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Articles 1 - 21 of 21
Full-Text Articles in Law
The Reluctant Partner: Making Procedural Law For International Civil Litigation, Stephen B. Burbank
The Reluctant Partner: Making Procedural Law For International Civil Litigation, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
No-Fault Marital Dissolution: The Bitter Triumph Of Naked Divorce, J Herbie Difonzo
No-Fault Marital Dissolution: The Bitter Triumph Of Naked Divorce, J Herbie Difonzo
San Diego Law Review
In this Article, the author examines the origins of the no-fault divorce movement, concluding that the abandonment of fault grounds was conceived as a conservative measure intended to facilitate the reversal of the escalating divorce rate and to replace traditional marital dissolution with therapeutic divorce. This reform collapsed at mid-point, achieving only the jettisoning of divorce grounds. The author argues that an unintended consequence of the reform battle was the transformation from mutual consent divorce, the operating milieu for most of the twentieth century, into divorce on demand. The author concludes that this transformation has resulted in a significant loss …
Epstein's Premises, Evan Tsen Lee
Epstein's Premises, Evan Tsen Lee
San Diego Law Review
This Article criticizes Richard Epstein's argument that Congress should repeal Title VII expressed in his book Forbidden Grounds: The Case Against Employment Discrimination. The author's criticisms of Epstein's argument are the product of disagreement with some of Epstein's premises, and disagreement with some of Epstein's choices about where to stop his analyses. The author disputes Epstein's premise that governmental intervention into otherwise accessible markets is justifiable only in cases of force or fraud. The author also notes some of Epstein's empirical suppositions that are inconsistent with one another.
Standing Firm, On Forbidden Grounds, Richard A. Epstein
Standing Firm, On Forbidden Grounds, Richard A. Epstein
San Diego Law Review
This introductory Article to the Title VII Symposium contained in this issue of the San Diego Law Review addresses the critiques leveled at the book Forbidden Grounds: The Case Against Employment Discrimination Laws. Richard Epstein, the author of the book, recognizes the disagreement expressed in the Articles in the Symposium, and attempts to defend his thesis in this Article. He argued in Forbidden Grounds that the best set of overall social outcomes would come from eliminating antidiscrimination laws which prohibit employer discrimination on the grounds of race, creed, sex, age, handicap, or anything else. In this Article, he addresses several …
Epstein's Challenge To The Civil Rights Regime, W. B. Allen
Epstein's Challenge To The Civil Rights Regime, W. B. Allen
San Diego Law Review
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 …
Alternative Grounds: Epstein's Discrimination Analysis In Other Market Settings, Ian Ayres
Alternative Grounds: Epstein's Discrimination Analysis In Other Market Settings, Ian Ayres
San Diego Law Review
This Article focuses on how Richard Epstein's discrimination analysis in his book Forbidden Grounds: The Case Against Employment Discrimination Laws plays out in four other market contexts. The author analyzes historical labor markets (circa 1964), public accommodations, housing, and new car markets. He concludes that applying Epstein's theory to these different market settings exposes limitations of Epstein's analysis.
Licensing Laws: A Historical Example Of The Use Of Government Regulatory Power Against African Americans, David E. Bernstein
Licensing Laws: A Historical Example Of The Use Of Government Regulatory Power Against African Americans, David E. Bernstein
San Diego Law Review
This Article addresses how the legacy of government policy has been a large factor in the economic subjugation of black Americans between Reconstructionist and the modern Civil Rights era. Specifically, this Article displays how white interest groups used occupational licensing laws to stifle black economic progress, and how these laws were used to prevent blacks from competing with established white skilled workers. The author notes that Richard Epstein with his book Forbidden Grounds: The Case Against Employment Discrimination Laws has done the legal community a great service by reminding it that the source of some of the economic disparity between …
Lonely Libertarian: One Man's View Of Antidiscrimination Law, Lea Brilmayer
Lonely Libertarian: One Man's View Of Antidiscrimination Law, Lea Brilmayer
San Diego Law Review
In his book Forbidden Grounds: The Case Against Employment Discrimination Laws, Richard Epstein attacks antidiscrimination law from three different philosophical points of view: utilitarian, libertarian, and freedom of contract. The author of this Article addresses each of these philosophies, and argues that none of these arguments is compelling as applied to a legal regime as popular as Epstein admits core antidiscrimination law to be. This Article points out inconsistencies in Epstein's view of the public's acceptance of antidiscrimination laws as being silly.
The Discrimination Shibboleth, Andrew Kull
The Discrimination Shibboleth, Andrew Kull
San Diego Law Review
This Article explores a more conservative viewpoint than Richard Epstein's view that all employment antidiscrimination laws should be repealed in his book Forbidden Grounds: The Case Against Employment Discrimination. This Article focuses on the distinctions between current antidiscrimination laws and those of the Civil Rights Act of 1964. While the Civil Rights Act of 1964 prohibited discrimination on the basis of race and sex, current laws prohibit discrimination on many other grounds. The author argues that these new laws constitute new policy choices, and they impose more costs than the traditional laws.
