Professor Epstein's critique centers around a conflict between the "moral certainty" behind civil rights laws and doubts about their economic efficacy. It is a critique that would not impress Ms. Rosa Parks. After all, the back of a bus is only a few feet from the front. It arrives at the same time and performs the same function of delivering the worker to the job. Why then should Ms. Parks have put herself and her neighbors to the expense and discomfort involved in the Montgomery boycott of 1955? Only, according to Epstein, if she was challenging the combination of bigotry and the coercive power of the state. If she was challenging private custom standing alone, she was in error because market forces would make private discrimination unimportant. Epstein's distinction is illusory. The state was implicated in the bus operation. Legislation that granted limited liability and permitted concentration of capital cut off the personal responsibility the common law recognized. The power of the state to grant immunity from personal liability is implicated in every corporate transaction. Our "free market" is a creature of this exercise of state power.
Responses to Epstein,
Yale L. & Pol'y Rev.
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