Digital Commons Network^™

Lacanian Ethics And The Desire For Law, David S. Caudill

Cardozo Law Review

American Critical Legal Studies has its own antinomies, its own indeterminacies, such that it is difficult to talk as though it is a unified position or movement, or even a single methodology or strategy. Generally, however, those who are suspicious of Critical Legal Studies have, from the beginning, aSked how the critical theorist explains his or her own ideology, and the answer is often that ideology is inescapable. Thus the critical project is about disclosure of ideology, not about the claim to know the truth outside ideology.

Rethinking The Beyond Of The Real, Drucilla Cornell

Cardozo Law Review

It is commonplace to note that Sigmund Freud "discovered" another reality. This reality is the reality of the psychic life. The meaning of its unconscious underpinnings surfaces in the other world of dreams and in the slips of the tongue that indicate a beyond to the day-to-day life given to us by conventions of our form of life. Certainly, Freud always returns us to the Jenseits, the other side, the beyond of the unconscious, which leaves its traces and marks on so-called "real objects," but which, on the other hand, can never be simplistically identified with them. An obvious …

The Vestal And The Fasces: Property And The Feminine In Law And Psychoanalysis, Jeanne L. Schroeder

Cardozo Law Review

The fasces symbolized the majesty of Roman law. It was an axe attached to a bundle of sticks. Consuls, emperors, and other high-ranking officials were escorted in public by lictors bearing the fasces as the visible representation of the enforcement powers of the state. Offenders could be mercifully flogged with one of the sticks or justly executed with the blade.

Sons Of Writ, Sons Of Wrath: Pierre Legendre’S Critique Of Rational Law-Giving, Anton Schutz

Cardozo Law Review

By nature we have been sons of wrath, according to a thoroughly explored passage of Pauline theology. I should like to put this text to a test. My purpose in this article is to view the work of a twentieth-century Sorbonne Professor of Law through the lens of this Pauline text. Clearly, such a procedure assumes some sort of extraordinary similarity of preoccupation as between these two thinkers. It assumes that the semantic components, filius and ira, and the question of their relationship, are equally crucial to both figures: to the fervent apostle and epistolographer who happened to have …

The Identity Of The Constitutional Subject, Michel Rosenfeld

Cardozo Law Review

The identity of the constitutional subject is elusive and problematic as uncontroverted foundations are hard to come by in contemporary constitutional regimes. The notion of the constitutional subject is itself ambiguous because it is not clear whether it refers to those subject to the constitution, or to the makers of the constitution, or to the subject matter of the constitution. Moreover, even if the who or what of the constitutional subject were settled, the concept of constitutional identity would still be fraught with difficulties. Not only is constitutional identity likely to change over time, but it is also likely to …

Ideology As Cultural Software, J. M. Balkin

Cardozo Law Review

This essay concerns one of the apparent casualties of the rise of postmodernism-the theory of ideology. In fact, the "theory of ideology" has never been a unitary theory. From its inception the concept of ideology has always been contested, and hence the theory has generated many variations. The most common version asserts that individuals are afflicted with beliefs that in some way mystify or obscure social reality. This mystification in turn works to the advantage of some classes and to the disadvantage of others. This formulation was developed most prominently within the marxist tradition; it has proved a tempting but …

Power Without Parents: Juvenile Justice In A Postmodern Society, Jonathan Simon

Cardozo Law Review

It is tempting at times to speak of a general crisis of childhood in America. We hear and read of record numbers of children living in poverty and unprecedented levels of violence against children and adolescents. With astounding frequency, stories emerge of child abuse in the nation's churches, schools, and day-care centers. But this characterization of a general crisis leaps over the specific contexts in which these disturbing images are arising and mistakes the democracy of the daily news for a common fate in America. Such a discussion also risks ignoring the specific technologies of power that are in play, …

Benjamin And The Faculty Of Mimesis, Jeneen Hobby

Cardozo Law Review

No abstract provided.

