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Full-Text Articles in Law

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron Jan 2024

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.


Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff Jan 2024

Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff

Touro Law Review

The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.


John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson Jan 2024

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.


Felix Frankfurter, Collector Of People, John Q. Barrett Jan 2024

Felix Frankfurter, Collector Of People, John Q. Barrett

Touro Law Review

Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. This essay, written on the great occasion of Brad Snyder’s Frankfurter biography, considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Frankfurter himself, Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander Bickel, Andrew L. Kaufman, and Philip …


The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein Jan 2024

The Law Professor As Public Intellectual: Felix Frankfurter And The Public And Its Government, R. B. Bernstein

Touro Law Review

Professor R.B. Bernstein was a legal historian with a J.D. from Harvard Law School who taught at the Colin Powell School for Civic and Global Leadership at City College of New York and New York Law School. He presented the paper below on Professor Felix Frankfurter’s The Public and Its Government, published in 1930. A little more than two months after the conference, sadly, Professor Bernstein passed. His brother Steven Bernstein provided the Touro Law Review with the draft of the paper that Professor Bernstein was preparing to submit for publication. We have added footnotes and made only minor revisions. …


Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner Jan 2024

Courting Citation Consistency: Justice Frankfurter And West Coast Hotel Co. V. Parrish, Helen J. Knowles-Gardner

Touro Law Review

This Article examines the three U.S. Supreme Court opinions authored by Justice Felix Frankfurter that cited the landmark decision in West Coast Hotel Co. v. Parrish (1937). I describe the three Parrish-citing opinions as: (1) “perfunctory”—Mayo v. Lakeland Highlands Canning Co. (1940) (Frankfurter, J., joined by Black and Douglas, JJ., dissenting); (2) “ugly”—Winters v. New York (1948) (Frankfurter, J., joined by Jackson and Burton, JJ., dissenting); and (3) “good”—American Federation of Labor v. American Sash & Door Co. (1949) (Frankfurter, J., concurring). Whatever one might think about the substance of these opinions, there is absolutely no doubt of the following. …


Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk Jan 2024

Mediating Pluralism: Felix Frankfurter’S Commitment To Majoritarian Democracy, Dalia Tsuk

Touro Law Review

This Article explores parallels between Frankfurter’s faith in democracy, that is, his trust in the legislative and executive branches as reflected in his jurisprudence of judicial restraint, and Frankfurter’s vision for Jewish (and other) immigrants’ integration into the American polity, namely his conviction that immigrants should shed vestiges of their birth cultures and assimilate into their adopted culture. The Article argues that Frankfurter’s commitment to judicial restraint was his means of mediating the pluralist dilemma, that is, the need to accommodate within the law diverse cultures and values; just as Felix Frankfurter, the first-generation Jewish American, wanted to sidestep ethnic …


Lost In The Thicket, Brad Snyder Jan 2024

Lost In The Thicket, Brad Snyder

Touro Law Review

As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.


The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth Jan 2023

The Tort Whisperer: Nine Decades Later–My Perspective, Larry M. Roth

Touro Law Review

This Article provides a comparative analysis of Judge Benjamin Cardozo’s tort decisions in Palsgraf v. Long Island Railroad Co., one of his most famous tort decisions, contrasted with a lesser-known tort opinion in Hynes v. New York Central Railroad Co. The Author attempts to address Cardozo’s humanistic and intellectual dichotomies which are exemplified by these two real-life tort precedents—one of which, Palsgraf, most practitioners may only have a distant recall. A historical overview of Cardozo’s life is also discussed. These two decisions portray Cardozo as an emotive human being exercising hit-or-miss judging. This theme provides a differ viewpoint from Cardozo’s …


Nomos And Nation: On Nation In An Age Of “Populism”, John Valery White Jan 2022

Nomos And Nation: On Nation In An Age Of “Populism”, John Valery White

Touro Law Review

Robert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by …


Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi Jan 2022

Monasky’S Totality Of Circumstances Is Vague – The Child’S Perspective Should Be The Main Test, Sabrina Salvi

Touro Law Review

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight …


Robert Cover’S Call To Teaching And Journey To Judaism, Randy Lee Jan 2022

Robert Cover’S Call To Teaching And Journey To Judaism, Randy Lee

Touro Law Review

As a teacher, Yale law professor Robert Cover never “dazzled,” “zinged,” nor “entertained”; he just engaged his students on a journey to the real and true that ultimately invited them to become the best version of themselves. As a Jew, Professor Cover wore an oversized skull cap, covered himself in a multicolored prayer shawl, and studied from a huge Talmud. He also, however, made everyone around him feel valued and welcomed and swept them up in a faith Professor Cover saw as wondrous and life-changing. This essay considers what the life of Robert Cover can teach us about what it …


