Law Commons^™

Valuation Problems In The Appraisal Remedy, Michael R. Schwenk

Cardozo Law Review

The corporate codes of every state allow shareholders who dissent from certain fundamental corporate transactions to compel the corporation to purchase their shares. This right is commonly known as the appraisal remedy. Shareholders who vote against the triggering transaction, usually a merger, receive a right to be paid the "fair value" of the stock. Courts must convert the statutory fair value standard into one that is judicially administrable. In the past, Delaware measured fair value solely by the judicially created Delaware Block Method. In 1983, after years of criticism, Delaware eliminated the Delaware Block Method as the sole valuation test …

The Market For Loyalties: Electronic Media And The Global Competition For Allegiances, Monroe E. Price

Articles

The article critiques the traditional "marketplace of ideas" metaphor in First Amendment jurisprudence and proposes a more accurate framework: the "market for loyalties." This model highlights how powerful entities, including governments and private actors, use communication regulation to shape identities and allegiances. The First Amendment, under this interpretation, functions as a regulatory allocation among these entities rather than a guarantee of unfettered speech. The rise of global communication technologies and competing loyalties challenges the nation-state's ability to control this market, reshaping the role of law and governance in identity formation.

Table Of Contents - Cardozo Law Review, Volume 16, Issue 2

Cardozo Law Review

No abstract provided.

National Socialism And Constitutional Law: Carl Schmitt, Otto Koellreutter, And The Debate Over The Nature Of The Nazi State, 1993-1937, Peter Caldwell

Cardozo Law Review

On January 30, 1933, President von Hindenburg named Adolf Hitler chancellor of the German Republic. One year later, the conservative (and by then National Socialist) constitutional lawyer, Carl Schmitt noted that Hitler's chancellorship was an event that had "already led beyond the Weimar Constitution." But where had the seizure of power led? What was the nature of the new constitution of the German Empire? As historian David Schoenbaum has noted, 1933 was a kind of "constitutional no man's land"; it was unclear how the principles enumerated in the Nazi Party Program of 1920 would translate into the reality of the …

The Invisible Cupola: From Casual To Collective Attribution In Ecological Liability, Gunther Teubner

Cardozo Law Review

When I speak about the cupola, it is not Brunelleschi's architectural masterpiece crowning the Florentine duomo that appears before my eyes. Rather, I see the ugly architecture of organized crime, the brutal supersecret "cupola" on top of the Mafia's hierarchy which overshadows social life in Italy. Does this cupola exist or not? Over the recent years, the Mafia's cupola has been the object of a bitter struggle between Italian judges. While the lower courts have been sending numerous mafiosi to prison because they were part of the invisible cupola controlling "tutti i grandi delitti," the court of the next instance …

Environmental Performance Review: Self-Regulation In Environmental Law, Eric Bregman, Arthur Jacobson

Cardozo Law Review

Americans have explored self-regulation as a strategy for the legal treatment of environmental issues only slowly and reluctantly. This is surprising. The intellectual roots of environmentalism, after all, are in ecology, the science of self-regulating, autonomous systems. With the notable exception of the National Environmental Policy Act of 1969 ("NEPA"), the image of the human actor in environmental regulation has been that of a threat to, rather than a participant in, the ecological systems which regulation is designed to protect by controlling human interventions. The role of regulation, from this perspective, is to stop avoidable interventions and to control the …

Oppressed Shareholders In Close Corporations: A Market-Oriented Statutory Remedy, Adam Chernichaw

Cardozo Law Review

The widespread litigation of disputes between shareholders of close corporations has been labelled a "national business scandal." Legislatures and courts have become increasingly involved in attempts to protect minority shareholders who have, historically, been vulnerable to oppression from majority shareholders.

Disclosure Of Executive Illnesses Under Federal Securities Law And The Americans With Disabilities Act Of 1990: Hobson’S Choice Or Business Necessity?, Andrew K. Glenn

Cardozo Law Review

Since the enactment of the Securities Act of 1933 (the "Securities Act") and the Securities Exchange Act of 1934 (the "Exchange Act") (collectively, the "Securities and Exchange Acts"), the Securities and Exchange Commission ("SEC"), Congress, and federal courts have increased both the scope and quantity of information to be disclosed to the investing public. The duty of disclosure, however, is not without limitation or qualification. Substantively, an issuing corporation ("issuer") need only disclose information that is "material." Disclosures must be lucid, concise, and comprehensible to the average investor.

