Law Commons^™

Fundamental Constitutional Rights In The New Constitutions Of Eastern And Central Europe, Rett R. Ludwikowski

Cardozo Journal of International and Comparative Law

The article examines the constitutional transformations in Eastern and Central Europe following the fall of communism, focusing on the integration of Western ideals with socialist legacies. It highlights the challenges faced by countries like Albania, Bulgaria, and Romania in drafting new constitutions that balance individual liberties with state interests, while addressing issues such as minority rights, religious freedom, and economic transitions. The analysis reveals a blend of Western and socialist influences in these constitutions, with significant strides in human rights protections, yet ongoing challenges in enforcement and societal acceptance.

Social Legislation In The European Community And In The Member States-A Case Of Subsidiarity?, Reinhard Rack

Cardozo Journal of International and Comparative Law

The article examines the principle of subsidiarity within the European Community (EC), highlighting its role in balancing power between the EC and its Member States. While subsidiarity, formalized in the Maastricht Treaty, aims to ensure decision-making occurs at the most effective level, its application often serves political rather than legal purposes, particularly in social legislation. The article critiques the ambiguity of subsidiarity, questioning whether it effectively limits EC power or remains a political tool influenced by public opinion and referendums. It also explores the integration of non-Member States, such as EFTA countries, into the EC framework, emphasizing the challenges of …

Bosnia-Herzegovina: A Case Study Of Anarchy In The Third World, Alex N. Dragnich

Cardozo Journal of International and Comparative Law

The article examines the historical and political roots of the Bosnian conflict within the broader context of Yugoslavia's dissolution. It argues that the West, particularly Germany and Austria, mismanaged the crisis by prematurely recognizing the secession of Slovenia, Croatia, and Bosnia, which exacerbated the conflict. The analysis critiques the international community's failure to consider Serbia's historical and legal claims, as well as its misinterpretation of the conflict as a simple struggle for democracy rather than a complex ethnic and political dispute. The author contends that Western policies ignored Serbian fears rooted in World War II atrocities and the perceived threat …

Dirigisme And The Challenge Of Competition Law In France, David J. Gerber, Richard Azarnia

Cardozo Journal of International and Comparative Law

The article examines the tension between France's dirigiste traditions and the introduction of competition law, particularly through the 1986 Competition Statute. While the statute aimed to establish legal principles to protect competition and reduce government discretion, the enduring influence of dirigisme—emphasizing state control and administrative prerogatives—continues to challenge the effectiveness of competition law. The *Ville de Pamiers* case highlights this conflict, as it tests the boundaries of competition law's applicability to public services and administrative acts. The analysis reveals that the struggle to balance competition law with dirigiste traditions reflects broader conflicts in redefining the role of government in a …

Table Of Contents, Cardozo Journal Of International And Comparative Law, Vol. 3, Iss. 1

Cardozo Journal of International and Comparative Law

No abstract provided.

The Legality Of Humanitarian Intervention, Malvina Halberstam

Cardozo Journal of International and Comparative Law

The article argues that humanitarian intervention, defined as the use of force by one state in another's territory to protect individuals from imminent death or injury when the host state cannot or will not act, is lawful under customary international law and not prohibited by the UN Charter. The author advocates for a narrow definition to ensure legitimacy and prevent misuse, emphasizing that such intervention should remain permissible even without UN Security Council authorization.

The Crisis Of Unemployment And The Future Of Reform In Central And Eastern Europe: Hungary As A Model, Alisa Yamnarm

Cardozo Journal of International and Comparative Law

The transition from socialism to capitalism in Central and Eastern Europe has brought significant economic and social challenges, including unemployment, social instability, and a decline in living standards. While countries like Hungary have made notable progress in privatization and attracting foreign investment, the region as a whole faces critical trade-offs between rapid reform and easing social burdens. The success of these transitions depends on addressing systemic issues such as weak institutional frameworks, inadequate managerial expertise, and the need for patience among citizens to realize the long-term benefits of reform.

Steven E. Tanenbaum (1969-1994)

Cardozo Law Review

No abstract provided.

