Actually, the highlight of the week was sitting on a panel alongside John Hospers. I’m a bit star-struck, and that was pretty hard to believe. Apparently Prof. Hospers has read my Liberty articles, and liked my articles about the Civil War. Amazing. At lunch, I sat with Prof. Hospers, Prof. Machan, Nathaniel Branden, Barbara Branden, and Jack McHugh from the Mackinac Center. I felt like a kid who’s wrongly sitting at the grownup’s table. But they were very interested in some of the cases that I’ve worked on; Dr. Branden suggested I write a book to collect them; I told him I already had a title: The Government Can’t Really Do That To Me, Can They? Because I hear that from prospective clients so often.
On Saturday, I sat on a panel discussing “Are Americans Freer Than They Were A Hundred Years Ago?” Also on the panel were David Boaz of the Cato Institute, David Friedman, R.W. Bradford and Dirk Pearson of Liberty magazine. We all pretty much agreed that the answer was largely yes. But at the very end we somehow got to discussing whether the rules established by homeowners’ associations are really private—whether a person really had a choice in the matter when he buys a house. We all agreed that homeowners associations are a pain in the neck, but Boaz was really bothered by my suggestion that the distinction between state action and private action was not very clear. “Of course you have a choice,” said Boaz. “If you don’t like the rules of that homeowners association, you can go elsewhere.” I replied that this was illusory choice because there aren’t other places that are very similar, so your choices are really very limited. “So what?” said Boaz, “That’s true of all goods and services.”
That’s true, and I don’t want to say that the state action doctrine should be abolished. It’s pretty obviously valid to me. But there are some cases, and this is one, where it is more troublesome. At some point, your freedom to choose to go elsewhere is curtailed—that is, your freedom to exit is so expensive—as to make your acceptance of a particular agreement something less than a meeting of the minds. The common law has always recognized this, by recognizing the possibility of unconscionable contracts. The Progressives wrongly expanded this principle to hold that, for instance, labor contracts were not really freely assented to—this was Roscoe Pound’s argument in his famous article Liberty of Contract. But while Pound extrapolated too far, the principle itself is valid sometimes, and I think when you say to a person “Well, if you want to buy a home here, you must submit to the most intrusive and unreasonable regulations, or you must find another place to live,” and then the other choices of places to live are few and far away and vary in prices very widely, I’m more sympathetic to that argument. The Court has been too—although the Court is reluctant to lower the wall between state action and private action, one case in which it has done so is in the case of “company towns.” See Marsh v. Alabama, 326 U.S. 501 (1946).