Law Commons^™

J.D., Peter Goodrich

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Abandoning Recess Appointments: A Comment On Hartnett (And Others), Michael Herz

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Progressive Consumption Taxes, Mitchell L. Engler

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Recent intellectual and political forces have moved the consumption tax to the forefront of tax policy debate. Since traditional flat-rate consumption taxes like the VAT raise serious distributional concerns, tax scholars have responded with innovative progressive consumption taxes. Two such taxes - the Hybrid Approach and the X-tax - were independently analyzed in a recent symposium on fundamental tax reform. These two proposals contain striking similarities. Both would tax individuals at progressive rates on their wages, with a separate tax on consumption less wages. Important differences exist, though, regarding the latter tax. The Hybrid Approach would impose such tax on …

Derrida's Ethical Turn And America: Looking Back From The Crossroads Of Global Terrorism And The Enlightenment, Michel Rosenfeld

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Derrida has denied that he has taken an ethical turn in the 80's and 90's. This article argues, however, that Derrida's deconstruction of the ethical implications of major moral, social or political issues, such as law and justice, friendship, hospitality, forgiveness, the death penalty and most recently global terrorism, does result in an ethical turn. This turn leads Derrida to articulate an ethics of difference which focuses on diversity and the other, and America as compared to Europe stands for greater diversity and looms as Derrida's and Europe's "other." In contrast to Derrida's America is Habermas's Europe, his Kantian ethics …

Transcript Of Weapons Of Mass Destruction, National Security, And A Free Press: Seminal Issues As Viewed Through The Lens Of The Progressive Case, David Rudenstine, James R. Schlesinger, Norman Dorsen, Robert E. Cattanach, Brady Williamson, Frank Tuerkheimer, Howard Morland, Gary Milhollin, Anthony Lewis

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Ethical Issues In Asbestos Litigation, Lester Brickman

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Asbestos litigation has given rise to over 50,000,000 claims against 8400 former producers, distributors, installers and sellers of asbestos-containing products. To date, 850,000 claimants have sought compensation, costing businesses and insurance companies over $70 billion and resulting in more than 70 bankruptcies. Over 100,000 deaths are attributable to asbestos exposure with an additional 40,000 deaths anticipated over the next 30 years. Despite the significance of the ethical issues generated by the processes of acquiring, pressing and settling the most massive litigation in history, the legal literature is substantially devoid of any such discussion. One possible reason for this paucity of …

Deterrence Or Disgorgement? Reading Ciraolo After Campbell, Anthony J. Sebok

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Authority: An Hommage To Jacques Derrida And Mary Quaintance, Arthur J. Jacobson

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This essay, in a symposium celebrating the publication 25 years ago of Jacques Derrida's "Force of Law: The 'Mystical Foundation of Authority,'" traces the themes of that work through the struggle between Derrida and his translator, Mary Quaintance, for authority over the translation. In the end, neither wins the struggle: Authorship of the translation - authority - must be ceded to a third. Derrida reacts to this loss of authority by signing the translation, taking responsibility for the translation even when it is the product of forces beyond his control and of decisions he only imperfectly understands. He thus enacts …

Intellectualizing Property: The Tenuous Connections Between Land And Copyright, Stewart E. Sterk

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Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works - while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property …

20 Years (Or 2000?) Of Story-Telling On The Law: Is Justice Detectable?, Richard H. Weisberg

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This paper was offered as the keynote address at a conference in April of 2004 at the Cardozo Law School upon the 20th anniversary of the publication of Richard Weisberg's The Failure of the Word: the Protagonist as Lawyer in Modern Fiction (New Haven: Yale U Press, 1984). Weisberg first gives an account of the critical reception of his book, both in literary and legal circles and then situates the book - via a reading of Derrida's Force of Law - as inevitably troubling both to liberal readers such as Brook Thomas and more conservative ones such as Richard Posner. …

Alvarez-Machain Ii: The Supreme Court's Reliance On The Non-Self-Executing Declaration In The Senate Resolution Giving Advice And Consent To The International Covenant On Civil And Political Rights, Malvina Halberstam

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Introduction: Un Cygne Noir, Peter Goodrich

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Failure Of The Word: The Rise Of Law And Literature, Arthur J. Jacobson

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The Defined Contribution Paradigm, Edward A. Zelinsky

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Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. I suggest that, over the last generation, something even more fundamental has occurred, something that can justly be called a paradigm shift. Americans today primarily conceive of and implement retirement savings in the form of individual accounts. Such accounts have become primary instruments of public policy, not just for retirement savings, but increasingly for health care and education as well.

