 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Today we're joined by Walter Olsen, senior fellow at the Cato Institute Center for Constitutional Studies and author of many books, most recently, Schools for Misrule, Legal Academia, and an Overlawiored America. Anyone who follows your blog, Overlawiored, or your work at Cato or has read your books, see that you tend to spend a lot of time arguing against laws that seem pretty well-meaning. I mean, we don't want people being discriminated against, we don't, discrimination's not great. We don't want children being harmed by unsafe products. We don't want people getting fired for bad or silly reasons. So what's wrong with using the legal system to prevent these sorts of things? Almost any law announces itself in well-meaning terms. And even the laws that seem most oppressive, if you go back and look at when they were passed, it was usually with some rationale about harm to children or harm to the helpless or protecting people from fraud or, of course, often libertarian-sounding rationales. But I write about law and I write in particular about the bad things the law does to people, the ways in which it unintentionally or otherwise harms the people who are exposed to its processes and deters a lot of good activity as well as bad. And so as with libertarian analysis always, you pierce beyond the initial announced good intent of a law and you find combinations of perhaps motives that were not announced at the time for why they passed it, things that it's doing that no one expected to do, things that are obsolete, things that have been cleverly exploited by either actors in the field or by lawyers or even by judges to accomplish something sneaky. And law is very rich in that so much so that having written for debunking and critical books, I have enough material to go on as long as I might want, should I write more? But at the same time libertarians would say that the tort system, the system by which two parties sue each other for a redress of grievances against the private party is an incredibly important factor in organizing society, correct? Well, I think part of what lends an interesting tension in my work is that I acknowledge that tort litigation is the correct legal remedy in some areas and nonetheless looking around at the disaster that was made of it in various areas, it makes, and you can trace this in other areas too, I mean you can, in areas as simple as property law or intellectual property law, if the law is over enforced in ways that involve penalties that are too high, in ways that allow opportunistic exploitation by the rights holder so that I mean think for example of the recording piracy issues and I'll set aside for now the debate among libertarians about whether or not there is something wrong with copyright but I'm assuming that most libertarians believe that outright piracy of someone's musical property is not a good idea. How did you wind up with a situation in which grandmothers whose grandchildren had downloaded a couple of songs were being sued for $200,000 each. Here you have not only a formally valid law but even one ex-hypothesis that libertarians are in favor of leading to horrendous injustice because of the overuse of law because somehow or other the proliferation of selves, it's terrible to use the sort of metaphors, but originally legitimate selves were allowed to expand to the point where they began doing more injustice than they were fixing. In the realm of discrimination law which is something that you've written about extensively which comes up a lot for libertarians in general but we're talking more about things like the age discrimination and employment act or even the American Disabilities Act and there's a bunch more. In the big picture, before we get down to maybe some of these specifically, where do those factors about laws meant to help are now hurting, where do those start coming in with discrimination laws? Discrimination law, of course, is one of the great chestnuts about libertarianism because it is one of the deal breakers for most of the non-libertarians out there. It is one of the things whether you are trying to get tenure as an academic or whether you are trying to be taken seriously running for office somewhere, the career killer will be, wait a minute, you don't believe in discrimination laws and Richard Epstein and others have written at length about some of the theoretical side of this but almost everyone who's familiar with libertarian literature kind of understands the basics which is libertarianism constructs its set of rights up from voluntary transactions on contract and if it's all going to be based on volunteerism then it is a disruptive violation of that to have forced transactions and forced contracts and again Epstein and others construct particular situations in which you know that maybe through emergencies or maybe through needed rights of way or whatever you can get some forced transactions but discrimination law aims to do much more than that it aims to transform initially what seemed like relatively small portions of lives our lives theaters and restaurants for example and I'll get in a minute to why the early iterations of discrimination law seemed modest and workable and then it expanded area by area and category by category to the point where some years ago the Supreme Court was hearing a case against United Airlines by half blind would be pilots who were not being hired because United said it didn't think it was safe to hire pilots whose eyesight was so bad and no one thought this was unusual everyone was talking about the particular details of the ADA by which they might win or lose but no one was stepping back and saying wait a minute we're talking about half blind pilots trying to get an airline to hire them that doesn't want to hire them so and that was a long, long road and it started with a legal landscape inherited from laissez-faire in which there were little bits here and there for example there were common carrier obligations sometimes and indeed ends in the where you could stay overnight might be under a common carrier obligation. What's a common carrier obligation? A carrier obligation is basically an obligation to take all comers and that is a germ of anti-discrimination law although obviously anti-discrimination law has grown to include much more than an obligation to take all comers but in the case of the ends of old England the underlying practicality involved in the royal will that in keepers take all comers was that you freeze to death if you were turned down by the one end and the next one was not for another 20 miles down the road you might not even have a horse so because of the dangers of particularly freezing secondarily starving the royal will was that this one particular category of business but not very many others would have to open itself up in general and there might have been similar rules on guilds and things like that negotiated