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Full-Text Articles in Law
Employer Liability For Harassment Under Title Vii: A Functional Rationale For Faragher And Ellerth, Michael C. Harper
Employer Liability For Harassment Under Title Vii: A Functional Rationale For Faragher And Ellerth, Michael C. Harper
San Diego Law Review
In two decisions concerning sexual harassment, Faragher v. City of Boca Raton' and Burlington Industries, Inc. v. Ellerth, The Supreme Court, on the last day of its 1997-1998 term finally articulated coherent vicarious liability rules critical for bounding the scope of the discrimination prohibitions in Title VII of the Civil Rights Act of 1964. The Court did so by explaining the meaning of the inclusion of "any agent" in Title VII's definition of "employer.'" The meaning of "agent" in this definition is critical for establishing employer liability because almost all Title VII-protected employees work for corporations and other legal fictions …
Harris V. Forklift Systems, Inc. Victory Or Defeat?, Laura Hoffman Roppe
Harris V. Forklift Systems, Inc. Victory Or Defeat?, Laura Hoffman Roppe
San Diego Law Review
This Casenote analyzes the significance and potential effects of the decision in Harris v. Forklift Systems, Inc., a Supreme Court case decided in November 1993. This case promulgates a framework for analysis of "hostile environment" sexual harassment claims arising under Title VII of the Civil Rights Act of 1964. The author sets forth the historical backdrop of the case, as well as exploring and comparing the effect of the decision in general with the decision's effect in the Ninth Circuit in particular. The author concludes that the Harris case potentially reduces women's chances of winning sexual harassment claims in the …
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.
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.
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.
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.