Law Commons^™

Good Of Marriage And The Morality Of Sexual Relations, John M. Finnis

Journal Articles

This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Aquinas, Grisez, Noonan, and Koppelman.

Law As The Continuation Of God By Other Means, Pierre Schlag

Publications

No abstract provided.

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

Articles

No abstract provided.

Holmes's Path, David J. Seipp

Faculty Scholarship

The most important event in American legal history to have taken place at Boston University School of Law was the delivery, by Oliver Wendell Holmes, Jr., of a speech entitled The Path of the Law.' He was an Associate Justice of the Massachusetts Supreme Judicial Court at the time. The occasion was the dedication of a new building for the School of Law, a building the school would occupy for sixty-seven years. Holmes delivered the speech on January 8, 1897, one hundred years ago.

Juno Moneta: On The Erotics Of The Marketplace, Jeanne L. Schroeder

Articles

The article explores how property and the feminine, as legal fictions, facilitate the creation of subjectivity through the lens of Hegelian philosophy and Lacanian psychoanalysis. It critiques the liberal individual as an insufficient concept for subjectivity, arguing that subjectivity is constructed, not natural. The analysis examines how legal frameworks privilege masculine metaphors, such as possession, while repressing feminine ones, and posits that the pursuit of a perfect market represents a destructive ideal that undermines freedom and subjectivity.

Fugitives And Agrarians In A World Without Frontiers, Jim Chen

Cardozo Law Review

Rien de grand avant l'tat. Let the French have their Colbertisme; Americans hold steadfast their faith in constitutionalism, the unofficial civic religion of the United States. Implicit in originalism, the most rigidly orthodox variant of America's constitutional faith is the belief that the legal world began with the framing of the Constitution. "All things created before me were not eternal": with the Constitution as creation, the American legal imagination need not embrace anything that occurred before 1787.

The Decline Of The Western Nation State And The Rise Of The Regime Of International Federalism, John O. Mcginnis

Cardozo Law Review

The nation state is in decline, at least among the Western industrialized nations. Decline is a relative term. It does not suggest that the nation state has disappeared, but rather, that it is no longer as defining a feature of geopolitics as it once was, and will likely remain a less controlling feature. In the West, the era of the nation state was characterized by entities that approximated, even if they never attained, absolute control over their territory. First, the nation state had substantial control over economic affairs within its borders. While the world has always been to some extent …

Hermann Heller - An Introduction, David Dyzenhaus

Cardozo Law Review

Hermann Heller (July 17, 1891 - November 4, 1933) came from a Jewish family in the Austro-Hungarian Empire. He interrupted his law studies to volunteer for service in the Austrian army during the First World War. His experiences as a front-line fighter left him with a heart condition which contributed to his death at the age of forty-two. But his poor health did not dampen his deeply combative spirit-a spirit which he put at the service of German social democracy. In March 1920, together with Gustav Radbruch (who had just successfully promoted Heller's Habilitation, his senior doctorate, at Kiel), …

The Nature And Structure Of The State, Hermann Heller

Cardozo Law Review

The question of the "purpose" of the state has been a permanent and fundamental problem of all theories of the state ever since Aristotle opened his Politics with the theory of the purpose of the state and placed this sentence at its head: pasa koinonia agathou tivos heneka sunesteken. It was left to the Romantics to contest for the first time the appropriateness of this question and to maintain that the state "just as the plant and the animal" is selfdirected. From that time on, theories have neglected the question of the purpose of the state. They decline to …

Notre Dame Lawyer - Fall/Winter 1996, Notre Dame Law School

Notre Dame Lawyer

Oh! To Be in England ...

Living and Learning Law in London

Law Can't Do Morality's Job

Keeping the Faith

Faculty Profile: John Mitchell Finnis

After Hours
Dean David T. Link and Habitat for Humanity

Alumni Profiles
Patrick McCartan and Scott Medlock

Student Profiles
The Road Less Travelled

The Kresge Law Library-Progress and Challenges

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Michigan Law Review

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. My discussion focuses on …

The Polyphonic Courtroom: Expanding The Possibilities Of Judicial Discourse, Robert Rubinson

