Class Legislation/WalMart

Michael Froomkin - U.Miami School of Law froomkin at
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 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?
>> <>
>>  David E. Bernstein
>> Visiting Professor
>> University of Michigan School of Law
>> Professor
>> George Mason University School of Law
>> ------------------------------------------------------------------------
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