The first half of this literate and eloquent story is, as previous posters have underlined, pretty hard to disagree with. To a large extent in any case. This being said the story, well-written or not, leaves me with a sentiment of “seen this, done that’. Is there anything new under the sun? Is Prof. Strahilevitz (notwithstanding his great and undisputed intellect) telling us things that find themselves that far out of the ordinary that a book is justified? Not yet… This being said, it goes against my very nature to fully agree with anything and anyone. And in that regard, I do have a few comments to make and questions to raise.
Firstly, reading the first half of this book leaves me with a feeling of unease and amazement that, apparently, only one form of exclusion exists in the world. That would be an exclusion based on race. At least, that seems to be the subtext of the first chapters. In a world of unaffordable consumer-patterns, financial distress striking the most modest in our society, one begs to differ with Strahilevitz. The year being 2012, should our views on exclusion not be more concerned with those brilliant minds not able to finance their studies? But that is a personal note, of course.
Secondly, and now turning to a more substantial comment, I happen to get the feeling that Prof. Strahilevitz places all forms of exclusion (whether based on “bouncer’s rights”, “exclusionary vibes”, and “exclusionary amenities”) at the same level of ‘despicableness’. In the sense that all exclusion is repulsive no matter what form it takes. Well, I guess that is easy to argue if your proxy is racial exclusion. How could that be acceptable, right?
The reality of this is that racial discrimination/exclusion is just one form of exclusion. An unacceptable one, yes, but not more than that. At least not if compared to all other kinds of exclusion we face today. And it is true, as Prof. Strahillevitz underlines, that exclusion can be induced in different ways. But my question is, should we treat all different forms of inducing exclusion through information in the same way? I would rather argue that, contrary to the author’s point of view, exclusionary amenities should not be the subject of restrictive regulation. At least not in the same way as the classic “in your face” bouncer’s exclusions. Why is that?
Let us take the example, staying in Strahilevitz’s sphere, of a residential housing project. We shall assume that the project boasts a conservative, demure, and rather senior environment. Now, regulation would impede the “owners” to just flatly exclude a twenty-something little Belgian Jewish lawyer because of his religion and nationality. Notwithstanding the belief “owners” share that such a person might disrupt the kind of social unit they wish to create[1].
The same does not go for the installment of a church, foreseeing no room for a temple, organizing Republican evenings and draping the hallways with American flags, and hails to veterans. Although all of these are genuine, and an emancipation of an honest belief in conservatism, it might not be the cup of tea of our Jewish lawyer[2]. I certainly wouldn’t want to pay for such amenities. And so, in the words of Strahilevitz I would be excluded through the concept of exclusionary amenities (and in this case some elements of vibes too).
Things, however, are not that simple. Am I really excluded? No I am not! I have the choice to apply for a unit in the building. And providing all went well, I might even be accepted to live in the building. I might want to do this because of the fact that I think I could find business among my fellow residents.
The point I am trying to make here is that exclusionary amenities do not actually exclude per se. They rather raise a barrier to entry. And the choice is up to me if I raise my own bar or not to comply with the barrier. And that is the material difference with bouncer’s rights. The latter do not bolster an element of choice and freedom that exists in situations of exclusionary amenities.
This element of choice does a few things for us. First of all it allows the prospective user (me) to make his/her own cost/profit analysis and thus valuing his/her own inclusion/exclusion. This limits the cost for the potential user through the internalization of the value of exclusion/inclusion. Secondly, it lowers costs for “owners”. Exclusionary amenities tend to be creating less costly forms of exclusion and thus limiting some of the negative externalities.
Adding to that the fact that not all exclusion is despicable or socially invaluable, leads me to conclude that exclusionary amenities should not be regulated in the same way (if at all) as bouncer’s rights. They tend to reduce costs of exclusion to a large extent and thus reduce the negative externalities of exclusion. To put it in economic terms, there is less of a deadweight loss[3]. Exclusionary amenities do exclude, but at a lower cost. And in that regard I tend not to agree with Strahilevitz’s subtext.
Finally, and without getting into the discussion, I would like to launch one other question to ponder about. I ask myself if the matter is not that much the fact of information having an exclusionary effect, but rather “who” it is that excludes. Is Asher right? Should we care about exclusion? Ask yourself (as I ask myself) this: does your answer to Asher's question change if the one excluding users holds a dominant market position? Should we care that "Netlog"[4] decides who is allowed to advertise on its website and who is not? And should we care in the same way about the exclusion of advertisers if the website is Amazon or Facebook? This is a question I would rather give some taught… but some other time perhaps…
[1] I will not go into a discussion of my (dis)belief in the “makeability” of society… I do feel very deeply about the subject… one rather discussed over drinks. This is an invitation of course.
[2] Did I mention he is very liberal too?
[3] Due to the fact that there will, under a situation of exclusionary amenities still be exclusion, the ‘monopolists’ atmosphere still governs the tale, and hence some form of deadweight loss exists.
[4] For those who are not aware, Netlog is a small alternative for Facebook.
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