Editor's Note, Michael E. Herz

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was originally planned as a chapter in his Manual of Political Ethics. In 1837, while the larger work was in progress, this section was published under the title Political Hermeneutics, as a single, seventyeight page volume by the firm of Charles C. Little and James Brown. An expanded version, with modifications throughout and the addition of what is now chapter VII, then appeared as two articles in The American Jurist and Law Magazine in 1837 and 1838. After further additions and alterations, the articles were in turn published in book form by …

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …

Rediscovering Francis Lieber: An Afterword And Introduction, Michael E. Herz

Cardozo Law Review

In our media age, more and more people are famous just for being famous, rather than for any particular achievement, notorious or otherwise. We spend a good deal of time transfixed by "celebrities" known for no obvious qualities other than fame itself. Francis Lieber, once this country's most respected law professor, of whom it was written in 1873 that "his fame will be secure in the lap of history," presents the opposite case: he is forgotten despite great accomplishment. At best, one might say he is famous for being forgotten. His name comes up, but almost every modem reference to …

A Hermeneutic Thinker, Wolfgang Holdheim

Cardozo Law Review

What makes Francis Lieber's Legal and Political Hermeneutics intriguing is this early study's aim to unite two major traditions: that of American legal theory and that of German hermeneutic philosophy. On the face of it, these two powerful strains in the history of ideas should, each in its own right, clamor for such a convergence. Where indeed could a theory of interpretation find more fruitful material for application than in a sophisticated legal system, guided by a preponderant written constitution, evolving under the aegis of a Supreme Court that is eminently a hermeneutic institution? And where, conversely, could one hope …

Legal And Political Hermeneutics, Or Principles Of Interpretation And Construction In Law And Politics, With Remarks On Precedents And Authorities, Francis Lieber

Cardozo Law Review

The second edition of the Hermeneutics was published in 1839, and has now been out of print for almost forty years. In 1860 Dr. Lieber carefully revised it, and made additions to both text and notes, expecting to publish a third edition, with a second part, of "Special Hermeneutics, or Legal Rules of Interpretation and Construction," by an eminent member of the New York Bar, Mr. William Curtis Noyes. This plan, however, was not carried out, and Mr. Noyes died December 25, 1863, without having written his proposed part. The text of the present edition, and Dr. Lieber's own notes, …

The One True Sense, Georgia Warnke

Cardozo Law Review

In his Legal and Political Hermeneutics, Francis Lieber claims that "No sentence, or form of words, can have more than one 'true sense,' and this is the only one we have to inquire for." He criticizes efforts to write all possible specifications into the laws and regulations with which a legal and political hermeneutics is concerned, as if the necessity of interpretation could simply be avoided. "Men," he writes, "have at length found out that little or nothing is gained by attempting to speak with absolute clearness and endless specifications, but that human speech is clearer, the less we …

The Limits Of Lieber, Lawrence Lessig

Cardozo Law Review

Texts are transportable. They move. Because written, they are carried. Because carried, they are read-in different places and at different times. Nothing (save the loss of the original language or the original text) can stop this semiotic peripateticism. If you write it, it will roam.

Facts, Things, And The Orphans Of Girard College: Francis Lieber, Protopragmatist, Aviam Soifer

Cardozo Law Review

Rufus Choate, the dominant and domineering Boston lawyer and orator, once described Francis Lieber as "the most fertile, indomitable, unsleeping, combative and propagandizing person of his race." Lieber was indeed always scrambling, always proposing projects and looking for work, always reading and thinking and investigating. The proud inventor of words such as "penology," "bureaucracy," and "jural," Lieber delighted in terming himself a "publicist," yet another of his English neologisms. From his arrival in the United States in 1827 to his death in 1872, Lieber was a restless initiator who managed to be influential in myriad ways in his adopted land, …

A Lieber Bibliography, With Annotations

Cardozo Law Review

No abstract provided.

Back To The Parent: Holding Company Liability For Subsidiary Banks - A Discussion Of The Net Worth Maintenance Agreement, The Source Of Stength Doctrine, And The Prompt Corrective Action Provision, Cassandra Jones Havard

Cardozo Law Review

The unprecedented number of bank failures in the past several years has spawned a crisis in the industry and fueled an extensive debate about how federal regulators can effectively make banks more responsible for guaranteeing the soundness of their operations. For the federal regulators most involved-the Federal Deposit Insurance Corporation ("FDIC"), Office of Thrift Supervision ("OTS"), and the Federal Reserve Board ("FRB") -Congress is directing the effort to enhance the banks' guarantees of self-policing. Congress's basic response to the crisis has been to heighten the minimum capital levels the banks must maintain to avoid direct corrective intervention by the federal …

Comprehensive References And Indexes, Volume 16 (1994-1995)

Cardozo Law Review

No abstract provided.

Table Of Contents - Cardozo Law Review, Volume 16, Issue 6

Cardozo Law Review

No abstract provided.

