Richard Epstein is right about how to think about antidiscrimination law. The general principle governing transactions between private parties should be freedom of association, for reasons of both liberty and efficiency. Any departure from that rule, such as a prohibition of discrimination, has the burden of proof. Epstein, however, can’t let go of that general rule when he should. He is strangely myopic about the cultural forces that prevent free markets from delivering the goods. Antidiscrimination law has important economic and noneconomic goals. The economic one is simplest: It remedies the chronic subordination of some groups, thereby creating a society with broader…
Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic…
In his Liberty Forum essay, Professor Richard Epstein makes a persuasive case that antidiscrimination laws are “a great mistake outside of monopolies.” But advocates of “antidiscrimination” laws have a view of monopoly—or of “coercion” and “force”—that is much more expansive than Professor Epstein’s. The Progressive or modern liberal advocates of antidiscrimination laws advance a concept…
My Liberty Forum essay, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation has provoked three thoughtful responses. Those by Marc DeGirolami and Paul Moreno are supportive of my approach and may be best described as intramural disputes among individuals who agree on the relationship between freedom of association and basic antidiscrimination laws. Andrew Koppelman’s…
Last Friday, the following missive (sent, I believe, to the entire George Mason University “community”) landed in my inbox:
Racism has no place at George Mason University.
Nothing is more tempting, or intellectually hazardous, than to draw broad conclusions from a single isolated case. Indeed, whole clusters of unusual incidents may mislead people into thinking that they represent a serious trend, when in fact they represent nothing more than the operation of chance in human affairs. I was once asked to take part in an official inquiry into several untoward incidents (murders, actually) that took place in what seemed to be an unusually short period of time in an unusually small geographically area. A statistician subsequently proved that the assumption behind the inquiry, namely that there was an anomaly to be explained, was false.
Nevertheless, it is only natural that we should see signs of the times in very unusual incidents and try to derive wider meaning from them. So it is with the case of Vester Lee Flanagan, the former television journalist who broadcast under the name of Bryce Williams, and who shot two erstwhile colleagues dead and injured another while they were broadcasting, then committing suicide by shooting himself. We feel instinctively that such extraordinary conduct must be symbolic of somethings: not merely an event, but a signal.
In 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:
Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.
Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”
Twenty years ago I published a novella in which a purported serial killer, using all the arguments of liberal or radical criminology, proved to his own satisfaction that not only that he was as good as the average citizen, but better. To my surprise an eminent critic thought that my character expressed my own views, which he then criticized as if they had been meant seriously. Was the fault mine for not having made myself clear enough, or his for having been so obtuse?