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Full-Text Articles in Law

The Demise Of Federal Takings Litigation, Stewart E. Sterk Oct 2006

The Demise Of Federal Takings Litigation, Stewart E. Sterk

Faculty Articles

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court's recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court's …


The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk Nov 2004

The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk

Faculty Articles

Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …


Of World Music And Sovereign States, Professors And The Formation Of Legal Norms, Justin Hughes Oct 2003

Of World Music And Sovereign States, Professors And The Formation Of Legal Norms, Justin Hughes

Faculty Articles

No abstract provided.


The Internet And The Persistence Of Law, Justin Hughes Mar 2003

The Internet And The Persistence Of Law, Justin Hughes

Faculty Articles

Since legal commentators first confronted cyberspace, three broad stories have emerged to describe the interrelation of law and the Internet: the "no-law Internet," the "Internet as a separate jurisdiction," and Internet law as "translation" of familiar legal concepts. This Article reviews these stories, focusing on how ongoing "translation" is giving way to a growing convergence in Internet law. The Article makes the case for convergence among legal responses to cyberspace and proposes a basic taxonomy for different models of convergence. With this taxonomy, the Article examines the ways in which convergence is occurring, as well as its effects on both …


The Physician As A Conscientious Objector, J. David Bleich Nov 2002

The Physician As A Conscientious Objector, J. David Bleich

Faculty Articles

No abstract provided.


Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider Oct 2001

Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider

Faculty Articles

No abstract provided.


Travelers, Reasoned Textualism, And The New Jurisprudence Of Erisa Preemption, Edward A. Zelinsky Dec 1999

Travelers, Reasoned Textualism, And The New Jurisprudence Of Erisa Preemption, Edward A. Zelinsky

Faculty Articles

Upon the enactment of the Employee Retirement Income Security Act of 1974 ("ERISA"), few would have predicted that, a generation later, ERISA's provisions preempting state law would be front page news, a central topic of national debate about health care and its regulation. Similarly, few foresaw at the time ERISA was adopted that the United States Supreme Court would have great difficulty construing ERISA's preemption provisions. By the same token, in 1974 the contemporary revival of interest in statutory textualism lay well into the future.


Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks Apr 1999

Franchisor Liability For The Torts Of Its Franchisees: The Case For Substituting Liability As A Guarantor For The Current Vicarious Liability, John L. Hanks

Faculty Articles

The author reviews the justifications for applying the law of vicarious liability in the franchising context and concludes that its application is often inefficient and arbitrary. He argues that the employee-independent contractor dichotomy used by courts to determine franchisor liability is not well-suited to franchising, where the relationship encompasses both concepts. He proposes that vicarious liability not be applied in the franchising context. Instead, the courts by case law or state legislatures by statute should impose a guarantor status on franchisors that would expose them to liability for the torts of the franchisees only if the franchisee was unavailable to …


The Hazards Of Tinkering With The Common Law Of Future Interests: The California Experience, Laura E. Cunningham Apr 1997

The Hazards Of Tinkering With The Common Law Of Future Interests: The California Experience, Laura E. Cunningham

Faculty Articles

No abstract provided.


What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam Jan 1997

What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam

Faculty Articles

No abstract provided.


Nationalism And The Right To Self-Determination: The Arab-Israeli Conflict, Malvina Halberstam Apr 1994

Nationalism And The Right To Self-Determination: The Arab-Israeli Conflict, Malvina Halberstam

Faculty Articles

Self-determination is a slogan that has captured the imagination of people throughout the world. Numerous U.N. General Assembly resolutions have exalted self-determination, often above the fundamental rights specifically provided for in the U.N. Charter. Notwithstanding these resolutions, in practice, self-determination generally has been applied only to the dismemberment of colonial empires. Its universal application is neither possible nor desirable.

In the Arab-Israeli conflict, self-determination was never truly the issue. The conflict has been deliberately transformed into a claim for self-determination as a political tactic designed to gain the support of third world countries in the United Nations. The issues in …


Life As An Intrinsic Rather Than Instrumental Good: The “Spiritual” Case Against Euthanasia, J. David Bleich Oct 1993

Life As An Intrinsic Rather Than Instrumental Good: The “Spiritual” Case Against Euthanasia, J. David Bleich

Faculty Articles

No abstract provided.


Districting: A Second Vantage Point, Alan Gartner Apr 1993

Districting: A Second Vantage Point, Alan Gartner

Cardozo Law Review

No abstract provided.


An Enriched Economic Model Of Political Patronage And Campaign Contributions: Reformulating Supreme Court Jurisprudence, Richard L. Hasen Apr 1993

An Enriched Economic Model Of Political Patronage And Campaign Contributions: Reformulating Supreme Court Jurisprudence, Richard L. Hasen

Cardozo Law Review

No abstract provided.


