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31 San Diego Law Review 105 (1994)


Some people would be dismayed to find their ideas almost universally rejected, but not Richard Epstein. Epstein relishes the opportunity to challenge intellectual taboos, to defend the counterintuitive-indeed the unthinkable. This puts his critics at something of a motivational disadvantage. What psychological satisfaction can you possibly get from standing up courageously for something generally taken to be obvious? Where is the romance? Where is the thrill? Who wants to play Goliath to Epstein's David? Why, in other words, would you want to waste your energy showing that anti discrimination law can be defended?

Epstein scoffs at the notion that being in the majority - indeed, in the vast majority - lends credibility to one's views. And it is true in many situations that spouting received wisdom demonstrates nothing more than mindless conformity. The desirability of anti discrimination law, however, is not such a situation. While academics almost universally approve of Title VII, approval is not limited to the academic community, nor even to the community of professional politicians. As Epstein himself clearly recognizes, the core anti discrimination principle - prohibition of disparate treatment - is very widely accepted in the public at large. My argument here is that this far-reaching popular acceptance (as contrasted with the narrower intellectual acceptance in the academic community) provides a strong argument on behalf of Title VII.

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