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Full-Text Articles in Law

Liberalism, Religion And The Unity Of Epistemology, Larry Alexander Nov 1993

Liberalism, Religion And The Unity Of Epistemology, Larry Alexander

San Diego Law Review

This Article focuses on the relation between liberalism and religion. Professor Alexander argues that liberalism is itself just a sectarian view on the same level as the religious and other views that it purports to be neutral about and to tolerate. The Article shows that liberalism is a rejection of all illiberal religious tenets. It further contends that liberalism cannot make out its case for excluding religious arguments from shaping public policy. It concludes that to the extent liberalism is defined by or rests on the insulation of public policy from religious views, liberalism is undermined by its failure to ...


Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt Nov 1993

Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt

San Diego Law Review

This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.


Constructing An Ideal Of Public Reason, Lawrence B. Solum Nov 1993

Constructing An Ideal Of Public Reason, Lawrence B. Solum

San Diego Law Review

In deciding to what ideal citizens should aspire in political debate, some people contend that an ideal of political morality should mirror the freedom of expression. This Article undertakes the construction of an ideal of public reason. It begins with an investigation of the term "public reason." The author considers various possibilities for an ideal or normative standard of public reason. As each option is considered, some possible formulations are discarded and additional specifications are added. He concludes with the ideal that is constructed through this process of elaboration, evaluation, and elimination.


Religious Morality And Political Choice: Further Thoughts--And Second Thoughts--On Love And Power, Michael J. Perry Nov 1993

Religious Morality And Political Choice: Further Thoughts--And Second Thoughts--On Love And Power, Michael J. Perry

San Diego Law Review

This is an Article written by the author of the book Love and Power: The Role of Religion and Morality in American Politics. In this Article, he returns to an inquiry already addressed in Love and Power. He asks the question: should Americans accept an ideal of political choice according to which a citizen ought not make a controversial political choice if the choice cannot be defended without relying on a religious belief that at least some opponents of the choice reject? The author responds with a resounding no, arguing that we should not accept such a political ideal. He ...


The Place Of Religious Argument In A Free And Democratic Society, Robert Audi Nov 1993

The Place Of Religious Argument In A Free And Democratic Society, Robert Audi

San Diego Law Review

This Article provides an account of the notion of a religious argument, distinguishes several roles of religious arguments in a liberal democracy, and defends a set of principles for their proper use in such a society. The author argues that it is appropriate that citizens apply a kind of separation of church and state in their public use of religious arguments, especially in advocating laws or public policies that restrict liberty. More specifically, the author contends that whatever religious arguments one may have in such cases, one should also be willing to offer, and be to a certain extent motivated ...


Beyond Religion And Enlightenment, Charles Larmore Nov 1993

Beyond Religion And Enlightenment, Charles Larmore

San Diego Law Review

This Article addresses the theory that modern society is beyond religion. The author reasons that secularization is the result of Judeo-Christian monotheism. God's transcendence has led to his withdrawal from the world and thus to the autonomy of the world. The author analyzes such views and addresses the reasons for morality in modern society; whether it stems from belief in God, or a modern view that God is not necessary in order to have morality.


Religion And Public Debate In A Liberal Society: Always Oil And Water Or Sometimes More Like Rum And Coca-Cola, Maimon Schwarzschild Nov 1993

Religion And Public Debate In A Liberal Society: Always Oil And Water Or Sometimes More Like Rum And Coca-Cola, Maimon Schwarzschild

San Diego Law Review

This Article analyzes the role of religion during the Enlightenment, particularly focusing on the negative views toward Christianity. The author explores the reasons why Christianity was not embraced by Enlightenment thinkers, and attempts to relate this to the modern view of religion. Where religious thinking posed a considerable threat to institutions in the era of Enlightenment, religious thinking arguably does not pose such a threat in modern times. The author concludes with an argument that the presence of religion in modern society strengthens pluralism, and thus strengthens liberal society itself.


Religious Contributions In Public Deliberation, Jeremy Waldron Nov 1993

Religious Contributions In Public Deliberation, Jeremy Waldron

San Diego Law Review

This Article commences with an excerpt from a "Pastoral Letter on Catholic Social Teaching and the U.S. Economy" published in 1986 by the National Conference of Catholic Bishops. Through this letter, the author leads us to the question, "What part should doctrines and arguments rooted in religious beliefs play in public debate?" The author views such religious contributions as relevant to secular politics. He recommends that people value rethinking the structure of their premises, and see the value of an open, challenging, and indeterminate form of public deliberation in which nothing is taken for granted. He concludes that we ...


