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Table Of Contents - Cardozo Law Review, Volume 16, Issue 5

Cardozo Law Review

No abstract provided.

Ideology Between Fiction And Fantasy, Slavoj Zizek

Cardozo Law Review

In his movie version of Franz Kafka's The Trial, Orson Welles accomplished an exemplary anti-obscurantist operation by way of reinterpreting the place and the function of the famous parable on "the door of the Law." In the film, we hear it twice: at the very beginning, it serves as a kind of prologue, read and accompanied by (faked) ancient engravings projected from lantern-slides; then, shortly before the end, it is told to Josef K., not by the priest (as in the novel), but by K.'s lawyer (played by Welles himself) who unexpectedly joins the priest and K. in the …

Stories Out Of School: Teaching The Case Of Brown V. Voss, Elizabeth J. Samuels

Cardozo Law Review

In a deft parody of conventional education-inspired by a vote to put a school system on a year-round schedule-the parodist purports to have unearthed a letter from Huck Finn to Tom Sawyer's aunt, Mrs. Phelps. In the letter, Huck reports on a productive summer spent in school, studying long hours and earning high grades.

Democracy And Pluralism: A Critique Of The Rationalist Approach, Chantal Mouffe

Cardozo Law Review

In recent decades, categories like ,"human nature," "universal reason," and "rational autonomous subject" increasingly have been questioned. From different standpoints, a variety of thinkers have criticized the ideas of a universal human nature, of a universal canon of rationality through which that human nature could be known, as well as the possibility of an unconditional universal truth. Such a critique of Enlightenment's universalism and rationalism, which is sometimes referred to as "postmodernism," has been presented by some authors, for example, Jirgen Habermas, as constituting a threat to the modem democratic project. They consider that the link existing between the democratic …

The Deconstruction Of Kantian Ethics And The Question Of Pleasure, Henry J. Staten

Cardozo Law Review

This Essay is primarily about the recent work of Bernard Williams, who is in my opinion the most radical thinker on the question of ethics in the analytic philosophy camp. In fact, Williams's work tests the limits of what we know as analytic philosophy. His project is rigorously deconstructive, yet it has been developed out of the materials of analytic philosophy itself quite independently of Derridean deconstruction. Thus, this project is extraordinarily rich in its resonance, and regardless of whether one comes at it from an analytic or deconstructive background, one is equally likely to find it surprising in its …

The Alleged Unaccountability Of The Academic: A Biographical Sketch Of Carl Schmitt, Manfred H. Wiegandt

Cardozo Law Review

In recent years, especially after the breakdown of the Soviet bloc, we have witnessed numerous attempts to establish viable democratic structures in states formerly in the tight grip of dictatorially ruling elites, be it in the countries of the former Communist bloc, at the African Cape, or in Latin America. The questions that concern people in these regions above all are how their systems can be made strong enough to survive the economic crises that go along with establishing democratic frameworks and how the states can ensure the necessary coherence to survive on the background of a lingering challenge by …

The Puzzling Doctrine Of Contributory Negligence, Kenneth W. Simons

Cardozo Law Review

Peter, a pedestrian, negligently crosses a street without carefully checking the vehicular traffic. Doris, a motorist, negligently speeds and strikes Peter, causing him injuries.

In Anglo-American jurisdictions, Peter's recovery against Doris will likely be reduced, if not eliminated, under the doctrine of contributory (or comparative) negligence. And it might seem obvious that a plaintiff who is "at fault" should not fully recover against a tortious defendant. But the grounds for that conclusion are not at all obvious, once one considers the following problems.

Reinventing Labor Law: A Rejoinder, Tamara Lothian

Cardozo Law Review

In an Article published recently in this journal, Stanley Gacek, an attorney working with the United Food and Commercial Workers International Union in the United States, takes issue with my analysis of the political consequences of corporatist and contractualist labor law models, especially as applied to the current situations in Brazil and the United States. Despite our many major disagreements, I welcome Gacek's response to my Article and his effort to expand public discussion of the alternative legal-institutional forms of democratic labor organization. Unfortunately, in the course of developing his own position Gacek seriously misrepresents my views. He also misunderstands …

The Sec At Sixty: A Reply To Professor Macey, David L. Ratner

Cardozo Law Review

The January 1994 issue of the Cardozo Law Review featured a symposium on the sixtieth anniversary of the creation of the Securities and Exchange Commission ("SEC" or the "Commission") and the commencement of federal regulation of securities trading in the United States. This is certainly an anniversary worthy of note; unfortunately, the one Article in the symposium devoted to offering a broad ranging appraisal of the SEC's record was so one-sided and inadequate that a reader could be excused for wondering why we ever set up a system of securities regulation at all, let alone celebrate its continuing existence. The …

A Rejoinder, Jonathan R. Macey

Cardozo Law Review

In a rare moment of self-restraint, I resolved not to bother to write a comment to David Ratner's spirited but unconvincing reply to my earlier article in the Cardozo Law Review. Since Ratner's response contained no defense whatsoever of the work of the Securities and Exchange Commission ("SEC"), no criticism whatsoever of my general theory of agency obsolescence, and no theory of its own to defend the SEC, it seemed to me at first that the best course of action was to allow Ratner's reply to serve as its own refutation.

