Legally speaking, we live in strange times. Late-twentieth-century American law has a strong libertarian streak––stronger than ever in our past and getting stronger all the time––which shows up in the law’s treatment of contentious moral topics like abortion, medical treatment for the terminally ill, divorce (though libertarianism is fading a bit here), and the contents of the local drugstore’s magazine rack. In these spheres, the reigning legal ideology is something close to laissez-faire.
Yet late-twentieth-century America is also a society with a large and interventionist state. Our law reflects this in a host of ways. We take for granted legal regulation of every aspect of our economic lives––consider the detail with which the labor and tax laws regulate employment of babysitters (the bane of might-have-been Attorneys General). The law also aggressively regulates our social lives––consider the antidiscrimination laws that cover all contractual relationships (not just employment), bar discrimination based on a large and growing number of criteria (not just race), and often require careful accommodations to members of potentially discriminated-against groups. In other words, we are both more libertarian and more regulated than we have ever been. What gives?
