Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions from nondiscrimination laws. This Article is the first to offer a rigorous analysis of the oral arguments of this pending case. Its troubling findings show why deciding such a critical issue based on abstract preemptive litigation—designed to eliminate those who would be humiliated from the discussion—would be utterly wrong and should be avoided. But the Article not only sounds an alarm in a moment of crisis; it also develops a novel solution. It is time to go beyond discrimination, turning to private law and utilizing its tools to fight market humiliation. The proposed shift requiresmaking more room within private law for a duty not to humiliate. This Article recommends how to do so and what legal reforms of doctrines and remedies are needed. Following these recommendations can empower people humiliated in the marketplace to take action and seek remedies from those who mistreated them. Private law has unique expressive, normative, and remedial powers that can fill the normative void created under nondiscrimination laws. When the market’s inclusiveness is under attack, one salient response is to develop additional ways to secure market citizenship for all.
Beyond Discrimination: Market Humiliation and Private Law,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol95/iss1/3