Moments of disorienting despair, or of painful honesty, can strip away our comforting self-conceit and force us to recognize what a disquietingly thin barrier it is that separates the decency of civilized life from the brutality of barbarism. If the barrier is thin—and there is too much evidence to deny it—do we have the strength,…
Remember that Saturday Night Live commercial for “Shimmer” and how Dan Aykroyd and Jane Curtin quarreled about whether it was…
In my first post of this series on law and tradition, I said that though a judicial opinion might exhibit…
From the Blog
In my first post of this series on law and tradition, I said that though…
The octocentennial of Magna Carta has presented an auspicious occasion for reflecting on exactly what…
I previously suggested that a traditionalist judicial decision is self-consciously so. It demonstrates a keen…
The Economist reports that in five nations net transfers (private plus public) go from the…
In his state of the union and again in his recent interview with Politico, President…
When I went to Oxford in 1978, I had looked forward to spending many weekends…
In a very fine investigative article in the Washington Examiner, Sean Higgins reports on “Obama’s…
Is there any salient public policy issue that the Supremes are not going to rule…
I’m not in the habit of pumping other scholars’ stuff, least of all scholars with…
Liberty Law Forum
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…
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…