A Brief Word In Response, David L. Ratner

Cardozo Law Review

In responding to my critique of his original Article in this Review, Professor Macey seems to have followed the proverbial lawyer's advice: "If the law is against you, argue the facts. If the facts are against you, argue the law. If both the law and the facts are against you, pound on the table and yell like hell."

The Robinson-Patman Act Sections 2(D) And 2(E): Promotional Allowances And The Per Se Rule Of Illegality, Julian Chung

Cardozo Law Review

The Robinson-Patman Act (the "Act"), as part of the antitrust laws, was designed to prevent direct and indirect price discrimination. Specifically, the Act prohibits price discrimination through the use of certain types of discounts granted by sellers to select customers. Sections 2(d) and 2(e) of the Act attempt to further this prohibition by expressly regulating promotional allowances and services. Although Federal Trade Commission ("FTC") enforcement of the sections has declined, private litigation under sections 2(d) and 2(e) of the Robinson-Patman Act has recently been revived. Three recent suits involving the compact disc ("CD") market exemplify this trend. Retailers of CDs …

Stand By Your Man?: Legal Protection For Wives Who Charge The Family Home To Secure Their Husbands' Business Debts, Belinda Fehlberg

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal protections for wives in England who charge the family home as security for their husbands' business debts, focusing on the challenges in balancing private family dynamics with third-party creditor rights. It critiques the limited protection offered by the law, particularly through the lens of the House of Lords' rulings in Barclays Bank v. O'Brien and CIBC Mortgages v. Pitt. The analysis highlights the tension between protecting vulnerable wives and maintaining the viability of the family home as collateral for business loans.

Tripartite Voidable Preferences, David G. Carlson

Articles

This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that "effect" (judicial decision) precedes "cause" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious "right answers" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to …

Eti, Phone The Department Of Labor: Economically Targeted Investments, Ib 94-1 And The Reincarnation Of Industrial Policy, Edward A. Zelinsky

Articles

In Interpretive Bulletin 94-1 (B 94-1), the Department of Labor defines economically targeted investments (ETIs) as investments which bear risk-adjusted, market rates of return and which also generate collateral economic benefits. lB 94-1 declares ETIs, so defined, to be consistent with the fiduciary provisions of the Employee Retirement Income Security Act of 1974 (ERISA). In his critique of lB 94-1, Professor Edward Zelinsky finds the ET1 concept unsound as a matter of policy and logic and incompatible with ERISA's statutory standards governing pension trustees' investment decisions. Professor Zelinsky views 1B 94-1 as resurrecting the discredited notion of industrial policy. He …

Standards Of Professional Conduct In Alternative Dispute Resolution, John Feerick, Carol Izumi, Kimberlee Kovach, Lela Love, Robert Moberly, Leonard Riskin, Edward Sherman

Articles

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at a 1995 AALS Conference, on current ethical issues that arise in mediation and how these issues should be addressed by the standards of professional conduct. The panel for the program was composed of leading mediation scholars and practitioners from throughout the country. The program was organized by Professor Edward Sherman who also acted as the panel moderator and provided the following introduction.

Grant Gilmore, Holmes, And The Anxiety Of Influence, Charles M. Yablon

Articles

The article explores Grant Gilmore's ambivalent relationship with Oliver Wendell Holmes, particularly in The Death of Contract. Gilmore both praises Holmes's intellectual brilliance and critiques his formalistic approach to contract law. Drawing on Harold Bloom's The Anxiety of Influence, the analysis suggests that Gilmore engages in a struggle with Holmes's legacy, reflecting a mix of admiration and opposition, akin to how strong poets handle influential predecessors.

Judicial Drag: An Essay On Wigs, Robes And Legal Change, Charles M. Yablon

Articles

The article explores the persistence of judicial wigs and robes in England, arguing that their continued use is not based on practical reasons but on historical and cultural path dependency. The tradition, despite its anachronistic nature, endures due to factors like dignity, anonymity, and economic interests, rather than any functional necessity. The author suggests that such legal customs often persist because of historical context rather than optimal design.