but as laissez-faire swept through these were recognized as rare exceptions and as contract law began to be seen as the generic model for all economic relations and so far as they could be it was thought okay well this is a shrinking ever less important exception to the fact that in general we have freedom of contract between people and then that was in the in the 19th century it still was pretty much confined to transportation and well what would happen then of course the railroad controversies were important and there were some other controversies in which things like blocking of transportation access meant that there was a revival of interest in look since there is no point at all in being a farmer in some of these states if the railroad will not deal with you put the railroads under a common carrier obligation and so it gradually built up but what happened and it's it only became important in the 20th century and indeed I think it only really mushroomed up around the interwar years was the idea of using this type of exception to contract law to handle and initially I think the main thing they want to handle was the oppression of Jim Crow there were incidentally some other things such as can't we do something about the very systematic discrimination against Jews that was going on in you know the American establishment institutions but the most visible area was the South was living under Jim Crow it was this mutually reinforcing system in which there were a lot of laws prohibiting businesses from being non-discriminatory at the same time there was enormous social pressure so that even when businesses were not prohibited they tended to fall online and there was fear of sheriffs and there was lots and lots of different things and the impulse was you have a system that is so self-reinforcing at so many different levels that you need to take a sludge hammer to it and you need to do something really strong and really you know I'm not as it unprecedented well yeah not not depending on the you know subtle cooperation of the the participants now once again the idea of public access to public accommodations that will turn out to be an important term as we move on toward the obligatory wedding cake regime but public accommodations were a pretty well understood category which included for whatever reason places of public amusement like movie theaters but otherwise restaurants and lodgings were in there for kind of traditional reasons of it was difficult to travel if no one would allow you to eat and sleep and so the and I'll introduce here one of the things to keep an eye on as the law changes because most of the common carrier obligations most of the public accommodation rules that we've been talking about are pretty easy to enforce they have kind of an on-off switch you look at the movie theaters box office you know our is there a group of block people milling around saying they won't take our money if you won't let us in yet yes then you've got the problem you're looking for you you know it might go a little bit further if there is if the blocks are are being steered toward one part of the audience but in general those laws were pretty easy to enforce with not too much confusion between the intended cases and unintended cases and that's one reason why when the federal government did bound that category although there was litigation for a couple of years based on resistance based on simply obstacles yeah that died down and there was actually quite a low level of litigation because it was so easy to tell whether people were in compliance or not and I said to keep your eye on that become because that becomes ever less easy to enforce as you move out to areas where you don't know who's in the protected category where you don't know whether different differential treatment and in I wrote a book about employment law called the excuse factory which because it's about employment law most of it is about one form or another employment discrimination law and one of the things that happened in employment law was from an initial presumption to regulate the hiring and firing decision which looked like the do you get into the restaurant decision they realized that they were moving along a continuum in which people could be constructively discharged that is their lives could be made so unhappy as employees that it was like firing them so you had to apply some attention to when people were constructively discharged what about non-promotion well that's like applying for the next job so they had to scrutinize non-promotion well they got to the point where the cases that I write about the assignment of a less comfortable chair was disparate treatment because the chair that the person wanted they said they would have gotten had they not been a member of the protected group and yeah and vacation schedules well I wanted August and I was given July instead this is now the grist of lots of employment discrimination sits is differential workplace treatment which can mean things like I didn't get my favorite vacation slot although I got another one two weeks different from it so as the law moved along this continuum I'll get to the expansion of protected classes in a moment but as it got to that what was initially something that you could enforce with a half-time clerk you mean within the company of well no no no I was thinking about a let's say you had a state that had passed one of these laws applying to movie theaters and restaurants and things you know well if cases come along only three or four times a year where there's a real issue it's one of these enforcement priorities that you just don't have to pay that much attention to you know so every so often a controversy will come up and you apply someone to it on the other hand once you create the possibility of suing over finer and finer differences in treatment in something like a workplace relationship which is much like a marriage you know and always has hundreds of dynamic you know tugs back and forth between the parties then you have the need for whole departments of litigation or whole administrative agencies like the New York Human Rights Commission or whatever with large dockets of thousands of complaints because discontent about treatment at work it is no news to anyone is not new it didn't come in with this issue lots of people are discontented about the way they are treated at work and the so this was one of the big stories not as important for restaurants not as important for hotels but very important for the workplace is that discontents that would have been there all along discontents that happen even when no one is a member of a protected group people who feel done out of motions that they worked hard for people who know perfectly well they weren't treated fairly by their boss they go to a lawyer and the lawyer will put them through an interview which or may have them fill out questionnaires which partly intended to determine whether they suffered