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Tuesday, April 12, 2022



Meirav Furth-Matzkin's paper is disappointing because it is just another riff on the lazy clichéd law-school "discrimination paper" template--complete with field work using the popular but oft-abused "matched (but not really) testers" technique. Furth-Matzkin misleads from the first sentence of her abstract, asserting that she investigates race discrimination in "shopping" when she really examines only retailers' suspicions of attempts by her testers to "return" (that is, exchange for money) merchandise of unknown provenance to their stores, an activity redolent of fraud. (Yes, unknown provenance-- Furth-Matzkin deliberately sent out testers without receipts or other evidence of provenance into stores where they were strangers.)

We get a hint of Furth-Matzkin's lazy approach when she writes (hilariously, but also shamelessly) that her analysis "control[s] for all other variables" except race. Really? *All* other variables? Of course a glance at her paper confirms that is a tendentious misstatement. She does not "control for" the much greater propensity of black shoppers to commit crimes against the retail establishments they patronize.

In fact, she dismisses that huge issue with calculated misdirection. She writes (p.10) "this despite the fact that most shoplifters in the United States are white". Sure, because blacks are only 1/7 the population. Yet according to US-DOJ (I summarize 2018 (pre-pandemic) data briefly) blacks commit 1/3 of reported "larceny/theft" offenses (where race is known, but likely similar for unwitnessed/unidentified/unreported cases). So blacks are, in fact, *three times more likely on average to commit such offenses than non-blacks*. Furth-Matzkin knows her analysis is weak on this point, because she adds in several more comments about it, using all of her lawyer's brief-writing skills to shade the import of her words. For example, on p.36, Furth-Matzkin upgrades a lack of data due to "limited research" in her Footnote 123 source to a strong statement in her main text that "research consistently shows that Blacks are no more likely to shoplift than whites."

Worse than all her byzantine argumentation, though, is that she neglects the effect of deterrence on behavior. This is a consistent trope in papers of this sort. When vendors quote-unquote "discriminate against" black patrons by monitoring them more closely (or sometimes by excluding them, although "statistical discrimination" that severe is unlawful) those vendors deter and avert a lot of crimes. So when researchers report on different rates of *completed* crimes by race, without "controlling for" stronger deterrent measures directed at members of one race or another, they commonly lead readers to draw wrong conclusions about race differences in propensity for crime. This is such an important point it deserves restatement: despite the extra deterrence directed against them (which writers like Furth-Matzkin characterize as invidious discrimination), blacks are still about three times as likely to commit property crimes. Absent such deterrence (retailer monitoring, etc.) the black crime rate would be much higher.

So if Furth-Matzkin gets her wish (that is, her desire for a much higher rate and severity of civil-rights lawsuits against retailers as she advocates at the end of her paper) eliminating crime-deterrence recharacterized as invidious discrimination will cause black crime to increase. Then vendors will "discriminate" even more strongly against blacks, probably by closing all their stores anywhere near black neighborhoods. That will transform urban "food deserts" to "everything deserts" as big chains with low prices but big wallets to pay damages to highly-publicized "civil rights" litigants retreat to the Internet leaving only small retailers with sky-high prices but no assets to pay off "discrimination" claims.

Furth-Matzkin's paper is loaded with irrelevant, misleading, and tendentious statements. This comment-box is larger than Fermat's margin, but I don't have time to catalog and explain all of the flaws in this paper. Suffice it to say that when you remove the point-and-sputter about racist incidents over 70 years ago, correct the many misrepresentations of more recent history and/or research papers, and sieve out the nuggets of alleged scholarship from the dross which remains, you learn chiefly that Furth-Matzkin has an axe to grind rather than a problem to investigate.

(Furth-Matzkin does usefully remind us that the courts have refused to apply Federal civil-rights laws very strictly to retailer behavior. She could have written a much better paper by exploring more deeply the likely reasons for that, but of course, doing so would have revealed that Federal judges secretly understand the fact that characterizing crime-deterrence as discrimination would lead to worse outcomes than tolerating a small amount of discrimination muddled with crime-deterrence (mostly inadvertently, since retail clerks are not necessarily as sophisticated as their managers, much less law professors). Naturally a law professor on the make is not going to publish a paper that makes judges look bad.)

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