Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





Yale Law School




Hard cases do not always make bad law. Sometimes, when confronted with records that will yield neither to the direct application of established legal principles nor to factual manipulation, courts articulate, or at least suggest, a new principle which should and often does refine a body of old law. The Supreme Court's decision in NAACP v. Claiborne Hardware Co." should become a prominent and salutary example of such hard cases. Before Claiborne Hardware, the Court had indicated that legislatures, for rational economic policy reasons, could make peaceful consumer boycotts illegal.' Confronted with compelling facts in the Claiborne Hardware case, however, the Court asserted a new consumer right to engage in concerted refusals to patronize even if such refusals are economically disruptive.3 This assertion, while necessary to the Court's decision, did not rest squarely on any First Amendment or other precedent. This Article will argue that a consumer right to boycott is nonetheless appropriate for our society, a right in accord with our social and constitutional values. Further, the Article will argue that this right should be cast as a broad political right to influence social decisionmaking. Finally, the Article will explore the implications of the right for certain important labor law doctrines. 4

Link to Publisher Site (BU Community Subscription)



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.