Journal Title
Kentucky Law Journal
Volume
112
Issue
2
First Page
209
Document Type
Article
Publication Information
2023
Abstract
This Article explains the different rights and duties of each class of public accommodation. And it shows how common-law adjudication, especially the jury trial, resolves public accommodation disputes in a principled way while avoiding zero-sum definitions of civil rights. The Article does not aspire to settle conclusively controversies over the relative scopes of First Amendment liberties and nondiscrimination laws. Not every jurist agrees that history, background legal principles, and foundational legal norms and institutions are important or helpful to determine the boundaries between civil and constitutional rights. And some public accommodation laws do more than merely restate common-law doctrines. But the common law supplies both conceptual clarity and a principled, neutral framework for resolving public accommodation disputes. To read public accommodation statutes as declaratory of the common law writs and institutions that yielded public accommodation doctrine-trespass, assumpsit, bailment, franchise, and jury trials-is to see that such statutes do not burden civil rights in a categorical manner.2 7 Because the scope of the customer's license, and thus the central issue in the assumpsit action, tums on the intention of the property owner, the potential conflict of civil rights dissolves into a fact question, that juries may answer on a case-by-case basis according to the particular mores of the community and the evidence adduced at trial.
Recommended Citation
Adam J. MacLeod, The First Amendment, Discrimination, and Public Accommodations at Common Law, 112 Ky. L.J. 209 (2023).