To date, antidiscrimination law has centered on specific domains widely believed to be most central to human life and democratic participation: education, voting, employment, housing, and public accommodations. The right to vote, the ability to receive an education, and the capacity to obtain shelter and employment are essential to human survival, particularly within a market economy. But while voting, education, employment, housing, and travel might be necessary for human survival and democratic participation, they are not sufficient for human flourishing. People need more than an education, a steady job, a roof over their heads, and the right to vote—they need things in their lives that will bring them joy and satisfaction. They need time and space for recreation, for play, or even merely for relaxation. In short, they need leisure.
It is an obligation of a just polity to provide leisure opportunities for its citizens. If a polity is obligated to ensure that its citizens have the capacity for leisure, then it is obligated to do so in an equitable and nondiscriminatory manner. The availability of leisure should not vary on the basis of race, gender, or disability any more than the right to vote or the right to an education. It is past time to begin considering the question of leisure justice: Are all citizens able to access sufficient opportunities for leisure, and can they do so on a nondiscriminatory basis? This Article provides the first systematic account of leisure law—the wide array of legal doctrines that structure Americans’ access to leisure opportunities and the distribution of those opportunities. Leisure intersects with a surprising array of legal fields, from foundational areas such as constitutional law, tort law, property law, and criminal law to specialized domains like employment law, civil rights law, administrative law, and intellectual property law. After mapping out the legal domains where leisure is prevalent, we describe the lacunae in leisure law—the places where the law fails to guarantee to individuals the ability to enjoy leisure opportunities free from discrimination. That understanding enables us to formulate an agenda for leisure justice aimed at remedying these shortcomings.
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Introduction
When you think of antidiscrimination law, which domains of life immediately come to mind? Education might be first. Brown v. Board of Education, which invalidated state-sponsored school segregation, remains one of the most celebrated Supreme Court decisions in history and is widely recognized for reshaping American equal protection law.[1] Title IX, which prohibits gender discrimination in educational institutions, has become an important part of the fabric of American school and university life.[2]
Employment, voting, and housing are also probably high on the list. American democratic practice is governed by the Voting Rights Act, the Equal Protection Clause, and the many Supreme Court cases interpreting those rules.[3] In the realm of employment, Title VII and the Equal Employment Opportunity Commission—charged with Title VII’s enforcement—play a significant role in regulating the activities of both public and private businesses. And the Fair Housing Act, along with its enforcement arm within the Department of Housing and Urban Development (HUD), performs a similar function with respect to both public and private housing.
Finally, antidiscrimination law implicates public accommodations, particularly with respect to lodging and restaurants. Many hotels, motels, and restaurants in the American South would not accept Black guests during the Jim Crow Era, which made travel through the region dangerous or impossible for Black Americans. The civil rights movement of the 1950s and 1960s often centered on these spaces, with protestors staging sit-ins at lunch counters and similar establishments.
These domains of life and law—education, voting, employment, housing, and public accommodations—are unified by a common theme: They concern activities central to human life and democratic participation. The right to vote and the ability to receive an education that enables the thoughtful use of that vote are essential to membership in a democratic polity.[4] The ability to obtain shelter and employment that will allow one to pay for that shelter—as well as shelter and food when traveling—is essential to human survival, particularly within a market economy. It is thus quite understandable that the civil rights and antidiscrimination movements began and gained greatest force with these subjects.
But while voting, education, employment, housing, and travel might be necessary for survival and democratic participation, they are not sufficient for flourishing. People need more than an education, a steady job, a roof over their heads, and the right to vote. They need things in their lives that will bring them joy and satisfaction. They need time and space for recreation, play, or even mere relaxation. In short, they need leisure.
Moreover, it is an obligation of a just polity to provide leisure opportunities for its citizens. One of legal philosopher Martha Nussbaum’s ten central human capabilities necessary to constitute a just society is “Play,” the capability of individuals to laugh, play, and enjoy recreational activities.[5] In her 2016 book Free Time, Julie Rose similarly argued that a just polity must guarantee to its citizens a reasonable amount of free time and must concern itself with the distribution of that free time.[6] Similarly, extensive research into subjective well-being indicates the centrality of leisure activities to human happiness and thus to welfare.[7] Free time functions as a resource that enables individuals to pursue their chosen ends and to do things like cultivate relationships, participate in community life, or engage in various recreational, creative, or restorative activities. If these pursuits are important components of a flourishing life, then a just polity must concern itself with how opportunities for free time are distributed to ensure fair access to them. If a polity is obligated to ensure that its citizens have the capacity for leisure, then it is obligated to do so in an equitable and nondiscriminatory manner. Leisure should not be differentially available on the basis of race, gender, or disability any more than the right to vote or the right to an education.[8] It is thus past time to begin considering the question of leisure justice: Are all citizens able to access sufficient opportunities for leisure, and can they do so on a nondiscriminatory basis?
From the perspective of law, leisure is not taxonomically similar to voting, education, employment, and the like. Those are well-recognized discrete legal subjects, taught in law schools every year in courses that bear their names. By contrast, as we will explain in this Article, the law of leisure is an admixture of a wide variety of areas of law, ranging from administrative law to public accommodations law, telecommunications law, and everything in between. It is the “law of the horse” in the sense described by Judge Easterbrook, borrowing Karl Llewellyn’s phrase: a body of law that concerns a single subject but spans a wide variety of doctrines.[9]
The variegated taxonomy of what we will call “leisure law” is both a cause and an effect of its standing within antidiscrimination law generally. The fact that leisure law does not form a single, coherent body of doctrine has likely contributed to its being overlooked within the broader realm of antidiscrimination law. At the same time, legal scholars have largely overlooked the importance of leisure to human well-being, and thus the importance of ensuring that leisure opportunities are available on a nondiscriminatory basis. This, in turn, has likely contributed to the fact that nobody has attempted to assemble leisure law into a coherent whole.
This Article takes aim at these conjoint omissions within the literature. Our objective is to describe and categorize the many different areas of law that affect the opportunities for leisure (or lack thereof) afforded to Americans and the distribution of those opportunities. We then use this categorization to understand the lacunae in leisure law: the places where the law fails to guarantee to individuals the ability to enjoy leisure opportunities free from discrimination. That understanding enables us to formulate an agenda for leisure justice aimed at remedying these shortcomings. Leisure law still encompasses a wide range of doctrines and legal ideas. But that does not make it unimportant, just as cyberlaw—the initial subject of Easterbrook’s critique—is hardly unimportant. And it does not mean that it cannot be tamed and organized. That is the goal of this Article.
This Article proceeds in three Parts. In Part I, we begin by offering a working definition of leisure. We then define and describe the necessary conditions for leisure: time in which to engage in leisure and spaces (whether public or private) within which it can be engaged. In Part II, we categorize and analyze the laws that define and construct individual entitlements to—and opportunities for—leisure. We examine laws that address both time and space as inputs to leisure. And we expose gaps in the law that limit some individuals’ ability to obtain leisure opportunities on an equitable and nondiscriminatory basis. Finally, Part III proposes a leisure justice agenda meant to address the shortcomings described in Part II. Building upon philosophical traditions ranging from Nussbaum’s capabilities approach to hedonistic accounts of well-being that emphasize pleasure, we explain how policymakers could craft antidiscrimination laws and positive entitlements that guarantee all citizens the opportunities for leisure required for human flourishing.
This Article is written amid renewed volatility in the institutions that once sustained equal opportunity. The Trump Administration has contracted and reoriented federal enforcement capacities that long undergirded equal access, including those within the Department of Justice, the Department of Education, and HUD’s Office of Fair Housing.[10] Fundamental challenges to voting rights, fluctuating employment, and budgetary conditions all seem to underscore the primacy of those domains over something as seemingly optional as leisure.[11] Put differently, these developments suggest that leisure is a lesser priority and that attention should be reserved for more urgent struggles.
Why attend to leisure when concerns about education, housing, democratic participation, and economic stability dominate public debate? In this Article, we suggest that this hierarchy of urgency is itself part of the problem and misses a range of legal, psychological, and social dimensions. First, it overlooks the ongoing policy developments that shape Americans’ access to leisure, some of which are precisely tied to those domains—from civil rights enforcement priorities to funding decisions that determine whether spaces for recreation exist at all.[12] Second, it underestimates the role of leisure as a form of retreat and repair: a way for people to step outside daily pressures and recover perspective. And third, perhaps most importantly, it misses the deeper point that in unsettled times, opportunities for rest, play, and collective joy are not luxuries but conditions that can help people keep their balance and sustain civic life.[13]
This Article takes an ideal-theory view of leisure justice. Its focus is not on the shifting political moment but on the normative commitments that define a just society’s approach to leisure. This perspective makes space to consider those commitments at a level of principle—to ask what justice requires even as policy and enforcement priorities change. Those ideals—the ones that persist when circumstances do not—anchor the analysis that follows. In our view, amid shifting political and economic currents, the degree to which a polity meets its obligation to secure equitable and inclusive access to leisure remains a measure of its commitment to fairness and nondiscrimination.
This Article shows why that obligation endures and why leisure belongs within the core architecture of justice itself.
I. The Contours of Leisure
Before delving into leisure justice, we begin by offering a working definition of leisure. Economists work with what is arguably the narrowest but most manageable understanding of leisure. This conception of leisure is rooted in labor-leisure theory, which is derived from neoclassical economics. The labor-leisure dyad focuses on the choice workers make to allocate their time between generating income for purchasing utility-conferring goods and services, on the one hand, and engaging in leisure activities that directly confer utility, on the other.[14] A related approach understands leisure as an activity that occurs outside the hours of labor-market work or leads to forgone earnings.[15] The measurability of these disciplined approaches to leisure is helpful for economic analyses but suffers from some shortcomings. For our purposes, economic approaches do not fully capture the oceanic gray areas between work and leisure,[16] whether they be legally technical understandings of work,[17] subjective understandings of leisure (e.g., a professor who enjoys reading scholarly articles for work and for pleasure),[18] or forms of non-labor-market activity that would not traditionally be understood as leisure.[19] Nevertheless, economic understandings of time and its relationship to labor are valuable conceptions of leisure.
Popular understandings of leisure sit on the other end of the interpretive spectrum. The most basic descriptions of leisure define the term as time used for one’s personal enjoyment that is untied to work or duties. Merriam-Webster describes leisure as “freedom provided by the cessation of activities,” especially “time free from work or duties.”[20] The MacMillan Dictionary defines leisure as “activities that are relaxing or fun,” and the Cambridge Dictionary defines the term as “activities people do when they are not working, to relax and enjoy themselves.”[21] These definitions of leisure rely on a similar labor-leisure dichotomy found in economics but inject notions of pleasure. Including subjectivity and pleasure makes conceptions of leisure less uniform and more subject to measurability problems. Popular descriptions of leisure also invite line-drawing problems around obligation, duties, and work. The most glaring example of this quandary appears in the gendered activity of childcare, which is replete with ideas about obligation and duty but can also serve as a source of joy and pleasure.[22] But a few things can be distilled from these general definitions of leisure: non-obligation, free time, and enjoyment.
The interdisciplinary field of leisure studies sits somewhere between economic and popular understandings of leisure (but perhaps closer to the latter). Scholars working within the field have attempted to provide theoretically functional understandings of leisure. The most helpful description comes from sociologist Robert Stebbins, who defines free time as “time away from unpleasant obligation.”[23] For Stebbins, leisure is defined as “uncoerced activity engaged in during free time, which people want to do and, in either a satisfying or a fulfilling way (or both), use their abilities and resources to succeed at this.”[24] The crucial feature of this definition and others that surface in leisure studies is the emphasis on voluntariness.[25] Although this definition is also subject to the problems of duty and obligation, its focus on voluntariness underlines ideas about autonomy and freedom that are central to leisure.[26]
These definitions largely encompass the sense of leisure that we are trying to capture, in which leisure is a pleasurable activity that is required for true human flourishing.[27] The precise contours are not critical, but as our working conception of leisure, we will employ the following definition: voluntary activity that one engages in during free time that is not tied to obligation and brings some form of personal enjoyment.
This definition incorporates the notion of time, which is essential to, and constitutive of, leisure. In addition, leisure cannot occur within a vacuum. Leisure must take place somewhere; there must be some physical or virtual location in which leisure occurs. This is not a trivial requirement. As we detail below, the legal battles over particular groups’ or individuals’ exclusion from or inclusion in leisure spaces demonstrates how central locations are to leisure justice. In the remainder of this Part, we outline the role of time and space as inputs to leisure. This exercise is important to our project of organizing what we call “leisure law” because the laws that govern the exercise of—and opportunities for—leisure are principally laws about time and space.
A. Time
Leisure typically occurs outside of work hours. Our focus here is on pleasurable activities that occur off the clock. Of course, scores of counterfactuals apply pressure to this definition of leisure at best and potentially undermine it at worst. For example, under the Fair Labor Standards Act (FLSA), which applies to most hourly workers in the United States, rest periods are compensable time.[28] These short durations can last from about five to twenty minutes. A person might enjoy scrolling through Twitter or having a smoke during this period, and those activities would constitute leisure activity on the company’s dime.[29] Then there is the blurred nature of work hours for employees not subject to FLSA, including workers who are paid weekly or monthly salaries, rather than by the hour (and often referred to as “white-collar professionals”).[30] One need only look at the practices of large law firms and technology companies, which often integrate boutique fitness centers or other leisure centers into their offices, thereby turning leisure-related exercise into an activity that happens at work or during work hours.[31] And then there are other boundary-spanning activities such as work dinners and happy hours. These events may be informal or voluntary, but they may involve forms of employer liability, business matters, and unstated expectations about attendance that make them work related.[32] They could also include forms of leisure that people enjoy (e.g., fine dining and drinking).
Accordingly, there are a range of activities that might be considered leisure but nonetheless fall within work hours or have enough of a connection to work to suggest that the labor-leisure dyad is not the neatest definition. Still, we think it is useful because it is consonant with how most people engage in leisure. The structure of most workplaces and the demands of employment are typically designed such that leisure is not the primary activity in those settings. Instead, tasks tend to be oriented toward the employer’s mission, with some wiggle room for leveraged leisure.
B. Space
Leisure must occur somewhere. Accordingly, space is the second primary input to our conception of leisure. To illustrate, we focus on four nonexhaustive (and sometimes overlapping) forums where people engage in leisure.
The most obvious place is the home. The home is typically understood as a space that is primarily about “shelter, privacy, and storage,” but property scholar Lee Fennell highlights how it is also an important space that is tied to activities such as “recreation and exercise” as well as “guest accommodation, event hosting, and more.”[33] Although the home is subject to unique legal protections,[34] law regulates home-related leisure in ways that vary in their mundanity.
Consider pet ownership. Some leisure studies scholars have insisted that we understand leisure as a multispecies phenomenon involving encounters between humans and other animals.[35] This intersects with Nussbaum’s list of central capabilities, one of which (as we have noted) is the ability to engage in play and another of which is the ability to live with and have concern for other species of animals.[36] Indeed, two-thirds of American households own a pet.[37] Many of these owners play with their animals at home and find companionship with them; owners are also subject to various kinds of animal liability, nuisance, and licensing laws that can dictate whether they are permitted to own pets.
Dangerous recreational activities and vices are arguably the least savory examples of home-related leisure, and perhaps not surprisingly, they are frequently regulated at the local or state level. Some people like to literally play with fire, whether it be through the creation of bonfires or the use of fireworks (particularly on the Fourth of July).[38] Some jurisdictions regulate this behavior even in the context of one’s yard or curtilage.[39] Some jurisdictions have decriminalized marijuana but prohibited its use in public, essentially funneling it to private spaces—the most common of which is the home.[40] Any discussion of the spaces in which leisure activity occurs must thus begin with individuals’ private homes.
Homes are part of a larger category of private property where leisure activity occurs. The different subcategories of private property, as detailed below, are much more varied, but for now, we will refer to these as private property to distinguish these spaces from the home. These versions of private property might take shape through public accommodations that are privately owned but held out to the public and are subsequently regulated by antidiscrimination laws; these may include hotels, restaurants, and amusement parks, for example.[41] There are also privately owned spaces that may not be defined as public accommodations but nonetheless provide opportunities for leisure, such as religious facilities and membership-based social clubs.[42] Finally, there is a branch of private property—often natural spaces—that looks like the public accommodations described above or the category of public property described below but is neither. These include private parks, vineyards, campgrounds, and hunting lodges.[43]
Government-owned (or “public”) property is another relevant category of leisure spaces. These spaces are legally owned by the government for public use and consumption. The broadest version of public space as generally understood includes streets and city squares used for parades, cultural events, and various forms of social interaction.[44] However, the most common government-owned leisure spaces are also typically public accommodations—think public parks, public beaches, and some stadiums, such as Soldier Field in Chicago.[45] Though subject to standard restrictions (e.g., health and safety regulations, curfews, and occasional costs depending on the type of space), they are generally available to the public.[46] There is a smaller category of government-owned property that does not fall into the public accommodations category and has more restrictive access, but nonetheless provides leisure, such as recreational facilities at public educational institutions.[47]
Leisure can also occur via digital spaces.[48] The internet is the fulcrum of this kind of leisure. It serves as the gateway to social media through video calls with loved ones; games; the consumption of movies, music, and books; and a wide variety of other types of leisure. Notably, the internet offers digital alternatives to leisure activities historically undertaken in physical spaces, including shopping, gaming, and gambling. Digital spaces are distinctive because they intersect with physical environments rather than replacing them. Although a leisure activity may occur on a digital platform, it is still experienced within physical spaces that can vary widely. For example, a person can watch a movie on Netflix at home as well as at a separate private or public property.
As this Part demonstrates, the availability of particular types of spaces plays a large role in defining the leisure opportunities available to individuals. And as the next Part will demonstrate, law plays a significant role in regulating both the availability and provisioning of these spaces, for good and for ill.
II. The Law of Leisure
With a working definition of leisure in hand, we next explicate a subfield of law that we describe as “leisure law.” As we explained in the Introduction, there is no true field of “leisure law” (yet). There are shockingly few treatments of the field we would consider leisure law.[49] Indeed, there is no coherent, scholarly account of leisure and the law, despite the variety of ways in which the law monetizes, promotes, regulates, and inhibits leisure—a gap this Article seeks to address by constructing the category of “leisure law.”[50] We believe that this absence in the law is both a cause and an effect of the fact that leisure activities have traditionally been viewed as second-class domains of law and regulation. The lower level of importance attached to leisure has likely discouraged scholars and policymakers from attempting to formulate a coherent field of leisure law. And in reciprocal fashion, the absence of a coherent field of leisure law has diminished interest in studying and attempting to make sense of leisure law.
Part II threads together a novel taxonomy of leisure law to fill this scholarly gap. This schema is an important condition for understanding the concept of leisure justice that is central to the Article. This taxonomy also helps make the idea of leisure a legible legal topic. Our consideration of leisure law follows the mapping laid out in Part I. In Part II.A, we focus first on the laws that regulate leisure time, principally laws tied to labor and employment. We then turn our attention in Part II.B to the laws governing the spaces in which leisure takes place and the laws that provide or limit access to those spaces.