Market Affirmative Action, Robert Cooter
Market Affirmative Action, Robert Cooter
San Diego Law Review
This Article applies the economic theory of regulation to laws forbidding discrimination or requiring affirmative action. It argues for using transferable rights in order to achieve diversity rather than quotas. Based on economic theories, the Article finds that the most efficient remedies for discrimination are the ones already developed by economists for other problems. The author suggests that discriminatory cartels can be prohibited or undermined, discriminatory signals can be overcome by supplementing market information, and external effects of prejudice can be internalized by tax subsidies. He concludes that perfect competition causes discriminators to pay for segregation, and some current antidiscrimination …
Reality, Drew S. Days, Iii
Reality, Drew S. Days, Iii
San Diego Law Review
This Article applies the economic theory of regulation to laws forbidding discrimination or requiring affirmative action. It argues for using transferable rights in order to achieve diversity rather than quotas. Based on economic theories, the Article finds that the most efficient remedies for discrimination are the ones already developed by economists for other problems. The author suggests that discriminatory cartels can be prohibited or undermined, discriminatory signals can be overcome by supplementing market information, and external effects of prejudice can be internalized by tax subsidies. He concludes that perfect competition causes discriminators to pay for segregation, and some current antidiscrimination …
Epstein On His Own Grounds, Richard H. Mcadams
Epstein On His Own Grounds, Richard H. Mcadams
San Diego Law Review
This Article criticizes Richard Epstein's thesis in his book Forbidden Grounds: The Case against Employment Discrimination. The Article argues that Epstein fails to follow through on his own terms. The author expresses disagreement with Epstein's invocation of Thomas Hobbes without considering the Hobbesian argument for Title VII. Mr. McAdams also notes that Epstein relies on economic analysis without disclosing its dependence on controversial empirical assumptions. The author uncovers Epstein's other inconsistencies: his empirical claims, particularly about social norms, where Epstein does not apply the standards of criticism to supporting evidence that he applies to contrary evidence.
Learning To Love Japan: Social Norms And Market Incentives, J. Mark Ramseyer
Learning To Love Japan: Social Norms And Market Incentives, J. Mark Ramseyer
San Diego Law Review
This Article applies Japanese market behavior to Richard Epstein's theories in his book Forbidden Grounds: The Case Against Employment Discrimination. The author uses Japan to argue that economic incentives need not matter, and that whatever incentives markets and laws may provide, people may still ignore them. This Article suggests that if independent social norms can sustain systematically unprofitable behavior in Japan, then maybe they would have sustained Jim Crow policies in the American south. If Japanese routinely ignore economic incentives to perpetuate social norms, then whites might have ignored the market advantage to hiring African Americans and discriminated against their …
Was The Corruption Of Civil Rights Law Inevitable, Christopher T. Wonnell
Was The Corruption Of Civil Rights Law Inevitable, Christopher T. Wonnell
San Diego Law Review
This Article accepts Richard Epstein's premise that civil rights laws have become corrupt set forth in his book Forbidden Grounds: The Case Against Employment Discrimination. Once this corruption is recognized, this Article asks two questions about the change in focus of the antidiscrimination laws: (1) Was it inevitable that the antidiscrimination laws would follow this course?; and (2) If it was inevitable, should we live with the resulting costs, or bite the bullet and repeal antidiscrimination laws in the private economy? This Article discusses considerations pertinent to such answers.
The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp
The Limits Of Preference-Based Legal Policy, Herbert J. Hovenkamp
All Faculty Scholarship
America's political institutions are built on the principle that individual preferences are central to the formation of policy. The two most important institutions in our system, democracy and the market, make individual preference decisive in the formation of policy and the allocation of resources. American legal traditions have always reflected the centrality of preference in policy determination. In private law, the importance of preference is reflected mainly in the development and persistence of common-law rules, which are intended to facilitate private transactions over legal entitlements. In constitutional law, the centrality of preference is reflected in the high position we assign …
Constructing The Insurance Relationship: Sales Stories, Claims Stories, And Insurance Contract Damages, Tom Baker
All Faculty Scholarship
No abstract provided.
A Contractual Approach To Data Privacy, Stephanos Bibas
A Contractual Approach To Data Privacy, Stephanos Bibas
All Faculty Scholarship
No abstract provided.
Why Pro Bono In Law Schools, Howard Lesnick
Why Pro Bono In Law Schools, Howard Lesnick
All Faculty Scholarship
No abstract provided.
Against Marriage, Steven K. Homer
Against Marriage, Steven K. Homer
Faculty Scholarship
What is marriage? In the debate surrounding same-sex marriage, the central term has gone undefined. Using the Hawaii Supreme Court's decision in Baehr v. Lewin as a starting point, this Note argues that marriage lacks legal as well as experiential coherence. A series of legal and social moves intended, on the one hand, to preserve the dominance of heterosexuality over gays and lesbians and, on the other, to allow, heterosexuals to escape the dominance of heterosexuality over themselves, has left little conceptual space for marriage. That is, to speak of "extending marriage" to same-sex couples creates the illusion that marriage …
...And Contractual Consent, Randy E. Barnett
...And Contractual Consent, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In Part I, the author contends that when economists persistently ignore the importance of contractual consent, they are missing the crucial problem of legitimacy. In Parts II and IV, he responds to the criticisms of his consent theory of contract advanced by Jay Feinman and Dennis Patterson. Both Feinman and Patterson object to the enterprise in which the author and others are engaging, and he explains why each is wrong to dismiss the current debate over default rules. Finally, in contrast, in Part III the author shows how Steven Burton's theory of default rules, which he finds most congenial, is …
Are Criminal Codes Irrelevant?, Paul H. Robinson
Are Criminal Codes Irrelevant?, Paul H. Robinson
All Faculty Scholarship
After planning the effort for twenty years, the American Law Institute spent ten years debating and drafting a model criminal code. Twenty-eight drafters and forty-two advisors produced thirteen reports that were debated at eight annual meetings. Twenty years later, seven reporters with twenty-five advisors completed six volumes of official commentaries. This monumental drafting effort served as only the starting point for nearly two-thirds of the states that have recodified their criminal codes since the Model Penal Code was promulgated in 1962. In every instance a commission, legislative committee, or both, devoted additional time and energy redebating and revising the 1962 …