Paternalism, unconscionability doctrine, and accommodation

Philosophy and Public Affairs

Volumn 29, Issue 3, 2000, Pages 205-250

  Shiffrin, Seana Valentine ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 10844289838     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2000.00205.x     Document Type: Article

References (92)

1. See, e.g., Restatement of Contracts (Second) at § 208 and the U.C.C. § 2-302.
2. See, e.g., American Home Improvement Inc. v. MacIver, 201 A.2d 886 (N.H. 1964); Kugler v. Romain, 279 A.2d 640 (N.J. 1971); Murphy v. McNamara, 416 A.2d 170 (Conn. 1979).
3. Waters v. Min Ltd., 587 N.E. 2d 231 (Mass. 1992) (finding unconscionable a contract that paid $50,000 for an annuity worth $189,000).
4. Armendariz v. Foundation Health Psychcare Services, Inc., 2000 Cal. Lexis 6120 (Cal. 2000).
5. Patterson v. ITT Consumer Financial Corp., 14 Cal. App. 4th 1659, 1666 (Cal. 1993) (invalidating an arbitration clause that came 'perilously close' to denying the opportunity to pursue legal redress).
6. See, e.g., Williams v. Walker Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
7. See, e.g., Henningsen v. Bloomfield Motors, 161 A.2d 69, 86 (N.J. 1960) (invalidating car seller's disclaimer clauses that attempted to waive implied warranty of merchantability).
8. Campbell Soup Co. v. Wentz, 172 F.2d 80 (3d cir. 1948).
9. Niemiec v. Kellmark Corp., 581 N.Y.S. 2d 569 (City Court, N.Y., Erie County, 1992).
10. See, e.g., Paul Burrows, "Analyzing Legal Paternalism," International Review of Law & Economics 15 (1995): 489-508 at 489, 501 (taking unconscionability as a prototypical case of legal paternalism);
11. Gerald Dworkin, "Paternalism," in Rolf Sartorius, ed., Paternalism (Minneapolis: University of Minnesota Press, 1983), pp. 20-21 (arguing that paternalism involves interference with or restrictions on liberty and citing laws regulating which voluntary contracts are valid as examples of 'existing restrictions on liberty');
12. David Shapiro, "Courts, Legislatures, and Paternalism," Virginia Law Review 74 (1988): 519-75, at 535-37 (characterizing unconscionability as a paternalist doctrine but noting judicial reluctance to deploy it);
13. Michael Trebilcock, The Limits of Freedom of Contract (Cambridge, Mass.: Harvard University Press, 1993), pp. 162-63;
14. Robin West, "Taking Preferences Seriously," Tulane Law Review 64 (1990): 659-703 at 695 (citing two unconscionability cases, Henningsen v. Bloomfield Motors and Williams v. Walker Thomas Furniture, as "our two classic instances of paternalism in contract law");
15. Eyal Zamir, "The Efficiency of Paternalism," Virginia Law Review (1998): 229-86 at 230, 242-43;
16. Eyal Zamir, "The Inverted Hierarchy of Contract Interpretation and Supplementation," Columbia Law Review 97 (1997): 1710-1803 at 1785-88.
17. See also Eric Freyfogle, "The Installment Land Contract as Lease: Habitability Protections and the Low-Income Purchaser," New York University Law Review 62 (1987): 293-319 at 304 (describing courts' refusal to enforce harsh installment contracts as "a wave of paternalistic protection");
18. Eric Posner, "Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom to Contract," Journal of Legal Studies 24 (1995): 283-319 at 296-97 (reporting a "widespread feeling among contract law scholars that paternalistic attitudes account for some judges' use of the unconscionability doctrine" but defending the unconscionability doctrine as promoting the welfare system's goals).
19. See 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;
20. Duncan Kennedy, "Law-and-Economics From the Perspective of Critical Legal Studies," in Peter Newman, ed., The New Palgrave Dictionary of Economics and the Law, vol. 2 (New York: Stockton, 1998): 465-74 at 472;
21. Antony Kronman, "Paternalism and the Law of Contracts," Yale Law Journal 92 (1983): 763-98 at 764.
22. See also P. S. Atiyah, "Contract as Promise," Harvard Law Review 95 (1981): 509-28 at 526;
23. Burrows, "Analyzing Legal Paternalism," at 501-8 and passim;
24. West, "Taking Preferences Seriously," at 695-98;
25. Eyal Zamir, "The Efficiency of Paternalism," passim;
26. Zamir, "Inverted Hierarchy," at 1785-88 .
27. See Charles Fried, Contract as Promise (Cambridge, Mass.: Harvard University Press, 1981), pp. 104, 152;
28. Alan Schwartz, "A Reexamination of Nonsubstantive Unconscionability," Virginia Law Review 63 (1977): 1053-83 at 1071-76.
