104 Cal. L. Rev. 1333
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol104/iss6/1
In my previous article, Racial Capitalism, I examined the ways in which white individuals and predominantly white institutions derive value from nonwhite racial identity. This process of deriving value from identity results from intense social and legal preoccupation with diversity. And it results in the commodification of nonwhite racial identity, with negative implications for both individuals and society.
This Article builds on Racial Capitalism in three ways. First, as a foundation, it expands the concept of racial capitalism to identity categories more generally, explaining that individual in-group members and predominantly in-group institutions—usually individuals or institutions that are white, male, straight, wealthy, and so on—can and do derive value from out-group identities.
Second, the Article turns from the overarching system of identity capitalism to the myriad ways that individual out-group members actively participate in that system. In particular, I examine how out- group members leverage their out-group status to derive social and economic value for themselves. I call such out-group participants identity entrepreneurs. Identity entrepreneurship is neither inherently good nor inherently bad. Rather, it is a complicated phenomenon with both positive and negative consequences.
Finally, the Article considers the appropriate response to identity entrepreneurship in a number of legal contexts. As a general rule, judges, legislators, and other regulators should design laws and policies to maximize both individual agency and access to information for out-group members. Such reforms would protect individual choice while making clear the consequences of identity entrepreneurship for both individual identity entrepreneurs and for the out-group as a whole. A range of legal doctrines interact with and influence identity entrepreneurship, including employment discrimination under Title VII, rights of privacy and publicity, and copyright law. Modifying these doctrines to take account of identity entrepreneurship will promote progress toward an egalitarian society in which in-group and out-group identities are valued equally.