A. Labor and Employment
Because leisure is understood as an activity not tied to work or obligation, the first plank of leisure law is counterintuitively oriented around labor. This Section focuses on how labor and employment laws directly and indirectly regulate work hours in ways that create the conditions for people to pursue leisure. We examine three categories of employment and labor law that most significantly structure leisure time: first, overtime regulation, particularly the Fair Labor Standards Act’s forty-hour workweek rule; second, telework and flexible work arrangement laws that shape when and where work occurs; and third, retirement laws that determine the transition from work-life to leisure-life. Before turning to these modern frameworks, we briefly trace their historical origins in the Progressive Era labor movement.
The labor movement’s role in securing leisure time cannot be overstated. The mainstream public and scholarly community are typically most familiar with the labor movement’s efforts in the early twentieth century to increase wages, protect employee speech, and improve working conditions, among other issues.[51] But the movement’s concern about working hours was intimately tied to questions of leisure. Reformers, courts, and scholars who worked during the early twentieth century all emphasized leisure’s importance in the labor movement.
More recently, scholars have also highlighted the importance of leisure during this period.[52] The work of Progressive Era labor reformer Florence Kelley is instructive. In her 1905 book, Some Ethical Gains Through Legislation, Kelley advocated for a “right to leisure” that centered around shorter working hours and stricter regulation of the working hours for women and children—all of which she argued would promote health, family unity, and happiness.[53] Indeed, the interior chapters of her book were titled “The Right to Leisure” and “Judicial Interpretations of the Right to Leisure,” and she defined this “right” as an eight-hour workday.[54] In her work with the National Consumers League, Kelley challenged some of the labor restrictions of the early twentieth century and helped lay the groundwork for the Fair Labor Standards Act, which governs overtime pay, among other work conditions.[55]
Other Progressive Era legal reformers weighed in on the issue of leisure and work as well. The renowned Brandeis Brief, which was influential in the Supreme Court’s validation of a labor law limiting working hours for women in Muller v. Oregon, was littered with references to the ways long hours precluded leisure and led to poor employee health, lower work product, and alcoholism.[56] Elsewhere, Brandeis insisted that “the American standard of living demands not only a high minimum wage, but a high minimum of leisure, because we must meet also needs other than material ones.”[57] Leisure, he explained, was not about “idleness” but rather meant the ability to work at something “besides bread-winning.”[58] Years later, his associate Felix Frankfurter and Josephine Goldmark argued that shifting labor practices “encouragingly demonstrates that such limitation of labor and increase of leisure have been put to fruitful uses.”[59]
Today, the constellation of relevant employment and labor laws that fall within the ambit of leisure law includes statutes and jurisprudence related to overtime, work schedules, breaks, lunchtime,[60] workers’ compensation laws,[61] personal leave, and the Family and Medical Leave Act[62]—all of which create or preserve time outside of work that may be devoted to leisure.[63] Also relevant are “lifestyle” discrimination statutes that prohibit employers from engaging in unfair employment practices because of a person’s lawful activity outside of the workplace, some of which include leisure activities (e.g., smoking cigarettes or blogging).[64] Rather than surveying every leisure-law-related topic, we will focus specifically on employment and labor laws concerning the forty-hour workweek, telework, and retirement.
The most important employment and labor law for our purposes is the FLSA, and the most important provision of the FLSA is the rule that generally requires employers to pay hourly workers time-and-a-half if they work more than forty hours in a single week.[65] This rule naturally makes it much more expensive for employers to ask (or force) their employees to work long weekly hours, which helps preserve ample time for leisure. At the same time, as we noted above, the FLSA does not cover a variety of classes of workers, most notably salaried workers (including many so-called white-collar professionals).[66] Salaried workers typically earn higher salaries than hourly workers, which may provide greater access to different types of leisure.[67] But the structure of the FLSA also means that salaried workers frequently have less available time for leisure, and indeed there are stories about a wide variety of professionals being forced to work one-hundred-hour weeks and the like.[68] Although the FLSA was not designed to protect leisure as such, its regulation of work hours nevertheless shapes the amount of time some workers have available for leisure activities.
There is also a range of local and state laws that allow for flexible work arrangements that are relevant to leisure. Some predate the 2020 COVID-19 pandemic, while others are artifacts of that period. In 2013, Vermont passed a “right-to-request law” that permits employees to ask for “a flexible working arrangement that meets the needs of the employer and employee.”[69] These arrangements include “intermediate or long-term changes in the employee’s regular working arrangements,” such as “changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing.”[70] An employer, in turn, must consider the request in good faith and determine whether it is “inconsistent with its business operations.”[71] Also in 2013, San Francisco passed a similar ordinance that focused on caregivers and gender inequality and was replete with a range of procedural requirements.[72] In 2022, the city amended the ordinance to require that covered employers provide a flexible working arrangement unless they could show that there was an undue hardship.[73] Other states and cities have similar laws on the books that protect different categories of workers or are more limited in scope.[74]
A smaller subset of laws regulating the availability of telework similarly impact leisure. These laws allow government employees to perform their labor outside their principal place of employment. Some, like Montana’s, are somewhat vague and state that “an agency may authorize telework for specified employees when it is in the state’s best interest as determined and documented by the agency.”[75] Other states permit workers to telecommute due to various concerns related to cost sensitivity,[76] office space,[77] the climate change implications of unnecessary travel,[78] and employee performance.[79]
Like flexible work arrangements, telecommuting laws might have positive or negative relationships to leisure. One standard view sees these policies and laws as a boon, as they allow workers to achieve a better work-life balance and have choices about how they allocate time, work, and leisure.[80] Another view that has been particularly resonant in the Zoom era laments the blurring of boundaries between work and home. Whereas our “industrial-era social compact” involved conventional work hours and commutes that physically partitioned the office from home, the intrusive demands of white-collar professional work (e.g., law and finance) and the seductive autonomy of gig work have shattered this partition.[81] Under this perspective, many of these labor and employment laws are, at a minimum, antiquated and, at worst, quite perverse. For now, it is not necessary to adjudicate which is the better view but simply to emphasize the claim that these laws shape the nature of the workplace in ways that have repercussions for the pursuit of leisure.
Finally, and perhaps most importantly, the laws governing and affecting retirement have a pronounced effect on leisure. These laws were a focus of concern for the labor movement, at times even more so than wage-and-hour laws governing the working relationship.[82] Of course, a worker can retire any time they wish—no one can be forced to work.[83] But the availability of retirement—and thus the question of how much time an employee will have for leisure—depends dramatically upon a host of laws, including Social Security (and other retirement-benefits laws)[84] and Medicare.[85] These laws play a large role in constructing the boundary between an individual’s working life and their postretirement leisure life. Given how much more time retired people have for leisure, they thus play a substantial role in the allocation of leisure time across an individual’s lifetime.[86]
B. Laws Governing Space
Having canvassed the principal laws affecting leisure time, we now turn to the panoply of laws governing the spaces in which leisure occurs. We divide these spaces into three categories: private, public, and online. It should be evident at first glance that there is leakage between these three categories and that they overlap with one another in meaningful ways. For instance, an individual can engage in leisure online but that individual must also be somewhere—either at home or in another space that allows for internet access. Nonetheless, we believe that this taxonomy is both intuitive and useful. In the discussion that follows, we aim to explicate both the importance and the gaps within the leisure law governing space.
1. Private Spaces
We examine private spaces through three distinct analytical lenses, each revealing how different legal regimes shape leisure opportunities. First, we consider the home, where constitutional and criminal law determine which morally contested leisure activities can occur in private even when prohibited in public. Second, we analyze private property outside the home, where zoning and regulatory law constrain what leisure activities can take place and under what conditions. Third, we examine public accommodations—privately owned spaces that hold themselves out to the public—where antidiscrimination law determines who has access to leisure opportunities. Together, these three categories reveal how law simultaneously enables and restricts private leisure.
a. The Home as Refuge: Constitutional and Criminal Regulation
We begin with the most intimate of private spaces, the home. We also begin at the top of the American legal food chain with the U.S. Constitution. Some constitutional provisions, in theory, have carved out protections for leisure activity in the home. The focus here is specifically on morally contentious issues: sex, drug use, and alcohol consumption. Prohibition, for example, is a misleading appellation, as the Eighteenth Amendment and the Volstead Act that enforced this provision focused on the manufacturing, sale, and transportation of alcohol but permitted private possession and consumption.[87] By the 1960s, many decisions regarding penumbral privacy required the government to be more respectful of what people did in their homes. Although Griswold v. Connecticut involved the use of contraceptives,[88] Laurence Tribe reads the decision as part of a bundle of cases that “mandated heightened scrutiny not of state restrictions on procreative sex, but of restrictions on recreational or expressional sex—sex solely as a facet of associational intimacy—whether between spouses or between unmarried lovers.”[89] Of course, those protections were not comprehensive; most notably, they did not extend to the LGBTQ+ community until 2003.[90]
Some legal entrepreneurs have similarly attempted to carve out constitutional protections for drug use within the home. Most notably, marijuana smokers have tried to leverage ideas about privacy to convince state supreme courts about the permissibility of marijuana use (generally and in the home specifically), with limited success in the 1960s and 1970s.[91] For example, the Alaska Supreme Court ruled that its residents had a general right to privacy that encompassed “the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home.”[92] The War on Drugs still prevailed at the end of the twentieth century, but in more recent years, states have decriminalized marijuana, often making specific provisions for the possession and cultivation of recreational marijuana in the home.[93]
Other laws funnel leisure-like behavior into the home and private residences. Researchers across the disciplinary spectrum and the globe have sung the praises of a good drink, describing drinking as “a pleasurable activity that smooth[s] their passage through everyday life”[94] and something that facilitates relaxation, “winding down, stopping activity and distinguishing between everyday practices and rest time.”[95] They have also noted how “drinking at home enables people to demarcate leisure time.”[96] The Supreme Court, led by Justice Thurgood Marshall, famously upheld public intoxication laws in 1968 due to a concern that such drunkenness creates “substantial health and safety hazards” for the public and can offend “the moral and esthetic sensibilities of a large segment of the community.”[97] Public intoxication laws, which sometimes apply to other controlled substances but typically focus on alcohol, are present in most criminal codes.[98] But of course they do not eliminate drinking; rather, they represent one of many reasons why many people decide to drink at home.[99]
There are many such examples of laws pushing leisure-like behaviors into the home. Cigarette smoking has decreased in the past few decades, but 14 percent of the population (approximately thirty-four million people) still engage in this activity.[100] This is not surprising because cigarettes are addictive and release dopamine, the chemical that makes people feel pleasure.[101] Cigarette smokers in Illinois are subject to the Smoke-Free Illinois Act, which prohibits smoking inside or within fifteen feet of the entrance to public places and places of employment. But the law specifically exempts “private residences or dwelling places.”[102] Americans like guns, too, and typically own them for protection. But the next most common reasons for ownership are hobbies such as hunting, sport shooting, and gun collection.[103] Under the Supreme Court’s current interpretation of the Second Amendment, Americans have a constitutional right to keep these weapons in their homes without being accosted by local authorities.[104] Some states have laws that regulate recreational activities performed with those guns, such as Pennsylvania, which prohibits target shooting unless it is on the property of the shooter or the shooter is a guest of the property owner.[105] And even though gambling has migrated online, home-based gambling still occurs (e.g., poker, dice games, dominoes).[106] California is typical of a number of states that make it illegal for any person to “deal, operate, carry on, conduct, maintain, or expose for play . . . any controlled game.”[107] But there is a notable exception: “[g]ames played with cards in private homes or residences, in which no person makes money for operating the game, except as a player.”[108]
b. Beyond the Home: Zoning and Regulatory Constraints
Moving from the home to the larger category of private property illustrates a different set of leisure-relevant legal principles, some of which also apply to homes. For now, our focus is on private property that is not considered a public accommodation, though again, some of these issues also apply to that category. For some people, and some types of leisure, it is impossible to engage in the desired form of leisure in the home. Spaces outside the home are therefore necessary. That implicates laws governing rentals and zoning, many of which can be more restrictive than the laws that govern homes themselves.
Consider the case of short-term rentals. For renters, these spaces are certainly not homes in the traditional domicile sense; for owners, they may rent out a portion of their home, or the space may be an investment property. Hospitality and tourism researchers have suggested that Airbnb initially appealed mainly “to cost-conscious leisure travelers,” and though it has expanded to business travelers, “users seem to be mainly leisure travelers.”[109] Some jurisdictions have cracked down on this corner of the leisure industry. In some cities, hosts must obtain a permit or register with officials if they want to accept a guest.[110]
Zoning laws also impact how leisure can be structured on private property. Euclidean zoning divides land use by type (e.g., residential, commercial, industrial).[111] Private clubs are sometimes defined by local, state, and federal laws as not-for-profit associations that focus on recreational, social, or benevolent purposes.[112] Zoning regulations can dictate where social clubs can be placed, how the space is used, and occupancy limits that impact how many people can be at a social gathering.[113] They can also necessitate special use and variance permits if the club wants to alter the function of the space.[114] That is on top of various tort principles that are likely to apply to the kinds of activity that occur in social clubs (e.g., nuisance ordinances that impact how loud music is played at a party, dram shop liability if it serves alcohol, and premises liability if there is a dangerous condition in these recreational spaces).[115]
c. Public Accommodations: Access and Antidiscrimination Law
Public accommodations, whether publicly or privately owned, are arguably the statutory main event in the law’s regulation of leisure spaces. Because so many leisure activities unfold in places of public accommodation, the legal rules governing access to these spaces warrant particular attention here. This category spans a wide range of settings that touch on different areas of American life, including but not limited to restaurants, theaters, parks, sports venues, and hotels.
The modern federal legal framework governing public accommodations developed first through laws prohibiting racial discrimination. These efforts began in the Reconstruction Era and continued through the passage of the Civil Rights Act of 1964 and the development of related doctrines. Over time, that framework expanded to address other forms of exclusion, most notably through disability laws, which built on but also significantly modified this area of law by requiring reasonable accommodations to ensure access for individuals with disabilities.
The next two Sections trace this development. The first examines the emergence of federal public accommodations law prohibiting racial discrimination and how state and local statutes later expanded these protections to additional categories such as sex, religion, sexual orientation, and gender identity. The second turns to disability access regimes, which depart from this nondiscrimination model by imposing additional affirmative obligations designed to ensure access.
i. Race and the Expansion of Nondiscrimination in Public Accommodations
Public accommodations laws prohibiting discrimination on the basis of race can be traced to the period immediately following the Civil War, when states such as Massachusetts and Arkansas enacted the first such statutes.[116] The federal government followed suit with the Civil Rights Act of 1875, which provided that “all persons” be entitled to “the full and equal enjoyment” of a range of leisure-providing spaces such as “inns . . . theaters, and other places of public amusement” irrespective of race, color, or previous condition of servitude.[117] When a group of Black plaintiffs sued hotels, transit companies, and theaters under the Act, the Supreme Court invalidated the law on the basis that Congress could not prohibit private discrimination.[118]
After the decision, tensions emerged that would not be resolved for eight decades. Litigation challenging discrimination in government-owned spaces was funneled into the Equal Protection Clause and its specious allowance of “separate but equal.”[119] On the private side, common carrier principles, freedom of contract, and freedom of association were the most relevant legal provisions, and they often did not favor minority leisure seekers.[120] Section 1981, which was part of the Civil Rights Act of 1866, prohibited discrimination in the making and enforcement of contracts.[121] This would have plausibly covered privately owned leisure spaces where tickets were sold—theaters, baseball games, and amusement parks. However, narrow judicial readings of Section 1981’s right to contract, hostile courts (particularly in the South), and economic barriers to bringing lawsuits hampered these claims.[122] In response, states passed their own public accommodations statutes that focused on private and public spaces, and minorities used these tools to challenge their exclusion in leisure spaces with mixed success.[123]
By the 1960s, social movements created the conditions for the passage of Title II of the Civil Rights Act, which prohibits discrimination in public accommodations based on race, color, religion, or national origin.[124] The drafters of this statute cracked the constitutional puzzle and figured out a circuitous way to regulate private conduct that eluded the strictures imposed by the Supreme Court in the Civil Rights Cases: They used the Commerce Clause. Like railroads, public accommodations such as hotels and restaurants were instruments of interstate commerce that could come within congressional reach. The law specifically listed a range of public accommodations relevant to leisure: hotels, restaurants, movie theaters, concert halls, sports arenas, and stadiums.[125] It also included a seemingly catchall category that the Supreme Court has ruled should be understood broadly: “places of entertainment.”[126]
Definitions of public accommodations under state and federal law vary depending on the statutory context. Indiana, for example, defines a public accommodation simply as “an establishment that caters or offers services, facilities, or goods to the general public” and leaves the textual ambiguities for courts to sort out.[127] This kind of capaciousness can be useful but raises questions about gray areas, especially places that are privately run or based on membership.[128] One leading court listed eight factors to consider in these ambiguous circumstances: (1) the genuine selectivity of the group; (2) the membership’s control over the operations of the establishment; (3) the history of the organization; (4) the use of facilities by nonmembers; (5) the club’s purpose; (6) whether the club advertises for members; (7) whether the club is nonprofit or for-profit; and (8) whether the club observes a set of formalities (e.g., bylaws, meetings, membership cards).[129] On the other end of the interpretive spectrum are statutes like Colorado’s—which has received scrutiny from the Supreme Court on a few occasions[130]—and which enumerates a long list of spaces that fall within the term.[131] Many public accommodations tend to be privately owned despite being public facing, including businesses such as gyms, dispensaries, theaters, and places that serve food and drinks.[132]
Our definition of public accommodations accords closely with Nebraska’s, which uses very leisure-specific language. The Cornhusker State defines public accommodations as “all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, and accommodations for the peace, comfort, health, welfare, and safety of the general public and such public places providing food, shelter, recreation, and amusement.”[133] This definition avoids some of the problems of underinclusion that have plagued parts of public accommodations law. We do not have to worry about whether a mixology class must be shoehorned into the “soda fountain” category of Maryland’s somewhat antiquated public accommodations statute or its provision encompassing any “facility principally engaged in selling food or alcoholic beverages.”[134] Nor do we have to squabble about whether a hair salon is a “place of entertainment” for the purpose of Title II of the Civil Rights Act. At the same time, this leisure-specific definition helps avoid overinclusiveness that may not fit into this Article’s ideas about pleasure. One would be hard-pressed to argue that federally recognized public accommodations such as tax-preparers’ offices, adoption agencies, or funeral parlors constitute leisure-providing spaces.[135]
Some lower courts have adopted narrow interpretations of what constitutes a public accommodation for the purposes of Title II, but the revival of Section 1981 widened the array of tools minority leisure seekers facing discrimination could use.[136] Section 1981 is not the stuff of a typical 1L contracts course, but it nevertheless sounds in the register of contract. When an individual seeks service in a public accommodation such as a hotel or a restaurant, the entity is understood as holding itself out to contract.[137] The interested patron is understood as forming a contractual relationship, with payment and provision of the good serving as consideration. Courts have ruled that the failure to provide, for instance, beverage service to a first-class minority passenger on an airline would violate Section 1981,[138] as would a restaurant serving fly-infested food to minority patrons.[139] Importantly, gender is conspicuously missing from Title II and Section 1981, but state and local statutes filled that gap and, by the turn of the twenty-first century, included other categories such as sexual orientation, religion, gender identity, and age.[140] Many contemporary disputes over access to leisure spaces arise under these state and local laws. For example, both Masterpiece Cakeshop v. Colorado Civil Rights Commission and 303 Creative LLC v. Elenis involved challenges to state public accommodations statutes that prohibit discrimination on the basis of sexual orientation.[141]
Categories like gender, sexual orientation, gender identity, and religion raise distinct doctrinal and political questions, and the forms of exclusion they address can differ in important ways from the racial discrimination that animated the original public accommodations laws.
