Against First Principles, 31 University of San Diego Law Review 211 (1994)
Larry Alexander's invitation to participate in this Symposium suggested that our articles should focus "on the broader questions of individual liberty, equality and responsibility raised by [Richard] Epstein's book [Forbidden Grounds)." Having accepted the invitation I do not want to deviate from Larry's instructions. Nevertheless, my discussion of these broader principles proceeds in a somewhat backhanded fashion. My basic argument is that the broad principles that underlie most such discussions can get us only so far in our analysis of appropriate public policy. Indeed, I want to argue that they often get in the way of sensible policy analysis and that we should be prepared to throw them overboard rather quickly when encountering heavy philosophical or political weather. This claim might seem quite odd in the antidiscrimination context - an arena often inhabited by claims of fundamental rights to "equality" or "basic fairness." Nevertheless, I think Richard Epstein's book is a good example of the difficulty of developing plausible policy prescriptions while engaging in an argument from first principles.
Date of Authorship for this Version
Mashaw, Jerry L., "Against First Principles" (1994). Faculty Scholarship Series. Paper 1189.