29. See also Arthur Allen Leff, "Unconscionability and the Code - The Emperor's New Clause," University of Pennsylvania Law Review 115 (1967): 485-559 at 556-58 (1967);
30. and Leff, "Unconscionability and the Crowd - Consumers and the Common Law Tradition," University of Pittsburgh Law Review 31 (1970): 349-59.
31. The unconscionability doctrine might also be defended on the grounds that it enacts a protection that we, as self-interested agents, want for ourselves. It may provide insurance against our falling subject to severely disadvantageous terms should we find ourselves in a poor bargaining situation. Although I think this defense has promise, I want to put it aside as well. For my purposes, suppose that many agents do not care to insure in this way because they believe the probability of being in such a position is sufficiently unlikely or because they believe they could negotiate decent terms.
32. See, e.g., Richard Epstein, "Unconscionability: A Critical Reappraisal," Journal of Law and Economics 18 (1975): 293-315 (arguing for a limited construal of the unconscionability doctrine to protect against a narrow class of cases of fraud, duress, and incompetence);
33. Joel Feinberg, Harm to Self (New York: Oxford University Press, 1986), pp. 246-53;
34. Robert Hillman, "Debunking Some Myths About Unconscionability: A New Framework for U.C.C. Section 2-302," Cornell Law Review 67 (1981): 1-44, at 7.
35. Fried, Contract as Promise, pp. 7-28.
36. There is a further (less standard) sense in which the doctrine may be seen as paternalist - ironically, toward the plaintiff (or whoever happens to be seeking enforcement). On the account of paternalism I will articulate, paternalism may transpire when the state (or another party) substitutes what it regards as superior judgment concerning, among other things, aspects of one's moral conduct that lie squarely within one's domain of autonomy. By voiding the contract, the state might be understood to suggest that the plaintiff has not exercised adequate moral judgment toward the defendant. When the defendant has consented to this treatment, this sort of intervention may appear to be an intrusion into the plaintiff's relationship with the defendant and into the plaintiff's domain of autonomy.
37. Kronman, "Paternalism and the Law of Contracts," at 764 and 763, respectively.
38. See also Bernard Gert and Charles Culver, "Paternalistic Behavior," Philosophy & Public Affairs 6, no. 1 (Fall 1976): 45-58.
39. Could we say that because B prefers fewer options, one has limited his freedom by providing more options? We would then have a hard time making sense of the idea that some agents prefer less to greater freedom. In any case, even were the provision of greater options properly construed as freedom-diminishing in this case, the example would show that the class of paternalist behaviors is wider than is commonly thought.
40. See Richard Arneson, "Mill v. Paternalism," Ethics 90 (1981): 470-489.
41. See, e.g., Shapiro, "Courts, Legislatures and Paternalism," at 535;
42. Kennedy, "Distributive and Paternalist Motives," at 572.
43. I suspect that the standard preoccupation with an agent's judgment of the good is connected to the prominence of characterological accounts of autonomy's value. Many accounts of autonomy focus on the unity of an agent's character and his endorsement of his values, aims, and desires. Less emphasis is placed on the significance of his having the ability and freedom to engage in the implementation and pursuit of these affirmed aims - which is to say that on these accounts, the agency of the agent and his connection to the external world are disappointingly neglected.
