Information and Exclusion

Information and Exclusion

Lior Jacob Strahilevitz
Copyright Date: 2011
Published by: Yale University Press
Pages: 255
https://www.jstor.org/stable/j.ctt5vm2z0
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  • Book Info
    Information and Exclusion
    Book Description:

    Nearly all communities are exclusive in some way. When race or wealth is the basis of exclusion, the homogeneity of a neighborhood, workplace, or congregation is controversial. In other instances, as with an artist's colony or a French language book club, exclusivity is tolerable or even laudable. In this engaging book, Lior Strahilevitz introduces a new theory for understanding how exclusivity is created and maintained in residential, workplace, and social settings, one that emphasizes information's role in facilitating exclusion.

    The book provides many colorful examples to show how lawmakers frequently misunderstand the subtle mechanics of exclusion, leaving enormous loopholes in the law. Strahilevitz focuses particular attention on today's changing dynamics of exclusion and discusses how technology presents new opportunities for governments to stamp out the most offensive exclusionary behaviors.

    eISBN: 978-0-300-17169-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. I-VI)
  2. Table of Contents
    (pp. VII-VIII)
  3. ACKNOWLEDGMENTS
    (pp. IX-X)
  4. INTRODUCTION
    (pp. 1-8)

    Perhaps because of their proximity to major research universities, campus fraternities and sororities are among the most studied and analyzed residential communities in the United States. Scholars interested in understanding the “Greek system” can draw on a wealth of serious research spanning a period of decades.

    We can find some real gems in these archives of fraternity research. For example, during the 1950s, sociologists Gene Levine and Leila Sussman studied the process by which selective fraternities chose which students to admit. Fraternity members were frank about who they were looking to admit and how a student rushing the fraternity could...

  5. PART I: THE MECHANICS OF EXCLUSION
    • 1 THREE MECHANISMS FOR EXCLUSION
      (pp. 11-27)

      When discussions of “rights” appear in the newspapers or blogosphere, the authors are often referring to individuals’ rights that correlate with distinct obligations on the part of governments. An individual’s right to free speech correlates with a governmental duty not to, say, throw a dissident in jail on the basis of his unpopular expressions. An individual’s due process rights prevent the government from depriving an individual of liberty without first following a set of fair procedures. These sorts of rights—long dubbed negative liberties—prevent the government from taking particular actions against individuals. In some democracies, especially European ones, individuals...

    • 2 THE BOUNCER’S RIGHT
      (pp. 28-41)

      The traditional account of the property right to exclude emphasizes a solitary, isolated individual who excludes everyone from his land.¹ This is a right that seems useful primarily to hermits or to conservationists wishing to preserve land in a wilderness state. To the rest of us, it is a right of little value. Indeed, it is almost impossible to locate a reported judicial opinion involving a permanent invocation of the right to exclude everyone from land that has positive economic value but little environmental value. The closest case,Brown v. Burdett,² involves a testator’s wishes that her home be bricked...

    • 3 EXCLUSIONARY VIBES
      (pp. 42-54)

      When I was an undergraduate at a large, state-subsidized university, I got the sense that there was a fair bit of homogeneity within each of the many fraternity and sorority houses on campus,¹ and I attributed this homogeneity to the rush and pledge processes. But then I moved into cooperative student housing and noticed a similar level of homogeneity within particular houses, which was initially puzzling, since any student could move into a campus cooperative.² The co-ops did not exercise the bouncer’s right at all (except to exclude non-student residents), and yet each house seemed to have a distinct personality,...

    • 4 EXCLUSIONARY AMENITIES
      (pp. 55-72)

      Because we lack an adequate vocabulary to discuss the phenomenon I describe in this chapter, we must begin by defining some terms. A “club good” is classically defined as a resource for which “the optimal sharing group is more than one person or family but smaller than an infinitely large number.”¹ Think of a library, or a security guard, or a swimming pool, not a refrigerator, or a toothbrush, or a calzone. “Exclusionary amenity” is a term I will coin here and define as a type of club good that is paid for by all members of a collective body,...