Models For Parenthood In Adoption Law: The French Conception, Laura J. Schwartz

Vanderbilt Journal of Transnational Law

According to Ms. Schwartz, adoption in the United States is currently in a state of disarray and confusion because it has not achieved a satisfactory balance between biological and psychological parent-child relationships. U.S. adoption law has never adequately evaluated the relative importance of both types of relationships to the process of family formation. In contrast, although French adoption faces many of the same challenges as U.S. adoption, the French adoption process is not riddled with the same inconsistency and indeterminacy. Instead, French adoption law and government family policy reflect a societal consensus on the central and intrinsic importance of biological …

An Interpretive Theory Of International Law: The Distinction Between Treaty And Customary Law, Hiram E. Chodosh

Vanderbilt Journal of Transnational Law

The author begins with an explanation of the importance of the distinction between treaty and customary law. The author then presents six alternative principles currently used to inform that distinction (dichotomy, overlap, relativity, interdependence, equivalence, and indeterminacy) and evaluates the application of these principles according to their theoretical coherence, practicability, reconcilability, and resolving power. The author concludes that each of the alternative principles is unsatisfactory in at least one respect and proposes a superior interpretive approach that does not define customary law in terms of treaty, but rather according to its own independently defining attributes. Finally, the author suggests that …

Language And Silence: Making Systems Of Privilege Visible, Adrienne D. Davis, Stephanie M. Wildman

Scholarship@WashULaw

A colleague of mine once had a dream in which I appeared. My colleague, who is African-American, was struggling in this dream to be himself in the presence of a monolithic white maleness that wanted to oppress my friend and deny his intellect, his humanity, and his belonging in our community. In his dream, I, a white woman, attempted to speak on his behalf, but the white man and I spoke as if my friend were not there.

This portrayal disturbed me because I know my friend can speak for himself. Recognizing this fact, he described my discomfort at participating …

The Limited Relevance Of Plain Meaning, Stephen F. Ross

Faculty Scholarship

In this essay, the author takes the position that linguists' principal expertise - ascertaining how language is used by ordinary speakers of English - is often of little value in interpreting controversial non-criminal federal statutes. Although linguistic techniques might still aid in understanding their meaning, the author's thesis is that extrinsic evidence that is known and accessible to this small sub-community - such as legislative history, established norms of construction, and other evidence about the context in which the legislation arose - is more likely than linguistic analysis to help an outside judge shed light on what Congress meant and …

Calmer Seas: The Supreme Court's Major Criminal Law Rulings Of The 1993-94 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Rediscovering The Constitution, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The fundamental liberties in our Constitution involve a study of tensions: between an individual's rights and the community's interests, between the role of the judiciary on the one hand and the executive and legislature on the other. How we should interpret them depends on where we think equilibrium should be established. This depends on two main factors. The first is the proper function of the judiciary as laid down by our Constitution, which is discussed in Part I of this article. The second is the nature of our fundamental liberties, for they are worded with varying degrees of generality. ... …

The Supreme Court Limits The Fifth Amendment Right To Counsel By Requiring Clear Requests--Davis V. United States, Gregory J. Griffith

Kentucky Law Journal

No abstract provided.

The 1995 National Asian American Studies Examination In U.S. High Schools, Andrew Chin

Faculty Publications

No abstract provided.

Judicial Roulette: Alternative To Single-Member Districts As A Legal And Political Solution To Voting-Rights Challenges To At-Large Judicial Elections, Ronald W. Chapman

SMU Law Review

No abstract provided.

Art Of Judgement In Planned Parenthood V. Casey, James Boyd White

Articles

This article was excerpted and abridged with permission from a chapter in Professor White's recent book Acts of Hope: Creating Authority in Literature, Law, and Politics. In the book, he explores the nature of authority in various cultural contexts. Here he examines the Joint Opinion in Planned Parenthood v. Casey, which has been attacked both from the right, on the grounds that it tried to keep Roe v. Wade alive, and from the left, on the grounds that it significantly weakens the force of that case. Professor White, by contrast, admires it greatly, and in this chapter explains …

This Is Not A Sentence, Paul F. Campos

Publications

No abstract provided.

Out On Patrol: A Critical Examination Of The Alaska Supreme Court’S Application Of The Parol Evidence Rule, Leonard Marinaccio Iii

Alaska Law Review

No abstract provided.

Does Heat Emanate Beyond The Threshold - Home Infrared Emissions, Remote Sensing, And The Fourth Amendment Threshold, Susan Moore

Chicago-Kent Law Review

No abstract provided.