some sort of damage and whether their employer is solvent but also will be intended to fish for any information and even if the person comes in saying you know this was an unfair dismissal and thinks at that moment that it wasn't because they were female or it wasn't because they were elderly the lawyer patiently says alright you tell me about the unfair dismissal and quickly makes a note every time anything about age or sex comes up and then begins probing saying well okay you you were dismissed unfairly did other people goof off just as much as you weren't fired and person says yes and because every worker every worker thinks that right well I'm pretty it's only human nature you know every just as drivers in general nearly all believe they are above average drivers same with the workplace the same with most of what we do in life but the the lawyer will be said and and they'll say well yeah as a matter of fact three other people got away with it and they were really misbehaving just as much as what the company accused me of ah and one of those people was a white male under the age of 50 ah ha and so the lawyer will begin to you know first comes the bad news of you know you may live in a state where there is no legal remedy for wrongful firing as such which is generally still the rule although with some exceptions now here comes the good news which is you didn't realize that you've got a sex discrimination case you've got an age discrimination case or a disability or a failure to accommodate your family leave needs case and there are now so many different categories that are protected that most of us fall into one or often more of the categories I'm listening to this I'm thinking you know to the part of the progress of civilization has been this you know learning to treat each other with more respect learning to see each other as autonomous being so we're not you know getting our pleasure by watching people kill each other in the arena and we're you know we're not discriminating against people on the basis of their skin color it's like things get better the more we move in that direction and so isn't this just that enforced isn't that you know that we don't want we want to live in a better society and that means not dismissing people because their age not dismissing people because their gender so these these could be you know that sort of stuff doesn't exist and promotions to and I mean don't we want to get rid of that stuff here is one of the things that produces an interesting tension for libertarians because by and large and I know there is every type of libertarian and and you can combine libertarianism with almost every type of views but an awful lot of libertarians are relatively pro-modern relatively open-minded people who are delighted that we live in a society where women can now aspire to any place their talents take them that were you know racial minority groups gays you know handicapped people have been brought into the mainstream of society in ways that are great for society because they bring in new talent and are great for the justice with which people are treated so that means that not speaking for all libertarians but certainly a huge number of them are privately cheering when you know that milestone is reached of someone for the first time of you know first American Indian who is an astronaut or whatever and the and the second thing that also figures in there is that part of libertarians idea of how the government should run its own affairs and this is obviously applicable in areas like not just the operation of the justice system but also government hiring for the jobs that it employs itself and many other areas of government action is that we believe in the rule of law we believe that the government should not be engaging in invidious discrimination and therefore libertarians are usually they're cheering on the front lines when for example you know it gradually was at various levels of government announced that after all they were going to hire gays which for a long time they didn't and so libertarians having been in the chairing section for the social trend having been in the chairing section for that part of the social trend that involves the government's own actions all of a sudden drop out of the chairing section when it comes to doing it by legal force against the private sector and again as we know this is one of the things that makes people run and scream at the idea of identifying themselves with the libertarian intellectual movement but what the argument has to be is first I think that argument of principle which is even sometimes you know I don't want the decision for coercion the decision to introduce a coercive new class of laws to depend on whether or not I have to predict disaster from you know the immediate introduction disaster often doesn't happen you know sometimes the law just sits there and doesn't do very much we need to think about how we treat each other whether as people who we can order around as if we were somehow in charge of them or as equal people who will sometimes believe that each other are an error and I certainly believe when I see people who would not let me into their business that they they are an error and yet I think I'm proud of taking the position that it still should be up to them even as I curse under my breath or laugh at them or whatever I do as I'm turned away I like the idea that we live in such a free society where they can do that if they are so misguided just as I can should they come around and want to do business with me which also happens so it's reciprocal in some way well it is reciprocal and you know one of the things about so many policy areas is that eventually the dog has his day at the goose in the gander switch positions and you've seen this with for example in the complaints that have been made against gay bars for not letting in straights and you know there are oh yes and complaints you know more significant as as a social issue or as an area of litigation is a question what do you do with a private entity whether it be a university or an employer or whatever that says look I do want to engage in reverse discrimination I believe that a particular racial group or American Indians or whatever has been so disadvantaged and it's had so long for a while but yeah yes I'm going to change the ordinary admission rules and that's part of what I think my institutions to be about that's part of my mission as far as whether a outreach based on religion or idealism or whether it be some basis of I think that the experience of other students will be better or the experience of our customers who better if they meet every kind of person when dealing with our business and one of the iron is of American debates about discrimination law is that they tend to be debates between two different groups both of which claim total fealty to the ideal of having lots and lots of coercion because the typical core conservative