An Introduction To Environmental Law In The United States Of America, Michael E. Herz

Articles

There is an old joke about someone who, having taken a course in speed reading, is able to finish War and Peace in an afternoon. On bragging about this accomplishment, he is asked what the book was about. His entire response: "Russia." In attempting to fulfil my charge to summarize American environmental law in a few pages I fear that I risk a similar result. With such ruthless simplification, the reader may came away with no more understanding of this enormous, detailed, and complex body of law than the speed reader had of Tolstoy, knowing only that American environmental law …

An Introduction To Environmental Law In The United States, Michael E. Herz

Articles

No abstract provided.

Security Interests In The Crucible Of Voidable Preference Law, David G. Carlson

Articles

In this article, Professor David Gray Carlson analyzes the intersection of voidable preference law under 11 U.S.C. § 547 and security interests under Article 9 of the Uniform Commercial Code. The essay purports to articulate the metaphysical assumptions present in this intersection, no matter how rarified and peculiar, because, in this area of law, even the slightest and most fantastic metaphysical presupposition can change results and shift wealth between debtors and creditors. Given the current dearth of unsecured dividends in bankruptcy proceedings, everything turns on whether security interests survive the critique of voidable preference law. In his treatment, Professor Carlson …

Repo Madness: The Characterization Of Repurchase Agreements Under The Bankruptcy Code And The U.C.C., Jeanne L. Schroeder

Articles

The article examines the legal characterization of repurchase agreements (repos) under the Bankruptcy Code and the Uniform Commercial Code (U.C.C.), with a focus on proposed revisions to Articles 8 and 9. It argues that repos should be treated as sales rather than secured loans, primarily due to the repo buyer's unrestricted right to deal with the collateral. This characterization is supported by court rulings in cases such as In re Bevill, Bresler & Schulman and SEC v. Drysdale Securities Corp., which emphasize the transfer of ownership and the buyer's ability to engage with the securities. The article critiques current methods …

1995-1996, Benjamin N. Cardozo School Of Law

Student Handbooks

No abstract provided.

Interwar German Theories Of International Law: The Psychoanalytical And Phenomenologicial Perspectives Of Hans Kelsen And Carl Schmitt, Anthony Carty

Cardozo Law Review

After 1918, the social foundations of legal positivism and formalism in Central Europe-especially where German was spoken-were shattered. The political neutrality of the legal profession had previously allowed it to equate legality and legitimacy in the form of the monarchical constitution. The breakdown of the traditional order led to a crisis of constitutional legitimacy. Power seemed destined to fall directly into the hands of the "masses" and neither traditional, liberal, nor conservative bourgeois (professional middle-class) opinion was comfortable about this prospect. There followed a profound debate about the nature of the state and political society.

Freud As Law Professor: An Alternative History, Charles Yablon

Cardozo Law Review

We are gathered here today to pay tribute to one of the great legal minds of the twentieth century. In his long and fruitful career as lawyer, law professor, and legal theorist, Sigmund Freud literally revolutionized both the theory and practice of the legal profession. His contributions are to be found everywhere; from his early work on alternative dispute resolution, to his fundamental reconceptualization of the lawyer-client relationship, to his trenchant critiques of the law and economics movement, even the standard fifty-minute billable hour are all reflections of his vast influence on law and legal theory.

From Advocacy To Management In Divorce: A Women's Issue?, Mavis Maclean

Cardozo Journal of Equal Rights & Social Justice

The article examines the shift in the role of law in divorce proceedings in the U.K., arguing that divorce is increasingly moving away from legal advocacy and toward administrative and managerial processes. This transformation raises critical questions about the implications for women, particularly regarding their access to justice, financial rights, and the role of legal professionals. The article highlights the growing influence of Alternative Dispute Resolution (ADR) and the Child Support Agency (CSA), which are reshaping how divorce, child support, and property disputes are handled, often reducing the involvement of courts and lawyers.

A Bad Marriage: Jewish Divorce And The First Amendment, Paul Finkelman

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal and religious challenges faced by observant Jewish women unable to remarry due to their husbands' refusal to grant a "get," a religious divorce document, even after obtaining a civil divorce. It argues that state intervention to enforce the issuance of a get, such as through New York's Get Law, violates the First Amendment's establishment and free exercise clauses by entangling government with religious matters. The author advocates for solutions within the Jewish community, emphasizing the need to balance individual rights with religious freedom without government interference.

Boxing Women: Regulation, Women And Mental Health, Cate Hemingway

Cardozo Journal of Equal Rights & Social Justice

The article argues that the legal and psychiatric systems collaboratively categorize women who offend as either "mad" or "bad," failing to address underlying social issues. It examines how these systems pathologize women's behavior, using examples like pre-menstrual syndrome (PMS) and battered women's syndrome (BWS) as legal defenses, which often reinforce harmful stereotypes rather than providing meaningful solutions.

Introduction, Mavis Maclean

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Masthead - Cardozo Women's Law Journal, Vol. 2 (1995)

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.