Robert Cover And Critical Race Theory, Gabriel J. Chin Jan 2022

Robert Cover And Critical Race Theory, Gabriel J. Chin

Touro Law Review

Professor Robert Cover is recognized as a leading scholar of law and literature; decades after his untimely passing, his works continue to be widely cited. Because of his interest in narrative, he is credited as a contributor to the development of Critical Race Theory. This essay proposes that in addition to narrative, some of his other, substantive works about race were also important precursors to a more sophisticated appreciation of U.S. race relations. Professor Cover is also entitled to credit for understanding racism as a pervasive system, and one which went beyond Black and White.


Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber Jan 2022

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …


How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs Jan 2022

How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs

Touro Law Review

No abstract provided.


Bridges Of Law, Ideology, And Commitment, Steven L. Winter Jan 2022

Bridges Of Law, Ideology, And Commitment, Steven L. Winter

Touro Law Review

Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us …


Law And Literature In The Work Of Robert Cover, Tawia Ansah Jan 2022

Law And Literature In The Work Of Robert Cover, Tawia Ansah

Touro Law Review

This Article argues that although Robert Cover seems to discount the role and the practical efficacy of literary texts within the context of legal interpretation, Cover’s work nevertheless discloses an extensive exploration of literature and of literary interpretation to frame his own legal interpretive practices. This is particularly the case regarding the development of his theory of law’s violence. The Article attempts to show that a close reading of Cover’s interpretation of literary texts in the service of his legal analyses discloses a buried theme pursuant to the violence of law: the threshold concept, between law and not-law, of the …


Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer Jan 2022

Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer

Touro Law Review

The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world.


When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies Jan 2022

When Interpretive Communities Clash On Immigration Law: The Courts’ Mediating Role In Noncitizens’ Rights And Remedies, Peter Margulies

Touro Law Review

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a …


This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell Jan 2022

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …


Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger Jan 2022

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.


“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray Jan 2022

“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray

Touro Law Review

There is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with …


Keeping Up: Walking With Justice Douglas, Charles A. Reich Jan 2021

Keeping Up: Walking With Justice Douglas, Charles A. Reich

Touro Law Review

No abstract provided.


Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan Jan 2021

Mercy In American Law: The Promise Of The Adoption Of The Outlook Of Jewish Law, Yehiel Kaplan

Touro Law Review

Under Jewish law, mercy and compassion are essential principles to ensure the presence of a just legal system. Not only do mercy and compassion in the law preserve traditional values of human dignity, implementing a more compassionate legal system has practical benefits in both the spheres of legal judgment and of legal punishment. This article will compare the Jewish legal system’s application of these necessary doctrines to how other modern legal systems, including the American legal system, implement mercy and compassion. As a result of this in-depth comparison, this article recommends that the American legal system, and other modern legal …


Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh Jan 2021

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.


Charles Reich, New Dealer, John Q. Barrett Jan 2021

Charles Reich, New Dealer, John Q. Barrett

Touro Law Review

No abstract provided.


Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer Jan 2021

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Touro Law Review

No abstract provided.


Rethinking Appeals, Uri Weiss Jan 2021

Rethinking Appeals, Uri Weiss

Touro Law Review

This paper makes the point that a court decision that is open to an appeal is akin to a take-it-or-leave-it settlement proposal for both parties. For the case to not be appealed, both parties need to “take,” i.e., accept, this proposal. Thus, on one hand, if both parties cannot achieve a settlement by themselves, they usually benefit from the right to appeal. On the other hand, a right to appeal activates the regressive effects that characterize settlements, which also applies to lower-court decisions. For example, legal uncertainty has a regressive effect on lower-court decisions: if the judge wishes to block …


My Friend, Charles Reich, Hon. Guido Calabresi Jan 2021

My Friend, Charles Reich, Hon. Guido Calabresi

Touro Law Review

No abstract provided.


Applying Maimonides’ Hilkhot Teshuvah–Laws Of Repentance – In The Criminal Law System Of The State Of Israel: An Israeli Judge’S Perspectives, Moshe Drori Jan 2020

Applying Maimonides’ Hilkhot Teshuvah–Laws Of Repentance – In The Criminal Law System Of The State Of Israel: An Israeli Judge’S Perspectives, Moshe Drori

Touro Law Review

No abstract provided.