Legal Theory Commons^™

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 nation, …

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.

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 …

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 …

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 joint boards, …

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.

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: 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. They believe …

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 …

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 each volume …

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 …

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 …

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

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 each volume …

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 …

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, …

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

Articles by Maurer Faculty

No abstract provided.

An Essay On Private Remedies, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Safe Haven For Salvadorans In The Context Of Contemporary International Law--A Case Study In Equivocation, Todd Howland, Amy Beer, Tim Everett, Evangeline Nichols Ordaz

San Diego Law Review

This Article analyzes the basis for safe-haven programs for refugees fleeing war and civil strife under contemporary principles of international law. The authors trace the development of safe-haven programs in the United States and offer an analysis and critique of the Temporary Protected Status program created by the Immigration and Nationality Act of 1990. Focusing on the struggle to gain safe haven for refugees from El Salvador, the authors review the United States government's historical use of safe haven programs as a political tool. Finally, the Article looks at how other countries have responded to refugee crises and suggests a …

Understanding Disagreement, The Root Issue Of Jurisprudence: Applying Wittgenstein To Positivism, Critical Theory, And Judging, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Book Review. Law's Patriarchy, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

What Is Legal Therapy And What Is It Doing In The Curriculum - A View From Contracts, Robert Birmingham

Faculty Articles and Papers

No abstract provided.

The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman

Journal Articles

No abstract provided.

The Virtues Of Redundancy In Legal Thought, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Redundancy has a bad reputation among legal intellectuals. When someone says, for example, that the ninth and tenth amendments are redundant, we can be pretty sure that this person attaches little importance to these constitutional provisions. Listen to one of the definitions of redundant provided by the Oxford English Dictionary: "superabundant, superfluous, excessive."' In this essay, the author proposes that legal theorists pay serious attention to the concept of redundancy used by engineers. He explains how redundancy--in this special sense--is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. The author …

The Internal And External Analysis Of Concepts, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, Peter Benson criticizes the authors presentation of a consent theory of contract, in part, on the ground that it "refers only to the empirical facts of the requirements of human needs and fulfillment. Like [Charles] Fried's [account], his conception of the consensual basis of a contract does not preserve the required standpoint of abstraction. " On this basis Professor Benson concludes that the author's approach fails to "provide an adequate elucidation of a nondistributive conception of contract.

By explaining contractual obligation …

A Republican Agenda For Hobbesian America?, Elizabeth B. Mensch, Alan Freeman

Journal Articles

No abstract provided.

Of Chickens And Eggs−−The Compatibility Of Moral Rights And Consequentialist Analyses, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Philosophers are accustomed to thinking of moral rights and consequentialist analyses as fundamentally incompatible. They frequently debate cases--both hypothetical and real--in which rights and consequences are in conflict. For example, suppose an innocent child knows the whereabouts of a terrorist who has planted a nuclear bomb in a city. Would it be permissible to violate the child's moral right to be free from torture, if this was the only way to save millions of innocent lives? If this is permissible, then do not moral rights yield to concerns about consequences? Or suppose that a community incorrectly believes that an innocent …

Post-Chicago Law And Economics, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

This is not another "law-and-econ" bashing symposium. Nor is the symposium's title intended to denigrate Chicago School law and economics any more than the term "Post-Keynesian economics" was intended to denigrate the work of John Maynard Keynes. Instead, this symposium marks the fact that many practitioners of law and economics have moved well beyond the stereotypes familiar to most legal academics. Rather than designating an entirely new school of thought, the term "Post-Chicago law and economics" refers to a new era in which a variety of new questions about law and lawmaking is being asked and a variety of promising …

Metaphor And Imagination In James Wilson's Theory Of Federal Union, Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

Making Sense Of Modern Jurisprudence: The Paradox Of Positivism And The Challenge For Natural Law, Philip E. Soper

Articles

Karl Llewellyn once said, referring to Roscoe Pound's work m jurisprudence, that it was difficult to tell on what level the writing proceeded: sometimes it seemed to be little more than bedtime stones for a tired bar; at other tunes it appeared to be on the level of the after-dinner speech or a thought provoking essay, neither of which were quite the "considered and buttressed scholarly discussion" that one expected to find. Llewellyn's complaint serves as a warning, though a somewhat ambiguous one, to those who give lectures on jurisprudence.

On the one hand, I do not plan to present …