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  • Richard A. Epstein (a1)
  • DOI:
  • Published online: 01 June 2008

This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the “human rights” label to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship (employer, not employee; landlord, not tenant) is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities (as in cases involving the NAACP or the Boy Scouts), but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws.

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Richard A. Epstein , “One Step Beyond Nozick's Minimal State: The Role of Forced Exchanges in Political Theory,” Social Philosophy and Policy 22, no. 1 (2005): 286313

Ronald H. Coase , “The Problem of Social Cost,” Journal of Law and Economics 3 (1960): 144

Jennifer Roback , “Southern Labor Law in the Jim Crow Era,” University of Chicago Law Review 51 (1984): 1161–92

Richard A. Epstein , “Two Conceptions of Civil Rights,” Social Philosophy and Policy 8, no. 2 (1991): 3859

ichard A. Epstein , “A Rational Basis for Affirmative Action: A Shaky but Classical Liberal Defense,” Michigan Law Review 100 (2002): 2036–61

Erwin Chemerinsky , “A Grand Theory of Constitutional Law?Michigan Law Review 100 (2002): 1249–64

Richard Posner , “The Efficiency and the Efficacy of Title VII,” University of Pennsylvania Law Review 136 (1987): 513–21

George Rutherglen , “Disparate Impact Under Title VII: An Objective Theory of Discrimination,” Virginia Law Review 73 (1987): 12971345

Thomas DeLeire , “The Wage and Employment Effects of the Americans with Disabilities Act,” Journal of Human Resources 35 (2000): 693715

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
  • URL: /core/journals/social-philosophy-and-policy
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