Volume 35, Number 1 -- November 2001

TABLE OF CONTENTS

ARTICLE

PRODUCT LIABILITY AND THE POLITICS OF CORPORATE PRESENCE: IDENTITY AND ACCOUNTABILITY IN MACPHERSON V. BUICK

by Jonathan Kahn

In this Article, Professor Jonathan Kahn examines how conceptions of corporate identity are constructed. The Article goes back to the early twentieth century to consider how the legal processes and institutions came to endow corporations with attributes that gave it a specific type of identity. More specifically, Professor Kahn focuses on the law of product liability and Benjamin Cardozo’s path-breaking opinion in the 1916 case of MacPherson v. Buick Motor Co. to illustrate how the determination of corporate responsibility and liability, in particular rules of torts, implicitly located, shaped, and bounded corporate identity and power in society. Professor Kahn chooses to focus on the doctrine of product liability since doctrinally tort law, especially the law of negligence, involves issues of agency, will, and responsibility. Tort law invokes these principles to establish the corporation’s presence in its products and thereby to define critical aspects of its identity.

TOLERATION, APPROVAL, AND THE RIGHT TO MARRY: ON CONSTITUTIONAL LIMITATIONS AND PREFERENTIAL TREATMENT

by Mark Strasser

In this Article, Professor Mark Strasser argues for legal recognition of same-sex marriage. Strasser examines the difference between toleration and endorsement in Establishment Clause jurisprudence and makes clear why that distinction militates in favor of rather than against recognizing same-sex unions, commentator’s claims to the contrary notwithstanding. He also examines the difference between protected and permitted conduct, which commentators have used by analogy in an attempt to show why same-sex unions need not be legally recognized, and shows why this distinction, properly understood, establishes why same-sex marriage must be accorded as a matter of right rather than as a privilege which may be accorded or withdrawn at will by the legislature.

SILENCE

by Marcy Strauss

In this Article, Professor Marcy Strauss notes that, since its adoption, the Fifth Amendment privilege against self-incrimination has been interpreted in a myriad of ways. The boundaries of this privilege are especially tested when a suspect remains silent pretrial and the prosecution uses this silence to incriminate. Courts must then draw a fine line between what is legitimate evidence and what is unconstitutional. Professor Strauss explores the most recent trends in both state and federal courts in three situations: postarrest and post-Miranda, postarrest but pre-Miranda, prearrest and pre-Miranda. Professor Strauss explores the underlying factors that could influence a defendant to remain silent, why it would be fundamentally unfair for the prosecution to use that silence in court, and suggests a clear, comprehensive rule for consistent results in future decisions.

SYMPOSIUM

INTERGENERATIONAL EQUITY TO OUR CHILDREN’S CHILDREN’S CHILDREN: THE PROBLEMS OF INTERGENERATIONAL ETHICS

by Lawrence B. Solum

In this Introduction to the Symposium on Intergenerational Ethics, Professor Lawrence B. Solum provides a framework for the scope and nature of intergenerational justice. He uses various simplified cases and contexts to enable the reader to place these examples within three major approaches to intergenerational distributive justice: an egalitarian approach, a libertarian approach, and a utilitarian approach. Professor Solum further examines strategies for justifying a theory of intergenerational justice and the problems involved in formulating such a theory. He concludes that, while problems arising from the discussion on intergenerational ethics may shake the foundation of particular theories of distributive justice, it is important to welcome this challenge as an opportunity to reconstruct our fundamental assumptions about morality and justice.

INTERGENERATIONAL DECISION MAKING: AN EVOLUTIONARY PERSPECTIVE

by Theodore P. Seto

Professor Theodore P. Seto has developed an evolutionary theory of normativity, to be described more fully in a separate forthcoming article. In this Article he outlines his normative model in brief and applies it to the problem of intergenerational decision making. He begins by posing a challenge for all intergenerational theorists -- the “Pleistocene Dilemma” -- that he asserts any truly credible theory should be able persuasively to address. He argues that cost-benefit analysis fails this test miserably. An evolutionary theory of normativity, by contrast, leads us to conclude that the present matters only to the extent that it makes the future possible, and that our long-term normative objective should be the survival, evolution, and integrative expansion of our “We.” This alternative approach, he asserts, succeeds.

DISCOUNTING IN THE LONG TERM

by Coleman Bazelon and Kent Smetters

In this Article, Coleman Bazelon and Professor Kent Smetters analyze choosing a discount rate for evaluating intergenerational public policy decisions. The authors begin by examining the underlying issues involved in choosing an appropriate discount rate to assess forthcoming policies. In addition, the authors discuss the approaches used in discounting costs and benefits in the far future and the manner in which these approaches diverge from the standard cost-benefit analysis. Central to the analysis are beliefs about the rate of future economic growth. The authors conclude by supporting a policy of using a discount rate that declines as the time frame of analysis stretches into the future.

WHAT DO WE OWE THE NEXT GENERATION(S)?

by Axel P. Gosseries

If we have obligations to future generations, how should we define them? In this Article, Axel P. Gosseries addresses this question by defending and relating the practical implications of an egalitarian view of intergenerational justice. He shows that egalitarians are able to justify the need for an accumulation phase. In addition, he argues that in a steady-state, each generation should transfer to the following one "neither less, nor more" than what it inherited itself. Finally, he specifies exceptions to this principle and contrasts the egalitarian view with the reciprocity-based, libertarian, utilitarian, and Rawlsian approaches to intergenerational justice.