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1994

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Full-Text Articles in Law

The Reluctant Partner: Making Procedural Law For International Civil Litigation, Stephen B. Burbank Jul 1994

The Reluctant Partner: Making Procedural Law For International Civil Litigation, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.


A Comparative Study Of Black And White Girls' Delinquency, Kenya Larae Covington Jul 1994

A Comparative Study Of Black And White Girls' Delinquency, Kenya Larae Covington

Sociology & Criminal Justice Theses & Dissertations

In this research, I examined the similarities and differences between black and white female delinquents. A secondary analysis of the Survey of Youth in Custody, 1987 data was utilized to answer the following research questions: (1) What factors contribute to each group's delinquency the most? (2) Are the factors that contribute to black girls' delinquency significantly different from those factors that contribute to white girls' delinquency? The study was guided by previous research on race and female delinquency, girls' victimization, the role of the family and school performance. The independent variables victimization, family structure, family function and school performance were …


No-Fault Marital Dissolution: The Bitter Triumph Of Naked Divorce, J Herbie Difonzo May 1994

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 …


Comment: Theory And Practice In Dna Fingerprinting, Richard O. Lempert May 1994

Comment: Theory And Practice In Dna Fingerprinting, Richard O. Lempert

Articles

Throughout her useful paper on DNA identification, Professor Roeder properly attends to both theory and practice. Thus she acknowledges the theoretical soundness of certain criticisms that have been made of the standard paradigm used to evaluate DNA random match probabilities but argues that in practice these criticisms matter little. I am thinking here of the arguments that those cautioning against overweighing DNA evidence have made regarding the undeniable existence of population substructure and its potential implications for independence assumptions supporting the application of the product rule and for the use of convenience samples, such as data garnered from no more …


Epstein's Premises, Evan Tsen Lee Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Feb 1994

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 Criminal Law And The Luck Of The Draw, Sanford H. Kadish Jan 1994

The Criminal Law And The Luck Of The Draw, Sanford H. Kadish

Journal of Criminal Law and Criminology

No abstract provided.


First Amendment--Penalty Enhancement For Hate Crimes: Content Regulation, Questionable State Interests And Non-Traditional Sentencing, Thomas D. Brooks Jan 1994

First Amendment--Penalty Enhancement For Hate Crimes: Content Regulation, Questionable State Interests And Non-Traditional Sentencing, Thomas D. Brooks

Journal of Criminal Law and Criminology

No abstract provided.


Fourth Amendment--The Plain Touch Exception To The Warrant Requirement, Susanne M. Macintosh Jan 1994

Fourth Amendment--The Plain Touch Exception To The Warrant Requirement, Susanne M. Macintosh

Journal of Criminal Law and Criminology

No abstract provided.


Fifth Amendment--The Adoption Of The Same Elements Test: The Supreme Court's Failure To Adequately Protect Defendants From Double Jeopardy, Kirstin Pace Jan 1994

Fifth Amendment--The Adoption Of The Same Elements Test: The Supreme Court's Failure To Adequately Protect Defendants From Double Jeopardy, Kirstin Pace

Journal of Criminal Law and Criminology

No abstract provided.


Eighth Amendment--Sentencer Discretion In Capital Sentencing Schemes, Daryl Kessler Jan 1994

Eighth Amendment--Sentencer Discretion In Capital Sentencing Schemes, Daryl Kessler

Journal of Criminal Law and Criminology

No abstract provided.


Eighth Amendment--Capital Sentencing Instructions, J. Michael Brown Jan 1994

Eighth Amendment--Capital Sentencing Instructions, J. Michael Brown

Journal of Criminal Law and Criminology

No abstract provided.


Eighth Amendment--The Excessive Fines Clause, David Lieber Jan 1994

Eighth Amendment--The Excessive Fines Clause, David Lieber

Journal of Criminal Law and Criminology

No abstract provided.


Exemption 7(D) Of The Freedom Of Information Act--The Evidentiary Showing The Government Must Make To Establish That A Source Is Confidential, Matthew J. Salzman Jan 1994

Exemption 7(D) Of The Freedom Of Information Act--The Evidentiary Showing The Government Must Make To Establish That A Source Is Confidential, Matthew J. Salzman

Journal of Criminal Law and Criminology

No abstract provided.


Habeas Corpus--Limited Review For Actual Innocence, Jennifer Breuer Jan 1994

Habeas Corpus--Limited Review For Actual Innocence, Jennifer Breuer

Journal of Criminal Law and Criminology

No abstract provided.


The Fugitive Dismissal Rule Applied To Pre-Appeal Fugitivity, Jason W. Joseph Jan 1994

The Fugitive Dismissal Rule Applied To Pre-Appeal Fugitivity, Jason W. Joseph

Journal of Criminal Law and Criminology

No abstract provided.


Habeas Corpus--Retroactivity Of Post-Conviction Rulings: Finality At The Expense Of Justice, Timothy Finley Jan 1994

Habeas Corpus--Retroactivity Of Post-Conviction Rulings: Finality At The Expense Of Justice, Timothy Finley

Journal of Criminal Law and Criminology

No abstract provided.


The Meaning Of Gender Equality In Criminal Law, Dorothy E. Roberts Jan 1994

The Meaning Of Gender Equality In Criminal Law, Dorothy E. Roberts

Journal of Criminal Law and Criminology

No abstract provided.


Expertise And The Daubert Decision, Ronald J. Allen Jan 1994

Expertise And The Daubert Decision, Ronald J. Allen

Journal of Criminal Law and Criminology

No abstract provided.


Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz Jan 1994

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz

Journal of Criminal Law and Criminology

No abstract provided.