Sex-segregated sections in gyms, which were created in part to provide a space for women outside of the male gaze and to encourage their participation in exercise, have been struck down as violative of Connecticut’s public accommodations law.[142] That episode illustrates how nondiscrimination rules can sometimes generate leisure-compromising outcomes. Empirical work has shown that LGBTQ+ college students felt less comfortable in campus recreational spaces and facilities (e.g., gyms, pools, intramural sports).[143] These findings raise questions less about outright exclusion or denials of service than about subtler barriers to participation and hostile climates. Dress codes in recreational venues can also be discriminatory and burden religiously observant patrons whose faith requires particular forms of attire. In addition, they can be used to police gender presentation in ways that impact transgender and gender nonconforming individuals who seek to participate in nightlife leisure (e.g., bars and clubs).[144]
Notwithstanding the distinct harms and doctrinal questions these issues implicate for our present purposes, these state public accommodations laws largely operate within the same basic legal framework: They prohibit discriminatory denial of service but generally do not require affirmative steps to make leisure spaces accessible. As a result, the dominant approach to regulating access to leisure spaces through public accommodations law has been one of nondiscrimination rather than accommodation. Disability access law, discussed in the next Section, departs from that model in important ways by requiring entities to take affirmative steps to ensure access.
ii. Disability, Nondiscrimination, and Accessibility to Leisure
The enactment of laws that protect disabled people’s access to public accommodations is a relatively modern development, notwithstanding the long history of discrimination against this group. Beginning in the 1930s and continuing into the 1960s, some states enacted “white cane” and guide dog laws that made it easier for people with visual impairments to navigate public spaces and prohibited public accommodations from overcharging this group.[145] Some states also included this group in their existing antidiscrimination statutes, but early laws that facilitated disabled access to public spaces often covered only people with visual impairments and excluded people with other types of disabilities.[146]
The mid- to late-twentieth-century shift toward deinstitutionalization—the discharge of people with disabilities from residential care facilities—proved to be a turning point in the law of accommodations.[147] Deinstitutionalization operated alongside a pluralistic movement that brought people with disabilities out of segregated facilities and into the general population and a range of community institutions.[148]
In the context of leisure and privately owned spaces, deinstitutionalization meant a few things. First, many of the community facilities that people were moved into had insufficient resources and facilities. Commentators often decried the absence of recreational opportunities in these spaces.[149] Second, people transitioning from institutions were often subject to discriminatory treatment in leisure-providing public accommodations.[150] This diverse group of people with physical and mental disabilities was no longer encumbered by the restraints of large institutions and wanted to dine in restaurants, watch films in movie theaters, shop in malls, and play at arcades. But these disabled individuals faced an array of physical and social barriers that inhibited their ability to equally enjoy these spaces: main entrances at privately owned leisure sites with no ramps for wheelchair users; inaccessible parking at malls for people with mobility issues; small print menus and event schedules that were unreadable for people with visual impairments; movie theaters with no closed captioning for people with hearing impairments; and gyms with unwritten social expectations that presented challenges for people with cognitive differences.[151] More hostile attitudinal and interpersonal issues sat on top of these barriers. Many businesses had impatient or untrained staff who did not know how to effectively communicate or work with disabled patrons.[152] And like segregationist leisure operators, many business owners were personally uncomfortable having people with disabilities around or worried that their patronage would make other customers uncomfortable.[153]
Third, deinstitutionalization coincided with the movement toward independent living within the disability rights movement. This campaign emphasized self-help, choice, and the belief that people with disabilities were the best arbiters of the services they needed.[154] Leisure figured prominently into these ideas about autonomy. Gini Laurie, sometimes referred to as the “grandmother of the independent living movement,”[155] put it best: “Independent living is freedom of choice to live where and how one chooses and can afford. It is living within the community, in the neighborhood one chooses. . . . It is deciding one’s own pattern of life—schedule, food, entertainment, vices, virtues, leisure and friends.”[156] Traditional conceptions of unequal treatment, along with advanced notions about access and movement-inspired ideas about how to create the conditions for independent living, all coalesced to offer a more robust conception of leisure than witnessed in the context of race and gender.[157] This vision, which focused on reasonable accommodations and discrimination, set the stage for the flurry of legislation that impacted disabled people’s access to equal treatment in leisure sites.
The federal government’s earliest antidiscrimination mandate for people with disabilities surfaced in Section 504 of the Rehabilitation Act of 1973.[158] This law partially addressed the three problems of inadequate access to leisure and discrimination in public accommodations, as well as the need for a better understanding of disability discrimination through the lens of affirmative obligations. Originally dubbed the “Civil Rights Act for the Handicapped” before the Americans with Disabilities Act was given that title years later,[159] Section 504 prohibited recipients of federal funding from discriminating on the basis of disability.[160] The law was an important statutory development for leisure-seeking people with disabilities, but it was, by definition, limited in its expanse since it only covered entities that received federal funding. To be sure, some private entities received federal dollars; some were less likely to be providing leisure (e.g., private hospitals), whereas some were more likely to be providing leisure (e.g., private universities).
But publicly owned leisure entities were more likely to fall under the ambit of Section 504. In part this was by legislative design. For example, Congress established the Land and Water Conservation Fund “to assist the States and Federal agencies in meeting present and future outdoor recreation demands and needs of the American people.”[161] Under the plain terms of the Rehabilitation Act, any potential recipient of money under the Conservation Fund was obligated to comply with the Rehabilitation Act.[162] The State and Local Fiscal Assistance Act of 1972 provided a general revenue-sharing system that funneled federal dollars to state and local governments and made them covered actors under Section 504.[163] The Urban Park and Recreation Recovery Act of 1978 provided matching grants to cash-strapped localities in an attempt to revitalize recreational opportunities for city residents.[164] Congress recognized that “inadequate financing of urban recreation programs due to fiscal difficulties in many large cities has led to the deterioration of facilities, nonavailability of recreation services, and an inability to adapt recreational programs to changing circumstances.”[165] These federal carrots were difficult for a public entity to turn down. A private leisure owner could technically avoid receiving federal dollars and be free to discriminate on the basis of disability.
The Americans with Disabilities Act (ADA) provided a more comprehensive approach to antidiscrimination in leisure sites and looked beyond whether the regulated entity received federal dollars. Title II of the ADA prohibited discrimination based on disability in all of a public entity’s “services, programs, and activities.”[166] This provision, similar to Section 504, covered forms of leisure activities operated by the government. Examples here include state agencies that regulate lotteries,[167] correctional facilities,[168] and various forms of government-funded sports and recreational programs designed for disabled youth.[169] Title III of the ADA focuses specifically on public accommodations, and unlike the Civil Rights Act, denominates twelve extensive categories where discrimination against people with disabilities is prohibited. The list of relevant sites includes galleries, shopping centers, movie theaters, gyms, health spas, and other places of recreation.[170]
Taken together, the Rehabilitation Act and the ADA reflect an important shift in the way access to leisure spaces is regulated. Unlike the race-based public accommodations regime discussed in the Section above, disability law does not focus only on prohibiting discriminatory denials of service. Instead, it imposes affirmative obligations designed to ensure access to leisure spaces and activities. This can include making reasonable modifications to policies and practices when they are necessary to accommodate individuals with disabilities and when doing so is readily achievable. In this respect, disability law reflects a different regulatory model: one that focuses not only on preventing exclusion but also on enabling meaningful participation in the spaces and activities where leisure occurs.
Overall, the upshot of these histories is that public accommodations—private spaces that make themselves generally available to the public—are now enmeshed within a web of antidiscrimination laws that require equal access irrespective of race, gender, disability, and other protected characteristics. This has critical consequences for questions of access to leisure opportunities. But it is important to stress two limitations to the reach of these laws.
First, these antidiscrimination laws only apply to public accommodations, not to private clubs.[171] In many locales, public accommodations provide ample opportunities for leisure. In others, however, much of the relevant leisure activity has shifted toward private clubs, creating the concomitant risk that opportunities for leisure may not be available equally to everyone.
Second, the legal rights described above are negative rights, by and large. They guarantee access to certain types of facilities that already exist, but they do not guarantee that those spaces will exist in the first place.[172] In many cases, this leaves the provision of leisure opportunities up to the whims of the marketplace or, as we will see, to the local government. Thus, in either case, access to leisure opportunities can depend heavily on socioeconomic status and, as intimately related, on race.
2. Public Spaces
The starting point for any discussion of leisure in public spaces is necessarily the antidiscrimination provisions in the Constitution and statutes, principally the 14th Amendment’s Equal Protection Clause[173] and Title VI of the Civil Rights Act.[174] These provisions prohibit discrimination by state actors in who may access public spaces, as well as discrimination in the provision of services by any recipient of federal dollars.[175] Such laws, and their state-based analogues, guarantee nondiscriminatory access to public spaces on the basis of protected characteristics such as race and gender. And because many of those spaces are relevant to leisure, these provisions have a significant impact on access to leisure opportunities.
But these well-known “negative rights” guaranteed by antidiscrimination law are only a small part of the relevant story.[176] We thus begin with a discussion of antidiscrimination law, and then in the Sections that follow, we offer an analytic taxonomy of a wide variety of other laws that have potentially greater impact on the actual availability and usability of leisure spaces.
a. Antidiscrimination Law
Formal equality in access to public spaces in which leisure can occur is a necessary but not sufficient condition for leisure. In addition, it is necessary that suitable leisure spaces exist, and those spaces must be accessible to the people who wish to engage in leisure. If a city has only one municipal swimming pool, and it is located in a predominantly white neighborhood many miles from where that city’s Black residents live, then access to that swimming pool is formally equal but deeply unequal in practice.[177] That is to say, “negative rights”—for instance, the right to be free from discrimination—are only relevant if the “positive” provision of leisure opportunities has already taken place.
In most U.S. localities, decisions about where to locate parks, swimming pools, and other recreational facilities are made at the municipal level.[178] There are of course state parks and recreation areas, but those locations are typically determined as much or more by natural features (e.g., mountains, forests, beaches) than by deliberate governmental choices.[179] Where to put a swimming pool, a playground, or a community center has almost nothing to do with the natural geography of an area and almost everything to do with the people surrounding the location who will make use of it.[180]
The city of Chicago exemplifies how siting decisions can have an enormous impact on who is able to make use of leisure spaces, due to patterns of residential segregation. In Chicago, the North Side of the city is predominantly white, while the South and West Sides are predominantly Black and Latino.[181] (The East Side is predominantly underwater.)[182] Chicago has a single Park District, which receives funding from the central city budget that it is meant to spend citywide.[183] The Chicago Park District maintains a vast array of facilities, ranging from large, architecturally landscaped parks with public art to small playgrounds and “pocket parks,” swimming pools, skate parks, basketball and tennis courts, a nature preserve that doubles as a BMX bike park,[184] and everything in between. This leaves the Chicago Park District with immense authority to increase or decrease the leisure activities available to Chicago residents based on where it spends its resources. This power is particularly acute in a major city where many residents do not own cars and cannot easily travel far from home in order to engage in leisure.[185] One need only travel around Chicago to see where the playground equipment has been recently replaced and where it has not, and which neighborhoods are dotted with green spaces and which are not.[186]
It would be nice if all park district officials blessed with this type of authority—in Chicago and elsewhere—were as earnest and well-meaning as they are sometimes depicted in popular media.[187] But of course there is no reason to believe that they will conform to that high standard. The question, then, is what law exists to govern this powerful source of discretion.
The first source of law is the Equal Protection Clause of the Constitution, which prohibits discrimination on the basis of race by state actors.[188] Immediately following Brown v. Board of Education and until the 1970s, federal courts, including the Supreme Court, struck down discriminatory maintenance of government-owned parks and recreational facilities.[189]
Hadnott v. City of Prattville, a 1970 case involving discrimination in park maintenance, provides a glimpse into how this issue was once treated.[190] The City of Prattville had ten thousand white residents and twenty-two hundred Black residents, but the city had four parks open only to white residents and only one park open to Black residents.[191] Altogether, the City’s white parks were fifteen times larger (in land area) than its one Black park.[192] The white parks’ playground areas were “quite extensive,” sat on “landscaped grounds,” and were “well repaired and cleaned fairly regularly by the City Sanitation Department.”[193] North Highland Park was used by Black residents and had no playground. It was “on a hill which the City has failed to landscape, repair or keep clean and maintain.”[194] Additionally, the equipment and facilities were “substantially inferior to the equipment and facilities in the white parks.”[195] One of the white parks had “three tennis courts, a community center, a substantial picnic area with numerous picnic tables and benches, a swimming pool, concession stands, several basketball and volleyball courts, and a floodlit ball park with stadium”; in contrast, the Black park had “a swi[m]ming pool, one basketball court, one picnic table, a barbecue area, a bathhouse, most of which is in poor repair, and very little playground equipment.”[196] Hadnott formed part of a broader wave of municipal equalization litigation seeking the equitable provision and maintenance of government services, including parks and recreation.[197]
In Washington v. Davis, however, the Supreme Court narrowed these claims by holding that the Equal Protection Clause prohibits only intentional discrimination.[198] That meant that if a racist parks director decided to allocate funds to parks that would primarily be used by white people, precisely because the parks director wanted to advantage white people, the parks director’s decision would be unlawful under the Equal Protection Clause. However, a decision to locate parks in white neighborhoods for other reasons not explicitly guided by race—for instance, greater population density in those neighborhoods, or a greater tax base—that had a disparate impact on Black residents would not be actionable under the Constitution.[199] Municipal equalization claims were not completely wiped out, and a few were eked out after Washington, but the Constitution ceased to be a promising route for challenging discrimination in park administration.[200] As a result, much of the action has shifted to statutory remedies.
Federal statutes prohibit discrimination by entities that receive federal funds. Many parks departments nationwide, particularly those in large cities, receive federal funding.[201] Some of that funding is allocated directly through Title VI, which prohibits discrimination on the basis of “race, color, or national origin.”[202] Other funding is available through the Housing and Community Development Act,[203] which similarly binds recipients to the nondiscrimination provisions of Title VI.[204] The Supreme Court held, however, that like the Equal Protection Clause, Title VI prohibits only intentional discrimination.[205] Still, Title VI reaches private actors who receive federal funding. Thus, for instance, private and nonprofit parks organizations that receive federal grants are subject to the Title VI antidiscrimination mandates, even though they are not subject to the Equal Protection Clause. But this point is of only limited significance here. Most parks are governed by public entities like cities and parks departments and are thus subject to the Equal Protection Clause.[206]
Because of the challenges of proving intentional discrimination, disparate impact liability is likely to be far more important than pure discriminatory intent liability in policing the unequal distribution of leisure resources.[207] There are undoubtedly municipal officials who have intentionally discriminated on the basis of race in their provision of leisure resources. (We discuss several such instances at the end of this Section.) But there are likely far more instances in which resources have been allocated at least facially for reasons other than race but nonetheless have had a substantial racially disparate impact.
The absence of disparate impact liability under Title VI is a significant lacuna.[208] Because many decisions about the allocation of public recreational resources are made through facially neutral policies, this limitation makes it more difficult to challenge disparities in access to leisure spaces through intent-based doctrines alone and leaves those affected with fewer avenues for legal recourse.
Notwithstanding this lacuna, Title VI provides authority to federal agencies to promulgate regulations effectuating its antidiscrimination provisions.[209] Unlike the statute itself, those regulations may reach cases of disparate impact, and indeed many of them do.[210] In particular, the Environmental Protection Agency (EPA), which provides grants to many municipalities and their parks departments, has promulgated regulations creating disparate impact liability for entities receiving funding under Title VI.[211] Those regulations make it unlawful for a recipient of federal funding to “choose a site or location of a facility that has the purpose or effect of excluding individuals from [the facility] . . . on the grounds of race, color, or national origin.”[212] The EPA regulations further make it unlawful for any recipient of funds to “use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex.”[213] These regulations thus create disparate impact liability for any municipal department that receives federal funding.
The Supreme Court has held that the Title VI regulations do not create private rights of action, meaning individuals cannot sue if they believe they have been disparately impacted by a municipality’s decision regarding how to allocate leisure sites and funding.[214] However, the Title VI regulations can be enforced by the agencies themselves or by the Department of Justice acting on their behalf.[215] For example, in 1982 the Department of Justice brought a lawsuit against the City of Chicago under Title VI, alleging that the City’s allocation of parks and recreation funding violated both the Title VI and EPA regulations. The suit settled quickly, with Chicago submitting to a consent decree that required a more equitable allocation of resources.[216] Despite this successful example, relying on public agencies to enforce regulations under Title VI and the Housing and Community Development Act risks underenforcement. [217]
From the perspective of ensuring that leisure opportunities are distributed equitably, it is undoubtedly superior for federal agencies to have the authority to bring suit than for no party to have such authority. Yet the absence of a private right of action means that the ability to police discrimination rests on federal enforcement resources and priorities, which may vary substantially over time.
State and local antidiscrimination laws provide another avenue for ensuring access to parks. Every state has such laws, and many large cities have parallel ordinances, all with their own advantages and disadvantages. Most beneficially, they capture some categories that federal laws do not. For example, all states prohibit gender discrimination in public accommodations, whereas federal statutes only prohibit discrimination on the basis of race, color, national origin, religion, and disability. Some state statutes, like Michigan’s, go even further by enshrining “full and equal utilization of public accommodations” as a “civil right.”[218] Michigan prohibits discrimination on the basis of age, sex, sexual orientation, gender identity or expression, height, weight, familial status, and marital status.[219] Or, to take another example, Philadelphia’s public accommodations statute goes beyond the federally protected categories and includes, in addition, prohibitions on discrimination based on sexual orientation, gender identity, ancestry, physical disability, and marital status.[220]
In addition to these stronger protections, state and local agencies also offer the benefit of proximity. They have more local expertise, closer connections to evidence, and stronger possibilities for accountability via pressure from residents and local officials. At the same time, subnational antidiscrimination law raises challenges tied to resource constraints (e.g., staff and money) and susceptibility to local pressures (e.g., elections and business influence) that can blunt the force of these protections.
Another hole in the web of nondiscrimination law lies in the fact that discriminatory inequalities can be remedied by “leveling up” or “leveling down.”[221] That is, the discrimination can be cured by providing additional resources to the individuals that have been discriminated against, or it can be cured by taking away resources from the individuals who have been advantaged. The latter option does nothing to help the victims of discrimination. In the wake of Brown v. Board of Education and the end to de jure segregation in the United States, many states and municipalities addressed their liability for disparate treatment by eliminating the segregated public facility at issue.[222] This shameful practice meant that many wealthier white people were able to access private facilities, while poorer Black people who did not have access to such facilities were left worse off than before desegregation.[223] The federal courts repeatedly blessed this behavior as applied to swimming pools,[224] public parks,[225] and state beaches,[226] despite the fact that it was almost surely motivated by racial animus.[227] A similar pattern repeated itself in the wake of the passage of the Civil Rights Act of 1964, which (as we have discussed) made it illegal for private businesses that qualified as “public accommodations” to discriminate on the basis of race. In many cases, those private businesses attempted to exempt themselves from the Civil Rights Act by reclassifying themselves as private clubs.[228] For instance, restaurants, “amusement parks, bowling alleys, and at least one major hotel” in Mississippi and Louisiana converted themselves into private clubs almost immediately after the passage of the Act in order to continue discriminating against non-whites.[229]
Finally, it is useful to think of Title IX as yet another law governing the question of who has access to leisure opportunities, though it is not often thought of in terms of the governance of spaces. Title IX mandates equality of opportunity in higher education on the basis of sex. Although Title IX reaches many aspects of educational life, one of its most salient effects has been the required creation of sports teams (as well as the accompanying scholarships and resources) for women and girls at all levels of school, from elementary through university. And although we have placed our discussion of Title IX in this Section on public spaces, it governs private educational institutions as well. A private secondary school or university is required to offer equal athletic opportunities for men and women on the same terms as a public secondary school or university. Title IX has thus opened leisure opportunities to women and girls who were long not afforded such opportunities on the same terms as men and boys.
