The State and Race Equality

From Lee Strang’s excellent review of Richard Thompson Ford’s Rights Gone Wrong: How Law Corrupts the Struggle for Equality:

After reading, in the first four chapters, Ford’s relatively detailed description of the civil rights movement’s pathologies, I was surprised by the relative thinness of his recommendations.  Indeed, Ford recognizes that his prescriptions are insubstantial stating that “begin is all I aspire to have done in this book.”  However, Ford’s move toward an administrative solution is open to obvious counter-arguments that he neither raises nor addresses, and Rights Gone Wrong would have been more persuasive had he done so.  Relatedly, Ford’s continual call for greater use of prudential judgment is hard to criticize in the abstract, so one is left wondering what that would concretely entail, and Ford’s failure to engage in detailed recommendations undermines his claim’s power.

Ford also left the libertarian in me wondering why, given his detailed indictment of our current civil rights regime, he did not at least raise the possibility that the way out was a return to the free market.  For Ford, the pathologies he identified are the result of poorly crafted and implemented civil rights legislation.  The solution, according to Ford, is better civil rights legislation and implementation.  For instance, Ford suggests that the field of employment discrimination should utilize “robust administrative regulation in the public interest.”

This lacuna is evidence that Ford’s vision is cabined within the walls of governmental solutions.  Others, including, for instance, Richard Epstein, have prominently argued that competitive free market mechanisms do a better job of eliminating irrational discrimination, at least in some contexts, than federal antidiscrimination laws.  These are powerful claims that, at least at first blush, are not subject to the problems Ford identifies with the current approach, and yet, Ford does not engage them.  This gap is doubly-odd because Ford recognizes that the political process—and hence its legislative product—is subject to malfunction.  He argues, for instance, that the Age Discrimination in Employment Act of 1967 is an example of “interest-group politics,” and that this origin led to the Act’s perverse effects.