reaction in debates about discrimination lies to fasten on to reverse discrimination issue just like a bulldog you know they've that's the part of the issue that they want to talk about that's the part they feel they totally understand and are totally confident in their position and it quickly becomes a matter of you're not the real believer in ferociously enforced strong discrimination law norms against universities or against private employers I'm the one who really believes it and then the liberal response no no no I'm the one who really believes in the total ferocious enforcement and well and you know libertarians are on the outside saying no no no you know freedom is a messy thing freedom means when one side's getting its innings that we sympathize with the underdog that they are mistreating fashion's change social pressures change 20 years later it's a different underdog it's a different side that wants to grind out some sort of exceptional practice or push some sort of minority to the wall and in both cases libertarians sympathize without minority they say let people interact voluntarily and the minority in the underdog won't be squeezed to the wall as badly okay so there's this principled objection but a lot of people don't share those principles or think that they can be outweighed by other things that yeah we we don't want to course people into engaging in these transactions but in a perfect world we want to do that but we have this problem we have these problems these people are behaving poorly we want to stop it so what's wrong beyond that I mean what's it what's the worst that happens is someone you know they get dismissed and they sue in court and the court finds that they weren't dismissed wrongly I can get into the the horrors of litigation I'd kind of rather save that for a minute because you raise wider and I think equally interesting questions about can't you be a little bit consequentialist about this or aren't libertarians bound to lose if they aren't consequentialist and you know in a way I think you're right which is libertarians clearly have been losing ground and have been on the defensive on this for decades and it is in part because people want a little more consequentialist meet on the bone instead of just a principled argument where they strongly emotionally engage with some of the people that are being protected and I'd say a couple of things about that one is that this is all rather new and we don't don't actually know where it's heading the we know that it doesn't seem to have been stable to stop with the three or four groups that were initially protected which means that from the standpoint of defending the practicalities of these things it isn't just the 1960s voting rights or or or public accommodations law they've got to offend it is the wild stuff that is going on in the fringes of the ADA where they're beginning to agitate now for making everyone's website accessible to blind and deaf web browsers which means that you will have to take down your personally published diary website if it does and yeah totally crazy but again you know this is a moving target and we should not allow the favorite move of simply picking the beginning of it as if it was a stable a stopping there and saying why couldn't you let this happen what what has happened is that it's snowballed to a point where the practical results are are pretty astounding we mentioned litigation and the cost of litigation and in part because the federal judiciary has veered in a direction of being less proactive than it was probably expected to be employment discrimination litigation is only a leading headache for business managers rather than completely having swallowed up all of our attention and turned into the national pastime but it is a major major drag on the workplace in many ways certainly for those who are involved in employment litigation is a horrible thing in which reputations are attacked both of the person suing and then people the co-workers careers are destroyed very often the person who files the lawsuit and very often other people who in the course of the lawsuit are accused of terrible things and find that their careers permanently stalled it is really a quite a bad way of getting quote compensation to anyone because if people get involved in employment litigation they tend not to earn as much afterward and yet the amount that they get is years later in the lawyers take a lot so it's a lousy lousy system as far as anything we would set up as a kind of insurance to protect our own economic interests and it's a lousy system I would argue also you know most cases fail at one level or another and defenders of employment discrimination laws say you know see this proves that it's not really very onerous because defendants win most cases this proves that we need more of it because judges are so hostile they never acknowledged that perhaps the reason most cases are losing is that most cases really were not all that well based and they but that's what they would hear from a lot of judges talking in their breaks if they could talk freely about it so you have great claims made for the social idealism of this sector of litigation but if you look at the actual people that are touched by it you find a whole bunch of disasters and not that many big successes it also seems like one of the things libertarians could be there to remind people with the principles that undergird private discrimination is that the way to basically try and solve these questions is not to constantly go to government it's what you know government erodes civil society in the way we don't just keep adding traits to title seven of the civil rights act and and there's no feasible stopping point oh they have a beard or they have red hair or they have two different colored eyes when do you stop what can you discriminate on what you can and why don't we just talk about this like like civilized human beings as opposed to going to court well and in fact just about the best advice you can give people in the workplace is find a way to make it work out even if people are being somewhat unreasonable because that's you're going to find the same thing where if you go the other there are some people behaving somewhat unreasonable find a way to work it out without turning it into a mini civil war but that's not necessarily the message the law sends when it extends this doctrine into more and more areas now there's another consequentialist argument that I wanted to throw in before we say enough of consequentialist arguments we we don't need to worry about those anymore but the the one that I find kind of fascinating is the we know that several of the protected group categories race and religion in particular but you can you could find others are things over which people who fought civil wars not just in the United States but also you know turn to Eastern Europe turn to the Middle East turn to much of the world and you find that people