Demoralizing Markets: Vendor Conscience and Impersonalism

Abstract

In a recent contribution to this Journal, Matthew Caulfield urges business owners to curtail the influence of their moral conscience on market decisions: in deciding with whom to transact, vendors should adopt an attitude of impersonalism; they should not deny service on account of moral objections to customers' personal characteristics. The history of service denial in the United States is dominated by business owners denying service to Black customers. Civil rights legislation since the Reconstruction era has been designed to eradicate discrimination in contractual relationships, though its successes have been partial. In the foregoing decade, cases of denying service to LGBTQ + people have rekindled debate about discrimination by businesses. This essay places Caulfield's moral argument for impersonalism into its contemporary legal and legislative context, for it is legislatures and courts which ultimately regulate business conduct. Many matters raised by Caulfield surface in legal debates, though in some decisive recent decisions, courts have not sided with impersonalism. In explaining why, I offer a critique of contemporary legal reasoning in cases of service denial and argue that proponents of impersonalism have reason to be concerned at the granting to businesses the privilege of denying service.