Class Legislation/WalMart

Michael Froomkin - U.Miami School of Law froomkin at law.miami.edu
Fri Jan 13 06:32:40 PST 2006


Exactly.  The idea that we can't have health/safety/economic regulation to 
protect us against outliers who refuse to conform to norms that the rest 
of the industry does voluntarily would gut an awful lot of the most 
sensible and least controversial regulation while allowing the dumbest 
and most controversial.

Why would it more constitutional to impose a rule no one does voluntarily 
than to impose a rule almost everyone except the hypothetical Holmesian bad 
man does voluntarily?

The fact that there others whose legal choices are now constrained vastly 
increases the constitutional comfort zone.  (Although whether the act 
would be constitutional in the case of a sole affected party remains 
something of an open question, I believe.  It might depend what sort of 
activity it is; there may be only one supplier of a type of nuclear 
power plant for example, but they could still be regulated I presume.)


On Fri, 13 Jan 2006, Mark Tushnet wrote:

> Isn't it relevant to the equal protection claim that the regulatory 
> requirement *applies* to four employers, three of whom have, for their own 
> reasons, already structured their systems so that they comply with the 
> requirement?  Put another way, Wal-Mart now has to change its policy, and 
> Giant Foods can't change the policy it now has.
>
> DavidEBernstein at aol.com wrote:
>
>> I can't think of a clearer example of "class legislation" than a law 
>> designed to require WalMart, and only WalMart, to provide health insurance 
>> to its workers.  A violation of equal protection?
>>  http://www.nytimes.com/2006/01/13/business/13walmart.html?ei=5094&en=21d0fec926319b31&hp=&ex=1137214800&adxnnl=1&partner=homepage&adxnnlx=1137161264-w894X0JHQjyiDp4crAxhEw 
>> <http://www.nytimes.com/2006/01/13/business/13walmart.html?ei=5094&en=21d0fec926319b31&hp=&ex=1137214800&adxnnl=1&partner=homepage&adxnnlx=1137161264-w894X0JHQjyiDp4crAxhEw>
>>  David E. Bernstein
>> Visiting Professor
>> University of Michigan School of Law
>> Professor
>> George Mason University School of Law
>> http://mason.gmu.edu/~dbernste
>> 
>> ------------------------------------------------------------------------
>> 
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>> 
>> Please note that messages sent to this large list cannot be viewed as 
>> private.  Anyone can subscribe to the list and read messages that are 
>> posted; people can read the Web archives; and list members can (rightly or 
>> wrongly) forward the messages to others.
>> 
>

-- 
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--


More information about the Conlawprof mailing list