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  • Richard A. Epstein (a1)

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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1 See generally Nozick Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 151. Nozick makes the point explicitly when he notes that his entitlement theory allows for claims to arise in accordance with (1) the principle of justice in acquisition and (2) the principle of justice in transfer, and “by (repeated) applications of 1 and 2.” Nozick is wrong to conclude that these principles represent the only legitimate way to acquire entitlements, such that acquisition through forced exchanges is precluded. See Epstein Richard A., “One Step Beyond Nozick's Minimal State: The Role of Forced Exchanges in Political Theory,” Social Philosophy and Policy 22, no. 1 (2005): 286313.

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

3 For further elaboration, see Epstein Richard A., Free Markets Under Siege: Cartels, Politics, and Social Welfare (Stanford, CA: Hoover Institution Press, 2005), 1216.

4 See Weber Max, “Politics as a Vocation,” in Max Weber: Essays in Sociology (New York: Oxford University Press, 1946), 77128.

5 For a narrow account of the police power, see, e.g., Lochner v. New York, 198 U.S. 45, 53 (1905). For the classic account, see Freund Ernst, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan & Co., 1904), who defined the police power as “the power of promoting the public welfare by restraining and regulating the use of liberty and property.”

6 For a classic account of the problem of factions, see Publius , The Federalist Papers, ed. Manis Jim (Hazleton: Pennsylvania State University Electronic Classics Series, 2001), No. 10: 4146.

7 For a detailed defense of this position, see Epstein Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985), chap. 1 (working out the implications of a system that allows for takings with just compensation).

8 For a discussion of the complex matters of remedy and liability, see Epstein Richard A., Why More Is Less: A Historical Study of Antitrust Consent Decrees (Washington, DC: American Enterprise Institute, 2007).

9 See, e.g., Allnut v. Inglis, 104 Eng. Rep. 206 (K.B. 1810) (recognizing the obligation to serve the “public interest” for both legal and situational monopolies). I discuss the case at length in Epstein Richard A., Principles of a Free Society: Reconciling Individual Liberty and the Common Good (Boston, MA: Addison-Wesley, 1998), 279–86.

10 Western Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92, 98 (1901).

11 On the policies of the Southern railroads, see Epstein Richard A., Forbidden Grounds: The Case Against Employment Discrimination Law (Cambridge, MA: Harvard University Press, 1992), 93; and Roback Jennifer, “Southern Labor Law in the Jim Crow Era,” University of Chicago Law Review 51 (1984): 1161–92.

12 For the classic statement of this problem, see Hardin Garrett, “The Tragedy of the Commons,” Science 162 (1968): 1243–48.

13 NAACP v. Alabama, 357 U.S. 449, 460 (1958).

14 Boy Scouts of America v. Dale, 530 U.S. 640 (2000). For an earlier statement of my views on the case, see Epstein Richard A., “The Constitutional Perils of Moderation: The Case of the Boy Scouts,” Southern California Law Review 74 (2000): 119–43.

15 NAACP, 357 U.S. at 460–61.

16 See Gitlow v. New York, 268 U.S. 652, 666 (1925). The Gitlow case announced a profound shift in constitutional jurisprudence in a most off-handed way: “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” The case then rejected the First Amendment defense against a criminal prosecution for publishing “The Left Wing Manifesto,” a socialist tract, which issued a call to action that was widely ignored. Gitlow is not good law on this point today.

17 NAACP, 357 U.S. at 459.

18 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964).

19 N.J. Stat. sec. 10:5-4 (2007).

20 N.J. Stat. sec. 10:5-5 (2007).

21 N.J. Stat. sec. 10:5-3 (2007).

22 Dale v. Boy Scouts of America, 734 A.2d 1196, 1227 (N.J. 1999) (footnotes omitted).

23 I have defended this position in Epstein Richard A., “Two Conceptions of Civil Rights,” Social Philosophy and Policy 8, no. 2 (1991): 3859.