  6. PART II: A THEORY OF INFORMATION AND EXCLUSION
    • 5 ASYMMETRIC INFORMATION AND EXCLUSION
      (pp. 75-92)

      So far we have established that the various exclusion strategies can substitute for one another, that they are imperfect substitutes, and that the law sometimes recognizes and sometimes ignores this substitutability. Given all of that, it is worth situating ourselves in the shoes of a resource owner so that we can evaluate the tradeoffs among the various exclusion strategies and decide which strategy is optimal in a particular context. Most owners face a choice among the bouncer’s right, exclusionary vibes, exclusionary amenities, or governance. What factors drive the decision among these options? I will discuss them below, beginning with the...

    • 6 REGULATING THE CHOICE AMONG EXCLUSION STRATEGIES
      (pp. 93-110)

      The previous chapter analyzed the important variables that affect a resource owner’s decision to choose among the three primary exclusion strategies. With a few exceptions, we can expect that resource owners will act to serve their individual interests well in restricting access to their property. Of course, resource owners’ decisions about exclusion necessarily affect the interests of third parties and may implicate broader societal values as well. When a resource owner’s exclusion of prospective entrants generates substantial harms of this sort, intervention by the state may be warranted. In this chapter, I will explore some of the social considerations that...

  7. PART III: DIVERSITY-PROMOTING STRATEGIES FOR THE TWENTY-FIRST CENTURY
    • 7 BUNDLED AMENITIES TO REDUCE DISCRIMINATION
      (pp. 113-126)

      We have seen that an exclusionary amenities strategy is neither good nor evil. Rather, it might further good or evil purposes, depending on the particular setting in which it is employed. Normative considerations might cause us to view the exclusionary amenities strategy unfavorably if used by Caucasians to exclude African Americans from an affluent neighborhood, but favorably if used by members of a religious minority that risks losing its identity to establish a critical mass of believers in a particular physical space.¹ This discussion of exclusionary amenities raises an additional implication: Inclusionary amenities logically must also exist. The presence of...

    • 8 INFORMATION IS A VARIABLE, NOT A CONSTANT
      (pp. 127-156)

      My information-based theory of exclusion posits that those who control access to a resource will decide among exclusion strategies, and about whether to exclude or not, based in large part on how easily they can obtain information about the attributes of potential resource users. It is tempting to assume that the presence or absence of pertinent information is determined by the private sector, and that there is nothing the state can do to affect it. But that view is mistaken. In many contexts, the state does use policy levers to make what was previously private information public. In a few...

    • 9 CARROTS, STICKS, CURTAINS, AND SEARCHLIGHTS
      (pp. 157-172)

      The preceding chapters suggest that the widespread availability of information about individuals and firms ought to alter the way we think about law and public policy in a variety of domains. In some settings, such as the employment context, disclosing previously private information about individuals may prove to be a desirable government intervention. In other settings, such as the juror selection process, there is a stronger argument for maintaining the privacy of information about individuals. This chapter provides a new typology of government information policies and draws some general lessons from our tour through various legal subjects.

      We are conditioned...

    • 10 WINNERS AND LOSERS
      (pp. 173-192)

      The reputation revolution that industrialized societies are currently undergoing is neither all good nor all bad. In some cases, the legal challenges posed by new technological capabilities are wrenching, and in a few instances those challenges are so severe that they warrant restricting the use of the technologies in question. Moreover, because the reputation revolution seems poised to create a world that resembles the small towns of yore far more than they resemble the urban and suburban environments in which most of us now live, readers should at least feel uneasy about the process by which we might achieve heightened...

  8. CONCLUSION
    (pp. 193-198)

    Robert Moses, New York’s nearly omnipotent builder of infrastructure, understood exclusion in all its shapes and forms. Jones Beach was one of Moses’s most impressive legacies—a pristine six-and-a-half-mile beach on Long Island that became one of the area’s most popular weekend destinations. Moses decided that keeping the beach beautiful required keeping African American bathers from spending time there. So he vetoed the Long Island Railroad’s proposal to construct a branch leading to the beach. And then he insisted that newly constructed parkways linking the beach to population centers be covered with bridges that were too low to let buses...

  9. NOTES
    (pp. 199-248)
  10. INDEX
    (pp. 249-255)