At the same time, Title IX is the locus for continuing debates over exactly what it means to provide equal athletic opportunities on the basis of sex. The Biden Administration took the position that transgender women cannot be categorically banned from participating in women’s sports on the same terms as cisgender women, though they could be excluded under particular circumstances.[230] The Trump Administration subsequently took the opposite position, declaring that transgender women must not be allowed to participate in women’s sports, and including them would violate Title IX.[231]
These disputes reveal how access to play and leisure is a salient fault line in contemporary debates over equality. And they highlight a central claim of this Article: that equality in access to leisure is a critical and important constellation in the nondiscrimination universe and should be treated as such.
b. Administrative Law
To this point, we have focused on the traditional suite of state and federal laws that specifically prohibit discrimination in the provision of public goods and services on the basis of race and other protected characteristics. Lawyers and legal scholars are by now used to thinking of antidiscrimination law in these terms. Yet in truth, these bodies of law operate at a distant level of removal from the day-to-day operations of a public park district. Another, more immediate source of law is the municipal and administrative code that governs the park district itself. These laws can powerfully affect who has access to leisure opportunities, as well as the quality and availability of those opportunities.
There are approximately as many municipal codes as there are municipalities, and anything approaching a comprehensive survey is well beyond the scope of this paper.[232] Instead, we will examine the law governing the City of Chicago and the Chicago Park District as an example. Chicago’s large size and high level of residential segregation make it a useful case study for this analysis.[233]
The Chicago Park District is a public entity that is legally distinct from the City of Chicago and governed by its own board and set of laws: the Park District Code. The Park District Code imposes two types of restrictions on Park District decisions regarding how to allocate resources, where to locate parks, and the like. The first restrictions are procedural: Under Chapter 12 of the Park District Code, the Chicago Park District Board must hold at least one public meeting each year and provide at least seven days of notice as to the time and place of the meeting.[234] To supplement this meeting, “the Park District will publish an annual and multiple year capital improvement plan.”[235] Prior to the publication of that plan, the Park District must “hold a minimum of 10 community meetings to solicit public comment connected with the development of the capital improvement plan.”[236]
These types of public-meeting requirements are not meaningless. They force the municipal agency to confront the public, allow members of the public to make their views known to the agency, and create a focal point around which public protest of agency policies or decisions can be organized.[237] But they are weaker than, for instance, the notice-and-comment rulemaking requirement that federal agencies must comply with before promulgating many types of regulations.[238] Notice-and-comment procedures create a written record of comments and criticisms directed at the agency’s course of action. If the agency does not respond adequately to these criticisms or adjust its course of action, a court can strike the action down as arbitrary and capricious.[239] By contrast, if the Park District is willing to weather whatever public criticism it receives at these meetings, there is no other recourse available to aggrieved citizens (other than the ballot box).
The second type of restriction imposed by the Park District Code is more direct. Chapter 13 of the Code states:
The Chicago Park District shall distribute its resources, services and facilities, in a fair and equitable manner throughout the district. Furthermore, the Park District shall distribute funds for all its activities, including city-wide and specialized facility construction or improvement, land acquisition and other construction in a manner which does not discriminate on the basis of race or national origin as between the community areas of the city.[240]
This law would appear to go far in mandating equal distribution of resources and opportunities for leisure across the city of Chicago. It appears to prohibit both intentional discrimination and disparate impact. And while “equitable” is an ambiguous concept, the Park District Code’s use of that word could be understood to invoke an even thicker conception of equity, beyond nondiscrimination, in which underprivileged communities within Chicago receive additional funding and resources for the parks in their neighborhoods in order to move them toward greater parity with well-resourced neighborhoods.[241]
At the same time, it is difficult to know whether this provision of law exerts real force on decision-making within the Park District. As far as we can ascertain, no reported case has ever cited to this provision of law. We were unable to find any case that has ever been brought against the Park District for violation of this law. Indeed, the law may not even create a private right of action. The Code itself sheds no light on this question; it does not say explicitly whether private citizens can or cannot sue to enforce its provisions.
Irrespective of its formal legal status, the Park District Code likely exerts some normative force on decision-makers within the Park District.[242] Park District officials are likely influenced by the law’s statement of values, even if they believe it is unlikely that they will be sued for violating it. [243] But here, too, the law ultimately falls short of what one might hope for in leisure justice. There is a hortatory norm but no enforcement mechanism. This level of official discretion makes clear that the preferences and intentions of Park District policymakers will play a significant role in determining who within the city has access to resources for recreation.
In addition, there are funding rules written into Illinois law that may limit the resources made available to underprivileged communities. The Illinois Department of Natural Resources awards grants each year to local governments to construct or repair recreational facilities.[244] Under Illinois law, these grants must be allocated according to a specific formula. For instance, exactly 20% of the total funds must be allocated to the Chicago Park District, and 80% of the funds must be allocated to local governments outside of the City of Chicago. In addition, and critically, no more than 10% of the funds may be allocated to “disadvantaged communities.” A disadvantaged community is defined as one in which home valuations are less than 60% of the state average and at least 15% of the population is living below the federal poverty line.[245] Precise data on which communities qualify is challenging to come by. However, as of the 2010 Census, 68% of Chicago neighborhoods (52 of 77) had at least 15% of their populations living under the federal poverty line.[246] This means that it is quite likely that far more than 10% of the neighborhoods in Chicago qualify as “disadvantaged communities,” yet they are limited to receiving no more than 10% of the available funds. Accordingly, this represents a set of legal provisions that actively perpetuate disparities in access to park facilities and leisure opportunities.
c. The Law of Correctional Facilities
We turn, finally, to a specialized set of public spaces: correctional facilities. Correctional facilities are most commonly owned by the government, and officers in private correctional facilities are treated as government actors under law because of their public purpose.[247] But correctional facilities are not public accommodations. When Americans think about these spaces, ideas about punishment likely come to mind before leisure.[248] Criminal theorist Richard Lippke sums up the prevailing view nicely: “Punishment is supposed to be painful or onerous,” so “why should taxpaying citizens have to bear the burdens of providing recreation or amusement to those who have committed serious crimes?”[249] But in fact there are a variety of excellent reasons why it is important to provide prisoners with opportunities for leisure and recreation. One is the well-being of the prisoners themselves: There is no reason to punish prisoners more than necessary to achieve the goals of punishment.[250]
In addition, the types of leisure opportunities available to prisoners could have a substantial impact on their outcomes upon release from prison.[251] Whether prisoners are able to reenter society, or whether they will continue to suffer harms derived from incarceration long after their actual incarceration ends, will depend on factors such as their ability to develop skills, to experience the social benefits of interaction rather than severe isolation, and to avoid physical deterioration of their bodies.[252] These are not minor issues, given that prisons in the United States currently house approximately 1.2 million people.[253] Even the Geneva Convention relative to the Treatment of Prisoners of War (POWs) requires that POWs be afforded opportunities for recreation and leisure.[254]
Federal and state regulations provide inmates with a limited right to leisure. In the federal system, absent safety or security concerns, correctional staff “shall make recreation equipment available to the pretrial inmate,” including but not limited to “physical exercise equipment, books, table games, and television.”[255] These regulations also require staff to provide either one hour daily of outside recreation, weather permitting, or two hours daily of indoor recreation.[256] The laws of the various states are largely in accord. For example, New Jersey’s law specifies the provision of leisure opportunities for inmates who want to watch television, listen to the radio, play cards, or initiate arts and crafts projects.[257] Georgia’s regulation directs institutions to develop a “planned recreation and exercise program of participant sports, exercise activities, and recreational opportunities” while providing an allowance of at least one hour of daily exercise for five days per week.[258]
Constitutional law does more work in these spaces than one might imagine. Federal courts have ruled that restrictions on recreation and exercise can violate the Fifth Amendment’s Due Process Clause,[259] the Eighth Amendment’s Cruel and Unusual Punishment Clause,[260] and the Fourteenth Amendment’s Due Process Clause.[261] Should inmates enjoy reading and surfing the net, the Constitution has something to offer them, too, as courts have ruled that prohibitions on newspapers, magazines, internet access, and social media use violate First Amendment rights.[262]
It should come as no surprise that prisons are highly regulated environments. More notable, however, is that these regulations often extend to the leisure opportunities available to incarcerated individuals, sometimes creating limited legal entitlements to leisure that are more explicit than those available to many people outside prison walls. This incongruity illustrates the breadth of legal regimes that shape leisure opportunities.
3. Online
In the modern era, a significant proportion of recreation takes place online in various forms. The expansion of radio, television, and movies are all examples of how technology has transformed how humans spend their time, and the proliferation of digital leisure is no different. Digital leisure has been described as “time spent by individuals using digital tools and platforms for entertainment, recreation, acquiring knowledge, communication, [and] socialization.”[263] “Online” is not a “space” in the same sense as the spaces we have been describing. Nonetheless, access to online leisure opportunities varies across individuals and is constructed and regulated by law. We begin by focusing on laws that are relevant to some of the most popular forms of digital leisure: social media, online streaming, and online gambling and sports betting. We then turn to the governance of internet accessibility more generally.
When someone uploads a Lady Gaga music video on YouTube, they are likely violating the Copyright Act of 1976, which gives copyright holders exclusive rights as they relate to the reproduction, distribution, and display of the works,[264] as well as the No Electronic Theft Act of 1997, which criminalizes such behavior.[265] YouTube, in theory, could be liable for copyright infringement, but the Digital Millennium Copyright Act of 1998 provides a safe harbor for online service providers.[266] Section 230 performs similar liability-shielding work, but it is not limited to intellectual property. Instead, it immunizes providers from legal liability for user-generated content.[267] When Congress passed this law in 1996, it recognized that “Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.”[268] In the tech world, Section 230 “is a kind of sacred cow—an untouchable protection of near constitutional status”—and has been credited with enabling the development of the modern internet.[269] Indeed, Section 230 applies to many companies Americans use for leisure, including social media platforms like Facebook and Twitter, online discussion forums like Reddit, and dating applications like Tinder. This permissive form of regulation has allowed digital spaces to flourish.
Concerns about privacy have long accompanied entertainment technologies, and some laws focus directly on protecting consumers of digital leisure by regulating the collection of information about their viewing habits. A dozen years after Chief Justice Warren Burger commented on this “explosive development” (the collection of information) and the need for a “comprehensive re-examination of the statutory scheme” as it relates to this new development,[270] the Cable Communications Policy Act of 1984 took effect.[271] The law focused on protecting the privacy of cable subscribers’ viewing habits and transactions and provided a template for future laws focused on digital spaces. For example, shortly after Judge Robert Bork was nominated to the Supreme Court in 1987, a reporter from the Washington City Paper investigated Bork’s video rental history on the belief that “the only way to figure out what someone is like is to . . . take a hard look at the tools of leisure he uses to chip away life’s rough edges.”[272] The investigation of 146 films produced nothing problematic, but it reportedly outraged Congress and led to the passage of the Video Privacy Protection Act of 1988 (VPPA), which built on the law from four years prior and placed restrictions on the disclosure of video records without the subscriber’s consent.[273] The VPPA applies to the digital age as well. Netflix and Hulu have tried unsuccessfully to escape its ambit by arguing that the law is limited to the video cassette tapes and brick-and-mortar stores, like Blockbuster Video, that dominated the 1980s.[274]
One form of online leisure that has increased greatly in popularity as of late is online gambling. The Professional and Amateur Sports Protection Act of 1992 virtually banned sports betting, including online sports betting, in all but four states.[275] Debates about the law focused on federalism principles, the youth-corrupting immorality of gambling, and the integrity of sports, but the leisure implications of the law were also a theme. On the one hand, Congress noted that “sports gambling threatens to change the nature of sporting events from wholesome entertainment for all ages to devices for gambling.”[276] On the other hand, critics believed that sports-betting enhanced leisure and quipped:
If the professional sports leagues are truly concerned with American youth, as they claim, they should concentrate their efforts on policing their own drug policies, and eliminate alcoholic beverage advertising from their broadcasts and stadiums, rather than worrying about a few sports pool lottery tickets which pose no threat to the integrity of the leagues or the youth of America, but rather merely increase the entertainment value of professional sports.[277]
Nevertheless, the law prevailed for almost twenty-five years, until the Supreme Court ruled that the statute violated the Tenth Amendment’s anticommandeering rule.[278] Since the decision, online sports gambling has spread and been left in the hands of the states.[279]
In addition to the laws that regulate the availability of certain activities online, there are important laws that have affected the ability of individuals to access the internet in the first place. Beginning with the Telecommunications Act of 1996,[280] the federal government launched an ongoing program to close the so-called digital divide,[281] a phrase used to describe the fact that wealthier families have greater access to broadband internet than poorer families, and white people have greater access than Black people.[282] Part of the reason for the digital divide is simply that broadband internet in the United States can be an expensive good that not everyone can afford.[283] But for many years, until mobile devices with high-speed data access became widespread, the very availability of wires that would carry broadband service into homes was unequally distributed as well.[284] Wealthier neighborhoods were more likely than poorer neighborhoods—particularly communities of color—to have access to high-speed internet service.[285]
The Telecommunications Act aimed to address this disparity. It imposed a series of fees on telephone companies and then directed the funds raised from those fees toward providing “universal service”: improved access to broadband internet for people who did not otherwise have access.[286] In some cases, those fees were put toward wiring libraries and other public facilities for broadband access. In other cases, they went toward subsidizing infrastructure that could be used to deliver private broadband access to areas of the country or even merely neighborhoods that did not previously have sufficient access.[287]
The effort to provide universal service should be thought of as a step toward leisure justice. While the universal service provisions of the Telecommunications Act were pitched primarily as measures to increase access to education and job opportunities provided online, the internet has always been a locus of leisure activity, as well, from online gaming to looking at funny cat pictures (and everything in between). As more activity—including more leisure activity—has moved online, the importance of offering equitable online access has only heightened.[288] Even if the universal service provisions were not designed with leisure in mind, their unintentional effects on leisure were unquestionably consequential. This is not to say that we necessarily endorse all online leisure activity or even endorse the prominent role it has assumed in modern American society. As we stated in the Introduction, we are leisure liberals: Everyone is entitled to their own conception of leisure and their own leisure activities, so long as they do not harm others. The internet is an undeniably important locus for much of that activity.
In recent years, the push for universal service has slowed, in part because it has been overtaken by mobile internet service. Now, an individual’s ability to access online leisure activities has less to do with whether they have the proper wires leading into their house and much more to do with their cell-phone data plan. In keeping with this trend, internet-based leisure activities have migrated from personal computers to cell phones; online games and cat photos are much more likely to be viewed on phones (and optimized for phones) than on full-scale computers.[289] Of course, the result of that migration is that access to mobile internet is now a leisure justice issue. The level of smartphone penetration and mobile data access in the United States is quite high: Approximately 90 percent of adult Americans own smartphones of one type or another and have access to mobile data.[290]
But for those who do not, or whose mobile internet access is lacking in one respect or another, broadband access can be quite limited. As one recent paper studying broadband penetration put it: “Unfortunately, many households—particularly those of low socioeconomic status and/or those in rural areas—do not have quality internet access. Some have no access, while others are reliant on their mobile data plans for internet access, i.e., they are ‘smartphone dependent.’ This generates inequality in internet access and use.”[291] Accordingly, even in this somewhat more “democratized” setting, there is hardly parity across wealth and geographic boundaries in leisure access.
Accordingly, we think it is important to highlight the extent to which leisure opportunities are determined in the private marketplace and therefore the extent to which access to leisure is apportioned by market forces. It is a fortunate fact of modern America that most members of marginalized communities have internet access, and it is particularly fortunate that the market for such access is sufficiently deep and widespread that discrimination does not appear to play a significant role. But neither of those facts is inevitable. These are contingent facts about American society and the American economy, subject to change over time. This is reason for vigilance regarding the potential for inequitable distribution of leisure opportunities, not reason for quiescence.
III. Toward a Leisure Justice Agenda
If the foregoing Sections have made any point clear, it should be that traditional antidiscrimination law—that is, laws that prohibit unequal access to public spaces and public accommodations—is inadequate to ensure leisure justice. Even if antidiscrimination law were well calibrated and comprehensive, it would still fall short. The principal reason is that leisure can be and often is practiced in private rather than in public. This is in notable contrast to many of the other subjects of the civil rights movement. Voting is the quintessential public activity.[292] Education has historically been a publicly provided good in the United States, and most students still attend public school.[293] Even employment has traditionally involved very substantial public involvement, given the number of people employed by governments and the myriad public-benefits programs meant to support both people who work[294] and people who are unable to find work.[295] Equal access to these public programs, enforced by antidiscrimination law, is not always a full and adequate solution. For instance, wealth differences that accompany residential segregation in the United States have had a pernicious effect on equal access to quality education, despite the end of de jure segregation in education.[296] But it is often a very meaningful step.
The private nature of leisure means that the same rules do not apply. Granting equal access via nondiscrimination law to public sites of leisure is small beer in a world in which a very substantial proportion of leisure takes place in privately owned business or, even more exclusively, private clubs. This fact has two ramifications for the prospect of achieving leisure justice, both of which we believe our foregoing analysis has elucidated.
First, the scope of antidiscrimination rules matters a great deal. Prohibiting discrimination only in access to public facilities is inadequate when so much leisure activity takes place in private. As detailed above, various civil rights laws reach various types of privately conducted leisure activity. But the exceptions built into these laws for private clubs leave potentially large holes in access to leisure spaces and resources. Imagine if the Fair Housing Act exempted every apartment building with fewer than one hundred units[297] or if Title VII exempted every employer with fewer than one hundred employees.[298] That is the approximate state of antidiscrimination law as applied to leisure.
At the same time, in contemporary America, it is fortunate that there are many public spaces available for leisure. But one can easily conceive of a future in which a substantially greater proportion of leisure activities moves away from places of public accommodation and toward private settings. Indeed, one could envision this phenomenon as part of the larger ideological sorting that is taking place in America, where people of different political views not only vote differently but also consume different products, work for different employers, and live in different places.[299] It is similarly possible to imagine owners electing to transform their leisure spaces that are currently public accommodations into private clubs from which they can exclude people unlike them. And it would be unsurprising if courts were receptive to these moves. In five years, the Supreme Court went from ruling that public accommodations that discriminate on the basis of viewpoint generally do not enjoy First Amendment protections to carving out an exception for expressive services.[300] The boundaries of what constitutes expressive conduct or services are to be determined. Still, a changing civil rights jurisprudence raises concerns about the possible negative repercussions of business’ ability to exclude disfavored members of the public, and thus for progress toward leisure justice.