24 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

25 Lochner v. New York, 198 U.S. 45 (1905).

26 Dale, 530 U.S. at 670 (Stevens, J., dissenting).

27 Id. at 701 (Souter, J., dissenting).

28 Jacobs Andrew, “Victory Has Consequences of Its Own,” The New York Times, June 29, 2000, at A28 (noting that the Boy Scouts organization risks a backlash for ousting Dale from its membership). For evidence of this prediction coming true, see, e.g., “Spielberg Unprepared,” The Chicago Tribune, April 19, 2001 (reporting Steven Spielberg's resignation from the advisory board of the Boy Scouts of America given its policy of excluding homosexuals); Goldstein Laurie, “Jewish Group Recommends Cutting Ties to Boy Scouts,” The New York Times, January 10, 2001 (reporting that Jewish religious leaders are asking Boy Scout troops to stop using synagogues due to the Scouts' policy on homosexuality); “Oak Park School Loses Scouts Over Gay Ban,” The Chicago Tribune, December 7, 2000 (reporting that a Parent-Teacher Organization voted to prohibit a Boy Scout troop from meeting at the local elementary school given the Scouts' policy of excluding homosexuals); and “Evanston United Way Cuts Off Boy Scouts,” The Chicago Tribune, September 22, 2000 (reporting a decision by a local division of the United Way to cease funding local Boy Scout troops given the Scouts' policy of excluding homosexuals).

29 Aristotle's famous account of moderation (sometimes translated as “temperance”) is in Book II of the Nicomachean Ethics, in The Basic Works of Aristotle, ed. McKeon Richard (New York: Random House, 1941).

30 Brandenburg v. Ohio, 395 U.S. 444 (1969).

31 Dale, 530 U.S. at 659–60.

32 Id. at 656.

33 Katzenbach v. McClung, 379 U.S. 294 (1964).

34 Americans with Disabilities Act, 42 U.S.C. 12112 (a): “General rule: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

35 42 U.S.C. 12111 (9): “Reasonable accommodation. The term ‘reasonable accommodation’ may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

36 42 U.S.C. 12111 (10): “Undue hardship. (A) In general: The term ‘undue hardship’ means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

“(B) Factors to be considered: In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.”

37 For a general list of disability rights activists, see “List of Disability Rights Activists,” Wikipedia, (accessed August 6, 2007).

38 See Howard Philip K., The Death of Common Sense: How Law Is Suffocating America (New York: Grand Central Publishing, 1996), 113–18.

39 “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. sec. 12182(a).

Unlawful discrimination includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. sec. 12182(b)(2)(A)(iii).

40 For examples of the high costs of making buildings accessible, see the Florida Building Commission Accessibility Advisory Council, Minutes, August 25, 2003, (accessed August 6, 2007) (granting waivers to several builders when more than 20 percent of the project costs would be spent on accessibility).

41 N.Y. Exec. sec. 296 (2005). Recent proposed amendments to the New York Human Rights Act seek to ensure that firms will not be required to provide accessibility that is not “readily achievable” in financial terms, subject to the usual multifactor determinations on costs, benefits, overall resources, type of operations, and the like. See, e.g., 2007 N.Y.A.B. 4932 (2007).

42 Public choice theory analyzes the behavior of individuals in various political settings, as self-interested actors who respond to the incentives created by the political system. For an introduction to the theory, see Buchanan James M. and Tullock Gordon, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Indianapolis, IN: Liberty Fund, 1999).

43 Civil Rights Act of 1866, 14 Stat. 27.

44 Civil Rights Act of 1866, chap. 31, 14 Stat. 27. Section 1 states that “all persons born in the United States … shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

45 Civil Rights Act of 1866, chap. 31, 14 Stat. 27, 27–30 (codified as amendments at 42 U.S.C. secs. 1981, 1982 [2005]).

46 U.S. Constitution, Fourteenth Amendment, Section 1. For an analysis of the relationship between the citizens protected under the privileges or immunities clause of the Fourteenth Amendment and the persons protected under the due process and equal protection clauses, see Epstein Richard A., “Of Citizens and Persons: Reconstructing the Privileges or Immunities Clause of the Fourteenth Amendment,” New York University Journal of Law and Liberty 1 (2005): 334–54; Epstein Richard A., “Further Thoughts on the Privileges or Immunities Clause of the Fourteenth Amendment,” New York University Journal of Law and Liberty 1 (2005): 1095.

