The topic of this essay[1] is to identify the proper role of antidiscrimination laws in relation to the general principle of freedom of association, which is itself a subset of the basic principle of freedom of contract. Historically, the usual understanding was that the principle of freedom of association enjoyed pride of place in the social hierarchy, such that the antidiscrimination principle was employed only in select contexts, primarily as a counterweight to monopoly power in a broad class of public utility and common carrier settings. The basic position had strong underpinnings in the constitutional provisions that protected equally property…
Responses
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…
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…
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…