So a while ago, I suggested that I'd have thoughts on Deborah Rhode's The Beauty Bias . Dahlia Lithwick recently published a review in Slate, and I'm sort of plumb out of blogging material, so here goes nothing.
I have *some* sympathy with Rhode's notion that appearance bias is a problem worth fretting about. At the risk of navel-gazing, but in the interests of full disclosure, my own priors on the subject are odd: back somewhere around the age of twelve, my self-image got stuck at "ugly girl" and refused to come unstuck, despite what has sounded like years of attempts at desperate flattery. I once had a roommate who would occasionally make wry comments about other women's weight or looks, in the tone of oh-we-pretty-girls-can-get-away-with-it. It felt like being back in elementary school when we'd divide into Red and Blue and Green teams for Field Day, and I'd forget it was Field Day because I thought the whole exercise was beneath contempt and accidentally show up in a green shirt even though I was actually supposed to be on the Red team.
Still, this book isn't really addressed to me. It's not addressed to people who are worried about the public choice problems associated with expanding equal employment opportunity bureaucracy, or people who get generally concerned about expansions of state power on libertarian grounds or what have you. In several places, Rhode talks about passing the law to "raise awareness" of the problem or the like, a statement which makes me want to scream and throw things when I am not in a calm frame of mind and murmur "Yes, but unintended consequences" when I am.
In fairness, Rhode does try to meet libertarian-ish types a little bit, as Lithwick says, by pointing out that few claims have been brought in the jurisdictions that have actually enacted such laws. And, in most of these cases, the appearance discrimination claim was brought in conjunction with a more conventional anti-discrimination claim, e.g. race or sex. Rhode tries to use this as evidence that the burdens on employers will be light, claiming that most solve problems through voluntary education and compliance. Maybe, but voluntary compliance and education of workers still isn't free. Consciousness raising still takes time away from producing goods or services, a point that Rhode doesn't really acknowledge.
In a sense, there's a collective action problem here. The argument would go something like this: women would all be better off if we stopped sinking so much time and money into trying to look good. But it's in the interest of each of us individually to keep trying to look as good as possible. So all of us keep frivolously plunking down money for gym memberships and highlights instead of channeling the cash into 401(k)s and mortgages. It's true that legislation can be an effective response to certain types of collective action problems. It's not an argument Rhode makes explicitly herself, though in my view it's the most compelling argument for legislation. The problem is, though, that Rhode's proposed legislation would deal purely with employment discrimination, and I don't know that most women spend money on frivolous appearance-related things primarily for purposes of enhancing job prospects. So the only way to remedy the collective action problem is through some sort of sumptuary law, which would go far further into the realm of impinging onto personal freedom and choice than conventional employment discrimination laws.
As Lithwick notes, Rhode also writes at some length about dubious diet and anti-aging products. She wants legislation to combat misleading claims about their effectiveness. But unless I am missing something, people who are lied to and misled already can bring tort actions under fraud, products liability, etc. Though I know less about this area, I imagine that many states already also have consumer protection statutes in place that are directly on point. It's not clear to me why additional legislation is necessary, unless it is just to make people feel better -- a rationale that I reject as a matter of first principle, for reasons discussed above.
There's also an odd chapter at the end where Rhode discusses the obesity crisis. I am all in favor of people trying to eat sensibly, exercise in moderation, and so forth. I doubt that anyone (other than possibly Christopher Hitchens?) isn't. More controversially, I'd be delighted to slash corn subsidies so that cheap corn syruped products are less of a temptation. But the anti-obesity advocates propound an orthodoxy - think the "How dare you eat non-organic! How dare you do only cardio, without appropriate interludes of weights!" crowd -- that's every bit as self-righteous and obnoxious, if not more so, than the beauty and fashion industries. So I'm not sure how much net happiness we gain by focusing on health instead.
N.b. that there is a lot of anti-discrim dork fun that could be had writing about standards of proof and McDonnell Douglas and so forth, but I am not feeling quite that dorky today.
Legal Theory Lexicon: Speech Acts
20 minutes ago