San Diego Law Review


Matt Zwolinski

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In this Article I examine the disparity between attitudes toward regulating private discrimination and those concerning the regulation of what I will call "commercial" discrimination. My hope is to find a theory that can simultaneously explain these divergent attitudes by providing an account that fits the various aspects of our legal practices and our attitudes toward them, and justify those practices by providing an account that makes the divergence attractive from a moral point of view. I focus on an explanation of the disparity that is grounded in three different sorts of considerations: differences in our epistemological access to private and commercial discrimination, different effects these forms of discrimination have on their victims, and differences in the relative importance of the value of autonomy at stake. I conclude that while considerations of autonomy provide the best explanation for the disparity in attitudes toward the legal treatment of discrimination, they still fall well short of an explanation that completely fits and justifies our current practice. The account I defend is thus revisionist in that it will suggest that for our practice toward discrimination to be a coherent whole, it must be modified in significant ways. Specifically, I suggest that the disparity between our current legal treatment of private versus commercial discrimination is based on what I believe to be a mistaken belief about the greater importance of autonomy in the private realm than in the commercial sphere. Because this belief is mistaken, a practice designed to consistently respect the value of autonomy ought to differentiate less between private and commercial discrimination, either by regulating the former more heavily, or by regulating the latter less heavily.

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