This Article takes a close look at the government's determination of the substantive meaning of nondiscrimination in order to better evaluate the relation between the current practice of the civil rights regime and the alternative suggested by Richard Epstein in his book Forbidden Grounds: The Case Against Employment Discrimination Laws. It also analyzes the "limit condition view" of government, namely that the government may in no way discriminate, and everyone cannot be prevented from discriminating. The author concludes that defenders of the civil rights regime must engage Epstein's argument, because failing to do so will be to fail either to defend or transcend the civil rights regime.
W. B. Allen,
Epstein's Challenge to the Civil Rights Regime,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol31/iss1/3