are burning down each other's houses and worse and murdering each other and and and worst and and that and so the argument I think one that we should not dismiss out of hand because I think it may have more mileage as a consequentialist argument but the argument that I've heard is look if we can be like countries a b and c that have different religious communities that in principle should be at each other's throat but managed to work out an arrangement and they have the set of laws you know the whatever you know the Malaysians versus the China ethnic Chinese or the Lebanon believe it or not used to be offered as an example of this sort of thing where the law carved things up between Christians and Muslims and several other groups Lebanon understandably is no longer used as an example of that but I'm not sure because it was because of the internal collapse of Lebanon's way of doing it but again as Hobbes could have told us as many of the great classical liberals could have told us if the alternative to a little bit of coercion is having a whole civil war then that's actually a better consequentialist argument than some poor person will have to trudge down the road and find a different job and here is where I would say consider that this is not a step from not having the law to having the law it is getting on to a road in which we are moving involuntarily through its expansion in directions we know not of no one can really predict where this stuff will be in ten years because no one ten years ago would have predicted where it is now where is it going to lead us when there is more of a collision with religious liberty principles where is it going to lead us when groups that appear to have been brought into more harmonious relations by it maybe some lawyer discovers a new way and one of the things about litigation in an active area is that lawyers are always discovering new ways to deploy principles, reparations lawsuits some of them based on theories not unlike these reparations begins to look as if it's going to be taken seriously last time it did about ten years ago the I'm convinced one of the reasons it shrank from public site was 9-11 but another of the reasons was that it was extraordinarily polarizing issue which threatened racial progress basically because it meant that as one pollster put it the people who are against reparations were so upset that sometimes it was difficult for them to continue with the survey now some of these and you know it's very hard generalize some of these laws have been introduced and have been followed by a lessening of tensions and exactly the kind of social peace that you would hope others have been introduced and have led to the emergence of tensions between groups that had never been particularly upset with each other because we don't know humility suggests that we not buy a ticket to a fast-moving train to an unknown destination so there's these harms to if you enter into these things it can be really hard on you the litigation to be long and expensive and your reputation to be destroyed and similar with the employer so it's it can be very bad for the people immediately involved but are there larger effects larger negative effects from having anti-discrimination law or certain maybe some of the anti-discrimination laws well yeah we can get into the the backfire effects and one of the things that keeps this an ever fresh topic is that they it's always different from one area to the next the effect of sex discrimination law isn't anything like the effect of race discrimination law and the effect of age and disability are yet completely different so that take one of the chestnuts that I use when after the passage of laws protecting race the rate of blackmail participation in the workforce declined after the passage of laws protecting gender female participation in the workforce increased although it it had been increasing anyway in the case of disability it plunged and in the case of age and I come around age because I find age to be a good entry point for the idea of unintended consequences in these things when age was added and you know I'm not just being snarky when I say that we have not had a civil war based on age that we had to atone for we in what in another sense of course there has always been a civil war based on age between people and their parents but people keep changing identity between the participants changes yeah but between the combatant classes but economically this was an extraordinarily bogus thing to add because the law in various ways had held women down the law had certainly held to blocks down that's the paradigmatic case but the law had not held old people down generally if anything it had arranged itself in their favor in various ways so before yeah this is the age discrimination and employment act which passed in which year when would have been passed like the 70s and then what does it actually say it says you cannot well the age discrimination act at first it makes a cutoff of age you can't at a 24 year old can't sue over the hiring of a 22 year old you have to be over a threshold at which you qualify and unlike almost all the others it's not negative discrimination in favor of an older person is okay so they recognized in doing some of these things that it wasn't like the other categories basically they were making about a full cloth and it but among its other effects it abolished for all but a few exceptional cases what was miscalled mandatory retirement and what I prefer to call automatic retirement which is a rule within an organization saying that at age 65 or whatever you will become a retiree and fat had lots and lots of unintended effects I think they were unintended but getting back to the rationale you know old people in the workforce make more money are richer have higher level positions etc. etc. where's the discrimination well the argument was well only a few of them win the lottery of getting to be the first to go and it can be hard toward the end of a career to stay which is also true as we were to find out much more so after they passed the law but so what has happened to the labor force participation again the first statistic that I turned to for whether a group was helped or harmed are more of them able to work for pay or more of them staying out of the workforce presumably because they're not seeing attractive opportunities that has plunged for people in the exact category that was intended to be benefited by discrimination law and especially for the subgroup of older male executives they are the ones who are most thrown out of work empirically that they're the ones whose employability has plunged in the last few decades and can we take a step back and talk about why that is the case how how does this law make employing them less attractive and is this the same I mean you said that the laws in every instance these things are different but you said we saw plunging rates with the disabled blacks and