Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [40:28-45:33]

well I won't get into it it's just too long and we don't have enough time there are two fundamental problems with doing what I've said and that is using egalitarianism as the balance real the first is the problem of Washington V. Davis that is the problem that if you are going to say a law if you want real not formally egalitarianism then you are always going to look to how a law affects different groups and all laws affect different groups differently and Washington V. Davis which says always something just has a disparate impact that doesn't matter is both something we can't live with and we can't live without we can't live with it because it is the basis of Scalia's formal egalitarianism but guts egalité from this fundamental thing and we can't live without it because to some extent every law does it and the question of how we deal with that is beyond the scope of this lecture it's something for you youngsters to worry about because we're struggling with it all over there are laws let's say disparate impact is not allowed there are laws places where it doesn't you've got to figure out some way where there may be virtual representation so that we don't worry about it and undo effect in some there's got to be some way of figuring that out because if we don't figure without we will not figure be underlying problem which has been bugging our society our constitution from the very beginning because it is liberté and the egalité and fraternity is what the legislature keeps asking whether from the right or the left so that that will have to be worked out somehow and how to work it out because by no means easy the second problem is a very different one and it's the problem of what why do we bother giving compensation when we know the park is worthwhile why should we bother giving compensation when we know we want the park when it doesn't have this economic significance function of telling us when we want it and there's a little very academicy story there's a guy at Harvard and in Kaplo who's a great scholar who got tenure at a time at Harvard when it was almost impossible to get tenure because the criss were fighting with the law economics were fighting with the traditional economist and no one could satisfy any of them and he wrote an article which got him tenure which was magnificent because it said why should we compensate when we have a taking of the traditional sort you know taking for a part when we know we want the park and he said in that situation we should look to whether the person from whom we are taking is richer poor that made him beloved of the criss but the fact that he did it in an economically way made him beloved of the law economics people and the fact that he was doing it in a property traditional taking made him beloved of the traditional people so they all voted for tenure which is magnificent the only problem with the article is that it ultimately doesn't do anything why do we do it why do we do it and my question comes back to situations where the affirmative action is not only something we know we want but it may be something which is constitutionally required so that there is no question that we have to do it back to Aaron V. Cooper there the desegregation was constitutionally mandated so why do we bother in that situation to require compensation of the people who are the losers it is no longer to see whether we want to do it because we know we want to do it or in some case as a constitutionally required but the reason is really a very simple one that if you do these things in all sorts of situations in order to see whether you want the park then the people whose land is taken for a park when you know that you want it are going to say why shouldn't I have