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An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Blacks: a Response to Chua and Rubenfeld

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An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Blacks: a Response to Chua and Rubenfeld An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Blacks: A Response to Chua and Rubenfeld Eleanor Marie Lawrence Brown* The contrast between Amy Chua and Jed Rubenfeld’s The Triple Package (Chua & Rubenfeld 2.0) and Chua’s previous work, World on Fire (Chua 1.0), is striking. Chua & Rubenfeld 2.0 contends that particular ethnic and religious groups are spectacularly successful in the United States because of a “triple package” of traits that are largely cultural; however, there is nary a word in Chua & Rubenfeld 2.0 about the role that law might play in contributing to wealth acquisition among the subject groups. In contrast, Chua 1.0 clearly acknowledges the role of law through “law-in-culture” when accounting for the wealth of those whom Chua calls “market- dominant minorities.” “Law-in-culture” consists of binding rules, such as default contract terms, that often underlie market relations in perilous “third world” environments. While these rules are not enforceable by the state, they are powerful because those who ignore them risk ostracism by their co-ethnics, with whom they often contract. Perhaps because Chua & Rubenfeld 2.0 focuses on particular ethnic groups within the United States—a country that epitomizes the protection of property and contract rights—it overlooks the potential role of “law-in-culture” in accounting for wealth acquisition of particular groups. This oversight is significant. Many of the subject Copyright © 2015 Eleanor Marie Lawrence Brown. * George Washington Institute of Public Policy Fellow and Associate Professor of Law, George Washington University Law School; J.D., Yale Law School (1999); M.Phil. Politics, Oxford (1997) (Rhodes Scholar). Former Schwartz Fellow, New America Foundation; former Chairman of the Jamaica Trade Board; former Reginald Lewis Fellow, Harvard Law School; former Law Clerk to the Honorable Patricia Wald (ret.), U.S. Court of Appeals for the District of Columbia; former Law Clerk to the Honorable Keith Ellison, U.S. District Court for the Southern District of Texas. I am grateful for the aid of my research assistants, Jenna Brofsky, Jared Stipelman, and Shanellah Verna. 989 990 CALIFORNIA LAW REVIEW [Vol. 103:989 ethnic groups had contracting advantages underwritten by “law-in- culture” in their countries of origin. I am particularly concerned about the absence of a discussion of institutions—whether underwritten by “law” or “law-in-culture”— when Chua & Rubenfeld 2.0 discusses Black people. A case in question is Nigerian Americans. Given their focus on Nigerian American economic success, a comparison to African American economic success (or lack thereof) is foreseeable. The question is inevitable: if Nigerian immigrants do so well in the United States, what does this say about the continuing scholarly emphasis on institutional (as opposed to cultural) impediments to native Black, that is, African American economic success? Chua & Rubenfeld 2.0 acknowledges institutional impediments to African American success, but they say very little about institutional advantages that Nigerian Americans may have. In fairness to Chua and Rubenfeld, they are likely constrained by the dearth of scholarship on the pre- and post-migration trajectories of Nigerian Americans, who are largely recent migrants. Thus, to explore the potential relevance of institutional factors, I consider the original Black “triple package” group for which much more scholarship is available, West Indians. I contend that institutional background matters. For example, even the earliest turn-of-the- century Black West Indian migrants gained exposure to an institutional context for wealth acquisition through the extension of property and contract rights to slaves and their descendants in the West Indies. This stands in stark contrast to the institutional context that generally existed for African Americans, not only during slavery, but also in the pre-civil rights southern United States. Thus, despite the historical sociological focus on West Indian American success, I question the notion that West Indian Americans are necessarily a useful comparative sample to African Americans simply because they are Black—particularly given the historical disparity between West Indian Americans and African Americans in accessing institutions for wealth creation. The question then becomes if the same might be true of Nigerian Americans. Introduction .................................................................................................... 991 I. Culture Versus Law and Institutions ........................................................ 