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January 31, 2006


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Mike Giamo

This is a nice blog!



I really enjoyed listening to your talk on my MP3 player. Your examples of exclusionary behavior - the 3 types you identified - seemed obvious once you explained them. Where I live many contractors include the Christian "fish" symbol on their business cards. This may be an example of "inclusionary" conduct in hopes of gaining business from others. How would that fit into your examples or would it?

Also, you didn't seem to fully answer Professor Fischel's question about the confederate flags in the clubhouse. He asked if the owner would have some defense to a charge of discrimination. Perhaps, he was alluding to a first amendment right of free speech or some taking.

Anyway, it was a great talk. I learned quite a bit. Thanks.




I didn't hear Dan's question to be asking that, but it's entirely possible I misheard him. So here's what I'd say.

First Amendment defenses to the FHA's anti-advertising provisions have not fared well. Dan's hypothetical didn't involve an advertisement, so you would have to decide whether those precedents ought to be extended to cover design choices. That strikes me as a reasonable extension of existing precedents.

More broadly, one point I make in the paper linked above, but didn't have time to cover in the talk, is that I think the court is wrong to treat vibes as protected speech, and would be better served conceptualizing them as property rights. In that light, I think courts ought to ask whether government limitations on private owners' vibes amount to Takings, not whether they would violate the First Amendment. That is a normative argument, however, not a descriptive one.



Thanks for the response. It is a real privilege to have any kind of discussion with you. I have no affiliation with Chicago whatsoever, but I doubt any other school has such a distinguished faculty. As an aside, I can't believe you're still an "assistant" professor. You've published more "scholarly" papers than most full law professors will in their lifetimes. You're the Saul Levmore of your generation. I look forward to hearing more of your talks.


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