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Alternative Grounds: Epstein's Discrimination Analysis in Other Market Settings, 31 University of San Diego Law Review 67 (1994)


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's argument could have much broader ramifications. As John Donohue observes in his excellent review: "Because 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." 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's 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's theory to these different market settings exposes limitations of Epstein's analysis.

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