47 42 U.S.C. section 1982: “Property rights of citizens: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

48 Jones v. Alfred H. Mayer Co., 390 U.S. 409 (1968).

49 For my further defense of this position, see Epstein, “Two Conceptions of Civil Rights.”

50 Hohfeld Wesley Newcomb, Fundamental Legal Conceptions, As Applied in Judicial Reasoning and Other Legal Essays (New Haven, CT: Yale University Press, 1919).

51 For a more detailed statement of my views, see REpstein ichard A., “A Rational Basis for Affirmative Action: A Shaky but Classical Liberal Defense,” Michigan Law Review 100 (2002): 2036–61. For the mainstream position, see, e.g., Chemerinsky Erwin, “A Grand Theory of Constitutional Law?Michigan Law Review 100 (2002): 1249–64.

52 Griggs v. Duke Power Co., 401 U.S. 424 (1971).

53 For my views, see Epstein, Forbidden Grounds, 159–266. For earlier work in this vein, see Demsetz Harold, “Minorities in the Market Place,” North Carolina Law Review 43 (1965): 271–97; Avins Alfred, “Anti-Discrimination Legislation as an Infringement on Freedom of Choice,” New York Law Forum 6 (1960): 1337; Friedman Milton, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), 108–18 (noting the relationship between economic freedom and the absence of discrimination, and criticizing antidiscrimination laws as ineffective and costly); and Posner Richard, “The Efficiency and the Efficacy of Title VII,” University of Pennsylvania Law Review 136 (1987): 513–21 (assessing the costs that are either ignored or imposed by Title VII).

For defenses of the modern view, see Willborn Steven L., “The Disparate Impact of Discrimination: Theory and Limits,” American University Law Review 34 (1985): 799837 (defending the disparate-impact test, using economic analysis); and Rutherglen George, “Disparate Impact Under Title VII: An Objective Theory of Discrimination,” Virginia Law Review 73 (1987): 12971345 (defending the Griggs disparate-impact test as a logical judicial application of the 1964 Civil Rights Act).

54 For details on the Wonderlic test, which is a twelve-minute, fifty-question exam meant to test employees' acuity, see “Wonderlic Test,” Wikipedia, (accessed August 8, 2007).

55 A plaintiff may demonstrate that use of a test is an unlawful business practice if he demonstrates that the testing “causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. sec. 2000e-2(k)(1)(A)(i). Even if the plaintiff cannot meet this burden, “the plaintiff can still prevail if he can show that there is an alternative selection method that has substantial validity and a less disparate impact.” Firefighter's Institute for Racial Equality v. City of St. Louis, 220 F.3d 898 (8th Cir. 2000), citing 42 U.S.C. sec. 2000e-2(k)(1)(A)(ii).

56 42 U.S.C. sec. 12112(a).

57 42 U.S.C. sec. 12112(d)(3).

58 For an example of the high level of disclosures required in the securities context to avoid liability for tortious misrepresentation, see TSC Industries Inc. v. Northway Inc., 426 U.S. 438, 449 (1976): “An omitted fact is material [and therefore requires disclosure] if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.”

59 See Sunstein Cass, “Willingness to Pay vs. Welfare,” Harvard Law and Policy Review 1 (2007): 303. The use of contingent valuation in environmental contexts on issues relating to pollution is always more defensible, because some collective judgment is necessarily required, and there is no disruption of voluntary transactions.

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

61 Connecticut v. Teal, 457 U.S. 440 (1982).

62 At the very beginning of the text of the Americans with Disabilities Act, Congress loudly proclaims the benefits created by the statute: “(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” Pub. L. No. 101-336, sec. 2, 104 Stat. 327 (1990). It is not until much later, hidden in the “definitions” section, that Congress hints that there might be costs associated with the creation of these benefits. See sec. 101(10) (defining undue hardship).

63 Civil Rights Act of 1964, 42 U.S.C. sec. 2000e-2(e).

My thanks to Uzair Kayani for his valuable research assistance on this paper.

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