All Faculty Scholarship

This Article draws upon the ideas of Mikhail Bakhtin to critique judicial discourse as embodied in written opinions. Judicial opinions are typically monologues which reject exploration of complex issues of meaning in favor of simply justifying a result. Opinions should instead be part of a continuing dialogue whose hallmark is exploration, not simplification - what the Article characterizes as "polyphonic," Polyphonic opinions should embrace dialogue and complexity and recognize the validity of multiple perspectives. This goal can not simply be willed, however, because cognition by necessity simplifies. To meet this challenges, the Article concludes with recommendations for "judicial calisthenics," including …

Freestanding Legal Pragmatism, Thomas C. Grey

Cardozo Law Review

John Rawls has recently presented liberalism as a political philosophy that can stand free of the comprehensive moral and metaphysical views with which it has been associated. You don't have to be a neo-Kantian like Rawls, so he argues, to accept his Kantiansounding theory of justice. Millian utilitarians, Aristotelian perfectionists, and Thomistic theists can also commit to the basic liberal rights: democratic government, freedom of speech and religion, equal opportunity, the rule of law, private property, and a welfare safety net. Rawls believes that there is no need for citizens to resolve their deepest philosophical disagreements in order to be …

Pragmatism And Law: A Response To David Luban, Richard Rorty

Cardozo Law Review

Judge Posner's "Pragmatic Adjudication" is enormously refreshing. It cuts through an immense amount of tiresome and pointless talk about "the nature of law" and "the relation of law to politics" and gets down to the question: how should appellate court judges in a particular country at a particular time do their work? It not only argues lucidly for a particular answer to that question, but it also gives a good sense of what it must be like to be in Judge Posner's shoes. Posner helps you understand what sorts of things judges have to worry about, and what sorts of …

What’S Pragmatic About Legal Pragmatism?, David Luban

Cardozo Law Review

Does legal pragmatism have anything at all to do with pragmatism? Both Thomas Grey and Richard Posner seem to suggest that in important respects the answer is no. Grey tells us that even a devout anti-pragmatist in matters ontological can endorse legal pragmatism, while Posner adds the converse, that pragmatic philosophy may at times impel a judge to decide cases like a formalist. These conclusions suggest that talk of legal pragmatism may simply be a pun on what philosophers take pragmatism to be. Lest this appear a far-fetched suggestion, remember that in philosophy the word "realism" often refers to the …

It’S A Positivist, It’S A Pragmatist, It’S A Codifier! Reflections On Nietzsche And Stendhal, Richard H. Weisberg

Cardozo Law Review

Richard Rorty writes that "[n]owadays, Allan Bloom and Michael Moore seem to be the only people who still think pragmatism is dangerous to the moral health of our society." Given the source, I would not contest the generalization. Nor would I seek to correct the adjective about pragmatism used more than once by Professors Rorty and Grey: "banal." Indeed, the popularity of pragmatism may reflect its banality. Its amorphous nature has produced strange alliances. For example, the same Stanley Fish who once declared Richard Posner's humanistic forays to be "execrable" now joins Posner's pragmatic program almost without qualification. If Pragmatism's …

Pragmatism, Pluralism, And Legal Interpretation: Posner’S And Rorty’S Justice Without Metaphysics Meets Hate Speech, Michel Rosenfeld

Cardozo Law Review

Not surprisingly, legal interpretation is in a crisis in pluralist societies with widely diverging conceptions of the good. When there is sharp disagreement over fundamental values, there seems to be a complete lack of objective criteria to interpret legal texts, and particularly broadly articulated wide ranging textual provisions such as those characteristic of constitutions. Accordingly, interpretation looms as hopelessly subjective, and the interpretive subject as indispensable but utterly problematic. In a homogeneous society with widely shared religious, ethical, and political values, legal interpretations will count as just if they manage to reconcile justice according to law with justice beyond law. …

Pragmatism And Realism, Hilary Putnam

Cardozo Law Review

Let me begin by asking what will undoubtedly seem to many, if not all of you, a most peculiar question: How did it happen that the first philosopher to present a completely worked out version of direct realism in the entire history of modem philosophy was none other than the American pragmatist, William James?