In Pursuit Of The Counter-Text: The Turn To The Jewish Legal Model In Contemporary American Legal Theory, Suzanne Last Stone Feb 1993

In Pursuit Of The Counter-Text: The Turn To The Jewish Legal Model In Contemporary American Legal Theory, Suzanne Last Stone

Faculty Articles

Beginning with Professor Robert Cover's Nomos and Narrative, contemporary American legal scholars have increasingly turned, implicitly or more directly, to the Jewish legal tradition as an example of a legal system in which law is defined not by reference to the authority and power of the State, but rather by the commitment of a legal community to voluntarily-accepted legal obligations. These scholars depict the Jewish legal system as having successfully confronted - and resolved - several central dilemmas currently facing American law by maintaining a coherent legal system while accepting behavioral and interpretive pluralism. In this Article, Professor Stone shows …


Voice And Text In Constitutionalism, Ferenc Feher Jan 1993

Voice And Text In Constitutionalism, Ferenc Feher

Cardozo Law Review

No abstract provided.


Toward A First Amendment Jurisprudence Of Respect: A Comment On George Fletcher’S Constitutional Identity, Robin West Jan 1993

Toward A First Amendment Jurisprudence Of Respect: A Comment On George Fletcher’S Constitutional Identity, Robin West

Cardozo Law Review

No abstract provided.


Rhetorical Resonance And Constitutional Vision, W. Cole Durham Jr. Jan 1993

Rhetorical Resonance And Constitutional Vision, W. Cole Durham Jr.

Cardozo Law Review

No abstract provided.


The Court’S Role In Interbranch Disputes Over Oversight Of Agency Rulemaking, John J. Gibbons Jan 1993

The Court’S Role In Interbranch Disputes Over Oversight Of Agency Rulemaking, John J. Gibbons

Cardozo Law Review

This paper is adapted from the Uri and Caroline Bauer Memorial Lecture delivered at the Benjamin N. Cardozo School of Law, Yeshiva University, on March 10, 1992.


The Code Of The Moral, Niklas Luhmann Jan 1993

The Code Of The Moral, Niklas Luhmann

Cardozo Law Review

No abstract provided.


New York Adverse Possession Law As A Conspiracy Of Forgetting: Van Valkenburgh V. Lutz And The Examination Of Intent, Lila Perelson Jan 1993

New York Adverse Possession Law As A Conspiracy Of Forgetting: Van Valkenburgh V. Lutz And The Examination Of Intent, Lila Perelson

Cardozo Law Review

No abstract provided.


German Constitutional Culture In Transition, Bernhard Schlink Jan 1993

German Constitutional Culture In Transition, Bernhard Schlink

Cardozo Law Review

No abstract provided.


Hermeneutics And Constitutional Interpretation, Aharon Barak Jan 1993

Hermeneutics And Constitutional Interpretation, Aharon Barak

Cardozo Law Review

No abstract provided.


A Philosophical Reconstruction Of Judicial Review, Carlos Santiago Nino Jan 1993

A Philosophical Reconstruction Of Judicial Review, Carlos Santiago Nino

Cardozo Law Review

No abstract provided.


Moral Debate And Semantic Sleight Of Hand, J. David Bleich Jan 1993

Moral Debate And Semantic Sleight Of Hand, J. David Bleich

Faculty Articles

No abstract provided.


James Madison And Public Choice At Gucci Gulch: A Procedural Defense Of Tax Expenditures And Tax Institutions, Edward A. Zelinsky Jan 1993

James Madison And Public Choice At Gucci Gulch: A Procedural Defense Of Tax Expenditures And Tax Institutions, Edward A. Zelinsky

Faculty Articles

Few academic doctrines can claim the intellectual and political success of tax expenditure analysis. In roughly a generation's time, Professor Surrey's procedural and substantive critique of tax subsidies has become entrenched in the law school curriculum and in legal scholarship. More impressively, the tax expenditure concept has been enshrined in federal law and become part of the daily discourse of the national budget process.


The Development Of Common Law Defamation Privileges: From Communitarian Society To Market Society, M. M. Slaughter Nov 1992

The Development Of Common Law Defamation Privileges: From Communitarian Society To Market Society, M. M. Slaughter

Cardozo Law Review

No abstract provided.


Operational Closure And Structural Coupling: The Differentiation Of The Legal System, Niklas Luhmann Mar 1992

Operational Closure And Structural Coupling: The Differentiation Of The Legal System, Niklas Luhmann

Cardozo Law Review

No abstract provided.


The Two Faces Of Janus: Rethinking Legal Pluralism, Gunther Teubner Mar 1992

The Two Faces Of Janus: Rethinking Legal Pluralism, Gunther Teubner

Cardozo Law Review

No abstract provided.


The Relevance Of Time To The Relationship Between The Philosophy Of The Limit And Systems Theory, Drucilla Cornell Mar 1992

The Relevance Of Time To The Relationship Between The Philosophy Of The Limit And Systems Theory, Drucilla Cornell

Cardozo Law Review

No abstract provided.