Epstein on Private Discrimination: Searching for Common Ground

In the midst of a brilliantly independent academic career, Richard Epstein wrote perhaps his most contrarian work in 1992: Forbidden Grounds: The Case against Employment Discrimination Laws. In this short essay, I ask whether there can be any common ground between Epstein and those who generally defend laws against private discrimination, including myself. One possibility is the more subtle contribution Epstein makes in shifting the evaluative discourse from the deontological to the consequential. Without agreeing with his assessment of costs and benefits, one can embrace Epstein’s normative framework (even) in this legal domain.

As Epstein provides a compendium of costs to employment discrimination laws, I offer here a compendium of possible benefits against which the costs should be weighed. Doing so leaves plenty of room for disagreement but perhaps surprisingly provides additional support for Epstein’s critique of the Age Discrimination in Employment Act.