The Virtues Of Interpretation In A Jural Society, Mike Robert Horenstein

Cardozo Law Review

This Essay could perhaps be titled "Why Lieber Now?": for this seems to me an unavoidable question when reviving a figure who has seemingly been lost in the archives. We encounter problems on all fronts, and just to ignore them and go about resuscitating Lieber would only provide an opportunity to quip that the operation 'was successful, though the patient died (was actually long dead). Even at the time of its publication, William Kent, Chancellor Kent's son, remarked of Lieber's Legal and Political Hermeneutics," 'What, in God's name, made you choose 'Hermeneutics'? ... Had you called your... …

Hermeneutics And Contract Default Rules: An Essay On Lieber And Corbin, Lawrence A. Cunningham

Cardozo Law Review

The most provocative debate in contemporary contract law scholarship concerns default rule analysis. Dozens of law review articles have been devoted to this, puzzle regarding the manner in which courts do or should fill gaps in incomplete contracts. The timing and course of this debate might have been very different, however, except for an accident of intellectual history.

"Fetch Some Soupmeat", William N. Eskridge Jr.

Cardozo Law Review

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible to surprising …

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Cardozo Law Review

Like many other forms of social thought, legal theory has, over the last quarter century, taken an "interpretive" turn. Recent and contemporary writing on legal hermeneutics may be credited with two sensible but unsurprising claims about legal language.

Beyond Realism: Introduzione Elementare Alla Scienza Giuridica: Ii. Cardozo Lectures In Law By George P. Fletcher, Mauro Bussani

Cardozo Law Review

The second annual Cardozo Lectures in Law represents an important milestone in the process of the development of a transnational legal culture, for at least two reasons. First, it represents the successful consolidation of an initiative, spawned by Ugo Mattei and Pier G. Monateri, that allows the civil law circuit of ideas to profit from a much-missed source of stimulation. In presenting and assigning to leading jurists of each legal discipline reflections such as those on the anthropology and ethnology of law, on relations between politics and law, and this year's Critique of Adjudication, the editors of the Cardozo …

Nahmani V. Nahmani, Tova Strasberg-Cohen, Aharon Barak, Dov Levin, Itzchak Zamir, Tzevi Eliyahu Tal

Translated Opinions

Facts: Ruth and Daniel Nahmani, a married couple, were unable to have a child because of an operation that Ruth underwent. They therefore decided to try in-vitro fertilization of Ruth’s ova with Daniel’s sperm and implanting the fertilized ova in a surrogate mother. Under Israeli law, surrogacy was not permitted and in-vitro fertilization was only permitted for implantation in the mother. Because of the great expense of the in-vitro fertilization procedure in the United States, the couple petitioned the Supreme Court, sitting as the High Court of Justice, to allow the in-vitro fertilization procedure to be conducted in Israel, for …

Law As Discourse: Bridging The Gap Between Democracy And Rights, Michel Rosenfeld

Articles

No abstract provided.

Uncertainty In The Empire State: A Reevaluation Of New York’S Takings Jurisprudence After Dolan V. City Of Tigard, Clifford B. Olshaker

Cardozo Law Review

A hallmark of American property law is the acknowledgment of the government's ability to regulate the use of private parcels of land through the zoning laws. One of the chief goals of zoning law is to prevent overdevelopment and the accompanying strain on municipal resources. A landowner seeking to make significant changes to his property must obtain a permit from the local governing body. Denial of a building permit or certificate of occupancy is the chief means for enforcing zoning regulations. If a potential developer wishes to alter his property in a way that conflicts with applicable zoning laws, he …

The Scienter Requirement And Wash Trading In Commodity Futures: The Knowledge Lost In Knowing, Charles R.P. Pouncy

Cardozo Law Review

On September 1, 1990, the Commodity Futures Trading Commission ("CFTC" or "Commission") issued a complaint and notice of hearing in which it alleged, inter alia, that on over sixty occasions during the period of June 23, 1987 through September 17, 1987, brokers on New York City's Coffee, Sugar, and Cocoa Exchange had executed wash trades on behalf of a number of Japanese foreign brokers. Wash trading, which is prohibited by section 4c of the Commodity Exchange Act ("the Act"), consists of the simultaneous purchase and sale of the same number of futures contracts at the same or very similar …

Critiquing The Legal Order In The Name Of “Critical Morality”, Julius Cohen

Cardozo Law Review

The moral criticism of the legal order has been a longtime sport (serious), if not an industry, for law teachers, theorists, judges, and other legal functionaries. In the process, they often reach for criteria beyond those utilized in conventional morality. Sometimes the reach "beyond" is ad hoc; sometimes it is accompanied by an awareness that it is toward a pattern of a higher-level, critical morality. The reach beyond is often triggered by a need to resolve conflicts within conventional morality. Or it is a function of the distrust of some of the sources of conventional morality, such as prejudice, unrefined …