Saturday, January 14, 2012

Rights gone wrong gone not quite right

I wanted to like Rights Gone Wrong by Richard Thompson Ford a lot more than I actually did. The sum of the parts is somehow greater than the whole. That is, Ford's pretty good at describing, chapter by chapter, problems with particular civil rights laws currently on the books.  I particularly appreciated his account of the flaws of the Age Discrimination in Employment Act -- he notes that older workers are more likely to face discrimination and irrational stereotypes before they're hired and employers have a chance to learn about their true abilities. But it's actually quite hard to figure out whether one has been discriminted against at the hiring stage, because it's hard to figure out if one wasn't hired due to the employer's leaning on irrational stereotypes or because there were simply better-qualified applicants whom one has never seen in the pool. Thus, the act winds up being in effect a rather large wealth transfer to older, already-comfortable workers. Similarly, Ford does a good job discussing how laws requiring accommodations for disabled students have given families an incentive to seek out attention deficit disorder diagnoses for their children. Because the line between clinical attention deficit disorder and garden-variety inability to focus on things that are hard or boring is inherently fuzzy, it's all too tempting for doctors to diagnose children ADHD who may not be really so that they can get the very rich benefit of extra time on tests.

I found the book far less satisfying when Ford attempts to tie these narratives about the very real problems with these disparate laws together into a common story of "rights gone wrong." One, the book is in some ways surprisingly fuzzy on what a right is. In some places, Ford appears to be equating "right" with "entitlement to some special benefit." I have never felt entirely comfortable within the philosophical natural rights tradition, but as I read this book, I found myself wondering if I'm more of a natural rights person than I used to think I was. That is, in my view, the list of "civil rights" is pretty much the same as what was enumerated in Corfield v. Coryell. I prefer to think of the Civil Rights Act of 1964 and other civil rights legislations as attempt to remedy violations of those rights -- though one can certainly debate whether some of these remedies are over-broad, still necessary today, etc. --  rather than creating new civil rights, as Ford in some places indicates it does. In other places, Ford laments "excess individualism" in our culture and the like for these reasons, which  just raises my ex-Objectivist hackles further.

Ford's preferred remedies for these problems entails more "pragmatism" and "nuance" in lieu of "absolute" rights. This would appear to entail giving judges more discretion. While this might avoid some of the more ridiculous extremes avoided with literal interpretation of a law to a situation to which it doesn't seem to fit, discretion can also be bad because it permits judges to skew the literal text of civil rights statutes to fit with their political or ideological views. Ford also seems to prefer administrative-based approaches to enforcing civil rights laws, an approach that would have the virtue of saving parties' litigation costs. On the other hand, there are real public choice problems with giving bureaucracies additional power to enforce civil rights laws. These issues are not really addressed in the book.

In summary: this book is better on diagnoses than it is on cures.

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