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Alternative Grounds: Epstein\u27s Discrimination Analysis in Other Market Settings

By Ian Ayres


In Forbidden Grounds, Richard Epstein argues that we should repeal laws prohibiting various forms of discrimination in contemporary labor markets. However, the theories underlying Epstein\u27s argument could have much broader ramifications. As John Donohue observes in his excellent review: \u22Because Epstein argues from libertarian first principles, . . . he could have written the same book, mutatis mutandis, advocating the repeal of the laws prohibiting drug use, sodomy, pornography, prostitution, gambling, or dueling.\u22 In particular, he also might have argued for the repeal of antidiscrimination laws in other markets. In this Article, I would like to focus my energy on how Epstein\u27s discrimination analysis plays out in four other market contexts: (1) historical labor markets (circa 1964); (2) public accommodations; (3) housing; and (4) new car markets. Applying Epstein\u27s theory to these different market settings exposes limitations of Epstein\u27s analysis

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 1994
OAI identifier: oai:digitalcommons.law.yale.edu:fss_papers-2525
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