For this reason, the exceptions to public accommodations laws should be narrowed as much as possible. For instance, law could be used to create a new category of fully private clubs—spaces in which the membership chooses whom to admit—that are nonetheless governed by antidiscrimination laws. By way of example, one could imagine a club in which each new member must be nominated by other members and voted upon but cannot be opposed on the basis of race. The idea that a club should be limited to people who are friends or close acquaintances is not incompatible with the idea that such a group should not be artificially limited by the racial identity of those friends.
Second, the positive provision of opportunities for leisure will often matter much more than mere antidiscrimination law, and that balance is tilted compared with other types of rights. When it comes to a canonically public activity such as voting, standard antidiscrimination principles—like the equal right to cast a vote—matter a great deal. The ability to vote obviously depends to some degree on an individual’s wealth and personal circumstances. Some people may be more easily able to get the time off of work to vote or might find it easier to travel to a polling place.[301] But these distinctions are second-order to the question of whether the individual will be allowed to vote at all and how that vote will be counted. The reason is that voting must necessarily be a public activity, and thus equal access to that public activity is largely sufficient to guarantee equality of opportunity. There is no option to eliminate public voting and allow vote casting to move instead to segregated private spaces.[302]
The same is true (to some degree) with respect to public education. The theory behind antidiscrimination law in education is that citizens will demand access to high-quality free public education for their children. An antidiscrimination norm—a negative right—is meant to prevent states and localities from offering a higher-quality education to some (white) students and a lower-quality education to other (non-white) students through de jure segregation. And because parents will demand that education be available to their children, states and localities will not respond to antidiscrimination law by leveling down and eliminating public schools entirely.
But education simultaneously demonstrates some of the limits of this model of negative rights. Residential segregation and the fact that most school funding comes from local or state sources (often property taxes) mean that some schools—particularly in wealthier, whiter neighborhoods—receive greater funding than others. The fact that these schools are open to people of all races who live in the school district is of little help to the many poorer people who cannot afford to live in the neighborhood.[303] Negative rights are insufficient to equalize funding and opportunity across students given existing social patterns.
The same is true, perhaps even to a starker degree, with respect to leisure. Because of where and how leisure opportunities arise, wealth and access to resources are of primary concern. The leisure opportunities available to people with means vastly outstrip those available to people without means. Most leisure activities—whether going out to a bar or club, joining a sports league, or playing a video game—require varying degrees of private resources. Of course, some leisure is free or nearly free, as anyone who has headed to the nearest park for a pickup game of soccer or basketball could explain. But even these types of leisure depend upon the availability of public resources such as parks, goals, and hoops, which as we have explained are not always equitably provided. And having the time to engage in leisure requires that the individual have the means to set aside paid labor for a time. Wealth and the opportunity for retirement thus play significant roles in allocating leisure opportunities.
If one believes, as we (and many others) do, that well-spent leisure time is an essential constituent of well-being and human flourishing, this situation is concerning. Human access to essential constituents of well-being should not be left to the vagaries of wealth and personal circumstance. This does not mean that access to leisure resources must be equal across the population, of course. We are not proposing that everyone in America should have the opportunity to take private jets down to Turks and Caicos.[304] This is a paper about leisure justice, not about overturning capitalism.
Rather, we believe that our aspirations for leisure opportunities should largely match our aspirations for public schools, unfulfilled though the latter may be. Every American should have access to a good free public education. Some people will have the resources to splurge on fancy private schools or enrichment trips to Florence; others will not. But because of the centrality of education to social mobility and success in the United States, everyone should have access to at least a baseline level of quality education. (Again, this aspiration often goes unmet in the country as it exists.)[305] Similarly, we believe that everyone should have access to a baseline level of good free leisure opportunities: parks, community centers, music and theater, recreational opportunities, and the like, along with the time to engage in them. As we have explained, this will necessarily involve directing meaningful public resources toward leisure, particularly for underserved communities.
One locus for this lies in the laws that affect when people—particularly less-wealthy people, who are more likely to be non-white—are able to retire.[306] Raising the age for Social Security or Medicare eligibility will not necessarily affect the retirement decisions of wealthier people. But it would likely have a significant impact on the decisions of less-well-off people, who would have to postpone retirement and thus postpone their transition to lives filled with greater leisure. Decisions regarding how to fund and structure American entitlement programs are obviously significant ones that must incorporate a wide variety of considerations. But it is important to keep in mind that Social Security and Medicare are the primary means by which the United States engages in the positive provision of leisure time, with significant consequences for the equality of leisure opportunities in the country. The allowance for leisure that retirement provides should not be narrowed lightly.
With regard to leisure spaces, one potential model for the positive provision of leisure opportunities is offered by the City of Milwaukee. Many of Milwaukee’s public parks fall under the governance of an agency called Milwaukee Recreation,[307] which is controlled by the Milwaukee Public School system.[308] Milwaukee Recreation has very broad statutory authority to spend its resources as it sees fit. The agency’s authorizing statute states that the agency may undertake “all things reasonable to promote the cause of education, including . . . establish[ing] and maintain[ing] community education, training, recreational, cultural or athletic programs, and services, outside the regular curricular and extracurricular programs.”[309]
In 2014, Milwaukee Recreation initiated a “Playfield Renovation Project” with the intention of improving the conditions of parks, playgrounds, and field houses within the city.[310] In deciding where to spend its limited budget, Milwaukee Recreation settled upon a precise numerical formula. Each existing recreational facility would receive a “score” based upon (among other factors) (1) the condition of the facility; (2) the age of people in the neighborhood and the availability of other public recreational facilities; and (3) neighborhood demographics, including race, income level, crime rates, and other factors.[311] As should be readily evident, each factor in this formula plays a role in directing funding toward Milwaukeeans who have fewer alternative leisure opportunities. The first factor ensures that the facilities in greatest need of repair will receive the greatest funds;[312] the second factor directs funding to areas where there are larger numbers of children and where alternative facilities are less available;[313] and the third factor explicitly sends additional resources to poorer neighborhoods and neighborhoods where the local residents are more likely to be racial minorities and thus less likely to have access to costly private leisure facilities.[314]
Milwaukee’s Playfield Renovation Project stands as a useful exemplar of the promotion of equity in leisure opportunities.[315] It is not precisely a model of positive rights in the sense that no individual has the right to demand resources from Milwaukee Recreation if they have not received them. But it is nonetheless a valuable demonstration of the positive provision of leisure opportunities through law, rather than merely the existence of negative rights against discrimination. To be sure, similar efforts will always be controversial, not least of all because they necessarily involve some individuals cross-subsidizing the leisure activities of others. But given the significance of leisure to humans’ well-being and flourishing, we think nothing less is called for.
Conclusion
Leisure is essential to human flourishing and well-being. We cannot thrive in American society without education, housing, a job, and the right to vote. But neither can we thrive without time and space to engage in leisure. In this Article, we offer the first attempt at categorizing and analyzing the laws that determine access to leisure. We show how a multiplicity of legal provisions—governing everything from employment conditions and antidiscrimination in public accommodations to the internal administrative workings of city parks departments—collectively structure the leisure opportunities available in contemporary society. We then expose the gaps in these laws: the places where limitations in these laws’ protections leave impecunious people subject to the vicissitudes of the marketplace in seeking time and space for leisure. We propose a leisure justice agenda designed to plug these gaps and guarantee all persons at least a minimum baseline entitlement to leisure opportunities. Nothing less is required for human flourishing.
Leisure law is not yet a true legal field in the sense of being a standard course taught in law school or a typical subject matter for journal articles. We hope that this Article represents a small step toward making it into one.
Copyright © 2026 Shaun Ossei-Owusu & Jonathan S. Masur, University of Pennsylvania Carey Law School and University of Chicago Law School, respectively. We thank Regina Austin, Bennett Capers, Courtney Cox, Dan Epps, Brittany Farr, Osamudia James, Aneil Kovvali, Seth Kreimer, Sophia Lee, Julian Nyarko, Dave Pozen, and Teemu Ruskola for helpful comments. We also thank Vinita Davey, Karis Jackson, Abigail Kasdin, Eva Nobel, Dani O’Connell, Khalil Royster, Erica Rodarte, Camilla Samuelsson, Deajah Scott, and Henry Scherck for excellent research assistance. Masur thanks the David and Celia Hilliard Fund and the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance & Economics for support.
[1]. 347 U.S. 483 (1954); see, e.g., Jack M. Balkin, What Brown Teaches Us About Constitutional Theory, 90 Va. L. Rev. 1537, 1537 (2004) (“Most law professors agree that any serious normative theory of constitutional interpretation must be consistent with Brown v. Board of Education and show why the case was correctly decided.”).
[2]. See Bernice Resnick Sandler, Title IX: How We Got It and What a Difference It Made, 55 Clev. St. L. Rev. 473, 486–87 (2007) (describing Title IX’s impact on sports, awareness about discrimination in education, the creation of advocacy groups, and the ending of programs and practices that explicitly excluded girls and women).
[3]. E.g., Brnovich v. Democratic Nat’l Comm., 594 U.S. 647, 655–74 (2021) (interpreting Section 2 of the Voting Rights Act); Shelby County v. Holder, 570 U.S. 529, 536–57 (2013) (invalidating the Voting Rights Act’s coverage formula for preclearance); Shaw v. Reno, 509 U.S. 630, 634–52 (1993) (recognizing an Equal Protection Clause claim based on racial gerrymandering).
[4]. Reynolds v. Sims, 377 U.S. 533, 555 (1964) (“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society.”). See generally Jan E. Leighley & Jonathan Nagler, Who Votes Now? Demographics, Issues, Inequality, and Turnout in the United States (2014) (examining inequalities in voter turnout and their implications for democratic representation).
[5]. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 80 (2000). Nussbaum identifies nine other human capabilities necessary for a just society: life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; relations with other species; and control over one’s environment. See id. at 78–80.
[6]. Julie L. Rose, Free Time 66–92 (2016).
[7]. See, e.g., Kuykendall, Louis Tay & Vincent Ng, Leisure Engagement and Subjective Well-Being: A Meta-Analysis, 141 Psych. Bull. 364, 397 (2015) (meta-analysis of studies examining thousands of participants that found that leisure engagement is positively associated with subjective well-being); Peter Hills & Michael Argyle, Positive Moods Derived from Leisure and Their Relationship to Happiness and Personality, 25 Pers. & Individual Differences 523, 524–526 (1998) (study that focused on common leisure activities such as sports, music, religious participation, and television viewing and found that “each activity was a significant source of positive moods”). See generally John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Happiness and the Law (2015) (drawing on social science literature to describe how law can positively impact quality of life).
[8]. Rose, supra note 6, at 15–18.
[9]. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207, 207–08 (applying the concept of the “law of the horse” and arguing that cyberlaw is another example of an area of law that is akin to the “law of the horse”).
[10]. See Sam Levine, Trump Ally Pushes DoJ Unit to Shift Civil Rights Focus, New Messages Show, Guardian (Apr. 18, 2025), https://www.theguardian.com/us-news/2025/apr/18/justice-department-civil-rights-division-trump [https://perma.cc/N3UQ-KMLT]; Debra Kamin, Trump Appointees Roll Back Enforcement of Fair Housing Laws, N.Y. Times (Sep. 22, 2025), https://www.nytimes.com/2025/09/22/realestate/trump-fair-housing-laws.html [https://perma.cc/VZZ4-KY8A]; Eyal Press, When the Government Stops Defending Civil Rights, New Yorker (Oct. 29. 2025), https://www.newyorker.com/news/the-lede/when-the-government-stops-defending-civil-rights [https://perma.cc/5R6K-4PS9].
[11]. See Exec. Order No. 14248, 90 Fed. Reg. 14005, 14005–14006 (Mar. 25, 2025); The Editors, Presidents Don’t Run Our Elections, Nat’l Rev. (Aug. 19, 2025), https://www.nationalreview.com/2025/08/presidents-dont-run-our-elections/ [https://perma.cc/MV62-B7QW]; Kennedy Andara & Sara Estep, Trump’s Trade War Squeezes Middle-Class Manufacturing Employment, Ctr. for Am. Progress (Sep. 5, 2025), https://www.americanprogress.org/article/trumps-trade-war-squeezes-middle-class-manufacturing-employment/ [https://perma.cc/6VNC-KFTT]; Sam Sutton, ‘Underwater’: Young Voters, Black Americans Sour on Trump as Job Market Struggles, Politico (Oct. 2, 2025), https://www.politico.com/news/2025/10/02/trump-economy-labor-market-blacks-young-voters-jobs-00585579?nname=playbook [https://perma.cc/BY62-5ZBY].
[12]. See Expanding Public Lands Outdoor Recreation Experiences Act, Pub. L. No. 118-234, §§ 141–143, 211–216, 311–323, 138 Stat. 2836, 2851–53, 2863–67, 2880–89 (2025) (streamlining permitting process for outdoor recreation projects, promoting the creation of new accessible trails for people with disabilities, and modernizing technology improvements at recreational facilities on public land); Lauren Kaori Gurley, 5 Ways that Trump’s Policies Are Impacting Summer Vacation, Wash. Post (Aug. 2, 2025), https://www.washingtonpost.com/business/2025/08/02/trump-policies-impact-summer-travel/ [https://perma.cc/7LPW-GTSX] (describing how trade and immigration policies are impacting tourism); Rachel Frazin, Planned Trump Staffing Cuts Loom Over National Park Service, Fish and Wildlife, Land Management, Hill (Oct. 21, 2025), https://thehill.com/policy/energy-environment/5566157-trump-cuts-national-park-service-fish-wildlife-land-management-geological-survey/ [https://perma.cc/7DH7-GL87] (describing cuts to federal agencies that manage national parks and public lands); Rebecca Schneid, How the National Park System Is Faring Under the Trump Administration, Time (July 13, 2025), https://time.com/7301979/national-park-system-trump-administration/ [https://perma.cc/9ZHW-66LF] (same); Teryn Zmuda, Isabella Reed, Abby Davidson & Stacy Nakintu, The Big Shift: An Analysis of the Local Cost of Federal Cuts, Nat’l Ass’n of Cntys. (July 9, 2025), https://www.naco.org/resource/big-shift-analysis-local-cost-federal-cuts [https://perma.cc/9ML6-AC75] (noting how the One Big Beautiful Bill Act has caused counties to “face additional funding constraints” that may impact their ability to “prioritize services such as hospitals, parks, libraries, public transit and 911 call centers, all highly valued by residents”).
[13]. See Oldřich Šubrt, Relationship of Work-Related Stress and Offline Social Leisure on Political Participation of Voters in the United States, 11 Soc. Scis. 206, 19–20 (2022); Emily Yahr, In Defense of Escapism: Why It’s Okay — Yes, Even Now — To Flip Away from the News, Wash. Post (July 26, 2017), https://www.washingtonpost.com/entertainment/in-defense-of-escapism-why-its-okay----yes-even-now----to-flip-away-from-the-news/2017/07/25/6e561668-6668-11e7-8eb5-cbccc2e7bfbf_story.html [https://perma.cc/RU4E-LABG]; Kristen Ghodsee, How to Do Escapism in the Trump Era, New Republic (Nov. 19, 2024), https://newrepublic.com/article/188550/escape-trump-era-internal-emigration [https://perma.cc/S9TH-S8LP].
[14]. See Margaret Lewis, Applied Statistics for Economists 372 (2012) [hereinafter Lewis, Applied Statistics].
[15]. David George Surdam, Century of the Leisured Masses: Entertainment and the Transformation of Twentieth-Century America 8–9, 14 (2015) (explaining that “[e]conomists sometimes measure leisure time in terms of time remaining after labor-market work and basic bodily maintenance (such as sleep, eating, and hygiene)” and discussing the benefits and drawbacks of this approach).
[16]. See Johan Bouwer & Marco van Leeuwen, Philosophy of Leisure: Foundations of the Good Life 47 (2017) (describing how pensioners, the unemployed, and housewives “don’t have work in the orthodox sense of having paid jobs, but they do (or can) have a variety of activities associated with varying levels of obligation, and they do have, and need, leisure”).
[17]. See, e.g., Guyton v. Tyson Foods, Inc., 767 F.3d 754, 763–64 (8th Cir. 2014) (donning and doffing during thirty-five-minute meal period was not compensable); Perez v. Mountaire Farms, Inc., 650 F.3d 350, 369–70 (4th Cir. 2011) (ruling that the time employees spent donning and doffing, and walking to and from the cafeteria, was part of their noncompensable bona fide meal period).
[18]. Surdam, supra note 15, at 10 (“The author enjoys reading academic press books for both work and leisure, but many people might not consider such an activity leisure.”).
[19]. See Elizabeth F. Emens, Life Admin: How I Learned to Do Less, Do Better, and Live More 9 (2019) (describing how activities such as doing research on consumer purchases, managing utilities, handling finances, managing various insurance matters (i.e., health or automotive), and applying for loans or public benefits all fall into the category of “life administration” that consume time but are not considered forms of traditional labor).
[20]. Leisure, Merriam-Webster, https://www.merriam-webster.com/dictionary/leisure [https://perma.cc/SX95-6UHU].
[21]. Leisure, MacMillan Dictionary, https://www.macmillandictionary.com/us/dictionary/american/leisure [https://perma.cc/UJ53-KZMZ]; Leisure, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/leisure [https://perma.cc/3GUY-9WWJ].
[22]. See, e.g., Arlie Hochschild & Anne Machung, The Second Shift: Working Families and the Revolution at Home 35–36, 195–97 (rev. ed. 2012); Rose, supra note 6, at 62–63, 119–25.
[23]. Robert A. Stebbins, Serious Leisure: A Perspective for Our Time 4 (2007).
[24]. Id.
[25]. See, e.g., David L. Jewell, Reflections on Leisure, Play, and Recreation, xiv (1997) (defining leisure as “a state of perceived freedom during which a person may choose to experience an altered state of well-being”); Victor Witter Turner, Process, Performance, and Pilgrimage: A Study in Comparative Symbology 31 (1979) (describing leisure time as “associated with two types of freedom, ‘freedom-from’ and ‘freedom to’ . . . (1) [i]t represents freedom from a whole heap of institutional obligations prescribed by the basic forms of social, particularly technological and bureaucratic organizations[, and] (2) [f]or each individual, it means freedom from the forced, chronologically regulated rhythms of factor and office and a chance to recuperate and enjoy natural, biological rhythms again”).
[26]. As philosophers Johan Bouwer and Marco van Leeuwen explain, “[I]n the conception of leisure as time that is (relatively) free from constraints, the idea is that leisure defines a space for people to choose freely (to some extent) the activities that they desire to engage in, rather than being forced to conform to the structured obligations of, for instance, work or care tasks.” Bouwer et al., supra note 16, at 42. Freedom cannot be understood in absolute terms since there are some kinds of leisure activities in which participants must operate within rules or submit to forms of unfreedom (e.g., organized sports or learning how to properly play an instrument). See id.
[27]. See Martha C. Nussbaum, Creating Capabilities: The Human Development Approach 11 (2011) [hereinafter Nussbaum, Creating Capabilities].
[28]. 29 C.F.R. § 785.18 (2026).
