Legal Fiction

Law, Politics, Race, The Economy

Jeffrey Rosen called Chicago law professor Richard Epstein the intellectual guru” of a movement to resurrect the Constitution in Exile,” meaning the effort to roll-back the New Deal. So I wasn’t surprised to see him arguing that corporations should be allowed to demand genetic tests of potential employees if they so please. He does so here, and again here.

He picks the most atypical example he could possibly have chosen — professional basketball players. This is important because part of his libertarian argument is that potential employees should also be able to refuse such tests.

in competitive markets employers should be allowed to ask any question that they choose, no matter how irrelevant, and employees should be allowed to decline to answer any question, no matter how germane. … So long as there are lots of employment alternatives (and even for Eddy Curry there were) then the state should allow competition to determine which information will be supplied in what cases.

Even for Eddy Curry? Come on now. We are talking about a young NBA center. Now, don’t get me wrong, I have nothing against the use of abstract models such as those provided by economics; but there is a serious problem when we try to define legal principles on the basis of the fantasy of competitive markets in which both employees and employers can freely pick and choose. The fact of the matter is that we live in a world where people are afraid to leave miserable, low paying jobs because they might loose their medical benefits.

Epstein thinks that such information would actually benefit job seekers because they might find out life-threatening information as a result of such information. It blows my mind how far removed Epstein is from the real world conditions under which most people live today. Look at the case of Whitney Morrill. When she and her husband’s careers changed they had to sign up for personal health insurance. (Something I myself had to do after graduate school. I’m now paying three times as much for half as much care.) Here is what happened to her:

Because I was blessed with lifelong health, the medical information” page of my application was relatively brief. I listed a prescription for Clomid, a fertility drug I’d taken while trying to conceive my daughter, and a single appointment I’d had with a psychiatrist after she was born, regarding the possibility of postpartum depression.

Shortly after we submitted our paperwork to Anthem’s headquarters in Roanoke, the letters started arriving in our mailbox. My application was under review. More information was needed. Then another letter arrived. My husband and 9-month-old daughter had been approved for coverage at Level 1, the company’s best rating. I had been rejected. The reason: the psychiatrist appointment.

One little piece of information gets out and you are screwed. It may not even be relevant or accurate information. It doesn’t matter. That’s why privacy is important.

Sure, in an ideal world we could all post our health records on the web for everyone to see — that way our neighbors could help us if we got sick. But in the real world we might not get hired, we might not get health insurance, and most importantly the information itself might not be accurate.

Studies have shown that people with black-sounding names are less likely to get a job than those with white-sounding names. DNA tests might be required to mask your race, but what if they show that you have a genetic condition that identifies you as having African origins?

In Epstien’s world, none of this matters, because the fiction of efficient markets hide the existence of power relations. Such economic fictions might be useful for producing mathematical models with which to study long-term trends in commodity price fluctuations; but they make for bad law and bad policy.

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