential piece for this moment, as we stand at the brink of an economic and social disaster and as calls for racial justice reverberate. Over 200,000 Americans have been killed by COVID-19, but Black, Latinx, and other marginalized communities have suffered the most. Black and Latinx people account for nearly two-thirds of coronavirus deaths among those younger than sixty-five. Black and other marginalized Americans are forced to “decide between economic security and health security” with many working in what are considered “essential jobs” that involve working “in the food industry, working in health services, [and] driving taxis.” In addition, service industry jobs--in which workers are disproportionately Black and Brown--have been disproportionately extinguished as a result of the pandemic. How will we address and redress these economic and social crises? Anyone seeking an answer to that question must read Professor Atkinson's Borrowing Equality, which stands at the intersection of historic racial discrimination, dispossession, and economic hardship, and is an urgent call for change--to finally turn away from borrowing as a solution to systemic inequality and injustice.

Professor Atkinson deftly identifies and critiques the political practice of “treating borrowing money as a social good and owing money as a personal failure.” She compares Congress's “relatively optimistic and expansive posture in the treatment of credit ... to its relatively negative and restrictive treatment of debt.” We have all become so accustomed to this rhetoric that it feels normal, despite being truly bizarre and leading to unjust and racist economic policies. This rhetorical trick--treating credit as a social good and ignoring the harmful consequences of debt (including acting as if overindebted borrowers are just outliers and bad decisionmakers)-- obscures the way in which this debt regime entrenches inequality. Here, Atkinson pulls back the curtain, clearly demonstrating the ways in which our over-reliance on borrowing entrenches inequality.

In the current system, and thanks to this bait-and-switch, creditors are praised while debtors are punished: Any time debtors face challenges, debtors are blamed, and the system of responding to struggling debtors is largely punitive. A debtor's struggle to repay is met with anything from disdain to criminalization. Despite crafting a system that requires marginalized borrowers to take on inordinate amounts of debt to fund housing, education, and even basic needs, Congress shows “a deep suspicion of borrowers who f[ind] themselves unable to pay their financial obligations” and makes it difficult for borrowers to escape the very situations of over-indebtedness that are the predictable consequences of outsourcing equality work to creditors. Crucially, as Atkinson explains, “because debt affects marginalized groups disproportionately and more severely, its invocation as a source of equality and mobility may simply further entrench the very inequality it is offered to ameliorate.” Far from being helpful or even innocuous, debt too often works as “an institution of social subordination that actively engages in hierarchy making and reproduction.”

In this response, I consider the economic, political, and moral implications of this bait-and-switch. I then explore solutions. Although Professor Atkinson does not profess to have a “ready solution” to this problem, if we consider her article Rethinking Credit as Social Provision alongside Borrowing Equality, the solution, or at least the path to the solution, is clear: We should pursue an abolitionist approach to what I call survival debt, that is, debt that individuals incur in order to survive and live a life of human dignity. I further propose an abolitionist approach to survival debt and a reformist approach to what I call opportunity debt--debt that enables an individual to acquire wealth, such as procuring or expanding a home or business. I also suggest that some debt that might at first glance seem to be opportunity debt--such as educational debt and in some cases housing debt--may in fact be more aptly characterized as survival debt.

[. . .]

In order to tackle inequality, we need to address structural problems outside the borrowing context. Our unions must be empowered and our antitrust laws must be more robust and enforced. We must have meaningful financial regulation and the prices of housing, health care, and education must be within reach for all Americans. To do this, we have to also cope with and escape the rhetoric around government assistance: this idea that accepting direct aid is a moral failing and accepting credit is not. We all have a right to a society that does not require many of its citizens--especially Black and other citizens of color--to suffer severe indebtedness in order to survive. We all have a right to, and must demand, a society that does not rely on the dispossession and exclusion of its most marginalized members in order to function.


Professor of Law and Judge Morris Stern Scholar, Rutgers Law School.


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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