New Article: “An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Black: A Response to Chua and Rubenfeld”

New(ish) Article: Eleanor Marie Lawrence Brown, An Alternative View of Immigrant Exceptionalism, Particularly As It Relates to Black: A Response to Chua and Rubenfeld, 103 Calif. L. Rev. 989 (2015).  Abstract below:

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 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.

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