44. See e.g., Dworkin, "Paternalism," at p. 22.
45. As I have noted, most accounts, unlike mine, require the paternalist to aim at the agent's welfare. One possible explanation for this exclusive focus on the agent's welfare may trace to the liberal consensus that competent adults have proper domain over their own interests. By contrast, the other rights and powers agents have vary among them and are often more contested; hence, they do not serve well as ready examples. On this explanation, then, we would understand the first clause of (c), referring to interests, as specifying an especially prominent subset of the second clause's appeal to 'matters legitimately' within an agent's control. This interpretation, though, would render it a strained, or extended, use, to say that substituting one's judgment for a child's, or for a mentally disabled person's, is paternalist, since children and the mentally disabled do not have full legitimate authority over themselves. This may seem terribly counter-intuitive to those who regard our treatment of children and mentally disabled people as paradigm cases of justified paternalism. I do not find this result so jarring, though, since our moral interest in the concept of paternalism stems from an interest in how we may permissibly treat fully competent agents in order to further the good - when, if ever, our perception that we could achieve much good warrants treating adults the way we treat children. In any case, I do not think that there is much of substance at dispute here. I agree that substitution of judgment for children and the mentally disabled is often warranted, whether or not we call it a type of paternalism. (Those who insist that our treatment of children is paternalist might nonetheless adopt the account under a different interpretation. They might read the two clauses as separate and distinct, instead of the first's being a specification of the second. Then, as it stands, the account would find substituted judgment toward children and the mentally disabled paternalist when one substituted one's judgment so as to better achieve their interests.)
46. Does it follow definitionally from the account that I offer that paternalism can never be justified? If paternalist behavior involves interference with or maneuvering around the agent's legitimate sphere of control, does it follow from the notion of legitimacy that such behavior must be wrong? I do not think that this account definitionally implies that paternalism is necessarily, all-things-considered wrong. It may follow from the account's appeal to matters legitimately within an agent's control that paternalism, so understood, is pro tanto morally problematic. But whether it is always all-things-considered wrong will depend upon, among other things, one's view about how stringent (some) rights, and other forms of legitimate control, are, and how much weight they exert against the prospect of mistakes that may involve high levels of foregone welfare or other sorts of realized value. Some may think that (some) rights, or other forms of legitimate control, may be disrespected when a great deal is at stake. Others may disagree and think that rights and other forms of legitimate control are insurmountable, per se, or at least as against the paternalist's sort of reasons. There may also be dispute, in some cases, about whether non-right-violating forms of paternalism are as morally significant as forms of paternalism that directly violate distinct rights. The suggestion I am making, that the account leaves logical room for dispute about the justifiability of paternalism, does rely upon a conception of the general scope of rights and other forms of legitimate control. This conception allows for the logical possibility that rights, for example, may be overcome and still be thought of as rights; that is, the cases in which the claimed right, for example, does not, all-things-considered win the day, are not 'written into' the concept of the right.
47. See e.g., Love v. Harvey, 114 Mass. 80, 82 (1873) (refusing to settle a contract dispute arising from a bet because "[i]t is inconsistent alike with the policy of our laws and with the performance of the duties for which courts of justice are established that judges and juries should be occupied in answering every frivolous question upon which idle or foolish persons may choose to lay a wager.")
48. I say 'initial,' because interpreting Jeeves's subsequent actions (and those taken in other long-term relationships and friendships) is somewhat complicated. After some time, it.may become clear that the client or friend has authorized, implicitly or explicitly, an agent to act for his benefit, even when this involves circumventing his more specific and immediate instructions.
49. Interestingly, such examples show that paternalists need not be in a position of power over those treated paternalistically. Although, of course, dominance and hierarchical power structures often accompany paternalism and usually exacerbate its badness.
50. SupposeYalready is X's agent, but then refuses to follow one of X's directions because it would involve Y in facilitating X's detriment and Y thinks this would make her, Y, partly morally responsible. Would this refusal be paternalist? On most accounts of paternalism, I think not. Y is not refusing so as to promote X's welfare but so as to protect herself. On my account, the matter is more complicated since this account allows that one may act paternalistically even if one's end is not to promote the affected agent's welfare but to promote some end that is legitimately under the affected agent's control. On this account, I think the answer depends a great deal on the details of the case. Sometimes, agreeing to serve as a person's agent involves the legitimate relinquishment, to some extent, of one's power to refuse to do certain things, even for self-regarding reasons and even for moral reasons. In such a case, Y's appeal to self-regarding, i.e., Y-regarding grounds, could represent a usurpation of X's authority with a motive that made the refusal paternalist. In other agency relationships, the agent retains full, or a greater power, to refuse to act in certain ways if her reasons involve moral reservations about what she would be doing.