disabled but not with women so something time these together in the case of race and disability there are what statisticians would call confounding factories the in particular taking the case of the disabled they were tinkering with disability benefits at the same time in ways that discouraged employment and if the ADA were doing all that it were promised because the ADA was rationalized on the grounds that it would pay for itself by bringing more disabled people into the workforce we know that that was false what we know that it plunged instead of jumping figuring out how much of that plunge might have been due to the law is very difficult because the law was changing in ways to discourage employment through social security disability the architecture of that program but the in the age case there weren't all that many of you there were certain changes in social security program but it's a much cleaner experiment of they changed that thing and the employment situation of people toward the end of their careers especially in corporate America drastic has never been the same sense and nearly everyone agrees it's not as good that the the old corporate loyalty thing of gee they used to give you a gold watch and a goodbye ceremony well thank wise they don't give you a gold watch and a goodbye ceremony and you feel the the you know the room full of love of everyone you've worked with clapping for you the reason is that used to happen at age sixty five and they made it illegal for it to happen at age sixty five the preferred method and I'm boiling down a whole literature in the law reviews is let the person stay until you can prove them incompetent which means that every severance after age sixty five now implicitly carries a message hi we've found you incompetent we're cutting you off because specifically you individually just aren't good enough anymore well great you know so much better for morale however it doesn't tend to reach that point because large corporations um realized uh sometime ago that they could uh did not want to face potential individual litigation from every person uh they would do buyouts instead and so they would come along every five years or every ten years or whenever there was a recession and they would say we're having a buyout and there are these very complicated rules and if you don't take it within the thirty day or sixty day window uh you might be fired involuntarily but we're not making any promises to anyone and they could get people to leave and so long as all the departures were voluntary it was okay to have all of your older employees leave at the same time um so ways were found around it very artificial expensive ridiculous ways that sometimes results in companies losing people that they hoped would stay uh because of the way that they uh couldn't really control the buyout but in the meantime what happens to the person who for whatever reason is age fifty seven or age sixty one uh and wants to um make good use of those last few years of high level skills well at this point they become a litigation of risk because wait a minute he's sixty four years old and he wants to apply for a job with us and if A if it doesn't work out or B if ordinary results of change in age and meaning that in six years we don't feel that he's uh as good you mean we might have to uh have an age discrimination suit by a high paid manager and of course high paid managers with group that filed most by far most of the idea of the age suits uh I don't mean to say numerically most of them but very very disproportionate the representation in the workforce the lawsuits were coming from uh well educated well paid uh mostly middle managers because CEOs had their own severance contract so they just won't hire someone at sixty six sixty four because they were afraid of the lawsuit and and isn't that against the law too it is officially against the law but it's an unenforceable part of the law because so long as you don't let anything on paper so long as you don't have any of the telltale things such as asking when someone went to college or um uh anything you can't ask any age related questions and there are some surprises in landmines and pitfalls but every HR department is briefed by its lawyers as to the questions you can't ask and once you've remembered all the things you're not allowed to ask in the job interview then basically it's very hard to enforce uh the laws against age discrimination on the hiring side you know it's somewhat easier if uh companies are refusing on the more traditional categories because then you'll just notice the overall statistics but it's harder to notice overall statistics when sixty four year olds are not getting jobs and then uh that you mentioned this thing at the end there that uh uh we haven't really broached on either um it might be a whole new topic but uh disparate impact uh is another element of this so we've been talking about intentionally discriminating uh yeah it was the general idea oh you're a woman uh we don't I don't like women you're not getting a promotion you're not getting hired that's the thing that you know a whatever but there's another thing where the effects of of neutral policies have discriminatory outcomes right and that that has been um the sad legacy of um former Chief Justice Warren Berger uh who uh went along uh with uh disparate impact uh in the early years in an employment case and in it we're now having uh the build up to a supreme court showdown about whether or not they can use it in the housing area but uh just a few of the areas where it turns up for example um fire departments and strength tests or agility tests or uh speed tests for rescuing a body from a second floor uh these have been relentlessly attacked for disparate impact you know generally the cases the fire department would be happy to hire any women who could pass the test who could pass the test but women uh would typically do extremely poorly at carrying a 250 pound dummy down a ladder and and a test of that sort uh so the tests had disparate impact and as a result because of the way the law sets up so as to make it anything would disparate impact a broad litigation target you can't always beat it but uh you know the law arranges to make it very easy to shoot at it um courts would strike down around the country uh not always but in many instances would strike down these strength tests and uh this was very bad news for the public services because uh whether you were um uh in the uh sanitation department for example and uh the chest was changed so that uh you could uh simulate dragging empty garbage cans back to the truck well of course that's one task that you can give to some people on a sanitation force but if you have to hire all of your sanitation people based on the ability to drag an empty can uh you have that you know you're not as well off as if you have a team all of whom can carry a full can and likewise with police you know the big impact with