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Boston University School of Law




Perhaps unsurprisingly, Professor Epstein has used the occasion of this Symposium to again voice his disapproval of the modern regulatory state.' Those of you who know me will not be surprised to hear that I disagree with the bald assertions and assumptions he makes concerning that issue. In my view, compelling reasons justify the kinds of environmental and, at least in the absence of pervasive independent employee collective representation at the work place, worker safety laws attacked by Professor Epstein.2 However, I will refrain from compounding the diversion by engaging Professor Epstein on these normative issues.

Instead, I will begin by noting my agreement with the abstract primary thesis Professor Epstein posits in The Tort/Crime Distinction: A Generation Later-that it is possible to justify meaningful distinctions between modern tort and criminal law, including the distinctions he drew in his excellent paper from what he calls the last generation,' by purely consequentialist analysis.4 I would not claim, and I do not read Professor Epstein as claiming, that our law has totally consequentialist derivations. However, I would claim, perhaps in agreement with Epstein, that we can utilize consequentialist principles not only to distinguish between tort and criminal law, but to frame an ideal tort/civil enforcement/criminal law system as well.

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