Contexts Of The Political Role Of Religion: Civil Society And Culture, David Hollenbach S.J. Nov 1993

Contexts Of The Political Role Of Religion: Civil Society And Culture, David Hollenbach S.J.

San Diego Law Review

This Article argues that we need to frame the question of the relation of religion to public life in a way that goes beyond discussion of the direct impact of religious convictions on policy choices. The Article considers religion's public influences, such as its influence on the multiple communities and institutions of civil society and on the public self-understanding of a society called culture. In considering these influences, the author offers a new perspective on the role of religious belief in the decisions of those who draft legislation, reach judicial decisions, administer the domestic and foreign affairs of the ...


A Critical Analysis Of Joint Board Policy At The Federal Energy Regulatory Commission, Frank P. Darr Aug 1993

A Critical Analysis Of Joint Board Policy At The Federal Energy Regulatory Commission, Frank P. Darr

San Diego Law Review

The Federal Power Act authorizes the use of joint boards to solve federal-state coordination problems. This Article is a critical analysis of the Federal Energy Regulatory Commission's (Commission) refusal to incorporate regional state boards in decision-making policies. The author suggests that this policy of division between the federal and state authorities is not consistent with the Commission's legislative mandate from Congress. He recommends that the Commission accommodate state desires for participation in those matters in which the balance of political needs favors coordinated action. This Article critiques the rationales offered by the Commission for avoiding the use of ...


An Examination Of The Current Status Of Rating Agencies And Proposals For Limited Oversight Of Such Agencies, Francis A. Bottini Jr. Aug 1993

An Examination Of The Current Status Of Rating Agencies And Proposals For Limited Oversight Of Such Agencies, Francis A. Bottini Jr.

San Diego Law Review

This Comment analyzes the market for ratings of both financial securities and insurance companies, and finds significant problems with rating agencies, such as lethargy in changing ratings, political influence, unsolicited ratings, and inaccurate ratings. To ensure that the federal securities laws continue to protect investors, this Comment recommends limited oversight of rating agencies. It proposes that Congress enact legislation granting the Securities and Exchange Commission explicit authority to mandate that all nationally recognized statistical rating organizations register with the SEC, and to establish minimum standards for their designation. Finally, the Comment examines First Amendment concerns associated with the regulation of ...


Rejoinder: Advances In The Analysis, Marshall S. Shapo May 1993

Rejoinder: Advances In The Analysis, Marshall S. Shapo

San Diego Law Review

This brief Rejoinder addresses two levels of issues: broad questions involved in the effort to establish a critical overview of injury law and questions more precisely bound up with products liability law. The author lauds the Reporters' Study on Enterprise Responsibility for Personal Injury on its significant contribution to academic debate in this country, and for its openness to a competition of many divergent ideas in the context of organizational culture. Despite the problems that this author noted in his first Article in this symposium, he recognizes the achievement of the Study, and the genuine advance that it provides in ...


An Ali Report Markets A Defective Product: Errors At Retail And Wholesale, Marshall S. Shapo May 1993

An Ali Report Markets A Defective Product: Errors At Retail And Wholesale, Marshall S. Shapo

San Diego Law Review

This Article analyzes a chapter in the Reporters' Study on Enterprise Responsibility for Personal Injury, the chapter titled "Product Defects and Warnings." The author is highly critical of the Study, noting its lack of depth of historical focus, its failure to take existing doctrine with sufficient seriousness, and its deficiencies in both terminology and analysis. The author argues that the Study fails to give sufficient weight to competing points of view, and that it consistently fails to present specific and relevant applications. The author concludes that the Study itself is a defective product.


Who Pays In The End For Injury Compensation - Reflections On Wealth Transfers From The Innocent, Alfred F. Conard May 1993

Who Pays In The End For Injury Compensation - Reflections On Wealth Transfers From The Innocent, Alfred F. Conard

San Diego Law Review

This Article recognizes that the people who actually pay for tort judgments are generally not the wrongdoers, but the enterprises that have employed or insured the tortfeasors, or purveyed the faulty products. The enterprises then recover their expenditures by charging higher prices to their consumers, or by reducing the benefits that they confer on investors, workers, and the general public. The consumers, the workers, the public, and the investors are the innocent human beings who contribute to paying for tort judgments. This Article addresses what kinds of losses justify forcing the innocent to contribute, and suggests reforms that seem to ...


