After reading the first six chapters of Professor Strahilevitz's book, I found myself asking the question: who cares? This question was founded on the assumption that the mechanisms used for exclusion would continually get more difficult to detect, more tailored, and more "reliable." Essentially, the fact that exclusion was "advancing" was all the more reason to refrain from trying to stop the natural development that would take place anyway, and to refrain from attempting to differentiate between the mechanisms being employed. The end would justify the means so to speak. However, I do believe the second part of Professor Strahilevitz's book offers some really meaningful insights into why we should care. I also believe, these answers inherently bring about many new questions that we will have to deal with: most importantly: ISN'T THIS ALL SIMPLY A FORM OF SELF-EXCLUSION AND NOT EXCLUSION AS WE TRADITIONALLY DEFINE IT?
Strahilevitz offers a solution to the exclusionary amenity problem, believing that "where there are substantial concerns about the use of exclusionary amenities to promote homogeneity, the law might demand the coupling of exclusionary club goods with inclusionary amenities." (124) This statement leads me to believe we need to reframe the issue: instead of viewing the excluders as the such, we should view them as the excluded. Implicit in Professor Strahilevitz's argument throughout the second half of the book is the assumption that those being "excluded" want or need something that the excluders' possess, and that whatever it is that they possess is better than what the rest of society has to offer. Restated: let the excluders exclude, what they have to offer cannot possibly be as great as the sum of the alternatives. Strahilevitz says "given society's interest in promoting diversity among communities, as well as diversity within communities, there are arguably instances in which the law should promote the use of exclusionary amenities." Here, Strahilevitz is essentially arguing that society has an interest in creating paradise (no problem there), but to get there we must exclude sometimes? If we really want perfect diversity in our communities such that we obtain between-group and in-group diversity, one would think that we should bar all forms of exclusion and allow society's inhabitants to self-select into perfect diversity. I tend to think such a scenario is impossible. So what about allowing some exclusionary amenities? By condoning some exclusionary amenities, I believe Strahilevitz refutes his previous statement that society's interest is in promoting perfect diversity (unless we are speaking about diversity for diversity's sake, and not true, natural diversity), and so he brings us back to the question of who cares? Who really cares about the exclusion that is taking place? Professor Strahilevitz is one of the most brilliant people I have ever heard in a lecture room, and is an academic worthy of all the praise he receives, but I think academics sometimes tend to take ideas to their logical extremes, making the idealogical arguments seem impossible. Community diversification is one of those ideas. We should not seek diversity for diversity sake. If diversity should take place, it should be through inclusionary principles and not exclusionary ones.
Either we ban ALL exclusionary principles, including even those based on race, gender, etc., or we reframe the problem and argue that those in society who seek "homogeneity" are excluding themselves from the diversity the remainder of the population currently enjoys. Most of society has created an inclusionary approach to "community" because they cannot afford not to. I don't know about others, but I would prefer to be a part of the larger inclusion than the smaller one. Some people will argue: "you can't tell me you would rather live in a gang-riddled ghetto with poor health and safety standards than a quiet residential golf community." To that I would respond that I would not, but not because of the differences in people, because of the differences in circumstances. If the government wants to solve problems of exclusion, it should not focus on the forms of exclusion as Professor Strahilevitz discusses, it should focus on the reasons for exclusion.
I believe Strahilevitz gives some great accounts of why we should care about the concept of exclusion (ie lawyers being excluded from New York rental housing because they are too smart), but in the context of the internet, I still believe we should not care about exclusion. The example of red apples in a grocery store is perfect. Let's allow apple producer's to reduce the reliability of the signal of redness. That will only create incentives for consumers to develop improved "technologies" that are more closely correlated with taste. Maybe there's an iPhone app that can detect the ripeness and deliciousness of a particular apple. Maybe internet reviews of grocery stores will divert customers from red-infusing farmers to "au natural" farmers. Whatever it is PEOPLE WILL WIN THE WAR. Let the excluders continue to exclude, whether it be in reputation based review-websites (US News Rankings), pricing structures (Amazon's customer price discrimination), or even computer-generated personality assessments (mobile computer phones capable of recognizing subjects and determining important characteristics). The technologies will develop such that those who exclude, will be left out of the inclusion that is taking place everywhere else. And for all of the areas where we may care about exclusion, because of its really significant and proximate effects, we should focus on the underlying factors for why people exclude and address those as opposed to how they exclude. We should address poverty, not the Chapel at the heart of a Christian community.
I want to finally address Jessica's post concerning the preservation of opportunities for a "fresh start." Strahilevitz is quite right as Jessica proposes, in advocating the reputation revolution. Such a revolution, as I've stated earlier is a way that the people win the war. Discrimination that is traditionally carried out through imperfect proxies can be reduced by improving the proxies, but by how much? Jessica seems to believe that limiting information histories to 7 years or something of the sort will help prevent "over access" and will allow for people to create "fresh starts" for themselves. Such an idea is a beautiful concept and one that I believe Professor Strahilevitz would support. However, I also think we should understand what this reputation technology is before we make too many recommendations: it is an online identity, and a reliable one at that. If we allow people to hit the "refresh" button every so often, the reputation function is not as strong, and eventually it loses its power. I believe we either want to accept the power of the technology and limit reputational access (as Strahilevitz discusses with regard to medical records) or we reject the power of the technology and allow people to define their online identity as they see fit. I would accept the former at the expense of the latter proposition, unless we maintain a comprehensive "reputation" of people's real-world identities in a protected government database. I just don't think that the future holds much of a place for physical forms of record keeping, so I will propose the former.
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