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Implementing Quotas, 79 Georgetown Law Journal 1769 (1991)


David Strauss has provided an elegant analysis of the law and economics of racial discrimination in employment.' If his argument is correct, our current approach to racial discrimination in employment is, at the very least, suboptimal. Whatever the niceties of our increasingly sophisticated arguments concerning "disparate treatment" versus "disparate impact" analyses we are unlikely to make much progress toward the ultimate goal of ending employment discrimination unless we turn our attention to prescribing quotas, rather than denying any intention to do so. Strauss's suggestions thus have a decidedly radical flavor. Had he been given only the task of demonstrating that law and economics analysis does not lead inexorably to conservative political positions, he would have succeeded admirably. As it is, Strauss's law and economics radicalism is merely a by-product of his successfully accomplishing his role for this conference, providing a strikingly new agenda for the discussion of racial discrimination in employment. In this comment I do not want to argue with Strauss's economic

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