994 II. Law-in-Culture .......................................................................................... 999 III. Law-in-Culture Within the United States ................................................ 1001 IV. Chua & Rubenfeld 2.0 on Black People ................................................. 1003 Conclusion .................................................................................................... 1016 2015] A RESPONSE TO CHUA AND RUBENFELD 991 INTRODUCTION The Triple Package (Chua & Rubenfeld 2.0), by Yale Law professors Amy Chua and Jed Rubenfeld, is ostensibly not about law, but about culture.1 Chua and Rubenfeld therefore take on a difficult task. For instance, one well- known culture theorist, Lawrence Harrison, notes that “culture” arguments have a “bad odor” about them, and those who write in this area typically tread carefully.2 Chua and Rubenfeld eschew this advice and do not employ the sober tone that academics usually use when writing about the importance of culture for the success of ethnic and religious groups. Moreover, Chua & Rubenfeld 2.0 is not a typical academic book. Instead, it emphasizes accessibility to a broad audience. For these reasons, law reviews would traditionally not discuss a book like this. Nonetheless, Chua & Rubenfeld 2.0 is significant, if only because, paradoxically, a book that says so little about law is a timely reminder of Chua’s previous work, which undoubtedly states that law matters. I contrast the Triple Package’s emphasis on “culture” with the emphasis on “law” embodied in Chua’s previous work, particularly World on Fire (Chua 1.0).3 The Triple Package’s thesis, succinctly stated, is that some ethnic and religious groups (Jews, Indians, Iranians, Lebanese, Nigerians, Cubans, some Asians, and Mormons) have climbed the socioeconomic ladder in the United States with extraordinary speed because of a “triple package” of cultural traits. First, they possess a superiority complex—that is, the notion of being “chosen.” Second, they socialize their children well in impulse control. And third, they inculcate in their children a sense of insecurity. However, Chua 1.0 clearly acknowledges the role of law in accounting for the comparative wealth of different groups. In contrast, Chua & Rubenfeld 2.0 does not mention the role that law might play in contributing to the asset acquisition patterns of the subject groups. If we imagine a continuum with culture on the one hand4 and institutions and law on the other,5 Chua & 1. AMY CHUA & JED RUBENFELD, THE TRIPLE PACKAGE: HOW THREE UNLIKELY TRAITS EXPLAIN THE RISE AND FALL OF CULTURAL GROUPS IN AMERICA (2014). 2. Lawrence E. Harrison, Introduction: Why Culture Matters, in CULTURE MATTERS: HOW VALUES SHAPE HUMAN PROGRESS xvii, xxx (Lawrence E. Harrison & Samuel P. Huntington eds., 2000). 3. See generally AMY CHUA, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC HATRED AND GLOBAL INSTABILITY (Anchor Books 2004) (2003). 4. E.B. Tylor, the founder of the field of cultural anthropology famously defined culture as “that complex whole which includes knowledge, belief, art, morals, law, custom and any other capabilities and habits acquired by man as a member of society.” 1 EDWARD B. TYLOR, PRIMITIVE CULTURE 1 (1871). Fukuyama has noted that “culture” is an amorphous concept. FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY 34–35 (1995) (noting that he uses the term “culture” to denote moral habits as opposed to rational choices); see also Orlando Patterson, Taking Culture Seriously: A Framework and an Afro-American Illustration, in CULTURE MATTERS, supra note 2, at 202, 208 (describing “culture” as a “repertoire of socially transmitted and intra-generationally generated ideas about how to live”). 992 CALIFORNIA LAW REVIEW [Vol. 103:989 Rubenfeld 2.0 comes down strongly on the side of culture. Chua & Rubenfeld 2.0 is a “hard” as opposed to a “soft” culture book. In order to contextualize where Chua & Rubenfeld 2.0 and Chua 1.0 fall in relation to the broader literature, Part I begins with a brief background on the “culture” versus “law and institutions” debate. While economists generally focus on comparative wealth acquisition between countries (as opposed to religious and ethnic groups as used in Chua & Rubenfeld 2.0 and Chua 1.0), a consensus has developed regarding the importance of historical differentials in access to an institutional framework for the creation of wealth. Economists in this school might be termed the “institutionalists.” “Law,” specifically the protection of property and contract rights, is a fundamental feature of this institutional framework. Chua 1.0 draws on the work of institutionalists by recognizing the importance of formal law—and its absence—in perpetuating the economic dominance of particular ethnic groups. Building on another concept often used in the legal scholarship, “order without law,”
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