As some of my classmates underline in previous posts, until know is hard to disagree with Professor Strahilevitz. In the first six chapters of his book Professor Strahilevitz describes the mechanisms that people can use to exclude, how they interact with each other, and in which bases people select one over other. The descriptive nature of this first chapters probably explains why is hard to disagree with the author.
Nevertheless, after reading the first part of the book some concerns arise to me. Probably the most interesting is the role of the regulation. And this concern leads me to two different problems.
- 1. Contradictions and inefficiency of the regulation
One important conclusion of Professor Strahilevitz is that the regulation has an important effect in how privates shape their exclusionary mechanisms. For example, if government creates a strong regulation of advertisement to avoid racial exclusion in housing contexts or ban the use of bouncer’s rights, privates will shift to a different mechanism: Exclusionary Amenities.
This finding of Professor Strahilevitz is important because shows some contradictions in the regulation: Regulation accepts exclusion by Amenities, but not by advertisement (exclusionary vibes) or bouncer’s right. What justifies the use of one mechanism and the rejection of others? Notice that the effect of those different mechanisms is the same: Exclusion. That means that if the regulation wants to prevent that effect, it should restrict all these different mechanisms.
One possible explanation for this “contradiction” could be that the regulation (or the society as a whole) has a serious problem to admit that we want to maintain some level of exclusion, even for hard aspects like race or religion. Even if we disagree with some kind of exclusion, we must admit that people have the right to exclude others in their private relations, even because of features that we consider inadequate (race, religion).
Notice that this particular question is not irrelevant at all. The contradiction of banning some mechanisms and allowing others lead us to an important consequence: We are going to allow some level of exclusion[1]; the only difference is that we are going to make it more costly. Indeed, if we prohibited the exclusion using bouncer’s right and allowed the exclusion by Amenities, the only thing we are doing is to make more expensive the exclusion. The exclusionary effect is not going to disappear; we only going to make it more expensive (and inefficient) for privates[2].
This problem should led us to ask in which way a contradictory or inconsistent regulation is not solving the problem of exclusion and is only generating more costs and social lost.
- 2. New technologies and exclusion
Another important conclusion of Professor Strahilevitz is that new technologies could be very useful to improve the exclusion. For example, Facebook could be a good tool for exclusion, because it makes cheaper to obtain information about people‘s personal features.
This conclusion should lead us to an important concern: Is the regulation really capable to avoid exclusion in private relations? As Professor Strahilevits findings shows, even if the regulation bans some mechanisms of exclusion, privates are going to find other ways to make it. And of course, the new technologies will allow them not only to do that, but to do it in a cheaper way.
An interesting example could be the virtual advertisement. New technologies allow us to get very accurate information about people’s preferences (Which web sites people visit? What kind of information people usually look for? What kind of products people buy? Which places –real or virtual- they usually go?). Whit this information it’s very easy to design a campaign directed to a much focused target. These options could make very much hard to avoid a possible exclusion.
The two problems that I briefly described arise some questions about how the government regulation should be design and how much exclusion we really want to accept. Only if we think a little more in deep these problems we are going to be able to shape a good regulation –if any is needed. Let’s see if the next chapters say something about this.
[1] The only difference could be that this accepted exclusion is going to be less openly. For example, exclusion by Amenities could hide in a better way the exclusion than a bouncer’s right.
[2] There could be some people that gave a lot of value to live in a particular environment, but doesn’t have enough money to pay for an exclusionary amenity. In these cases the regulation prevents those people to get this kind of housing. Only wealthy people are going to be able to do it.
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