Courage in Profile

Like Richard A. Epstein's earlier book Takings, dealing with the defense of property in the Fifth Amendment, his latest one combines legal study and economic analysis with megadoses of political and social theory. Though Epstein explores, for the most part, civil rights legislation aimed at the removal of job discrimination, he devotes the opening section of his new study to refining Thomas Hobbes' arguments on the need for civil society. He cites Hobbes (albeit selectively) to demonstrate that government exists to protect life and property against those most prone to violence. He thereby reveals his lack of affinity for any view of the state as an instrument of social leveling or as a purveyor of "sensitivity."

Epstein offers especially withering criticism of Title VII of the 1964 Civil Rights Act, which makes it unlawful to discriminate in employment on the basis of race, religion, sex, or national origin. He also looks in depth at Supreme Court cases flowing out of the 1964 legislation, particularly Greggs v. Duke Power Company (1971) and Wards Cove v. Antonio (1989). While in the first case statistical evidence of a relatively low rate of promotion among black workers was used to infer objective discrimination, in the second the burden of proof was transferred to the collective plaintiff—the employees. Epstein contends that the Civil Rights Act itself is to blame...

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