Price and Prejudice, The New Republic 30 (July 6, 1992).
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On a wintry morning in 1982, I heard Richard Epstein present a paper at Yale Law
School arguing that the National Labor Relations Act was economically inefficient and
should be repealed. An old-time labor scholar criticized Epstein's ahistorical analysis
and imagined that in twenty years someone would again ignore history and use
economics to argue for the repeal of our civil rights law. His unhappy prediction was
almost dead on. A mere ten years later Epstein has himself now called for the repeal of
all civil rights provisions prohibiting private employers from discriminating on the
grounds of race, religion, sex, national origin, or disability.
This book is a long libertarian paean to freedom of contract. Epstein is a
formidable scholar and provocative member of the University of Chicago's law and
economics tradition. In the past he has written that many New Deal regulations are
unconstitutional undertakings. In Forbidden Grounds he now argues that when markets
are reasonably competitive, government should restrict its role to the enforcement of
employment agreements even agreements that explicitly discriminate against racial
minorities. His analysis of unregulated contracting builds on Gary Becker's The
Economics of Discrimination (1957), in which Becker suggested that bigoted employers
who refused to hire black workers would be put at a competitive disadvantage and would
eventually be driven from the market. The market, in short, could be relied upon to
eliminate social injustice.
Epstein's analysis of competition, however, focuses not so much on competition
driving bigoted employers from the market as on the incentives for non-bigoted
employers to enter the market and to expand the employment opportunities of black and
other victims of discrimination. His argument is not that bigots don't exist. But he
believes that in an unregulated market, it would be as if bigotry didn't exist.
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