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74 B.U. L. Rev. 1 (1994)
The Legal Regulation of Genetic Discrimination: Old Responses to New Technology

handle is hein.journals/bulr74 and id is 17 raw text is: VOLUME 74 NUMBER 1 BOSTON UNIVERSITY LAW REVIEW THE LEGAL REGULATION OF GENETIC DISCRIMINATION: OLD RESPONSES TO NEW TECHNOLOGY RICHARD A. EPSTEIN* The subject of genetic discrimination is one of obvious importance today, but it is one that I have reached only by a circuitous route. I pub- lished my book Forbidden Grounds in 1992.' There I took the position that current anti-discrimination laws should be repealed insofar as they apply to private competitive employment markets.2 I relied on my liber- tarian bent to explain why a system of free entry and open markets can better cope with invidious forms of discrimination in employment mar- kets than any system of government mandated and enforced norms.3 Prejudice in markets is always costly to the parties who practice it, so that there is a strong corrective against unthinking prejudice that works with- out the heavy administrative costs and logrolling mentality that often infect the political decision-making process.4 But whatever the strength of these arguments, there is today little chance that we shall depart from our current destructive regulatory policies, and little chance, either, that the underlying economics of the situation will improve. The framework that I used to attack employment discrimination laws does not rest on any categorical or a priori belief that government inter- vention is always bad. Rather, it rests on the assumption that the valid reasons for government intervention are: (1) to counter the use of private aggression; (2) to limit the operation and influence of private monopolies; * James Parker Hall Distinguished Service Professor of Law, The University of Chicago. This paper was originally delivered as part of the Distinguished Lecture Series at Boston University School of Law on September 22, 1993. An earlier version of this paper was delivered at the Center for Medical Ethics, The University of Chicago. I RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992). 2 Id. at 495-505. 3 Id. at 290-96 (discussing whether employers may take cost-differentials associated with race, sex, age, or disability into account in their decision making). 4 See, e.g., GARY S. BECKER, THE ECONOMICS OF DISCRIMINATION 22 (2d ed. 1971). JANUARY 1994

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