[29]. See Reich v. Cole Enters., Inc., 901 F. Supp. 255, 260 (S.D. Ohio 1993) (“[A]ny ‘cigarette breaks’ an employee may have taken are compensable time under 29 C.F.R. § 785.18.”). We do not recommend either of those activities as a way to spend leisure time. One of them is disgusting, addictive, and harmful to one’s health; the other is smoking.
[30]. See 29 U.S.C. § 213(a)(1) (exempting administrative, executive, and professional employees from FLSA’s overtime requirements).
[31]. See, e.g., Anne Marie Chaker, The Hottest New Office Is the Gym, Wall St. J. (Aug. 15, 2023), https://www.wsj.com/lifestyle/workplace/forget-the-office-gym-welcome-to-the-gym-office-d12dd9ad) [https://perma.cc/JF66-TW2P]; Joe Patrice, White & Case Has Built the New ‘Modern’ Law Firm Office — And It’s Awesome, Above the Law (June 1, 2017), https://abovethelaw.com/2017/06/white-case-has-built-the-new-modern-law-firm-office-and-its-awesome/ [https://perma.cc/2Q3Z-K26A].
[32]. See, e.g., Gilbert M. Roman, The Fair Labor Standards Act: The Do’s, Don’ts and Pitfalls for the Unwary, 17 Preventive L. Rep. 14, 17 (1998).
[33]. Lee Anne Fennell, Co-Location, Co-Location, Co-Location: Land Use and Housing Priorities Reimagined, 39 Vt. L. Rev. 925, 933 (2015).
[34]. See D. Benjamin Barros, Home as a Legal Concept, 46 Santa Clara L. Rev. 255, 255–57 (2006).
[35]. See Paula Danby, Katherine Dashper & Rebecca Finkel, Multispecies Leisure: Human-Animal Interactions in Leisure Landscapes, 38 Leisure Stud. 291, 295 (2019).
[36]. Nussbaum, Creating Capabilities, supra note 27, at 18.
[37]. Michelle Megna, Pet Ownership Statistics, Forbes Advisor (July 1, 2026), https://www.forbes.com/advisor/pet-insurance/pet-ownership-statistics/ [https://perma.cc/KBT9-Y9PD].
[38]. See, e.g., Margaret Renkl, Enough with the Fireworks Already, N.Y. Times (July 1, 2024), https://www.nytimes.com/2024/07/01/opinion/july-4-fireworks-america.html [https://perma.cc/66UG-2LJD].
[39]. See, e.g., Mont. Code Ann. § 7-33-4206 (2025) (regulating bonfires, fireworks, and other fire-causing agents); Fla. Stat. § 823.02 (2025) (prohibiting the causing or making of a bonfire within 10 rods of any house or building).
[40]. See Blair Lozier, Valerie Newberg & Dakota Thomas, State Approaches to Marijuana Policy, Council of State Gov’ts (Feb. 13, 2023), https://www.csg.org/2023/02/13/state-approaches-to-marijuana-policy/ [https://perma.cc/R9G2-K38P].
[41]. See, e.g., Thomas P. Lewis, The Role of Law in Regulating Discrimination in Places of Public Accommodation, 13 Buff. L. Rev. 402, 427–28 (1964).
[42]. See Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 652–54 (2015).
[43]. See Alfred Avins, What Is a Place of Public Accommodation, 52 Marq. L. Rev. 1, 13, 17–18 (1968).
[44]. See Kathleen Lloyd & Christopher Auld, Leisure, Public Space and Quality of Life in the Urban Environment, 21 Urb. Pol’y & Rsch. 339, 339, 341–42, 350–51 (2003).
[45]. See, e.g., Avins, supra note 43, at 66.
[46]. Id. at 66–67 (explaining the rules governing public spaces that are classified as public accommodations).
[47]. Id. at 70–72 (discussing nonpublic accommodations).
[48]. Digital leisure emerged in the 1970s with the creation of arcade games, early computer gaming, and home consoles but grew rapidly in the 1990s with the spread of the commercial internet. See Tristan Donovan, Replay: The History of Video Games 18–29, 289–307 (2010); Manuel Castells, The Rise of the Network Society xxvii–xxx (2019); see also Lewis Marlee, How American Platforms Are Leading Digital Leisure in Sports and Entertainment, Fort Worth Wkly. (Feb. 20, 2026), https://www.fwweekly.com/2026/02/20/how-american-platforms-are-leading-digital-leisure-in-sports-and-entertainment/ [https://perma.cc/VK76-KYX6] (noting how “American digital platforms have fundamentally redefined how sports and entertainment are consumed, financed, and experienced,” with “streaming services, gaming ecosystems, social media networks, and sports-focused platforms” which have introduced accessibility and interactivity while reducing “financial barriers and encourag[ing] broader engagement”).
[49]. Perhaps the closest is the work of tax scholars, who understand leisure similar to economists, see Lewis, Applied Statistics, supra note 14, and typically discuss the taxing complements to leisure (like televisions, swimsuits, internet usage). See, e.g., David A. Weisbach, Distributionally Weighted Cost-Benefit Analysis: Welfare Economics Meets Organizational Design, 7 J. Legal Analysis 151, 162 (2015); David Hasen, Liberalism and Ability Taxation, 85 Tex. L. Rev. 1057, 1075 (2007); Eric Rakowski, Can Wealth Taxes Be Justified?, 53 Tax L. Rev. 263, 267–69 (2000); see also Steven Wall, An Intriguing Tangent: Capitalism, Leisure, and the Good Life, 13 Geo. J.L. & Pub. Pol’y 385, 402 (2015).
[50]. In fact, the only definitions of leisure law come from legal information websites. See Melissa Bender, What is Entertainment, Sports, and Leisure Law?, Findlaw (Jan. 12, 2026), https://hirealawyer.findlaw.com/choosing-the-right-lawyer/entertainment-sports-and-leisure-law.html [https://perma.cc/2QHM-3YS3] (describing leisure law as a field that spans a wide range of industries, including visual entertainment such as movies, television, and radio; performing arts such as theater, music, and personal appearances; media such as visual arts, publishing, and internet media; and sports, both professional and amateur); Leisure Law, Hg.org, https://www.hg.org/leisure-law.html [https://perma.cc/85UE-FSZ7].
[51]. See generally William E. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109 (1988) (tracing the evolution of the American labor movement and its interactions with the legal system).
[52]. See, e.g., Roy Rosenzweig, Eight Hours for What We Will: Workers and Leisure in an Industrial City, 1870–1920, at 127–52 (1983); Emily Remus, A Shoppers’ Paradise: How the Ladies of Chicago Claimed Power and Pleasure in the New Downtown 117–134 (2019).
[53]. “Assured daily leisure is an essential element of healthy living. Without it childhood is blighted, perverted, [and] deformed; manhood becomes ignoble and unworthy of citizenship in the Republic . . . Excessive fatigue precludes the possibility of well-conducted meetings of classes, lodges, cooperative societies and all other forms of organized effort for self-improvement.” Florence Kelley, Some Ethical Gains Through Legislation 108 (1910).
[54]. Id. at 105, 127.
[55]. Landon R. Y. Storrs, Civilizing Capitalism: The National Consumers’ League, Women’s Activism, and Labor Standards in the New Deal Era 177–80 (2000).
[56]. Brief for the State of Oregon at 28–46, 57–77, Muller v. State of Oregon, 208 U.S. 412 (1908) (No. 107).
[57]. Louis D. Brandeis, Business—A Profession 29 (1914).
[58]. Id.
[59]. 2 Felix Frankfurter, The Case for the Shorter Work Day 979 (1916).
[60]. All of these rules are covered under the Fair Labor Standards Act. 29 U.S.C. §§ 201–19.
[61]. See, e.g., Buma v. Providence Corp. Dev., 453 P.3d 904, 909 (Nev. 2019) (workers’ compensation case where the court notes that under the personal comfort rule, an employee remains in the course of employment during personal comfort activities unless the departure from the employee’s work-related duties “is so substantial that an intent to abandon the job temporarily may be inferred or the method chosen” to minister to one’s personal comfort “is so unusual and unreasonable that the act cannot be considered incidental to the course of employment.”); Lujan v. Payroll Express, Inc., 837 P.2d 451, 454–55 (N.M. Ct. App. 1992) (a case involving a widow’s review of a Workers’ Compensation Administration’s order where the court noted that under the bunkhouse rule, if an employee is required to live on the employer’s premises, an injury suffered by the employee while reasonably using the premises is considered as occurring in the course of employment, even if the injury occurs during an employee’s leisure time); Cozza v. Workmen’s Comp. App. Bd., 383 A.2d 1324, 1325 (Pa. Commw. Ct. 1978) (discussing the “well-established principle” that “‘course of employment’ embraces intervals of leisure within regular hours of the working day,” noting that “momentary departures from the work routine do not remove an employee from the course of his employment” and holding that “[b]reaks which allow the employee to administer to his personal comfort better enable him to perform his job and are therefore considered to be in furtherance of the employer’s business”).
[62]. Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–2654.
[63]. See generally id. (providing unpaid leave for eligible medical reasons and compelling family reasons, such as the birth of a child or a serious health condition).
[64]. See Karen L. Chadwick, Is Leisure-Time Smoking a Valid Employment Consideration?, 70 Alb. L. Rev. 117, 118 & n.13 (2006); N.Y. Lab. Law § 201-d(2)(b)–(c) (McKinney 2026).
[65]. See generally 29 U.S.C. §§ 201–219 (establishing the Fair Labor Standards Act and its requirements). See also Benjamin Kline Hunnicutt, Work Without End: Abandoning Shorter Hours for the Right to Work 1–2 (1988); Wage & Hour Div., U.S. Dep’t of Lab., Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA), U.S. Dep’t of Lab. (Sep. 2019) [hereinafter Fact Sheet #17A], https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime [https://perma.cc/N8QD-Z2FR].
[66]. Fact Sheet #17A, supra note 65 (explaining exceptions to the FLSA for certain types of workers); see also 29 U.S.C. § 213 (statutory exemptions).
[67]. See Lonnie Golden, Flexibility and Overtime Among Hourly and Salaried Workers: When You Have Little Flexibility, You Have Little to Lose 1–2 (Econ. Pol’y Inst., Briefing Paper No. 385, 2014). Importantly, this report notes that lower-income salaried workers do not enjoy noticeably greater flexibility than their hourly counterparts. See id. at 2.
[68]. See, e.g., Kevin T. Dugan, A Second Young Bank of America Employee Has Suddenly Died This Month, N.Y. Mag.: Intelligencer (May 17, 2024), https://nymag.com/intelligencer/article/why-are-bank-of-americas-young-workers-dying.html [https://perma.cc/77ZN-6HKX].
[69]. Vt. Stat. Ann. tit. 21, § 309(a)(1) (2026).
[70]. Id. § 309(a)(2).
[71]. Id. § 309(b)(1)–(2).
[72]. Family Friendly Workplace Ordinance, SF.Gov (last updated Mar. 21, 2025), https://www.sf.gov/information--family-friendly-workplace-ordinance [https://perma.cc/97VZ-8D7T].
[73]. S.F., Cal., Lab. & Empl. Code §§ 32.2, 32.5(c)(3) (2024).
[74]. See generally Madeleine Gyory, Legislating Flexibility in the Post-pandemic Workplace, 69 Vill. L. Rev. 209, 237–39 (2024) (discussing right-to-request laws enacted in Oregon and New Hampshire).
[75]. Mont. Code Ann. § 2-18-120(1) (West 2025).
[76]. See S.C. Code Ann. § 8-11-15(B) (2026).
[77]. Okla. Stat. Ann. tit. 62, § 34.11.7(A)(1) (West 2026).
[78]. See generally Cal. Gov’t Code § 14201 (West 2026) (establishing the state employee telecommuting program); Impacts of Telecommuting and Remote Services on Transportation, Land Use, and Climate Change, Cal. Air Res. Bd., https://ww2.arb.ca.gov/our-work/programs/sustainable-communities-program/project-solicitation/telecommuting-impacts [https://perma.cc/B9L5-8Z4K] (describing the climate benefits of telecommuting); Cal. State Auditor, State Telework Policies (Rep. No. 2024-118) (2024), https://www.auditor.ca.gov/reports/2024-118/ [https://perma.cc/5W6H-A3X2] (same).
[79]. Or. Rev. Stat. Ann. § 240.855(2) (West 2026).
[80]. Samuel Cameron & Mark Fox, Half Full or Half Empty: The Economics of Work-Life Balance, in Handbook on the Economics of Leisure 100, 119–20 (Samuel Cameron ed., 2011).
[81]. Fred Turner, You Call This ‘Flexible Work’?, N.Y. Times (Apr. 12, 2023), https://www.nytimes.com/2023/04/12/magazine/flexible-work-home.html [https://perma.cc/W8YM-YGJX]; see Robert C. Bird, Precarious Work: The Need for Flextime Employment Rights and Proposals for Reform, 37 Berkeley J. Emp. & Lab. L. 1, 22 (2016) (criticizing how FLSA’s lack of protection of personal time for employees, such as after-work email requests, can serve as “interruptions to an employee’s leisure, . . . bring a harmful work environment into the employee’s home,” and “disrupt the recovery and relaxation process that is a necessary part of work-life balance”). This view is not limited to recent years though. See Lonnie Golden, Flexible Work Schedules: What Are We Trading Off to Get Them?, 124 Monthly Lab. Rev. 50, 50 (2001) (arguing that the “spread of flexible work schedules” can require increased work-evening shifts or switches to a part-time status that can impede on leisure time).
[82]. See Hunnicutt, supra note 65, at 210–11; Aneil Kovvali & Jonathan S. Masur, Labor, Leisure, and Law, 103 N.C. L. Rev. 1671, 1682 (2025).
[83]. See U.S. Const. amend. XIII.
[84]. See Kovvali et al., supra note 82, at 1714–15 (discussing retirement-benefits laws).
[85]. See id. at 1724 (discussing Medicare).
[86]. See Bureau of Lab. Stat., U.S. Dep’t of Lab., Time Spent in Leisure and Sports in 2024, The Econ. Daily (Sep. 15, 2025), https://www.bls.gov/opub/ted/2025/time-spent-in-leisure-and-sports-in-2024.htm [https://perma.cc/A7ZE-GJ6T] (showing that people between the ages of sixty-five and seventy-four spent 6.52 hours per day engaged in leisure and sports, while people between the ages of thirty-five and forty-four spent only 3.80 hours per day engaged in such activities).
[87]. Cunard S.S. Co. v. Mellon, 262 U.S. 100, 127 (1923) (“[T]he only instance in which the possession of intoxicating liquor for beverage purposes is recognized as lawful is where the liquor was obtained before the act went into effect and is kept in the owner’s dwelling for use therein by him, his family, and his bona fide guests.”).
[88]. 381 U.S. 479 (1965). Justice Douglas found that these zones of privacy emanated from the First Amendment right of association, the Third Amendment prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, the Fourth Amendment prohibition on unreasonable searches and seizures, the Fifth Amendment Self-Incrimination Clause, and the Ninth Amendment requirement that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Id. at 484.
[89]. Laurence H. Tribe, American Constitutional Law 1423 (2d ed. 1988). Other decisions Professor Tribe sees as relevant to this point include Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); and Carey v. Population Services International, 431 U.S. 678 (1977). Id.
[90]. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 191, 196 (1986); Lawrence v. Texas, 539 U.S. 558, 578 (2003).
[91]. See David Pozen, The Constitution of the War on Drugs 31–36 (2024).
[92]. Ravin v. State, 537 P.2d 494, 504 (Alaska 1975).
[93]. See Shana L. Maier, Suzanne Mannes & Emily L. Koppenhofer, The Implications of Marijuana Decriminalization and Legalization on Crime in the United States, 44 Contemp. Drug Probs. 125, 126–27 (2017).
[94]. Sarah L. Holloway, Mark Jayne & Gill Valentine, ‘Sainsbury’s is My Local’: English Alcohol Policy, Domestic Drinking Practices and the Meaning of Home, 33 Trans. Inst. Brit. Geographers (n.s.) 532, 543 (2008).
[95]. Antonia C. Lyons, Carol Emslie & Kate Hunt, Staying ‘in the Zone’ but Not Passing the ‘Point of No Return’: Embodiment, Gender and Drinking in Mid‐Life, 36 Socio. of Health & Illness 264, 268 (2014).
[96]. Sarah MacLean, Gabriel Caluzzi, Megan Cook, Robin Room & Sarah Callinan, Drinking Alcohol at Home Feels Different from Drinking in Public Places: A Qualitative Study of Midlife Australians, 86 Health & Place 1, 1 (2024).
[97]. Powell v. Texas, 392 U.S. 514, 532 (1968) (plurality opinion).
[98]. See S. George Clarke, Public Intoxication and Criminal Justice, 5 J. Drug Issues 220, 224–25 (1975) (describing the incidence of public intoxication laws and their use).
[99]. See John Foster, Donald Read, Sakthidaran Karunanithi & Victoria Woodward, Why Do People Drink at Home, 32 J. Pub. Health 512, 514 (2010) (finding that some themes for why people drink at home include social occasions, stress/reward, drunk driving, and convenience).
[100]. See Quitting Time?, Pew Charitable Trs. (Mar. 24, 2020), https://www.pew.org/en/research-and-analysis/articles/2020/03/24/quitting-time [https://perma.cc/YM7S-XCZR].
[101]. See Shawn Bishop, How Do Smoker’s Brains Change in Response to High Nicotine Levels?, Mayo Clinic (Feb. 24, 2012), https://newsnetwork.mayoclinic.org/discussion/smokers-brains-change-in-response-to-high-levels-of-nicotine/ [https://perma.cc/WZ6W-F4DQ].
[102]. 410 Ill. Comp. Stat. Ann. 82/15, 82/35 (West 2026).
[103]. See Katherine Schaeffer, Key Facts about Americans and Guns, Pew Rsch. Ctr. (July 24, 2024), https://www.pewresearch.org/short-reads/2024/07/24/key-facts-about-americans-and-guns/ [https://perma.cc/8NLH-HGTX].
[104]. See District of Columbia v. Heller, 554 U.S. 570, 635 (2008); McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
[105]. 34 Pa. Stat. and Cons. Stat. Ann. § 2507(b)(4)(i) (West 2026). This, of course, could apply to residences as well as other forms of private property.
[106]. See generally Louis A. Zurcher Jr, The “Friendly” Poker Game: A Study of an Ephemeral Role, 49 Soc. Forces (1970) (explaining the social norms and customs surrounding home gambling).
[107]. Cal. Penal Code § 337j(a)(1) (West 2026).
[108]. Id. § 337j(e)(2)(D) (West 2026); see also Mich. Comp. Laws Ann. § 432.202(v) (West 2026); Nev. Rev. Stat. Ann. § 463.0152(2)(a) (2025); VA. Code Ann. § 18.2-334 (2026).
[109]. See Jeroen A. Oskam, The Future of Airbnb and the ‘Sharing Economy’: The Collaborative Consumption of our Cities 42, 48, 51 (2019); see also Jichul Jang, Juwon Choi, Hyeongjin “Harry” Jeon & Juhyun Kang, Understanding U.S. Travellers’ Motives to Choose Airbnb: A Comparison of Business and Leisure Travellers, 19 Int’l J. Tourism Scis. 192, 193 (2019).