this uh the endurance and strength tests with police was not so much changing the number of women on the force because there are a lot of police jobs for which women are actually fine uh because they do not require upper body strength and different things uh it is that you can't keep the puffing men who can't run the mile very fast uh you can't discriminate in favor of the highly fit men uh when it was just man against man uh you know and likewise for all of these other areas that does it disparate impact uh is so extraordinarily irrational I was a bit unfair to conservatives earlier when I said that they only focused on reverse discrimination because to their credit they've done a lot of focusing on disparate impact too and it turns up in the current very hot controversy over criminal records and hiring because one of the big initiatives of the uh Obama administration EEOC mirrored by movements in various cities and states around the country Baltimore and Los Angeles and others is so called ban the box uh and the argument is uh because uh inquiring about criminal records uh or using that uh to uh as part of the decision process also bad credit is another thing uh much the same way uh it indisputably has a disparate impact because minority applicants are more likely to have trouble in those areas uh so again they are saying uh it has disparate impact they won't ban it completely but you have to jump over a bunch of hurdles of receiving direct job relevance if someone has a conviction for embezzlement and you're hiring for an account then yes you can cover it but not the uh when I wrote this up uh the example in Wisconsin which had one of the earliest laws covering this was uh a recycling plant could not uh they discovered that uh a very notorious child murderer uh had turned up in its and that this was just creating a sensation uh of among other employees and among the occasional groups that would oh visit the plant although as a recycling plant it didn't have too many outsiders but it was just sensational and uh the Wisconsin system said uh uh no not um uh having committed a uh spectacular child murder is not relevant to the tasks you were going to help them do you can't uh you owe them a lot of back pay and the uh so this is um you know it's it's very frustrating because it means that more and more of the things that are indisputably relevant to uh the quest for the best employees are kept off limits and these may also backfire because uh it is uh believed in many HR circles that if you're not allowed to ask questions about an area uh you may simply steer away from it for example if there's a gap on a resume and you have circumstantial evidence oh the person may have been searching time but you're not allowed to ask um it's much easier to assume the worst especially if you're liable for the misbehavior then if you could say please tell me what was happening to you in 2008 uh and then you know maybe the person has a fighting chance to say you know it was just a drug possession thing uh you know I've I've been perfectly fine in my probation all the things I'm not going to ask about but that might set the employer's mind at risk they've seen the same thing on uh disability and employment because there again you've got a case where uh the uh labor force participation rates plunged and um you know so a lot of people wondered you know why did they plunge but one of the things that comes out of the HR world is someone limps into the office and they've obviously got something that makes them different from the normal physically and um the ordinary course of small talk in getting to know a friend uh and certainly the ordinary course in seeing whether they can do a job uh would be something like uh you know tell me about how you lost your arm tell me about what life is like and how you get get around it uh can't ask those questions you can have certain highly artificial um ways of asking uh one of the duties of the job is to act uh with appropriate accommodation could you do acts and you've got to really be just that formulaic and then you kind of have to take the word for it even if you suspect that they're not giving you the right answers instead of just having a given take which would put some people's minds it is and again with handicap uh discrimination very very hard to police the hiring side so you wind up with what the Obama administration has just announced which is for federal contractors there are going to be quotas because it's so hard to police the hiring thing I think it's seven percent uh I'm going by memory but federal contractors which includes most large companies are going to have to uh check their books and there's two levels I think they've got a smaller number for more severely handicapped people and a larger number for people who have things that you wouldn't even necessarily know are disabilities but you find out when you look at the paperwork I want to ask about causes for why things have gotten this way I mean to some extent the incentives for certain groups are pretty easy to see so for lawyers for the people who are going to be suing about all this broadening these laws giving more grounds for litigation makes a lot of sense because it's more money in their pockets and certainly for some of these protected groups arguing for more protection sounds good although as you've said they often end up getting hurt by this by lowering employment rates or whatever else but there's another group that you've argued is is a driver for a lot of this really bad law and that's law schools and I'm just Trevor and I are not too long ago both of us went through law schools so I'm just curious how are law schools contributing to these problems? Well let's talk about both law schools and trial lawyers or the interest of the litigation profession because they're both big stories and you mentioned that it was different from group to group and identity politics obviously there's huge tie in between the aspirations of black America and these laws and some fit between the aspirations of ambitious women and these laws and almost no fit with age for example and you can find an identity politics movement among the disabled but you just can't find one among old people and and yet a strong law was passed anyway, pregnancy discrimination where did that come from? There is no identity politics to speak of I guess there's mommy blogs but by and large identity politics cannot explain many of these expansions and some of the expansions are better explained by the fact that you have a coherent well-organized group that wants to expand these laws in general wants to find new areas the labor movement although sometimes ambivalent about the laws generally in things like pregnancy discrimination they see an area to get more leverage against employers in some of them see them as add-ons and generally the feminists believed in adding on things like family marital status although the actual impact of marital