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A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association Hardcover – July 7, 2009

ISBN-13: 978-0300121278 ISBN-10: 030012127X
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Editorial Reviews


“In this important, sensible, and brilliantly argued book, Koppelman and Wolff cogently question, as incoherent law and bad policy, the view of our Supreme Court that a nonsectarian, noncommercial group, the Boy Scouts, have a constitutional right to discriminate, hobbling reasonable legislative efforts to protect vulnerable gay youth from the sometimes deadly ravages of homophobic prejudice.”—David A.J. Richards, Edwin D. Webb Professor of Law, New York University

(David AJ Richards)

"A short and sharp critique of broad constitutional protection for the association rights of non-profit organizations. The best extant defense of government intervention into the membership policies of organizations like the Boy Scouts of America."—David E Bernstein, Professor, George Mason University School of Law and author, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws

(David E Bernstein)

“Andrew Koppelman and Tobias Wolff demolish the reasoning behind the Supreme Court decision holding that the Boy Scouts have a constitutional right to discriminate against gays—and also give us an incisive, subtle analysis of freedom of association.”—David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, The University of Chicago Law School
(David A. Strauss)

About the Author

Andrew Koppelman is John Paul Stevens Professor of Law and professor of political science at Northwestern University School of Law. He lives in Evanston, IL. Tobias Barrington Wolff is professor of law, University of Pennsylvania Law School. He lives in Philadelphia.


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Product Details

  • Hardcover: 192 pages
  • Publisher: Yale University Press (July 7, 2009)
  • Language: English
  • ISBN-10: 030012127X
  • ISBN-13: 978-0300121278
  • Product Dimensions: 0.8 x 5.8 x 8.2 inches
  • Shipping Weight: 10.4 ounces (View shipping rates and policies)
  • Average Customer Review: 3.0 out of 5 stars  See all reviews (1 customer review)
  • Amazon Best Sellers Rank: #1,632,646 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

6 of 9 people found the following review helpful By Philip Dinanzio on April 28, 2012
Format: Hardcover Verified Purchase
This book is a critique of the Supreme Court Case BOY SCOUTS v DALE, which allowed the Boy Scouts to be free of Anti-Discrimination laws, when they barred a homosexual scoutmaster from membership. The court reasoned that as a private organization they were not subject to public accomodation laws.

His reasoning is that since the common law forbade common carriers to deny service to the public, the court had no business overturning this concept. He compares this libertarian reasoning as akin to segregation statutes which required discrimination. This is a non-sequitor; these are two different concepts. No libertarian ever supported segregation statutes. However, the common law also restricted the rights of women to property, defering decisions to husband or father. The common law also allowed debtor's prisons. There were other legal restrictions that libertarians also opposed that I'm sure the author would not defend. So why defend this one?

Many of his arguments are mere assertions. For example, to exempt private concerns from government regulation in the name of individual rights, could mean the end of government controls!! It would validate the Lochner decision (which many scholars maintain this was a correctly decided case). He also states that without government being able to regulate private concerns, the economy would collapse!! This is asserted in contradiction to most empirical evidence which shows that the more controls, the worse the economy becomes (North vs. South Korea).

He states that the Boy Scouts are a monopoly, because the have a property interest in their name and symbols. This requires regulation. Why? The author has a property interest in his name and reputation. He gains from copyright laws for his writings.
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A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association
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