Pragmatic Adjudication, Richard A. Posner

Cardozo Law Review

Pragmatism is at one level a philosophical position, just as scientific realism, transcendental idealism, existentialism, utilitarianism, and logical positivism are. It is the level well illustrated by a recently published book in which Richard Rorty and his critics go at each other hammer and tongs over such questions as whether language reflects reality, whether free will is compatible with a scientific outlook, and whether such questions are even meaningful. It is not the level at which this paper is pitched. My concern is with an issue in "applied" pragmatism, although after listening to Professor Grey's talk at the conference about …

What’S The Use Of Calling Emerson A Pragmatist?, Stanley Cavell

Cardozo Law Review

I applaud the revival of interest in John Dewey and William James, on various intellectual and political grounds, and seek to learn what is at stake for others in their revival. But I also wish to suspend applause-doubtless more a transcendentalist than a pragmatist gesture on my part-for ideas that seem to be gaining prominence within this movement, expressed by writers and thinkers whom I admire, according to which Emerson is to be understood as a proto-pragmatist and Wittgenstein as, let's say, a neo-pragmatist. Perhaps I will be taken as struggling merely over labels; but sometimes labels should be struggled …

Eve Without Adam: What Genesis Can Teach America About The Natural Law, David F. Forte

Law Faculty Articles and Essays

I wish to make but three points. First, I want to discuss something of the history of the alliance between faith and reason in Western intellectual history and their estrangement. Second, by referring to some of the elements of the Book of Genesis, I would like to affirm the basic compatibility between the principles of natural law and the values of our religious heritage. Finally, I raise a caution regarding religious doctrine and liberty that any effective and principled alliance between faith and reason must deal with.

Computers, Urinals, And The Fourth Amendment: Confessions Of A Patron Saint, Wayne R. Lafave

Michigan Law Review

At least the title indicates that the article is somehow concerned with "the Fourth Amendment," though for anyone who knows me or is at all familiar with my work, that piece of information hardly would come as a revelation. The fact of the matter is that I almost always write about the Fourth Amendment; I am in an academic rut so deep as to deserve recognition in the Guinness Book World of Records. Search and seizure has been my cheval de bataille during my entire time as a law professor and even when I was a mere law student. …

Counter-Revolution In Constitutional Criminal Procedure? Two Audiences, Two Answers, Carol S. Steiker

Michigan Law Review

For the purposes of my argument, I adapt Professor Meir Dan-Cohen's distinction (which he in turn borrowed from Jeremy Bentham) between "conduct" rules and "decision" rules. Bentham and Dan-Cohen make this distinction in the context of substantive criminal law; for their purposes, "conduct" rules are addressed to the general public in order to guide its behavior (for example, "Let no person steal") and "decision" rules are addressed to public officials in order to guide their decisionmaking about the consequences of violating conduct rules (for example, "Let the judge cause whoever is convicted of stealing to be hanged"). But as any …

The Illiberal Court, David F. Forte

Law Faculty Articles and Essays

Justice Scalia casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives.

The Vital Common Law: Its Role In A Statutory Age, M. Stuart Madden

University of Arkansas at Little Rock Law Review

No abstract provided.

A Feminist Revisit To The First-Year Curriculum, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Jury Override: A Blend Of Politics And Death , Scott E. Erlich

American University Law Review

No abstract provided.

Redistributive Justice Cultural Feminism , William J. Turnier, Pamela Johnston Conover, David Lowerr

American University Law Review

No abstract provided.

Gossip And Metaphysics: The Personal Turn In Jurisprudential Writing, Michael Ansaldi

Michigan Law Review

A Review of Neil Duxbury, Patterns of American Jurisprudence and John Henry Schlegel American Legal Realism and Empirical Social Science

The Ten Precepts Of American Slavery Jurisprudence: Chief Justice Roger Taney's Defense And Justice Thurgood Marshall's Condemnation Of The Precept Of Black Inferiority, A. Leon Higginbotham Jr.

Cardozo Law Review

Approximately twenty-five years ago, a group of thoughtful scholars, under the tutelage of Stanley Katz and Owen Fiss, met at the University of Chicago to discuss slavery law. Stanley Katz has previously noted that the conference generated extraordinary academic inquiries, as well as many books and articles. In this Article, I will describe briefly the intellectual journey I have traveled which was, in no small part, shaped by the conference and the interrelationships I have had since then, with so many scholars, as we have tried to get better insights into the interrelated issues of bondage, freedom, and the Constitution.