51. See for example, Campbell Soup Co. v. Wentz, 172 F.2d 80, 84 (1949) (explicitly disclaiming that the contract is illegal or that the breaching party had an excuse, while finding it unconscionable because "a party who has offered and succeeded in getting an agreement as tough as this one is, should not come to a chancellor and ask the court to help in the enforcement of its terms."); U.S. v. Bethlehem Steel Corp., 315 U.S. 289, 326 (1942) (Frankfurter, J., dissenting) (summarizing a line of unconscionability cases and putting emphasis on the courts' unwillingness "to be used as instruments of inequity and injustice to enforce transactions in which the relative positions of the parties are such that one has unconscionably taken advantage of the necessities of the other"). Cf. West Coast Hotel v. Parrish, 300 U.S. 379, 398-99 (1937) (upholding the constitutionality of a minimum wage law in part because "the community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its law-making power to correct the abuse which springs from their selfish disregard of the public interest.")
52. For liberals, the question of how and to what degree one may both commit to assistance and make this commitment a selective one is complex. I discuss some of the complexities in Section II.
53. See note 30. See also Patterson v. ITT Consumer Financial Corp., 14 Cal. App. 4th 1659 (1993) (focusing on an arbitration clause's unreasonableness: its indeterminate and remote specified locations, heavy fees, and the failure of the insurance company to call attention to the clause); Waters v. Min Ltd., 587 N.E. 2d 231 (Mass. 1992) (focusing on gross disparity in consideration and on the greater sophistication of defendants); Niemiec v. Kellmark Corp., 581 N.Y.S. 2d 569 (N.Y. 1992) (finding unconscionability despite fact that buyers were neither poor nor illiterate but just because the bargain was so one-sided as to be "a cleverly disguised method of selling nothing but hopes and dreams."); Derby v. Derby, 378 S.E. 2d 74, 80-81 (Va. App. 1989) (focusing on one party's taking undue advantage in crafting and presenting a divorce agreement but also indicating concern for the emotional weakness of another party); D & W Central Station Alarm Co. v. Sou Yep, 480 N.Y.S. 2d 1015, 1017 (N.Y. Civil Court, 1984) (126 Misc. 2d 37 (S.N.Y. 1984) (focusing on plaintiff's knowing misrepresentation, superior knowledge, and hidden acceleration clause but also mentioning defendant's ignorance of English); Albert Merrill School v. Godoy, 357 N.Y.S. 2d 378 (Civil Ct. NY Cty 1974) (focusing mainly on plaintiff's deceptive practices but also noting disproportionate education and language abilities between plaintiff and defendant); Spence v. Omnibus Industries, 119 Cal. Rptr. 171 (Cal 4th App 1975) (invalidating an arbitration clause because the fee was excessive and enforcement would permit a contractor "to effectively deny" a homeowner a forum for redress); Hume v. U.S., 132 U.S. 406, 414-5 (1889) (focusing on unreasonableness of price charged, independent of whether government contractor made an error or agreed knowingly to grossly disparate price). See also Associated Press v. Southern Arkansas Radio Co., 809 S.W. 2d 695 (Ct. App. Ark. 1991) (denying paternalistic rationale but finding contract unconscionable because its preprinted terms were harsh, there was substantial bargaining power disparity, and it was apparent at formation that the signatory was in financial trouble); Williams v. Williams, 508 A.2d 985 (Ct. App. Maryland, 1986) (setting aside oppressive divorce settlement that, independent of husband's state of mind, it shocked the court's conscience, but also noting it was likely that the husband believed the agreement would not be implemented but would lead to reconciliation). But see, e.g., E & W Bldg. Material Co. v. American Sav. & Loan Ass'n, 648 F. Supp. 289, 291 (M.D. Ala. 1986) ("Rescission of a contract for unconscionability is an extraordinary remedy usually reserved for the protection of the unsophisticated and uneducated."); Gonzalez v. Gainan's Chevrolet City, 690 S.W.2d 885, 887 (Tex. 1985) (Unregulated consumer credit practices "impose intolerable burdens on those segments of our society which can least afford to bear them - the uneducated, the unsophisticated, the poor and the elderly."). In some unsuccessful claims, however, the court's focus was on the ability of the party alleging unconscionability to protect him or herself. See, e.g., Morris v. Capitol Furniture & Appliance Co., 280 A.2d 775 (D.C. Ct. App. 1971) (finding that a sales contract charging $832, including a $219 credit charge, for goods costing $234 wholesale was not unconscionable because buyer could have comparison shopped); Jones v. Sheetz, 242 A.2d 208 (D.C. Ct. App. 1968) (declining to find a rental contract unenforceable partly because the tenant was a sophisticated player with a legal education, but partly because the lease's terms were not particularly unreasonable).
