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Kochan on an Anti-Interference Conception of Equality

By Lawrence Solum

Donald J. Kochan (Chapman University - School of Law) has posted On Equality: The Anti-Interference Principle (University of Richmond Law Review, Vol. 44, No. 2, 2011 (forthcoming)) on SSRN. Here is the abstract:

This Essay introduces the ?Anti-Interference Principle? ? a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon ? as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. It reviews these concepts against the backdrop of Proposition 8, Perry, and the recent Supreme Court decision in Ricci v. DeStefano. Absent avoidance of harm ? special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violate the Anti-Interference Principle. Such interference actions should be avoided.

Full post as published by Legal Theory Blog on September 14, 2010 (boomark / email).