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Articles 61 - 90 of 101
Full-Text Articles in Legal Theory
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.
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.
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 …
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.
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 …
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 …
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 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.
The Place Of Religious Argument In A Free And Democratic Society, Robert Audi
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 …
Religious Contributions In Public Deliberation, Jeremy Waldron
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 can …
Religious Morality And Political Choice: Further Thoughts--And Second Thoughts--On Love And Power, Michael J. Perry
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 …
Constructing An Ideal Of Public Reason, Lawrence B. Solum
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.
Religion And Public Debate In A Liberal Society: Always Oil And Water Or Sometimes More Like Rum And Coca-Cola, Maimon Schwarzschild
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.
Contexts Of The Political Role Of Religion: Civil Society And Culture, David Hollenbach S.J.
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, …
Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt
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.
Beyond Religion And Enlightenment, Charles Larmore
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.
Liberalism, Religion And The Unity Of Epistemology, Larry Alexander
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.
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
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, …
Rejoinder: Advances In The Analysis, Marshall S. Shapo
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 …
Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips
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 …
An Ali Report Markets A Defective Product: Errors At Retail And Wholesale, Marshall S. Shapo
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.
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
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 …
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
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 …
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 …
Who Pays In The End For Injury Compensation - Reflections On Wealth Transfers From The Innocent, Alfred F. Conard
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 …