Plessy v. Ferguson in libertarian perspective

Law and Philosophy

Volumn 16, Issue 3, 1997, Pages 245-258

  Tushnet, Mark ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 0031479753     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3504872     Document Type: Review

References (36)

1. 163 U.S. 537 (1896).
2. 198 U.S. 45 (1905).
3. I use the term today's political liberals to refer to a category familiar in ordinary political conversation, not to one rooted in deep philosophical commitments or analysis.
4. Government may act, on this version of libertarianism, where otherwise valid contracts have external effects on those not parties to the contract, although a strict libertarian would allow such action only where contractual solutions - between the third parties and the initial parties - were very nearly impossible rather than, for example, merely quite costly to create.
5. Justice Joseph McKenna replaced Stephen Field in 1898, Oliver Wendell Holmes replaced Horace Gray in 1902, and William Day replaced George Shiras in 1903.
6. Indirectly, libertarianism might suggest that the government ought not be involved in providing education. It would thereby dissolve the problem in Brown by condemning all public education, not merely segregated public education.
7. Cass Sunstein, 'Lochner's Legacy', Columbia Law Review 87 (1987): 873-919.
8. 198 U.S. at 57.
9. 163 U.S. at 551.
10. Because the Court found no health or safety problems, there were no third-party effects in Lochner.
11. The following discussion is strongly influenced by Louis Michael Seidman, 'Brown and Miranda', California Law Review 80 (1992): 673-753, and conversations over many years with Professor Seidman.
12. These costs would include both the direct cost of running a dual set of cars, and the revenue lost from those African-American riders who would have taken an unsegregated train but would not take a segregated one.
13. Apparently, some railroads in Louisiana were offering segregated services to some riders, although most railroads apparently opposed the segregation statute, in part on the ground that it would deprive them of the flexibility to respond to consumer demand. Compare Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987), p. 17, with Jennifer Roback, 'The Political Economy of Segregation: The Case of Segregated Streetcars', Journal of Economic History 46 (1986): 893-917.
14. Apparently, some railroads in Louisiana were offering segregated services to some riders, although most railroads apparently opposed the segregation statute, in part on the ground that it would deprive them of the flexibility to respond to consumer demand. Compare Charles A. Lofgren, The Plessy Case: A Legal- Historical Interpretation (New York: Oxford University Press, 1987), p. 17, with Jennifer Roback, 'The Political Economy of Segregation: The Case of Segregated Streetcars', Journal of Economic History 46 (1986): 893-917.
15. See, e.g., Richard Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge: Harvard University Press, 1992).
16. 245 U.S. 60 (1917).
17. Id. at 73.
18. Id. at 81.
19. 169 U.S. 366 (1897).
20. Muller v. Oregon, 208 U.S. 412 (1908).
21. This is probably the place to note that this is a "problem" only from within a particular libertarian position. From a different perspective, the coordination difficulty is a moral advantage.
22. This simplification does not change the underlying analysis, within what seems to me a relatively large range of realistic possibilities.
23. In this view, Plessy is linked to the Civil Rights Cases, 109 U.S. 3 (1883), which held unconstitutional a federal public accommodations civil rights law on the ground that the common law required public accommodations to provide nondiscriminatory service.
24. The point can be sharpened if we assume that African-American demand for railroad services would not change if railroads instituted segregated cars. Then there is no change in the amount of railroad services provided, and the only question is who captures the surplus. Roughly the same analysis holds if instituting segregated services lowers African-American demand by only a small amount.
25. The best enumeration of such circumstances of which I am aware is Duncan Kennedy, 'Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power,' Maryland Law Review 41 (1982): 563-658. I do not mean to assert that minimum wage laws, for example, never have the distributive effects their most ardent advocates hope for, or that such laws always have perverse effects from their advocates' point of view, but only that the direct distributive effects, when they occur, are typically small. The recent controversy over the distributive effects of minimum wage laws does not lead me to reconsider this relatively modest conclusion.
26. See, e.g., Lawrence Lessig, 'The Regulation of Social Meaning', University of Chicago Law Review 62 (1995): 943-1045; Cass R. Sunstein, 'On the Expressive Function of Law', University of Pennsylvania Law Review 144 (1996): 2021-53.
27. See, e.g., Lawrence Lessig, 'The Regulation of Social Meaning', University of Chicago Law Review 62 (1995): 943-1045; Cass R. Sunstein, 'On the Expressive Function of Law', University of Pennsylvania Law Review 144 (1996): 2021-53.
28. The most influential work has been Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991).
29. See, e.g. Lessig, supra note 25, at 1016 (describing though not endorsing the concern).
30. Note as well that sanctions bar African-Americans from outbidding whites even if they wanted to.
31. Lessig, supra note 25, at 1043-44, concludes by noting the need to identify limits on the use of law to regulate social meaning, while refraining from proposing them.
32. Here I use liberal in its philosophical sense.
33. Libertarians do object, distinctively, to laws attempting coercively to change the preferences people actually have.
34. Seidman, supra note 11, at 689.
35. Id. at 698. Professor Seidman uses the term "nonindividualist premises," which seems to me equivalent, at least in this context, to "social meaning."
36. As we have seen the typical reliance on background common-law rights will be insufficient as well.