Depreciation Of Intangibles: An Area Of The Tax Law In Need Of Change, Allen Walburn May 1993

Depreciation Of Intangibles: An Area Of The Tax Law In Need Of Change, Allen Walburn

San Diego Law Review

Under tax law in 1993, depreciation of many purchased intangibles was denied on the theory that they have an unlimited, or at least indeterminate life. However, many taxpayers challenged this theory on the ground that intangibles are subject to wear and tear like any other asset. This Comment argues that the imprecise factual nature of this issue has led to unnecessary complexity and uncertainty, a great burden on the courts, and unfair treatment of taxpayers. The Comment analyzes justifications for the depreciation of goodwill and other intangibles in the nature of goodwill. It examines possible solutions to these problems with ...


The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: A Timely Call For Punitive Damages Reform, Victor E. Schwarz, Mark A. Behrens May 1993

The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: A Timely Call For Punitive Damages Reform, Victor E. Schwarz, Mark A. Behrens

San Diego Law Review

This Article focuses on the Reporters' Study on Enterprise Responsibility for Personal Injury, specifically the Reporters' recommendations for punitive damages reform. The Article discusses the Study's analysis of the need for punitive damages reform, with which the author agrees. The Article also discusses the Study's recommendations concerning reform of the standard by which punitive damages should be awarded, recommendations to set reasonable limits on the size of punitive damage awards, and the recommendation of a shield against punitive damages for products that comply with federal regulatory standards. The authors find that generally the recommendations are fair and reasonable ...


A Lost Opportunity: A Review Of The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Chad M. Oldfather May 1993

A Lost Opportunity: A Review Of The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Chad M. Oldfather

San Diego Law Review

This is a critical analysis of the Reporters' Study on Enterprise Responsibility for Personal Injury. Although recognizing that the Study is comprehensive and well researched, the authors express disappointment at the lack of vision contained in the Study. They find that the authors of the Study failed to find their way out of the maze of the tort system, and in exploring so many nooks and crannies they become lost in the details, rather than looking at the big picture. The authors of this Article provide a brief overview of the Study, and proceed with analysis. They conclude that the ...


The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Perspectives On The Tort System And The Liability Crisis May 1993

The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Perspectives On The Tort System And The Liability Crisis

San Diego Law Review

In 1986 a number of prominent legal scholars embarked upon a project commissioned by the American Law Institute to re-examine contemporary tort and personal injury law. Five years later, the results of this project came to fruition in a two-volume study entitled Reporters' Study on Enterprise Responsibility for Personal Injury. After a year's debate within the American Law Institute about the broad range of issues canvassed by the Study, the Institute's Executive Council endorsed the value of the Study for deliberations about tort reform going on in both legislative and judicial forums. This is the introductory chapter of ...


Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips May 1993

Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips

San Diego Law Review

This Article critiques the substantive law and damage proposals of the Reporters' Study on Enterprise Liability, which was published in 1991 by the American Law Institute. Contrary to the Reporters' recommendations, the author proposes retaining the consumer expectations test and strict liability for product suppliers. He argues that it is not practical to shift medical malpractice liability, as proposed by the Study, from doctors to hospitals. In the area of damages, the author proposes retaining the rules of recovery for pain and suffering, punitive damages, and the collateral source rules essentially as they are now, instead of adopting the changes ...


The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Reforming The Tort System May 1993

The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Reforming The Tort System

San Diego Law Review

In 1986 a number of prominent legal scholars embarked upon a project commissioned by the American Law Institute to re-examine contemporary tort and personal injury law. Five years later, the results of this project came to fruition in a two-volume study entitled Reporters' Study on Enterprise Responsibility for Personal Injury. After a year's debate within the American Law Institute about the broad range of issues canvassed by the Study, the Institute's Executive Council endorsed the value of the Study for deliberations about tort reform going on in both legislative and judicial forums. This is the introductory chapter of ...