54. I am grateful to Christine Littleton for this point.
55. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948) in which the Supreme Court, implementing a strategy of constitutional argument analogous to the argument of this paper, refused to enforce a racially discriminatory restrictive covenant because enforcement would implicate the state in discrimination and violate the Fourteenth Amendment. It suggested a symmetrical treatment of property and contract enforcement, remarking that the "power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment." Shelley at 22.
56. The structure of this problem closely resembles the problem G. A. Cohen has discussed of when a society should give in to the unjustified demands of the talented for higher 'incentives' in order to improve the situation of the worse off. G. A. Cohen, "Where the Action Is: On the Site of Distributive Justice," Philosophy & Public Affairs 26, no. 1 (Winter 1997): 3-30;
57. "The Pareto Argument for Inequality," Social Philosophy & Policy 12, no 1 (1995): 160-85;
58. "Incentives, Inequality, and Community," in Grethe B. Peterson, ed., The Tanner Lectures on Human Values, vol. 13 (Salt Lake City: University of Utah Press, 1992), pp. 261-330 .
59. See, e.g., Fried, Contract as Promise, pp.105-7;
60. Louis Kaplow and Steven Shavell, "Why the Legal System Is Less Efficient Than the Income Tax in Redistributing Income," Journal of Legal Studies 23 (1994): 667-682 at 667-68, 674-75, 677 and n.3 (1994);
61. Duncan Kennedy, "Law-and-Economics From the Perspective of Critical Legal Studies," at 469 (1998) (reporting a consensus that tax and transfer is superior to court-effected redistribution);
62. A. Mitchell Polinsky, An Introduction to Law and Economics, 2d ed. (Boston: Little, Brown and Co., 1989), pp. 124-27 (making the general point but not specifically with respect to contracts);
63. Eric Posner, "Contract Law in the Welfare State" at 284 and 284 n. 1 (1995) (citing many sources making the argument about contracts);
64. Steven Shavell, "A Note on Efficiency vs. Distributional Equity in Legal Rulemaking: Should Distributional Equity Matter Given Optimal Income Taxation?" American Economics Review 71 (1981): 414-18. Seemingly, Polinsky shies away from making this argument directly about contractual rules because he believes that redistributive aims are difficult to achieve in contractual relationships through legal rules, pp. 121-24. The difficulties he notes, though, do not hold with respect to contract rules that directly or indirectly regulate prices.
65. See Kaplow and Shavell, "Why the Legal System Is Less Efficient," at 674 and 674 n.10.
66. This not to say that every instance of judicial enforcement of a contract is a form of state action for constitutional purposes, subject to constitutional standards. State action in the constitutional sense should not, I think, be understood as a concept that merely tracks the amount of state involvement or causal activity. The concept of state action seems better understood as a label for an amalgam of factors militating in favor of subjecting state activity to constitutional standards. As I will discuss in the next section, there are different pur-poses and meanings of state involvement. Not all participation or assistance renders one fully complicit in the ends with which one participates. There may be, for example, good grounds to distinguish the significance and symbolism of state enforcement of an everyday contract between religious parties to build a church and the significance and symbolism of state enforcement of an exploitative contract. The former may not implicate the state in a form of religious entanglement if it is done as an essential part of a reasonable, more general project to facilitate autonomous activity.
67. This claim is contested. See, e.g., J. J. Barendregt, L. Bonneux, and P. J. Van Der Maas, "The Health Care Costs of Smoking," New England Journal of Medicine 337 (1997): 1052-57 (reporting that cessation of smoking would yield short-term health-care savings but higher health-care costs in the long-term). For my purposes, I will assume the claim to be true, partly because social and economic losses from early deaths must be considered in addition to health-care costs.
68. Whether others' impositions should, necessarily, be regarded as harmful depends on one's underlying theory of harm. As I argue elsewhere, some theories' designation of all or most costly impositions as harmful seems overbroad and unconvincing. See "Wrongful Life, Procreative Responsibility, and the Significance of Harm," Legal Theory 5 (1999): 117-48, and "Harm and Its Moral Significance," manuscript.
