Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Richard Epstein and Title VII

There has been some commentary on the web (such as here and here) about Richard Epstein’s visit to NYU, which I unfortunately wasn’t able to attend. It was probably fun. I’ve listened to Epstein speak before and he’s very intelligent.

One attendee writes of Epstein’s presentation:

“Epstein’s general point was that anti-discrimination laws and policies are always “ten steps behind” what the private sector is actually doing and that private responses to discrimination are usually far more effective than government action. ”

I posted a reply on that blogger’s site, but also wanted to address the issue here in slightly more detail. If this summation of Epstein is accurate, it is interesting because it echoes the economics-of-discrimination ideas of Gary Becker (The Economics of Discrimination), which are an important starting point in an economic discussion of anti-discrimination laws. However, legal debate on the issue has suggested that Becker’s model might not be complete. (See especially the back-and-forth between Judge Posner and John Donahue on it from about 10 years ago, played out across two or three law reviews). Epstein himself has raised strong critiques of Becker. For example, he has argued that discrimination is often efficient, and will not be driven out by the market. (This is one of the points of his book Forbidden Grounds, it is explored at pages 66-78 especially).

Epstein uses the idea of efficient discrimination to suggest that anti-discrimination laws are misguided. However, I think that the possibility of efficient discrimination actually undercuts Epstein’s libertarian views. If some discrimination is efficient and will not be priced out of the market, then Title VII opponents cannot simply tell affirmative action supporters Beckerian responses that discrimination will die a natural death (“don’t worry, it will take care of itself”). Instead, if (1) discrimination is wrong (as many hold that it is), and (2) Epstein and others are right that not all discrimination will be priced out of the market, then the most coherent position seems to be support for antidiscrimination laws in order to force efficient discriminators to stop discriminating.

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October 21, 2002 - Posted by | Uncategorized

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