Private Parties As Defendants In Civil Rights Litigation: Introduction, Myriam Gilles

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

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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 …

Why Are There Four Hegelian Judgments, David G. Carlson

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Hegel is the philosopher of threes. His entire system is triune: logic-nature-spirit. Within the logic is a triune structure: being, essence, notion. Within notion there is a triad: subject-object-idea. Within subjectivity, there is a triad: notion, judgment, syllogism. Yet when we examine Hegel's critique of judgment, there are four (not three): inherence-reflection-necessity-notion.

This paper tries to explain why this is so. There is a disturbing element present at all times in Hegel's logic - what Slavoj Zizek named a silent fourth, which erupts and manifests itself in judgment. This paper refines and justifies Zizek's insight, arguing from the text of …

The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk

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Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.

Preface To The Justice In Mediation Symposium, Lela P. Love

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Bankruptcy's Acephalous Moment: Postpetition Transfers Under The Bankruptcy Code, David G. Carlson

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Introduction, Hanoch Dagan, Keith N. Hylton, Anthony J. Sebok

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A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem

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This Article tells the story of our effort to establish an interdisciplinary law and social work program at Cardozo Bet Tzedek Legal Services (“CBT”), a law clinic at Benjamin N. Cardozo School of Law. The program is predicated on the belief that law and social work collaboration will benefit clients as well as students. The Article is primarily descriptive—telling what we did, why we did it, why we were disappointed with it, and how we changed the program. The Article also attempts to continue a constructive critique, on the assumption that even if something is not broken, it can be …

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

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The Antepenultimacy Of The Beginning In Hegel’S Science Of Logic, David G. Carlson

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The Science of Logic is the keystone for Hegel's philosophy. Perhaps the single most perplexing problem in this work is the status of the beginning. Hegel insisted that philosophy must be self-grounding. It cannot start from "givens." Yet, if Hegel's beginning is merely stipulated or "given," then his project is defeated. The usual view of Hegel's intent is that the beginning (Pure Being) is the last step, so that what begins as a presupposition ends up being "proven." This article suggests something different. It proposes that the beginning (Pure Being) is actually the "antepenultimate" (or third-from-last) step of the Science …

The Legal System's Use Of Epidemiology: Some Clarifications (Continued), Arthury H. Bryant, Alexander A. Reinert

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We welcome Mr. Korzeniewski's efforts at clarifying some of the epidemiological concepts included in our original paper. If anything, however, his critique only reinforces our fundamental point: that some courts, by applying inflexible rules of admissibility, are missing the complex and multi-disciplined dynamics underlying scientific assessments of causality. By so doing, these courts are preventing the factfinders from considering evidence that scientists would find relevant and even persuasive, thereby taking the legal system farther from rather than closer to the truth.

Henry Minton, Departing From Deviance: A History Of Homosexual Rights And Emancipatory Science In America., Edward Stein

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New York Moveable Feast: Boundaries To Practice, Christopher Honeyman, Lela P. Love

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It's Not Your Father's Legal Writing Program, Leslie Newman

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Two Concepts Of Injustice In Restitution For Slavery, Anthony J. Sebok

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This article, which will appear in a symposium issued of the Boston University Law Review titled "The Jurisprudence of Slavery Reparations," criticizes attempts to secure legal redress for slavery through lawsuits based on unjust enrichment. The article has three parts. First, it compares the recent efforts to litigate the wrongs of caused by American slavery to other recent "mass restitution" lawsuits, namely the states' unjust enrichment suits against the tobacco industry and the suits against banks and corporations for unjust enrichment arising out of the Holocaust. Second, the article questions the fit between the structure of restitution and the interests …

Truth And Illusion, Suzanne Last Stone

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No abstract provided.