Document Type
Article
Publication Date
2016
Abstract
Property law is not only sexy but also loaded with moral conflict. Many market transactions are suddenly politically weighted acts. Can law provide a peaceful solution to the present conflict between sexual-identity right claims and conscience? This Article argues that law, understood in its textured, common law contours, may provide a more peaceful and reasonable solution than (a) peremptory claim-rights, (b) positive rules, and (c) markets unmediated by law. Properly understood, the common law doctrines of public accommodations and contractual licenses are not the source of the problem; they offer a potential solution. Authority to adjudicate common law liberties should be returned to common law institutions such as the license and the civil jury, which are both more competent and constitutionally empowered to settle the rights and duties of the parties consistent with the requirements of equality and conscience.
Recommended Citation
Adam J. MacLeod, Tempering Civil Rights Conflicts: Common Law for the Moral Marketplace, 2016 Mich. St. L. Rev. 643 (2016).