69. Toleration is often understood to involve refraining from interference, not providing active support. See, e.g., David Heyd, "Introduction," in David Heyd, ed., Toleration (Princeton: Princeton University Press, 1996), p. 11.
70. The United Network for Organ Sharing (UNOS), the umbrella organization that coordinates U.S. transplantation and transplantation policy, considers past behavior resulting in organ failure an inadequate basis for excluding candidates. See "UNOS Ethics Committee General Considerations in Assessment for Transplant Candidacy," http://www. unos.org/. The American Medical Association and the World Health Organization guidelines also exclude past conduct as a relevant criterion for allocation.
71. See James Neuberger, et al., "Assessing Priorities for Allocation of Donor Liver Grafts: Survey of Public and Clinicians," British Medical Journal 317 (1998): 172-75.
72. See also Robert Schwartz, "Lifestyle, Health Status, and Distributive Justice," Health Matrix 3 (Spring 1993): 195-217 (arguing against past conduct as a criterion of allocation on a variety of grounds);
73. Carl Cohen and Martin Benjamin, "Alcoholics and Liver Transplantation," Journal of the American Medical Association 265 (1991): 1299-1301 (arguing that alcoholics should be eligible for liver transplants).
74. The policy is controversial, though. Some argue that past behavior should disqualify one or influence one's placement on priority lists. See, e.g. Alvin Moss and Mark Siegler, "Should alcoholics compete equally for liver transplantation?" Journal of the American Medical Association, 265 (March 13, 1991): 1295-99 (arguing that past conduct should influence transplant priority)
75. Neuberger et al., "Assessing Priorities" (reporting some evidence of public sentiment that past conduct is relevant).
76. See generally Robert M. Veatch, "Voluntary Risks to Health," Journal of the American Medical Association 243 (1980): 50-55 (discussing the criterion of individual responsibility for illness in allocating health care).
77. The legal status of drug-testing requirements varies depending on the category of people being tested and the jurisdiction. Compare Chandler v. Miller, 520 U.S. 305 (1997) (finding unconstitutional under the Fourth Amendment a state law requiring candidates for public office to pass drug urinalysis) and Borse v. Piece Good Shop, Inc.. 963 F.2d 611 (3d cir. 1992) (finding that Pennsylvania privacy law would permit a private employee to sue for wrongful discharge for refusing urinanalysis) with National Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (finding urinanalysis tests of government employees who engaged in drug-enforcement, carried arms, or handled very sensitive classified information consistent with the Fourth Amendment), Skinner v. Railway Labor Executives Ass'n., 489 U.S. 602 (1989) (upholding drug testing of railroad employees for safety concerns), Vernonia School Dist. v. Action, 515 U.S. 646 (1995) (upholding drug urinanalysis of student athletes), Twigg v. Hercules Corp., 406 S.E. 2d 52 (W.Va. 1990) (limiting a private employer's right to require testing to employees whose work involves others' safety and for whom there is a reasonable suspicion of drug use), Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11, 23 (N.J. 1992) (limiting random urinalysis tests to jobs that pose safety issues), Webster v. Motorola, 637 N.E.2d 203 (Mass. 1994) (finding that Massachusetts privacy statute permits testing only for safety-related jobs); Wilkinson v. Times Mirror Corp., 215 Cal. App.3d 1034 (1989) (upholding a private company's policy of testing applicants for drug use and medical problems).
78. The Employee Polygraph Protection Act, 29 U.S.C.A. §§ 2001-9 prohibits most employers from requiring employees or applicants to take polygraph tests as a condition of employment.
79. See, e.g., Richard Arneson, "Equality and Equality of Opportunity for Welfare," Philosophical Studies 55 (1989) 77-93;
80. G. A. Cohen, "On the Currency of Egalitarian Justice," Ethics 99 (1989): 906-44;
81. Ronald Dworkin, "What Is Equality? Part 2: Equality of Resources," Philosophy & Public Affairs 10, no. 4 (Fall 1981): 283-345;
82. Will Kymlicka, Contemporary Political Philosophy (New York: Oxford University Press, 1990), pp. 40-1, 73-77.
83. Elizabeth Anderson has also recently criticized thorough-going choice-sensitivity, albeit on somewhat different grounds. "What Is the Point of Equality?" Ethics 109 (1999): 287-337, especially pp. 295-302.