Insurance, Maximilian A. Pock

Mercer Law Review

The current survey year has again yielded a rich harvest of insurance cases. Georgia appellate courts have handed down more than ninety decisions. Several are cases of first impression in Georgia, while many others have applied or adapted traditional doctrine to a novel factual matrix. These cases merit exegesis and discussion in varying degrees of specificity. Although arising in an insurance integument, the remaining cases concern general substantive law, narrow administrative or technical questions, or pervasive evidentiary and procedural issues. They are better discussed under another title or heading.

Perhaps one impressionistic and general observation is in order. The new …

The Market For Loyalties: Electronic Media And The Global Competition For Allegiances, Monroe E. Price

Articles

The article critiques the traditional "marketplace of ideas" metaphor in First Amendment jurisprudence and proposes a more accurate framework: the "market for loyalties." This model highlights how powerful entities, including governments and private actors, use communication regulation to shape identities and allegiances. The First Amendment, under this interpretation, functions as a regulatory allocation among these entities rather than a guarantee of unfettered speech. The rise of global communication technologies and competing loyalties challenges the nation-state's ability to control this market, reshaping the role of law and governance in identity formation.

El-Al Israel Airlines V. Danielowitz, Aharon Barak, Dalia Dorner, Yaakov Kedmi

Translated Opinions

Facts: The first respondent, who is employed by El-Al as a flight attendant, has a stable relationship with another man. Under a collective agreement, El-Al gives every permanent employee a free aeroplane ticket, every year, for that employee and his/her spouse (husband or wife). Under a collective arrangement, a free ticket is also given to a companion recognized publicly as the employee’s husband/wife. The first respondent asked El-Al to give him a free ticket for his companion, but his request was denied.

Held: (Majority opinion — Vice-President A. Barak, Justice D. Dorner) Not giving the respondent a free ticket for …

The Neoconservative Case Against Hate-Speech Regulation -- Lively, D'Souza, Gates, Carter, And The Toughlove Crowd, Richard Delgado, David Yun

Vanderbilt Law Review

In Babette's Feast, the French housekeeper for two dour Protestant sisters living in a remote Danish village where life is hard decides to mark her fourteenth year of working in this repressed environment by preparing a huge feast. Using money she has just won from the French lottery, she imports turtles, quail, and the finest wines, and serves them at a long table to the sisters and their congregation. But she has not counted on the experience's novelty: Until now, the God-fearing folks gathered at her table have not touched a drop of liquor or eaten anything other than dried …

Chix Nix Bundle-O-Stix: A Feminist Critique Of The Disaggregation Of Property, Jeanne L. Schroeder

Michigan Law Review

Property was dead, to begin with. The coroner, Wesley Newcomb Hohfeld, revealed that the unity, tangibility, and objectivity of property perceived by our ancestors was a phantom. Property is, in fact, merely a "bundle of sticks." When conceptualized as a collection of rights, property loses its distinctive qualities and its essence. It therefore does not, or at least should not, exist. Without unity and physicality, property loses its objectivity and can only be a myth. The rabble might still believe in the old gods of property, but the educated "specialists" now know that this was vulgar superstition. Once the populace …

Virgin Territory: Margaret Radin's Imagery Of Personal Property As The Inviolate Feminine Body, Jeanne L. Schroeder

Articles

Margaret Jane Radin's theory of property for personhood posits that certain personal property is deeply intertwined with individual identity, necessitating legal protections that go beyond traditional property rights. While her approach offers a feminist perspective by emphasizing the body and body-like objects as extensions of selfhood, critics argue that her framework lacks an account of community and intersubjectivity, rendering it incomplete. The article suggests that integrating insights from Hegel and Lacan could provide a more comprehensive understanding of property relations, addressing both personal and communal dimensions.

Cause-In-Fact In Missouri: A Return To Normalcy, Christopher M. Hohn

Missouri Law Review

In order to establish liability in most tort actions, a plaintiff must show that the defendant "caused" the injury or harm in question. This Note focuses on the cause-in-fact requirement discussed in the Missouri Supreme Court case, Callahan v. Cardinal Glennon Hospital. In Callahan , the court dispelled much of the confusion that has plagued Missouri cause-in-fact analysis.' The court clearly expounded the test for cause-in-fact questions. Furthermore, the court explained the exception to the basic test, and clarified Missouri law regarding this essential element of tort liability.

Student Editing: Using Education To Move Beyond Struggle, James Lindgren

Chicago-Kent Law Review

No abstract provided.

Federalism In The Americas In Comparative Perspective, Keith S. Rosenn

University of Miami Inter-American Law Review

No abstract provided.