[110]. See, e.g., N.Y.C. Admin. Code § 26-3102 (requiring short-term rental hosts to register with the Mayor’s Office of Special Enforcement before offering a dwelling unit for short-term rental); Phila., Pa., Code tit. 14 § 604(13) (requiring zoning permits and applicable licenses for short-term rental operators); see also Rent Your Property (Short-Term), City of Philadelphia, https://www.phila.gov/services/permits-violations-licenses/rent-or-sell-property/rent-your-property-short-term/ [https://perma.cc/W9AH-D2HW] (outlining requirements for short-term rentals).
[111]. See Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. Pitt. L. Rev. 915, 922–23 (2007) (describing and critiquing Euclidean zoning); Richard A. Epstein, A Conceptual Approach to Zoning: What’s Wrong with Euclid, 5 N.Y.U. Env’t L.J. 277, 288 (1996) (explaining some of the shortcomings of Euclidean zoning).
[112]. See, e.g., 26 U.S.C. § 501(c)(7) (exempting from federal income tax “[c]lubs organized for pleasure, recreation, and other nonprofitable purposes”); 410 Ill. Comp. Stat. Ann. 82/10 (West 2026) (defining a private club as a not-for-profit association that is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes and at all times “is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain”); Camden, S.C. Code § 102.02 (defining a private club similarly).
[113]. See, e.g., Cherry Hill, N.J., Zoning Ordinance §§ 413–415; New Orleans, La., Comprehensive Zoning Ordinance § 20.3.CCC; Neshannock Twp., Pa., Zoning Ordinance, § 400.67 (2024).
[114]. See Grace Bldg. Co. v. Zoning Hearing Bd. of Allentown, 392 A.2d 892 (Pa. Commw. Ct. 1978) (successfully appealing a city zoning hearing board decision denying a permit to continue the building’s nonconforming use as a social club); Limley v. Zoning Hearing Bd., 533 Pa. 340, 625 A.2d 54 (1993) (concluding that a local zoning board erred in denying permission for a former private club to be used as a public restaurant and bar since proposed use was similar to and a natural extension of existing nonconforming use).
[115]. See, e.g., Wis. Stat. Ann. § 125.035 (West 2026); N.H. Rev. Stat. Ann. § 159-B:5 (West 2026); 70 Ill. Comp. Stat. Ann. 1205/8-19 (West 2026); Restatement (Second) of Torts § 343; N.Y.C. Admin. Code § 24-218.
[116]. See Act of May 16, 1865, ch. 277, § 1, 1865 Mass. Acts 650, 650, reprinted in Milton R. Konvitz, A Century of Civil Rights 156 (1961); Act of Feb. 25, 1873, No. 12, § 3, 1873 Ark. Acts 15, 15–19.
[117]. Civil Rights Act of 1875, ch. 114, § 1, 18 Stat. 335, 336.
[118]. The Civil Rights Cases, 109 U.S. 3 (1883).
[119]. See generally Robert B. McKay, Segregation and Public Recreation, 40 Va. L. Rev. 697 (1954) (examining the extent to which segregation in public recreational facilities is consistent with the Fourteenth Amendment).
[120]. See Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1353–54 (1996) (noting how, between 1865 to 1880, “most of the legal challenges to racial exclusion or segregation were brought by African-American women challenging their exclusion from a ‘ladies’ car’” with some plaintiffs prevailing, but how, after 1880, “the losses became more and more numerous”).
[121]. 42 U.S.C. § 1981.
[122]. See George Rutherglen, The Improbable History of Section 1981: Clio Still Bemused and Confused, 2003 Sup. Ct. Rev. 303, 322–24 (2003).
[123]. See Shaun Ossei-Owusu, Velvet Rope Discrimination, 107 Va. L. Rev. 683, 702 (2021).
[124]. 42 U.S.C. § 2000a(a).
[125]. Id. § 2000a(b).
[126]. Daniel v. Paul, 395 U.S. 298, 307–08 (1969).
[127]. Ind. Code Ann. § 16-32-3-2 (West 2026).
[128]. It also raises questions regarding how permanent a club must be to be considered private under the statute. For instance, would a one-time rave in a rented warehouse or a pop-up art gallery in a residential space—both of which are temporary—constitute an establishment for purposes of the statute?
[129]. United States v. Lansdowne Swim Club, 713 F. Supp. 785, 796–97 (E.D. Pa. 1989); see also Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1158 (11th Cir. 2021) (citing the same factors for the ADA context).
[130]. See generally 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (deciding constitutionality of statute as applied to website designer); Masterpiece Cakeshop v. Colo. Civ. Rts. Comm’n, 584 U.S. 617 (2018) (deciding constitutionality of statute as applied to baker).
[131]. Colo. Rev. Stat. Ann. § 24-34-600.3 (West 2026).
[132]. Id.
[133]. Neb. Rev. Stat. Ann. § 20-133 (West 2026).
[134]. Md. Code Ann., State Gov’t § 20-301(2) (West 2026).
[135]. See Halton v. Great Clips, Inc., 94 F. Supp. 2d 856, 862 n.7 (N.D. Ohio 2000) (finding that a salon was only a public accommodation under state law and not under federal law).
[136]. See Runyon v. McCrary, 427 U.S. 160, 168–70 (1976); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420–22 (1968).
[137]. 3 William Blackstone, Commentaries on the Laws of England 164 (Professional Books Ltd., 1982 reprint) (“[I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.”). See generally Suja A. Thomas, The Customer Caste: Lawful Discrimination by Public Businesses, 109 Calif. L. Rev. 141 (2021) (discussing instances in which discrimination by a public-facing business is or is not lawful).
[138]. See Madison v. Courtney, 365 F. Supp. 3d 768 (N.D. Tex. 2019).
[139]. Gilyard v. Northlake Foods, Inc., 367 F. Supp. 2d 1008, 1014–15 (E.D. Va. 2005). See generally Thomas, supra note 137, at 141.
[140]. See Nat’l Conf. of State Legislatures, State Public Accommodation Laws (May 16, 2025), https://www.ncsl.org/civil-and-criminal-justice/state-public-accommodation-laws [https://perma.cc/887Z-X4XQ].
[141]. See generally 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (addressing a law that would have required a website designer to create websites for same-sex weddings); Masterpiece Cakeshop v. Colo. Civ. Rts. Comm’n, 584 U.S. 617 (2018) (addressing a law that would have required a baker to bake a cake for a same-sex wedding).
[142]. See Comm’n on Hum. Rts. & Opportunities v. Edge Fitness, LLC, 268 A.3d 630 (Conn. 2022).
[143]. See Keegan T. Peterson, Melissa Bopp, Ginny M. Frederick, Sammie L. Powers & Oliver W. A. Wilson, Campus Recreation Amenity Use Differences by Sexual Orientation Among US College Students, 47 Recreational Sports J. 118, 121 (2023).
[144]. See Edge Fitness, 268 A.3d at 637–39; Ossei-Owusu, supra note 123, at 690.
[145]. See Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 Calif. L. Rev. 841, 854–56 (1966).
[146]. See Richard Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy 28–29 (2001).
[147]. See Duane F. Stroman, The Disability Rights Movement: From Deinstitutionalization to Self-Determination 165 (2003).
[148]. Scotch, supra note 146, at 35–36; Doris Fleischer & Frieda Zames, The Disability Rights Movement: From Charity to Confrontation 33–48 (2001).
[149]. See, e.g., Leona L. Bachrach, Deinstitutionalization: An Analytical Review and Sociological Perspective 13 (1976). John A. Nesbitt & Gordon K. Howard, Recreation for the Deaf-Blind, in State of the Art: Perspectives on Serving Deaf-Blind Children 219, 231 (Edgar L. Lowell & Carole C. Rouin eds., 1977) (noting a study that found that “no more than one-fifth of the nation’s ill and handicapped are receiving any type of professional recreation and leisure”).
[150]. See Robert L. Burgdorf Jr., Equal Access to Public Accommodations, 69 Milbank Q. 183, 185–86 (1991).
[151]. See id. at 186.
[152]. See id.
[153]. Id.
[154]. See Fred Pelka, What We Have Done: An Oral History of the Disability Rights Movement 198 (2012).
[155]. Jacqueline Foertsch, Bracing Accounts: The Literature and Culture of Polio in Postwar America 135 (2008).
[156]. Gini Laurie, Independent Living Programs, 22 Rehab. Gaz. 9, 10 (1979).
[157]. Id. at 9–11 (explaining this thick conception of leisure in the context of disability).
[158]. 29 U.S.C. § 794.
[159]. Roger M. Sullivan Jr., Balancing the Rights of the Alcoholic Employee with the Legitimate Concerns of the Employer: Reasonable Accommodation vs. Undue Hardship, 46 Mont. L. Rev. 401, 403 (1985).
[160]. Mark E. Martin, Accommodating the Handicapped: The Meaning of Discrimination Under Section 504 of the Rehabilitation Act, 55 NYU L. Rev. 881, 881, 885–88 (1980) (describing the functioning of Section 504).
[161]. Land & Water Conservation Fund Act of 1965, Pub. L. No. 88-578, 78 Stat. 897 (1964).
[162]. 29 U.S.C. § 794(a).
[163]. Pub. L. 92-512, § 122, 86 Stat. 919, 932 (1972).
[164]. See 16 U.S.C. § 2504.
[165]. Id. § 2501(d).
[166]. 42 U.S.C. § 12132.
[167]. See, e.g., Winborne v. Va. Lottery, 677 S.E.2d 304, 307 (Va. 2009) (holding that the Virginia Lottery offers a “program, service, or activity” under Title II of the ADA); Paxton v. State Dep’t of Tax & Revenue, 451 S.E.2d 779, 780, 785 (W. Va. 1994) (ruling that the Lottery Commission was “clearly a public entity within the meaning of the Americans with Disabilities Act, and it provided an aid, benefit, or service on a continuing basis to its licensee”).
[168]. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998) (ruling that Title II applies to inmates in state prisons); Reaves v. Dep’t of Corr., 195 F. Supp. 3d 383, 421 (D. Mass. 2016) (holding that a state prisoner with quadriplegia and hearing impairment was likely to succeed on his claim that the Department of Correction violated Title II by failing to allow him access to outdoor recreation).
[169]. See Concerned Parents to Save Dreher Park Ctr. v. City of W. Palm Beach, 846 F. Supp. 986, 988–89, 991–92 (S.D. Fla. 1994) (granting injunctive relief in a Title II action brought by individuals with disabilities and their representatives challenging the city’s elimination of accessible city-sponsored programs).
[170]. 42 U.S.C. § 12181(7)(C), (7)(E), (7)(H)–(I), (7)(L).
[171]. See Clayton W. Barrows & Michael Robinson, Club Management: The Management of Private Membership Clubs 23–26 (2019) (describing the legal distinctions between public accommodations and private clubs).
[172]. The ADA-mandated reasonable accommodation comes closest to serving as an exception to this general rule, in that it often requires private parties to take affirmative steps to make physical spaces available to people with disabilities, rather than merely requiring that they admit all people to these spaces. However, as we note in the text, there is no requirement that the spaces in question exist in the first place. The reasonable accommodation mandates only apply to facilities that some private party has decided, of its own accord, to construct.
[173]. U.S. Const. amend. XIV, § 1.
[174]. Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VI, 78 Stat. 241, 252.
[175]. Title VI also applies to private actors who receive federal funds, and thus its reach extends beyond public spaces. But it is similarly a relevant source of law for nonfederal public actors, such as states and municipalities, who receive federal funding and must abide by the nondiscrimination provisions of Title VI as a result.
[176]. We use “negative rights” here in the canonical sense to mean a right that prevents the government from taking some type of action against a citizen. Here, the relevant action is exclusion from a public space. This is in contrast to a “positive right,” in which the citizen has the right to demand some type of action from the government.
[177]. See Akira Drake Rodriguez, Pool: A Social History of Segregation, 109 J. Am. Hist. 634, 634–37 (2022) (describing the history of segregation in public pools).
[178]. See, e.g., Emily Talen, The Spatial Logic of Parks, 15 J. Urb. Design 473, 475–77 (2010) (discussing how decisions are made regarding where to site parks). Some foreign countries also delegate decisions about where to locate municipal parks to the relevant municipalities. See Stephen Chen & Chong Ju Choi, Creating a Knowledge‐Based City: The Example of Hsinchu Science Park, 8 J. Knowledge Mgmt. 73, 75 (2004) (offering a case study on the planning and siting of a public park).
[179]. See Craig L. Shafer, History of Selection and System Planning for US Natural Area National Parks and Monuments: Beauty and Biology, 8 Biodiversity & Conserv. 189, 190–92 (1999) (describing the federal government’s process in deciding when and where to create national parks).
[180]. Talen, supra note 178, at 476 (explaining the factors that play into where parks are sited).
[181]. Cf. Rick Grannis, T‐Communities: Pedestrian Street Networks and Residential Segregation in Chicago, Los Angeles, and New York, 4 City & Cmty. 295, 310–11 (2005) (describing patterns of residential segregation in a number of cities, including Chicago).
[182]. Though not entirely. See Edward McClelland, Yes, Chicago Really Has an East Side, Chi. Mag. (Nov. 23, 2021), https://www.chicagomag.com/city-life/yes-chicago-really-has-an-east-side/ [https://perma.cc/4QAG-7MXN].
[183]. See Budget & Management, Chi. Park Dist., https://www.chicagoparkdistrict.com/about-us/departments/budget-and-management [https://perma.cc/BM63-WDX2] (noting that 4.55% of Chicago’s property tax dollars are distributed to the Park District).
[184]. See, e.g., Big Marsh Park, Chi. Park Dist., https://www.chicagoparkdistrict.com/parks-facilities/big-marsh-park [https://perma.cc/MF29-UAK4].
[185]. E.g., Vehicles Available and Electric Vehicles, U.S. Census Bureau, https://www.census.gov/acs/www/about/why-we-ask-each-question/vehicles [https://perma.cc/TS2G-E4V9] (finding that 26.6% of Chicago households do not have access to a vehicle).
[186]. For a less anecdotal perspective, see Alessandro Rigolon, Matthew Browning & Viniece Jennings, Inequities in the Quality of Urban Park Systems: An Environmental Justice Investigation of Cities in the United States, 178 Landscape & Urb. Plan. 156, 160–61 (2018) (analyzing the quality of public park facilities in several major cities).
[187]. See Lindsay Lowe, ‘Everyone Should Love Waffles!’ Leslie Knope’s 54 Funniest, Most Inspiring ‘Parks and Recreation’ Quotes, Parade (Feb. 24, 2022), https://parade.com/507086/lindsaylowe/happy-birthday-amy-poehler-her-funniest-parks-and-recreation-quotes/ [https://perma.cc/E98T-4TKV] (“There’s nothing we can’t do if we work hard, never sleep, and shirk all other responsibilities in our lives.”).
[188]. U.S. Const. amend. XIV, § 1.
[189]. See, e.g., Evans v. Newton, 382 U.S. 296 (1966); Watson v. City of Memphis, 373 U.S. 526 (1963); Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961); Holmes v. City of Atlanta, 350 U.S. 879 (1955); Mayor & City Council of Balt. v. Dawson, 350 U.S. 877 (1955); Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971 (1954).
[190]. 309 F. Supp. 967 (M.D. Ala. 1970).
[191]. Id. at 972.
[192]. Id.
[193]. Id.
[194]. Id.
[195]. Id.
[196]. Id.
[197]. See, e.g., Palmer v. Thompson, 403 U.S. 217, 219–20 (1971); Beal v. Lindsay, 468 F.2d 287, 288–91 (2d Cir. 1972); Hawkins v. Town of Shaw, 437 F.2d 1286, 1288–92 (5th Cir. 1971); see also Stephanie Theresa West, Development of an Instrument to Assess Residents’ Perceptions of Equity 14–15 (Dec. 2004) (Ph.D. dissertation, Texas A&M University) (on file with the California Law Review) (describing an unpublished federal suit brought by San Francisco Chinatown residents, Woo v. Alioto, Civil No. 52,100, which settled out of court after unfavorable census data was released); Ralph S. Abascal, Municipal Services and Equal Protection: Variations on a Theme by Griffin v. Illinois, 20 Hastings L.J. 1367, 1387–91 (1969).
[198]. 426 U.S. 229, 239 (1976).
[199]. See Harold J. Sullivan, The Intent Requirement in Desegregation Cases: The Inapplicability of Washington v. Davis, 10 J. L. & Educ. 325, 327–28 (1981) (discussing the Supreme Court’s decision not to permit disparate impact liability under the Fourteenth Amendment).
[200]. See, e.g., Ammons v. Dade City, 783 F.2d 982, 983, 984–85 (11th Cir. 1986); Dowdell v. City of Apopka, 698 F.2d 1181, 1184, 1185–86 (11th Cir. 1983); Johnson v. City of Arcadia, 450 F. Supp. 1363, 1376–79 (M.D. Fla. 1978).
[201]. Cal. Dep’t of Parks & Recreation, Paying for Parks: An Overview of Fiscal Resources for Local Park and Recreation Agencies 1–2 (2003), https://citeseerx.ist.psu.edu/document?repid=rep1&type=pdf&doi=fb5db714e38fe0e031f49a676342512764b6c893 [https://perma.cc/SW87-EMQ2].
[202]. 42 U.S.C. § 2000d.
[203]. 42 U.S.C. § 5309.
[204]. See Dortch, Figures & Sons, Inc. v. City of Mobile, No. 1:18-00213-KD-C, 2019 WL 5431314, at *11 (S.D. Ala. Oct. 22, 2019); see also 42 U.S.C. §§ 5304(b)(2), 5311.
[205]. Guardians Ass’n v. Civ. Serv. Comm’n of N.Y., 463 U.S. 582, 610–12 (1983) (Powell, J., concurring in the judgment); id. at 641–42 (Stevens, J., dissenting).
[206]. See Margaret Walls, Private Funding of Public Parks: Assessing the Role of Philanthropy 3, 15–18 (Res. for the Future Issue Brief No. 14-01, Jan. 2014) (describing and explaining the governance structure of public parks).
[207]. See Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015) (noting that disparate impact liability helps address “unconscious prejudices and disguised animus that escape easy classification as disparate treatment”).
[208]. See Olatunde C.A. Johnson, Disparity Rules, 107 Colum. L. Rev. 374, 391–92 (2007) (explaining that Title VI is the principal federal statute addressing racial disparities generated by public actors and noting how Sandoval ruling’s limitation on private enforcement weakens the disparate impact framework’s goal of encouraging institutional reforms that reduce racial inequality).
[209]. 42 U.S.C. § 2000d-1 (“Each Federal department and agency . . . is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability . . . .”).
[210]. See, e.g., 49 C.F.R. § 21.5(b)(2) (2026) (prohibiting recipients of federal funds from using “criteria or methods of administration” that have the effect of subjecting individuals to discrimination on the basis of race, color, or national origin); 45 C.F.R. § 80.3(b)(2) (2026) (same).
[211]. 40 C.F.R. § 7.35 (2026).
[212]. Id. § 7.35(c).
[213]. Id. § 7.35(b).
[214]. Alexander v. Sandoval, 532 U.S. 275 (2001).
[215]. Id. at 289–90.
[216]. Consent Decree at 2–3, 7, United States v. Chi. Park Dist., No. 82-cv-7308 (N.D. Ill. May 13, 1983).
[217]. See Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183, 194–95 (discussing the consequences of limiting private enforcement of civil rights statutes).
[218]. Mich. Comp. Laws Ann. § 37.2102(1).
[219]. Mich. Comp. Laws Ann. § 37.2102.
