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Katharine G. Young, Rights and Queues: On Distributive Contests in the Modern State, 55 Colum. J. of Transnat’l L. 65 (2016).

A queue, whether it takes the form of a line or a list, is one of the simplest and most familiar algorithms for allocating scarce resources. It is also a tool of social control, a metaphor, and a powerful framing device, as Katharine Young incisively demonstrates in Rights and Queues: On Distributive Contests in the Modern State.1

Young focuses on the way that the queue interacts with rights or—more broadly—entitlements. One of her central examples involves the allocation of public housing in South Africa. Though highly contextualized, Young’s analysis resonates with concerns about housing and social welfare policy elsewhere, including in the United States. Young’s emphasis on the political and rhetorical work performed by the queue is an eye-opening complement to other recent treatments of queues in property law.2

By choosing the queue as the mechanism for delivering an entitlement such as housing, the government makes—and at the same time partially obscures—three important moves. First, it defers fulfillment of the entitlement for at least some subset of the eligible claimants. Second, it defuses discontent by channeling claimants into an ostensibly fair and ordered process. Third, it divides claimants based on their positions in the line, thereby transforming resource conflicts that might otherwise unite claimants against the state into mere skirmishes among claimants. Young shows how these moves effectively stigmatize efforts to secure rights as “queue jumping.” In this way, support for the queue’s ineluctable normative force is secured from the very claimants whose entitlements are simultaneously being eroded and even potentially denied by the queue.

Consider how queues both delay entitlement delivery and (by their very existence) purport to justify the delay. A queue renders scarcity visible and in the process normalizes it—we will, it appears, simply have to wait our turn. If there is a long waiting list for subsidized housing, then that is that—the wait becomes the focus, not the reasons behind the scarcity that produces it.

At the same time, the queue deflects attention away from competing claims that are not represented in this particular line. For example, Young notes how a queue for public housing might deflect attention away from mortgage subsidies—a competing claim in the housing domain that does not appear in the same (or any) queue, and is instead treated as a fixed element of the background against which the queue is formed. The existence and apparently fair operation of the queue thus works to defuse broader opposition to the policies that created the queue-frame.

The queue also divides claimants. It continually announces that what stands between you and the resource (sometimes quite literally) are other claimants. Young emphasizes the accompanying corrosive effect on solidarity as attention turns to one’s position in the line and to concerns about those who have gotten ahead of oneself, rather than (for example) the fact that the state has chosen to put inadequate resources toward fulfilling the entitlement in question.

The line thus directs discourse inward to the line itself and to questions of line management. Attention turns to the difficult tradeoffs that determine the speed with which the line moves forward, such as how to balance the depth of each housing subsidy with the number of households that can be served.3 Focusing on these tradeoffs is an entirely appropriate response to resource scarcity, but queues for entitlements characteristically involve scarcity that is socially and politically constructed and may also be endogenous to the way particular tradeoffs are made.

Decisions about ending access to benefits like housing also seem vulnerable to the logic of the queue—people are waiting, after all. (Justice Black’s dissent in Goldberg v. Kelly, 397 U.S. 254 (1970), employed a similar rationale, maintaining that people would never make it onto the welfare rolls in the first place if removal were made too difficult). Here, however, we confront a potential distinction between the negative rights that might attach to someone who is already in possession of an entitlement (and is trying to keep the state from wresting it away) and the positive rights that the queue-standers patiently seek but do not yet possess.

In this connection, Young examines the case of residents of informal settlements in South Africa who cite a right to housing in their efforts to stave off eviction. In one frame, these residents might be cast as queue-jumpers, but in another frame they are entitlement holders—indeed, property holders—who seek to keep the state from unwinding their rights. These competing frames reveal the disconnect between the language and logic of the queue and the larger normative commitments that a state might make surrounding entitlements. Lines may be able to distribute certain affirmative rights over time, but they are ineffective at distributing shields with which to stop rights violations in progress.

Queues do have benefits, as Young recognizes. They are administratively simple, easy for everyone to understand, and can immediately replace a chaotic scene with a workable sense of order. But when they are used to dole out entitlements, their rhetorical force deserves scrutiny. The fact of the queue fundamentally alters the nature of the entitlement being provided through it, as well as the discourse surrounding that entitlement. The queue purports to provide an allocative answer, but the questions that it implicitly poses also require our attention.

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  1. In addition to the work discussed here, see also Katharine G. Young, Narrative, Metaphor, and Human Rights Law: When Rights-Talk Meets Queue-Talk, in Narrative and Metaphor in Law (Mike Hanne & Robert Weisberg eds., forthcoming 2017). []
  2. See, e.g., Kevin Gray, Property in a Queue, in Property and Community 165 (Gregory S. Alexander & Eduardo M. Peñalver eds., 2010); Ronen Perry & Tal Z. Zarsky, Queues in Law, 99 Iowa L. Rev. 1595 (2014). []
  3. See Ingrid Gould Ellen, Housing Low-Income Households: Lessons from the Sharing Economy?, 25 Housing Pol’y Debate 783 (2015); see also David A. Super, The Political Economy of Entitlement, 104 Colum. L. Rev. 633 (2004). []
Cite as: Lee Anne Fennell, Questioning the Queue, JOTWELL (October 17, 2017) (reviewing Katharine G. Young, Rights and Queues: On Distributive Contests in the Modern State, 55 Colum. J. of Transnat’l L. 65 (2016)), https://property.jotwell.com/questioning-the-queue/.