Epstein, Jolls debate employment law


On October 24, nearly two hundred students crowded into Langdell South to witness a vigorous exchange between University of Chicago Prof. Richard Epstein and Prof. Christine Jolls on the question of repealing employment anti-discrimination laws.

The two professors come from almost completely opposite political ends of the spectrum: Epstein is perhaps the most famous and important libertarian thinker in the legal world today, and his many books include a controversial work against employment anti-discrimination laws. Jolls is one of the country’s top researchers on employment and labor law and believes it is morally urgent to maintain anti-discrimination laws. The debate was sponsored by the HLS Federalist Society.

The formal-style debate began with Epstein’s cost-benefit analysis of anti-discrimination laws.

“Any system with freedom and justice will outperform a system where there is justice at the barrel of a gun,” he said.

In retort, Jolls described three examples of the need for anti-discimination laws. First, she recounted a recent study where students named Lokesha and Jamal had to send out twice as many resumes as their identical counterparts Emily and Brendon to get as many callbacks.

But Epstein countered that the study shows the pernicious effects of current anti-discrimination laws: “Employers discriminate at hiring to prevent the threat of liability at the promotion or firing stage.” He added that “the transition period is over” and anti-discrimination laws no longer have a positive effect on the employment of minorities. Jolls believed otherwise, but acknowledged a lack of studies on the subject since the early 1980s.

Second, Jolls noted a study where orchestras with “blind” auditions where applicants played behind a heavy screen noted a dramatic increase in the hiring rate of women. Epstein applauded the study as an effective private solution that argues against a government-regulated system. Jolls responded that, “in most situations, private solutions won’t work. In most places you can’t interview behind a screen.”

Finally, Jolls spoke of the tragic death of her college friend, who was killed in an incident of racial violence in South Africa. “It’s not so easy to separate a world where people are separated by non-governmental discrimination from a world where basic physical characteristics can cause people’s lives to be at risk,” she said.

Epstein responded that, “when you say that discrimination is the paradigmatic wrong, then you’re downgrading force as the paradigmatic wrong.”

The professors also discussed the effects of age anti-discrimination laws. Epstein asked, “why are you taking some old guy like me and trying to protect my job so that younger people can’t get jobs in the ordinary course of the business cycle?” Jolls responded that age anti-discrimination laws are important because they enable people to get paid in an “upward-sloping wage profile” — that is, they help avoid the problem of employers hiring only low-wage young people and then transitioning them out before having to increase their salaries.

The most entertaining part of the debate occurred when the professors discussed a Supreme Court case that upheld an employer’s right to refuse to hire a man with infectious hepatitis. Jolls strongly supported the worker’s right to choose employment that would worsen his condition: “If just because of an accident of birth people are disabled, they shouldn’t be penalized,” she said.

Epstein countered that society is forced to pay for the worker’s deterioration, but Jolls responded that hepatitis was not actually infectious. At that point, Epstein interjected: “I had the disease, and they kept me home!” Jolls finally responded by saying that “the idea of using fear of contagion as a defense strikes me as completely wrong.”

Student impressions of the debate were positive. One-L Chris Richardson praised the “very spirited debate on a hard subject to talk about,” while 1L Meagan Martin said: “I’m glad I’m at a university that sponsors such a diverse set of opinions.”

As for their impressions of the speakers, 1L Trent Hamilton stated that “Jolls had a lot of class in the way she presented everything, Epstein is definitely a lot more aggressive.” One-L Amber Taylor added that, “Professor Jolls seemed to rely on her religious views on a couple of these arguments — twice she directly compared libertarian views with religious views. I thought that was an interesting argument and one that I did not expect.”

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