84. G. A. Cohen, "On the Currency of Egalitarian Justice," at 932-33.
85. Of course, one might object that some religious burdens should not be characterized as chosen. See Cohen, "On the Currency of Egalitarian Justice," at 936. Some inherit their religion and feel unable to shake it off; others may feel compelled toward religious practices in other ways. Religious accommodation may be a particular way in which we follow through on our commitment to luck-insensitivity, broadly understood. To some extent, I imagine this is true, but our commitment to religious accommodation clearly extends even to those who deliberately cultivate religious commitments.
86. Might it be argued that the argument for accommodation figures within a discussion of how to realize true choice-sensitivity because schemes of accommodation ultimately represent devices to charge people for the real costs of the conditions for meaningful autonomy? I have some concerns about this characterization. Even were it true, it would nonetheless involve a rather strained notion of 'choice-sensitivity' and would cast doubt upon the usefulness of the notion of 'choice-sensitivity' as a guide to designing distributive schemes. Jules Coleman and Arthur Ripstein have, for other reasons, cast doubt upon our ability to deploy the ideal of choice-sensitivity as a principle that could do independent work in implementing systems of distributive and corrective justice. See Jules Coleman and Arthur Ripstein, "Mischief and Misfortune," McGill Law Journal 41 (1995): 91-130.
87. This seems to be roughly the argument for finding constitutional the Medicare system's refusal to pay for abortions in Maher v. Roe, 432 U.S. 464 (1977). Although there are parallels between the model of contract provided here and the rationale behind Maher, I believe there are additional reasons why public funds should not exclude abortion funding (in addition to the reasons provided by an accommodation rationale). If one views the right to abortion as part of a more comprehensive equal right to the provision of medical care and to the material conditions making the development and exercise of autonomous capacities possible, then there are straightforward reasons to fund abortions.
88. Compare, e.g., Rounds v. Oregon State Bd. of Ed., 166 F.3d 1032 (9th cir. 1999) (upholding the constitutionality of a mandatory student fee that, in part, went toward a controversial environmental group's educational activities) with Southworth v. Grebe, 151 F.3d 77 (7th cir. 1998), cert. granted, 526 U.S. 1038 (1999) (holding as violative of the First Amendment a mandatory student fee that, in part, funded political advocacy and lobbying groups). The Supreme Court ultimately rejected the conservative students' argument in Board of Regents v. Southworth, 120 S.Ct. 1346 (2000).
89. I make an analogous argument for agent-centered options in "Moral Autonomy and Agent-Centred Options," Analysis 51 (1991): 244-54.
90. Related arguments for a conception of the adequate set of options necessary for autonomous choice are made by Joseph Raz in The Morality of Freedom (Oxford: Oxford University Press, 1986), Chapter 14.
91. One objection some have to accommodation resembles the objections some have to donating to the homeless on the street: those they encounter may not really be homeless or they may spend donations on short-term, destructive forms of consumption. Similarly, some worry that accommodating practices may merely shift costs of the choices of some onto others for no other noble purpose. The risk that one is merely being used gives one reason to choose occasions for donation wisely; analogously, it gives one reason to select arenas for accommodation with some attention to where risks of exploitation lie and where the need for insulation from social accounting is especially pronounced. But to refuse to accommodate because of the risk seems akin to refusing wholesale to help the homeless one encounters on the street: it amounts to a disproportionate concern with being had. It is a bad thing to be fleeced - to be sure - but it seems worse to deny aid to the needy systematically out of fear of being fleeced. In a non-ideal world, the risk of being swindled now and again may just be a cost of moral behavior. Similarly, accommodation practices maybe susceptible to exploitation but, in appropriate circumstances and with constraints, this seems more like a cost to pay for facilitating autonomy rather than a reason to reject accommo-dation entirely.
92. I mean to limit my claim to the specific sort of transaction that I discuss here. I do not mean to deny that some economic activities, such as activities associated with labor, may often engage quite closely with core autonomy values. For a sensitive discussion of some of the connections between economic activities and autonomy rights, see Robert McCloskey "Economic Due Process and the Supreme Court: An Exhumation and Reburial" 1962 Supreme Court Review: 34-52.