Law Commons^™

Toward Gender Equality: The Promise Of Paradoxes Of Gender To Promote Structural Change, Andrea Giampetro-Meyer

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Understanding Federalism, Larry Kramer

Vanderbilt Law Review

It's necessary to begin with considering the sort of judicially enforced federalism rejected in Garcia and to consider why the Court rejected it. According to this view of federalism, the Constitution leaves certain substantive affairs exclusively to the states, and what matters is making sure that states can regulate these without federal interference. So long as this domain is protected, the political significance of states is assured and federalism is secure. The federal government can, if it chooses, take charge of all those matters as to which state and federal authority is concurrent-though Congress will find this harder to accomplish …

The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton

Articles

No abstract provided.

Jurisprudence And Personality In The Work Of John Rawls, David G. Carlson

Articles

The article argues that John Rawls's concept of the person undergoes a significant shift between A Theory of Justice and Political Liberalism, necessitating a corresponding change in jurisprudence. In A Theory of Justice, Rawls employs a "correlative jurisprudence," where law is determinate, complete, and judges merely apply existing law. This approach is tied to a narrow, passive view of personality, treating individuals as mere loci of liberty and rights. In contrast, Political Liberalism presents a dynamic, contradictory conception of the person as a union of moral capacity and a determinate conception of the good. This shift, the article contends, requires …

Revisiting The Corporatist And Contractualist Models Of Labor Law Regimes: A Review Of The Brazilian And American Systems, Stanley A. Gacek

Cardozo Law Review

During the late 1970s, Brazilian workers captured world attention by mobilizing gigantic strikes in the auto industry of Greater São Paulo. Defying the intervention of the labor courts, they directly confronted the transnational automakers and negotiated impressive wage gains. They also established the celebrated comissões de fábrica, or factory commissions, which served as new vehicles for the negotiation of agreements and the resolution of labor disputes.

“Now The Machine Runs Itself”: Carl Schmitt On Hobbes And Kelsen, David Dyzenhaus

Cardozo Law Review

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.

A Kinder, Gentler Liberalism? Visions Of Empathy In Feminist And Communitarian Literature, Cynthia V. Ward

Faculty Publications

No abstract provided.

Liberty And Property: Lord Bramwell And The Political Economy Of Liberal Jurisprudence Individualism, Freedom, And Utility, David Abraham

Articles

No abstract provided.

John Marshall And The Moral Basis For Judicial Review, David F. Forte

Law Faculty Articles and Essays

During the last two decades, many observers have been disappointed in some of the appointments to the federal bench and in the judicial philosophies some judges have brought with them. But if we turn to the source of our constitutional order, we would find in the example of John Marshall the moral basis for the judicial craft.

Dicta And Article Iii, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

The Other Path Of The Law, Arthur J. Jacobson

Articles

The article argues that the informal economy plays a crucial role in shaping jurisprudence, challenging the traditional state-oriented, "static" approach to law. It introduces the concept of "dynamic jurisprudence," which emphasizes individual dignity, mutual recognition, and the constant reshaping of legal norms through interpersonal interactions. This dynamic approach contrasts with static jurisprudence, which relies on a correlating agency like the state to maintain rights and duties. The article contends that dynamic jurisprudence enhances personal and collective power, allowing individuals to resist or reform state commands, and highlights the importance of recognizing the interplay between formal and informal legal systems.

Discussion And Decisions: A Proposal To Replace The Myth Of Self-Rule With An Attorneyship Model Of Representation, Marci A. Hamilton

Articles

The traditional model used by legal scholars to describe our system of representative democracy seeks to justify representation as a fulfillment of the self-rule ideal Many scholars, however, have argued that certain features of the modem legislative process undermine self-rule, and have proposed means by which judicial review can correct legislative failures and restore self-rule to primacy. Drawing on German philosopher Carl Schmitt's critique of parliamentary democracy in Weimar Germany, Professor Hamilton posits that scholarly attempts to reconcile self-rule with representative democracy are misguided. Representation based on self-rule will inevitably lead to interest-group politics, resulting in meaningless and endless debate …

In Re Reprimand Of Davis & Haffeman, 93-Ap-27 (Blkft. Tr. Ct. App., May 11, 1994), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court clarified that attorney discipline for misconduct is an administrative decision that does not require a show cause hearing to decide the controversy. Rather, the attorneys are entitled to an administrative panel. Attorneys facing reprimand for misconduct may be allowed to complete their current case load, at the Courts discretion, until a final decision is made to determine their ability to practice law in tribal courts.