[220]. Phila., Pa., Code § 9-1101 et seq. (2023).
[221]. Deborah L. Brake, When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law, 46 Wm. & Mary L. Rev. 513, 515 (2004) (discussing the courts’ practice of leveling down in equal protection cases and the harm that this can cause).
[222]. See generally Jeff Wiltse, Contested Waters: A Social History of Swimming Pools in America 25 (2007) (describing the legal and social fights that took place over integrating swimming pools).
[223]. Id.
[224]. Palmer v. Thompson, 403 U.S. 217, 227 (1971); Hampton v. City of Jacksonville, 304 F.2d 319, 319 (5th Cir. 1962).
[225]. City of Montgomery v. Gilmore, 277 F.2d 364, 368 (5th Cir. 1960) (“We agree with the district court that no law, State or Federal, requires the City to operate public parks.”).
[226]. Clark v. Flory, 141 F. Supp. 248, 249–51 (E.D.S.C.), aff’d per curiam, 237 F.2d 597 (4th Cir. 1956).
[227]. See Fred P. Graham, Court Says Cities May Close Pools to Bar Racial Mix, N.Y. Times (June 15, 1971), https://www.nytimes.com/1971/06/15/archives/court-says-cities-may-close-pools-to-bar-racial-mix-54-ruling-backs.html [https://perma.cc/NP5D-Q8M8]; Randall Kennedy, Reconsidering Palmer v. Thompson, 2018 Sup. Ct. Rev. 179, 191–95 (2018).
[228]. See Joan Garden, Constitutional Law—The Private Club Exemption to the Civil Rights Act of 1964, 8 Urb. L. Ann. 333, 334 n.8 (1974); see also Note, Section 1981 and Private Groups: The Fight to Discriminate Versus Freedom from Discrimination, 84 Yale L.J. 1441, 1443 (1975) (“After the passage of the [1964 Civil Rights A]ct, a number of restaurants, amusement parks, and swimming pools sought to escape the statute by alleging private club status.”).
[229]. Neil Maxwell, Some Cafes and Hotels in South Go ‘Private’ To Avoid Rights Law, Wall St. J., July 22, 1964, at 1; see also Richard Corrigan, Coming of Rights Law in Mississippi Brings Sudden Spate of Private Clubs, Wash. Post, Aug. 16, 1964, § A, at 6.
[230]. See Carlos Jamieson, Biden Administration Releases Proposed Rules for Transgender Athlete Participation, Educ. Comm’n States (May 4, 2023), https://www.ecs.org/biden-administration-releases-proposed-rules-for-transgender-athlete-participation/ [https://perma.cc/2SDU-PWYE].
[231]. See Keeping Men Out of Women’s Sports, White House (Feb. 5, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/keeping-men-out-of-womens-sports/ [https://perma.cc/AMT3-DCU7].
[232]. See 2022 Census of Governments, Organization Tables, U.S. Census Bureau (Sep. 23, 2025), https://www.census.gov/data/tables/2022/econ/gus/2022-governments.html [https://perma.cc/T6BK-EMR6].
[233]. See Grannis, supra note 181, at 301, 308–09, 313 (discussing residential segregation in Chicago).
[234]. Chi. Park Dist., Ill., Code ch. 12, § C.6 (2011), https://www.chicagoparkdistrict.com/sites/default/files/2024-12/CPD-Code-Chpt-12.pdf [https://perma.cc/23U5-LLEQ].
[235]. Chi. Park Dist., Ill., Code ch. 13, § A.2 (2018), https://assets.chicagoparkdistrict.com/s3fs-public/documents/code/CPD-Code-Chpt-13.pdf [https://perma.cc/3FMZ-QBGU].
[236]. Id.
[237]. See, e.g., Douglas Q. Wickham, Let the Sun Shine In! Open-Meeting Legislation Can Be Our Key to Closed Doors in State and Local Government, 68 Nw. U. L. Rev. 480, 488–89 (1973) (describing procedural reforms meant to improve the transparency of city government).
[238]. 5 U.S.C. § 553.
[239]. See, e.g., United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252–53 (2d Cir. 1977) (striking down an agency regulation for failure to respond adequately to critical public comments received during the notice-and-comment period).
[240]. Chi. Park Dist., Ill., Code ch. 13, § A.1.
[241]. See James Warner Björkman, Equity and Social Policy: Conceptual Ambiguity in Welfare Criteria, 5 Int’l J. Socio. & Soc. Pol’y 16, 25 (1985) (describing deeper and more all-inclusive conceptions of equity).
[242]. See generally Neil MacCormick & Joseph Raz, Voluntary Obligations and Normative Powers, 46 Proc. Aristotelian Soc’y Supp. Vols. 59, 66–68 (1972) (discussing the normative force that even unenforceable legal rules may exert).
[243]. Id.
[244]. See Park and Recreational Facility Construction Act of 2009, Pub. Act No. 96-0820 (2009), https://www.ilga.gov/documents/legislation/publicacts/96/096-0820.htm [https://perma.cc/6K3S-Q7E6]; see also Ill. Dep’t of Nat. Res., Illinois Park and Recreational Facility Construction Grant Program (PARC) for State Fiscal Year 2021: Program Information and Application Attachments for Grant Applicants 1, 7–8 (2019), https://dnr.illinois.gov/content/dam/soi/en/web/dnr/grants/documents/21-parc-manual-final.pdf [https://perma.cc/29BJ-S3JB].
[245]. Pub. Act No. 96-0820, §§ 10-5, 10-10.
[246]. City of Chi., Census Data - Selected Socioeconomic Indicators in Chicago, 2008–2012, Chi. Data Portal (Sep. 12, 2014), https://data.cityofchicago.org/Health-Human-Services/Census-Data-Selected-socioeconomic-indicators-in-C/kn9c-c2s2/about_data [https://perma.cc/BEF5-85ZC].
[247]. See West v. Atkins, 487 U.S. 42, 55–56 (1988); Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460–61 (5th Cir. 2003); Ira P. Robbins, Privatization of Prisons: An Analysis of the State Action Requirement of the Fourteenth Amendment and 42 USC § 1983, 20 Conn. L. Rev. 835, 836–37 (1988).
[248]. See generally John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Happiness and Punishment, 76 U. Chi. L. Rev. 1037 (2009) [hereinafter Bronsteen et al., Happiness] (discussing the experience of prisoners in prison and how it relates to well-being); John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Retribution and the Experience of Punishment, 98 Calif. L. Rev. 1463 (2010) (explaining the relevance of prisoners’ experiences to retributivist theories of punishment).
[249]. Richard Lippke, Prisoner Access to Recreation, Entertainment and Diversion, 5 Punishment & Soc’y 33, 33–34 (2003).
[250]. See Bronsteen et al., supra note 7, at 64 (explaining the goals of punishment and their relation to well-being).
[251]. See Bronsteen et al., Happiness, supra note 248, at 1049–53 (explaining how the experience of prisoners in prison can affect their outcomes outside of prison).
[252]. Id. (describing the conditions under which prisoners can successfully reenter society); see also Lippke, supra note 249, at 35–37.
[253]. E. Ann Carson, Prisons Report Series, Preliminary Data Release, 2022, Bureau of Just. Stat. (Sep. 2023), https://bjs.ojp.gov/preliminary-data-release-prisons#0-0 [https://perma.cc/4CJ9-UFH4].
[254]. Geneva Convention Relative to the Treatment of Prisoners of War art. 38, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[255]. 28 C.F.R. § 551.115(c) (2026).
[256]. Id. § 551.115(b).
[257]. N.J. Admin. Code § 10A:31-26.4 (2025).
[258]. Ga. Comp. R. & Regs. 125-4-6-.01.
[259]. See, e.g., Parnell v. Waldrep, 511 F. Supp. 764, 770 (W.D.N.C. 1981) (holding that a jail’s failure to provide proper physical exercise and recreation to pretrial detainees violates the Due Process Clause of the Fifth Amendment).
[260]. Jackson v. Sullivan, 692 F. App’x 437, 440 (9th Cir. 2017) (“[E]xercise restrictions lasting longer than six weeks ordinarily give rise to Eighth Amendment liability.”).
[261]. Miller v. Carson, 563 F.2d 741, 749–50 (5th Cir. 1977) (concluding that “both presumably innocent inmates and convicted inmates must be ‘allowed reasonable recreational facilities’” because of the Fourteenth Amendment’s Due Process Clause).
[262]. See Johnson v. Forrest Cnty. Sheriff’s Dep’t, 210 F.3d 366, at 1 (5th Cir. 2000) (unpublished table decision); Sizemore v. Williford, 829 F.2d 608, 610–11 (7th Cir. 1987); Clement v. California Dep’t of Corr., 364 F.3d 1148, 1151–52 (9th Cir. 2004); Thomas v. Leslie, 176 F.3d 489, at 7–8 (10th Cir. 1999) (unpublished table decision); Canadian Coal. Against Death Penalty v. Ryan, 269 F. Supp. 2d 1199, 1202–03 (D. Ariz. 2003).
[263]. Ömer Faruk Tutar & Fatih Harun Turhan, Digital Leisure: Transformation of Leisure Activities, 11 Shanlax Int’l J. Educ. 16, 16 (2023) (describing the use of digital spaces for leisure in modern society).
[264]. 17 U.S.C. § 106.
[265]. 17 U.S.C. § 506.
[266]. 17 U.S.C. § 512.
[267]. 47 U.S.C. § 230.
[268]. Id.
[269]. Danielle Keats Citron & Benjamin Wittes, The Problem Isn’t Just Backpage: Revising Section 230 Immunity, 2 Geo. L. Tech. Rev. 453, 461 (2018).
[270]. United States v. Midwest Video Corp., 406 U.S. 649, 675–76 (1972) (Burger, C.J., concurring).
[271]. 47 U.S.C. § 551.
[272]. Michael Dolan, The Bork Tapes, Wash. City Paper (Sep. 25–Oct. 1, 1987), https://web.archive.org/web/20160313041803/http://theamericanporch.com/bork5.htm [https://perma.cc/37V2-T2ZD].
[273]. Chapter Three: The Video Privacy Protection Act as a Model Intellectual Privacy Statute, 131 Harv. L. Rev. 1766, 1766–67 (2018) (“[T]he publication of The Bork Tapes drew bipartisan ire and generated consensus on the importance of intellectual privacy. The following year, Congress enacted the Video Privacy Protection Act (VPPA).”). But there is a loophole: Disclosures can occur if they are in the ordinary course of business. See Joel R. Reidenberg, Privacy in the Information Economy: A Fortress or Frontier for Individual Rights?, 44 Fed. Comm. L.J. 195, 219 (1992).
[274]. See In re Vizio, Inc., Consumer Priv. Litig., 238 F. Supp. 3d 1204, 1221 (C.D. Cal. 2017); In re Hulu Priv. Litig., No. C 11–03764 LB, 2012 WL 3282960, at *4 (N.D. Cal. Aug. 10, 2012).
[275]. 28 U.S.C. §§ 3701–3704.
[276]. S. Rep. No. 102-248, at 5, reprinted in 1992 U.S.C.C.A.N. 3553, 3555.
[277]. Id. at 17, reprinted in 1992 U.S.C.C.A.N. 3553, 3567 (minority views of Sen. Grassley).
[278]. Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 474 (2018).
[279]. Doug Greenberg, State of North Carolina Launches Legal Online Sports Betting, ESPN (Mar. 11, 2024), https://www.espn.com/sports-betting/story/_/id/39707634/state-north-carolina-launches-legal-online-sports-betting [https://perma.cc/ERK3-F7RH]. As of May 2026, there are thirty-nine states, in addition to Washington, D.C., that have some form of legalized U.S. sports betting, thirty of which offer sports betting with smartphone apps or websites. See Brandt Sutton & Chelena Goldman, U.S. Sports Betting: Where All 50 States Stand on Online Sports Betting Sites, CBS Sports (May 26, 2026), https://www.cbssports.com/betting/news/u-s-sports-betting-where-all-50-states-stand-on-legalizing-online-sports-betting-sites-proposed-legislation/ [https://perma.cc/LNQ4-5ECX].
[280]. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56.
[281]. Rowena Cullen, Addressing the Digital Divide, 25 Online Info. Rev. 311, 311–20 (2001).
[282]. Jan van Dijk, The Digital Divide 1–10, 53, 55 (2020) (describing and analyzing the digital divide).
[283]. See id. at 6–8.
[284]. Jan van Dijk & Kenneth Hacker, The Digital Divide as a Complex and Dynamic Phenomenon, 19 Info. Soc’y 315, 319–20 (2003) (evaluating the availability of broadband internet service in various households separated by demographics and socioeconomic status).
[285]. Donna L. Hoffman & Thomas P. Novak, Bridging the Digital Divide: The Impact of Race on Computer Access and Internet Use 1 (Feb. 2, 1998) (unpublished manuscript), https://files.eric.ed.gov/fulltext/ED421563.pdf [https://perma.cc/4254-E7CR] (documenting the disparity in internet and computer usage and availability by race and income).
[286]. Universal Service, Fed. Commc’ns Comm’n, https://www.fcc.gov/general/universal-service [https://perma.cc/95LV-GLHN].
[287]. Jonathan Weinberg, The Internet and “Telecommunications Services,” Universal Service Mechanisms, Access Charges, and Other Flotsam of the Regulatory System, 16 Yale J. on Reg. 211, 222–25 (1999) (describing the universal service provisions of the 1996 Telecommunications Act).
[288]. See Vera Gallistl & Galit Nimrod, Online Leisure and Wellbeing in Later Life, in Perspectives on Human-Computer Interaction Research with Older People 139, 139–41 (S. Sayago ed., 2019) (explaining the high quantity of leisure activity that has moved online and documenting patterns).
[289]. Pei-Shan Wei & Hsi-Peng Lu, Why Do People Play Mobile Social Games? An Examination of Network Externalities and of Uses and Gratifications, 24 Internet Rsch. 313, 320 (2014) (documenting and describing the vast reach of internet games and explaining their rising popularity).
[290]. Chris Kolmar, 25+ Incredible U.S. Smartphone Industry Statistics [2026]: How Many Americans Have Smartphones, Zippia (Mar. 2, 2023), https://www.zippia.com/advice/us-smartphone-industry-statistics/ [https://perma.cc/8E7Z-FRRA].
[291]. Karthik Babu Nattamai Kannan, Eric Overby & Sridhar Narasimhan, Can Improvements to Mobile Internet Service Help Reduce Digital Inequality? An Empirical Analysis of Education and Overall Data Consumption, 71 Mgmt. Sci. 5419, 5419 (2025).
[292]. See Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437.
[293]. Fast Facts: Back-to-School Statistics, Nat’l Ctr. for Educ. Stat., https://nces.ed.gov/fastfacts/display.asp?id=372 [https://perma.cc/TV57-YSU8]; Katherine Schaeffer, U.S. Public, Private and Charter Schools in 5 Charts, Pew Rsch. Ctr. (June 6, 2024), https://www.pewresearch.org/short-reads/2024/06/06/us-public-private-and-charter-schools-in-5-charts/ [https://perma.cc/AX4M-3ZWK] (noting that “[d]uring the 2021-22 school year, the vast majority of the country’s roughly 54.6 million public, private and charter school students in pre-K through 12th grade (83%) attended traditional public schools”).
[294]. See, e.g., Earned Income Tax Credit (EITC), Internal Revenue Serv., https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit-eitc [https://perma.cc/4SKR-3ZLZ].
[295]. See, e.g., File an Unemployment Claim, Ill. Dep’t of Emp. Sec., https://ides.illinois.gov/unemployment/file-a-claim.html [https://perma.cc/S68M-7HWW].
[296]. Eric Frankenberg, The Role of Residential Segregation in Contemporary School Segregation, 45 Educ. & Urb. Soc’y 548, 555 (2013) (discussing residential segregation); Lori Latrice Martin & Kenneth J. Varner, Race, Residential Segregation, and the Death of Democracy: Education and Myth of Postracialism, 25 Democracy and Educ. 4, 7–9 (2017) (same).
[297]. See 42 U.S.C. § 3603(b).
[298]. Title VII applies to public and private employers with 15 or more employees. Questions and Answers: Religious Discrimination in the Workplace, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace [https://perma.cc/33HW-XBTF].
[299]. Nicholas T. Davis, Religion and Partisan‐Ideological Sorting, 1984–2016, 99 Soc. Sci. Q. 1446, 1454–60 (2018) (documenting the social sorting taking place in the United States along partisan lines). See generally Bill Bishop & Robert G. Cushing, The Big Sort: Why the Clustering of Like-Minded America is Tearing Us Apart (2009) (describing the geographic sorting of Americans based on politics).
[300]. See generally 303 Creative LLC v. Elenis, 600 U.S. 570 (2023); Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 584 U.S. 617 (2018).
[301]. Matt Lamb, Disparities in Democracy: The Causes and Consequences of Polling Place Practices and Conditions (Aug. 2020) (Ph.D. dissertation, Rice University).
[302]. The closest analogy is the “white primary” system that prevailed in much of the South after standard public voting was desegregated. In a critical decision, the Supreme Court held that even party primaries implicated state action, thus bringing them within the ambit of the Fifteenth Amendment and forcing the desegregation of the white primaries. See generally Terry v. Adams, 345 U.S. 461 (1953). The point is that when it came to voting, only a modest expansion of antidiscrimination law was required to ensure equality of opportunity.
[303]. LaToya Baldwin Clark, Stealing Education, 68 UCLA L. Rev. 566, 570–74 (2021) (describing the efforts of people to send their children to better schools in districts in which they do not live and the ways in which that behavior has been characterized as “stealing” education).
[304]. That sort of privilege is typically reserved for billionaires and other moguls. See, e.g., Jay-Z, What More Can I Say, on The Black Album (Roc-A-Fella Recs. & Def Jam Recs. Nov. 14, 2003).
[305]. Roseanne L. Flores, The Rising Gap Between Rich and Poor: A Look at the Persistence of Educational Disparities in the United States and Why We Should Worry, 3 Cogent Soc. Sci. 1323698, at 7–8 (2017) (describing the shortfalls in educational opportunities for poorer children).
[306]. See supra notes 84–86 and accompanying text.
[307]. See Enrichment Programs, Milwaukee Recreation, https://www.milwaukeerecreation.net/enrichment-programs [https://perma.cc/J6UL-BCAN]; Locations, Milwaukee Recreation, https://www.milwaukeerecreation.net/about-us/locations [https://perma.cc/3X66-2RUP].
[308]. See About Us, Milwaukee Recreation, https://www.milwaukeerecreation.net/about-us [https://perma.cc/C2TT-Y2A7].
[309]. Wis. Stat. § 120.13(19) (2026).
[310]. See Master Plan: Executive Summary, Milwaukee Recreation, https://resources.finalsite.net/images/v1773062051/mpsmilwaukeek12wius/isryr3mkex7lmtqqmx50/Playfield-Prioritization-Plan5.pdf [ https://perma.cc/C9BD-UKFZ].
[311]. MPS Dep’t of Recreation and Cmty. Servs., Equity Based Prioritization Model 10, 15–23 (2014) (on file with California Law Review).
[312]. Id. at 20.
[313]. Id. at 16, 18.
[314]. Id. at 16.
[315]. Because the Milwaukee Recreation formula explicitly uses the race of the inhabitants of a neighborhood in allocating funding, there is a question as to whether it is constitutional after Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023).
