This paper addresses inequality, biology, rhetoric, and the law. New scientific theories explain how inequality can become biologically embedded in the human body. First, in the field of epigenetics, scientists are fleshing out the theory that stressful environments function as stimuli that can reprogram the expression of genes responsible for one’s stress reaction system. This reprogramming correlates with greater incidents of heart disease, diabetes, and other metabolic problems. Second, in the field of neuroscience, neuroplasticity theory explains that different environments produce brain structures that differ in size, composition, and mental bandwidth. Stressful and impoverished environments are linked to differences in brain structures, which in turn leads to poor outcomes in cognitive performance. These two biologically based theories hold that poverty and socio-economic disadvantage can invade and enter a person’s genes and brain, producing deleterious health and mental effects.

The author collectively refers to these scientific theories as embodied inequality. Embodied inequality explains why it is so difficult for individuals get out under from the effects of socio-economic disadvantage. We have known for quite some time that disadvantaged individuals suffer from poorer health outcomes and lower life spans than the advantaged. The disadvantaged perform less well on educational tests than their wealthier peers. In some situations, racial discrimination intersects with poverty to worsen these outcomes for minorities. With the notion that poverty becomes implanted in an individual’s genes and brain, science helps explain how these disparate lifespans and variations in cognitive outcomes come to be.

Rhetorically, embodied inequality challenges traditional narratives that assume that individual genes and individual behavioral choices are the primary causal agents for social outcomes. Individual action plays a role, but biologists and brain scientists now understand that the environment, along with one’s genes, pull many of the strings toward particular social outcomes. While social policy theorists have long advocated for government intervention to create a more robust social safety net and a more nurturing society, this article is the first to apply these emerging scientific theories to these legal and policy issues.

In Part I of this paper, the author explores the science, specifically epigenetics and neuroplasticity, reviewing the theories as they relate to both animals and humans, describing the impact that embodied inequality has on life outcomes.

In Part II, the author considers how embodied inequality interacts with both rhetoric and policy. Part IIA illustrates how these new scientific discoveries can be used to powerfully reframe the individualistic rhetoric surrounding inequality and poverty. Part IIB develops both small-scale and large-scale prescriptions that, as a whole, might improve individuals’ material environment and reduce exposure to toxic stress. Included in this discussion are small scale and large scale initiatives that would shore up social security for those most affected by stressful and uncontrollable material environments.

Then, in Part III, the author applies the science to specific areas of the law – constitutional law, workplace law, and public education law. These new scientific theories can be applied to generate novel constitutional theories concerning equal protection. The biology of inequality is relevant for considering whether being poor equates to being in a suspect class, which would trigger higher levels of scrutiny for government discrimination. The science is also relevant for whether or not it robust governmental remedies for past discrimination are appropriate, if that discrimination can be biologically traced.

From a more specific standpoint, the science might be applied to reform the legal structures that undergird workplace law and public education law. In the context of work, more worker protection would provide families and children shelter from the stress of living without control, which would in turn ameliorate many of the biological effects of disadvantage. Public education is relevant to this paper because initiatives that foster stable and integrated public schools correlate with positive collateral effects in the material environment (reduced pockets of concentrated poverty, more residential integration). Good, integrated (racial and socio-economic) public schools can slow down or halt some of the detrimental biological effects mediated by disadvantaged living situations.