Document Type

Article

Publication Title

San Diego Law Review

Abstract

The Articles contained in this issue are the outgrowth of the Symposium sponsored by the University of San Diego School of Law, and the Liberty Fund on my book, Forbidden Grounds: The Case Against Employment Discrimination Laws. It should be evident that these Articles express a good deal of disagreement with the thesis that I propounded in that book; namely, that the antidiscrimination laws which prohibit employer discrimination on the grounds of race, creed, sex, age, handicap, or indeed anything else, should be removed from the statute books insofar as they apply to private employers in competitive markets. I argued in Forbidden Grounds that the best set of overall social outcomes would come from a legal order that tolerated any form of private discrimination or favoritism, whether practiced by the most vicious and ardent white supremacist or the most dedicated proponent of diversity or affirmative action. One major theme of my book is that far more mischief is likely to come from government enforcement of any antidiscrimination law, regardless of its laudable content or its noble aspirations. With the thesis just stated, I want to address some of the recurrent challenges to my position that were developed at the Symposium, including those written after the Symposium especially for this issue. In some cases I shall refer to the individual papers presented at the Symposium. In others I shall, without attribution, address the issues that were raised during the course of discussion, issues that need a principled response. The first half of this Article, therefore, deals largely with theoretical issues; the second half with empirical and historical ones. Part I explores the relationship between the utilitarian and libertarian bases of Forbidden Grounds in particular and of my own work generally. Part II looks at the supposed parallels between a prohibition on force and fraud on the one hand, and of discrimination on the other. Part III examines the proper legal response to the psychological harms caused by discrimination. Part IV addresses the symbolic harms and the social meanings conveyed by the social tolerance of discriminatory practices. Part V considers the possible extension of my view to public accommodations, housing markets, and retail automobile markets. Part VI examines the historical practices of discrimination, both in the South and the North, before the passage of the Civil Rights Act of 1964. Finally, part VII, with an eye toward transferable quotas, asks the troubling question, where do we go from here? In my view, the intellectual case for the total repeal of civil rights legislation is made only stronger when all the objections to Forbidden Grounds are taken into account.

First Page

1

Volume

31

Publication Date

1994

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