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Wednesday, November 25, 2015

Bagenstos and "The Long Arc of the Accommodation Debate"

Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos's excellent article "The Unrelenting Libertarian Challenge to Public Accommodations Law." Jotwell is devoted to writings that the editors and reviewers "like lots," but one can "like lots" an article that one doesn't entirely agree with, or that is not wholly in line with one's priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that "has troubled me for a year now." It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] "neo-Lochnerism" scholarship.

A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article's arguments and strengths, while emphasizing the implications of Bagenstos's observation that the balance between the "public" and "private," or "civil" and "social," spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.

One thing the article suggests, by comparison with later articles on "neo-Lochnerism," is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos's article against some of the more recent literature; it's not a criticism of Bagenstos's article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.

Some excerpts after the fold. If you haven't already, read Bagenstos's article!  

Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate....

No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.

And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”

Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) .... 

If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.

Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding..... 

Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article. 

 

Posted by Paul Horwitz on November 25, 2015 at 11:15 AM in Paul Horwitz | Permalink

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