Rereading "The Federal Courts": Revising The Domain Of Federal Courts Jurisprudence At The End Of The Twentieth Century, Judith Resnik

Vanderbilt Law Review

A first enterprise in understanding and reframing Federal Courts jurisprudence is to locate, descriptively, "the Federal Courts." This activity-identifying the topic-may seem too obvious for comment, but I hope to show its utility. One must start with a bit of history, going back to the "beginning" of this body of jurisprudence. The relevant date is 1928, when Felix Frankfurter and James Landis, who began this conversation, published their book, The Business of the Supreme Court: A Study in the Federal Judicial System. Three years later, in 1931, Felix Frankfurter, then joined by Wilber G. Katz (and later by Harry Shulman), …

The Legal Framework Of European Community Participation In International Environmental Agreements, Martin Hession, Richard Macrory

Cardozo Journal of International and Comparative Law

The article examines the European Community's legal framework for participating in international environmental agreements, focusing on the evolution of its external competence and the challenges inherent in this process. It highlights the role of mixed agreements, the division of competences between the Community and its Member States, and the influence of the Court of Justice in shaping these dynamics. The analysis underscores the tension between legal principles and political realities in the EC's external relations.

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

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 …

The Impact Of Daubert On The Admissibility Of Scientific Evidence: The Supreme Court Catches Up With A Decade Of Jurisprudence, Arvin Maskin

Cardozo Law Review

Over the past several years a host of new civil damage theories has emerged, notably in the mass tort area. These include claims for increased risk of disease, fear of disease, hedonic damages, immunotoxicity, and medical surveillance. In the great majority of these cases, the dispositive issue reduces to causation, which invariably turns upon scientific evidence. Moreover, the stakes in these cases have greatly escalated. For example, the $180 million settlement in the Agent Orange case seemed like a lot of money in 1984, until several years later when the Dalkon Shield litigation, which involved the sale of a single …

Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit

Osgoode Hall Law Journal

The expression "free and democratic society" is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should …

West On Story And Theory, Lewis H. Larue

Scholarly Articles

Not available.

Front Matter, United States-Mexico Law Journal

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Control Mechanisms In International Dispute Resolution, W. Michael Reisman

United States - Mexico Law Journal (1993-2005)

No abstract provided.

The Current Status Of The North American Free Trade Agreement, Judith H. Bello

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Private Rights Under The Environment And Labor Agreements, Luis Miguel Diaz

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Secured Financing Of Real Property In Mexico: A Panel Discussion, John E. Rogers, David Hurtado Badiola, William M. Kahane, Duane H. Zobrist

United States - Mexico Law Journal (1993-2005)

No abstract provided.

On The Threshold Of Ethics, Adam Thurschwell

Cardozo Law Review

Can the judiciary exercise its authority to interpret the law without committing itself to particular, substantive views of the Good? If not, can law maintain its legitimacy in a democratic society when this legitimacy rests on the state's democratic claim to neutrality vis-i-vis the competing moral visions of its citizens? The fear addressed by these questions-the familiar "counter-majoritarian difficulty"-is that unelected judges will irresponsibly impose their individual moral preferences on an unwilling citizenry. The traditional answer is that interpretation requires no recourse to moral or ethical judgment, because case outcomes may be rationally determined from precedent and other authoritative legal …

Nafta's Proposed Tri-Lateral Commissions On The Environment And Labor, Ronald W. Kleinman, Joel M. Shapiro

United States - Mexico Law Journal (1993-2005)

No abstract provided.

The Hypothetical Problem. Panel Disucssions On Enforcement Of Foreign Judgments And Arbitration: The Views From Mexico And The United States, Michael W. Gordon

United States - Mexico Law Journal (1993-2005)

No abstract provided.

The Prospects For Modernization Of Financing Of Mexican Business, John E. Rogers

United States - Mexico Law Journal (1993-2005)

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 15, Issue 5

Cardozo Law Review

No abstract provided.

"Reading At The Limit", Elizabeth Weed

Cardozo Law Review

In the future, when we reflect upon the phenomenon of "postmodernity," we may be most surprised by its permissiveness. Accustomed as we are to the blurring of genres and disciplinary boundaries, we can forget that the disciplinary gates have been open only a few decades and that they may well close again. Of course, philosophers have always moved freely within the discipline of the law; historians and sociologists have had their place; and now, literary critics and feminist theorists move there as well, through Critical Legal Studies (PoL pp. 100-05), feminist studies (PoL pp. 100-03), critical race theory, …