status is a category not at all clear that it's pro or anti-feminist but again it sounds like it should be an interest of feminism and they know that they're in favor of more supervision and more opportunities to have disputing and some of this is I'm afraid to say an economic interest of the fact that this is a large area of litigation which has in common with most areas of litigation that the plaintiff side is extraordinarily intent on lobbying for expensive law and the defense side by non-contrast is not particularly well organized because if you took away the law they would all lose their livelihood and so you have a lot of pushing from the one side and not particularly effective pushing most of the time unless it's something so obviously impractical that they feel a good conscience look this can be enough other things to dispute we can be against this crazy application but the and one of my examples on that was when they were doing one of the many overhauls by which congress has expanded this and if you go back and look the supreme court has often interpreted the law in ways that tend to constrain it with the ADA particularly but there were some other areas in which they simply wouldn't allow all of the ambitious legal theories and usually what happens was within three years congress comes around and writes some omnibus expansion reversing all the supreme court decisions saying yes you can sue over all of those things and while we're at it here's 10 more and in one of those rounds while Ted Kennedy was still in the senate the there was wheeler dealer negotiations with the business lobby as represented by Republicans in congress and it had to be decided they couldn't get everything passed through publicans what would they give up and they kept legal fee provisions which benefited the bar at the expense often of their own clients while throwing overboard a couple of substantive things that would have been of very considerable interest to groups of clients but would not have been of as much interest to the profession so you can't dismiss the interests of those administering the system as one of the drivers but let's get to the law schools because the law schools are independently and aside from any self-interest in money flowing in the law schools are romantically involved with this area of law they pine for it they move they moon at it and they are a love-lorn when it threatens not to pay them attention and when I was when I write about these areas I have often tried to master the law review literature at least to measure the Matterhorns and the Mont Blancs of the Alpine landscape with employment discrimination law no person in the world could ever have read all of the law review articles because it is such an extraordinarily popular area to write about and it's not just the employment discrimination literature it's also feminism and bankruptcy law it's also disability and you know eminent domain I mean it's an effort to get and you can treat this as well identity politics is strong in the law schools and we know that and this is identity politics way of making itself felt with the rule against perpetuities and my group but beyond that it is also it's ambitious in that it's not just all ivory tower stuff it is very much aimed at let's get going here to actually develop new causes of action and larger damages and you know there is a practical tie-in that there is no justice to the law and so you have you know all over the universities are you know law journals devoted to the identity politics areas and projects and professorships and so forth you know not all of which engage with discrimination law but it it makes this enormously large and thriving body of operations which means that when one of these supreme court decisions for example comes up the academic commentary on it will be more or less unanimous you may find a couple of federal society types saying that the supreme court did right by being skeptical and you will see mountain an unreadably large mountain of credentialed commentary from the other side now to me this isn't just you know to me we're getting at some of what makes this such tough question for Libertarians because I'm not the first person to notice that Libertarians getting tenure in the legal academy tend to be specialists in things like you know securities law or you know real property business court law and on the other hand they are calculated I think quite correctly that any pieces they might wish to write on identity politics and discrimination topics should be saved for after they get tenure and perhaps after they you know have good moats and fences around their offices against student sit-ins and we get back to the fact that this isn't just some peculiar growth only at law schools although its growth at law schools has been very much fed by things like Ford Foundation programs you know massive grants specifically to encouraged law schools to develop in these areas and the Ford Foundation has also been doing the same thing with history departments and with sociology departments so it's the university more generally you know I don't blame it all on the Ford Foundation it clearly has this life of its own I don't think I'm being too grandiose when I say that it is the substitute for religion in some ways of what makes people believe that the public good is the public good if you colour someone not just necessarily in a liberal university town but increasingly a lot of other areas of life and say I have only 10 seconds please name a legitimate function of government please name something we really need the government for something that would just be terrible if we didn't have the government you know all previous ages would have said well someone's got to arrest the burglars and you know the foot pads and the people who would break into our house and you know you might have gotten other areas at different times I had see if I'm wrong go up to 10 people and ask that question and see if at least half of them don't say there would be all this discrimination who would stop discrimination otherwise so for libertarians this is this is an issue to think about over the long term because it's much more central to people's self-image of being a good person than most of the function of government that we might argue about for people who are interested more in this topic where can they find you online my blog is overlawyer.com launched in 15 years ago and in recent years published by the Kato Institute I'm on Twitter both at Overlawyered and at Walter Olson that's OLSON, no hyphens or anything and I active on Facebook Thank you for listening to Free Thoughts if you have any questions or comments about today's show you can find us on Twitter at Free Thoughts Pod that's Free Thoughts P-O-D Free Thoughts is a project of Libertarianism.org and the Kato Institute and is produced by Evan Banks To learn more about Libertarianism visit us on the web at www.libertarianism.org