County Welfare Department Liability For Handling Reports Of Child Abuse, Kim Boyer Feb 1993

County Welfare Department Liability For Handling Reports Of Child Abuse, Kim Boyer

San Diego Law Review

When a social worker receives a complaint of child abuse and determines that the situation is non-urgent, should the county welfare department be held liable for subsequent injury to the child? This Comment analyzes the four contexts in which a special relationship with a county welfare department may arise and concludes that a duty of care should not be imposed upon county welfare departments in these situations. The author concludes that if the social worker reasonably determines that the situation was non-urgent, the county welfare department should not be held liable. Alternatively, even if a duty of care is imposed ...


Regulation Of Physician Self-Referral Arrangements: Is Prohibition The Answer Or Has Congress Operated On The Wrong Patient, Christian D. Humphreys Feb 1993

Regulation Of Physician Self-Referral Arrangements: Is Prohibition The Answer Or Has Congress Operated On The Wrong Patient, Christian D. Humphreys

San Diego Law Review

Rapidly increasing health care costs have created a national crisis. Perceiving physician referral behavior as the principal cause, Congress and several state legislatures have prohibited certain referrals. This Comment analyzes the data that spawned such legislation and critiques prohibition of referrals as a solution to the crisis. The Comment asserts that the prohibition remedy is overly broad and largely ineffective. The author recommends a more farsighted solution, such as the creation of a prepaid physician compensation system. The author argues that such a system would minimize the incentive to make unnecessary referrals while simultaneously reducing the level of health care ...


The Paradox Of Ideology, Justin Schwartz Jan 1993

The Paradox Of Ideology, Justin Schwartz

Justin Schwartz

A standard problem with the objectivity of social scientific theory in particular is that it is either self-referential, in which case it seems to undermine itself as ideology, or self-excepting, which seem pragmatically self-refuting. Using the example of Marx and his theory of ideology, I show how self-referential theories that include themselves in their scope of explanation can be objective. Ideology may be roughly defined as belief distorted by class interest. I show how Marx thought that natural science was informed by class interest but not therefore necessarily ideology. Capitalists have an interest in understanding the natural world (to a ...


Functional Explanation And Metaphysical Individualism, Justin Schwartz Jan 1993

Functional Explanation And Metaphysical Individualism, Justin Schwartz

Justin Schwartz

A number of (present or former) analytical Marxists, such as Jon Elster, have argued that functional explanation has almost no place in the social sciences. (Although the discussion is framed in terms of a debate among analytical Marxists, the point is quite general, and Marxism is used for illustrative purposes.) Functional explanation accounts for what is to be explained by reference to its function; thus, sighted organism have eyes because eyes enable them to see. Elster and other critics of functional explanation argue that this pattern of explanation is inconsistent with "methodological individualism," the idea, as they understand it, that ...


Self-Regulation, Normative Choice, And The Structure Of Corporate Fiduciary Law, William W. Bratton Jan 1993

Self-Regulation, Normative Choice, And The Structure Of Corporate Fiduciary Law, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.


Foreword: The Criminal-Civil Distinction And Dangerous Blameless Offenders, Paul H. Robinson Jan 1993

Foreword: The Criminal-Civil Distinction And Dangerous Blameless Offenders, Paul H. Robinson

Faculty Scholarship at Penn Law

No abstract provided.


Codifying Criminal Codes: Do Modern Codes Have It Right?, Paul H. Robinson Jan 1993

Codifying Criminal Codes: Do Modern Codes Have It Right?, Paul H. Robinson

Faculty Scholarship at Penn Law

No abstract provided.


Confronting The Ethical Case Against The Ethical Case For Constituency Rights, William W. Bratton Jan 1993

Confronting The Ethical Case Against The Ethical Case For Constituency Rights, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.


Getting To Know: Honoring Women In Law And In Fact, Lynne N. Henderson Jan 1993

Getting To Know: Honoring Women In Law And In Fact, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.


Foreword: The Law Of Federal Judicial Discipline And The Lessons Of Social Science, Stephen B. Burbank, Sheldon Jay Plager Jan 1993

Foreword: The Law Of Federal Judicial Discipline And The Lessons Of Social Science, Stephen B. Burbank, Sheldon Jay Plager

Faculty Scholarship at Penn Law

No abstract provided.