The Religious Freedom Restoration Act: Letting The Fox Into The Henhouse Under Cover Of Section 5 Of The Fourteenth Amendment, Marci A. Hamilton

Cardozo Law Review

The Religious Freedom Restoration Act ("RFRA") has now been in effect for over a year. RFRA is an understandable, but unconstitutional, attempt to supplement the contemporary Supreme Court's crabbed reading of the Free Exercise Clause. In a nutshell, RFRA sets the standard of review-the "compelling interest" test-to be applied to federal and state law burdening the free exercise of religious conduct. RFRA has already been employed to decide a series of cases, most of which were brought by prison inmates. The time rapidly approaches when the courts of appeals, and even the Supreme Court, will be asked to pass on …

El-Al Israel Airlines V. Danielowitz, Aharon Barak, Dalia Dorner, Yaakov Kedmi

Translated Opinions

Facts: The first respondent, who is employed by El-Al as a flight attendant, has a stable relationship with another man. Under a collective agreement, El-Al gives every permanent employee a free aeroplane ticket, every year, for that employee and his/her spouse (husband or wife). Under a collective arrangement, a free ticket is also given to a companion recognized publicly as the employee’s husband/wife. The first respondent asked El-Al to give him a free ticket for his companion, but his request was denied.

Held: (Majority opinion — Vice-President A. Barak, Justice D. Dorner) Not giving the respondent a free ticket for …

Israel Women’S Network V. Government Of Israel, Eliahu Mazza, Itzchak Zamir, Yaakov Kedmi

Translated Opinions

Facts: In 1993, the Government Corporations Law was amended, and s. 18A was added. This section provides that the boards of directors of Government corporations shall have equal representation of men and women, and until such time as this goal is achieved, members of the underrepresented sex should be appointed, ‘to the extent that circumstances allow’ (affirmative action).

After the new section came into effect, and despite the new section, men were appointed in two cases by Government ministers to boards of directors of Government corporations, on which there were no women directors.

The petitioner argued that the appointments were …

On The Efficiency Of Secured Lending, David G. Carlson

Articles

The article challenges the Law and Economics movement's assertion that secured lending is inefficient, arguing instead that it can be efficient by reducing risk and lowering the cost of credit. Carlson contests the movement's reliance on outdated theories like the Modigliani-Miller model, which he believes fails to account for real-world factors such as time and risk. He posits that secured lending can prevent debtor misbehavior, thereby making credit more accessible and reducing risks for creditors.

Virgin Territory: Margaret Radin's Imagery Of Personal Property As The Inviolate Feminine Body, Jeanne L. Schroeder

Articles

Margaret Jane Radin's theory of property for personhood posits that certain personal property is deeply intertwined with individual identity, necessitating legal protections that go beyond traditional property rights. While her approach offers a feminist perspective by emphasizing the body and body-like objects as extensions of selfhood, critics argue that her framework lacks an account of community and intersubjectivity, rendering it incomplete. The article suggests that integrating insights from Hegel and Lacan could provide a more comprehensive understanding of property relations, addressing both personal and communal dimensions.

1994 Cardozo Life (Fall), Benjamin N. Cardozo School Of Law

Cardozo Life Magazine

Table of Contents:

Cardozo Group Admitted to Supreme Court Practice, page 1

Faculty News, page 2

Professor Vogelman Moves to the Public Defender's Office, page 2

University Names New Director of Public Relations, page 2

Copyright in the Twenty-first Century, page 2

Bet Tzedek Wins Public Housing Discrimination Class-Action Suit, page 3

Cardozo International Institutes in Israel, page 3

Commencement '94, page 3

It Was a Wonderful Party!, page 4

The Center for Professional Development, pages 5-7

Summer Institute for Placement and Career Development, page 8

Why Hire Student Interns?, page 8

Phonathon, page 9

Computer Conference, page 9

Alumni …

Apple Of Gold: Constitutionalism In Israel And The United States, Michel Rosenfeld

Articles

No abstract provided.

Legality Of Secessions: The Case Of Eritrea, Minasse Haile

Articles

The article critically examines the legal basis for Eritrea's secession from Ethiopia in 1993, arguing that the secession lacks a solid foundation under international law. It contends that Eritrea's independence does not meet the criteria for self-determination as defined by international instruments, emphasizing that the process was flawed and did not genuinely reflect the will of the Eritrean people. The analysis highlights the international community's opposition to secession to preserve territorial integrity and stability, asserting that Eritrea's secession undermines peace and security in the Horn of Africa.

On The Contribution Of Baseball To American Legal Theory, Charles M. Yablon

Articles

The article explores the influence of baseball on American legal theory, arguing that baseball's rules and traditions have significantly shaped legal thought. It posits that baseball's structured yet flexible system, which acknowledges both luck and skill, offers valuable insights into legal principles and methodologies. The author contends that legal scholars have drawn parallels between baseball and law, leading to new perspectives in jurisprudence.

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.

Publicly Held Servitudes In The New Restatement, Stewart E. Sterk

Articles

The first Restatement of Servitudes, adopted by the American Law Institute fifty years ago, largely ignored public law issues. Because condominiums were largely unknown and homeowners' associations were in their infancy, the Restatement did not discuss, let alone resolve, the problems that arise when property owners create governance structures by private agreement. Similarly, the Restatement accorded no special treatment to the problems that arise when government, as landowner or as regulator, enters into servitude relationships. The current Restatement has remedied these omissions. Its not yet completed chapter on Property Owners' Associations has already received considerable attention. Less noticed, however, have …

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 …

Living With The Ban On Nonrefundable Retainers: Cooperman's Scope, Meaning And Consequences, Lester Brickman, Lawrence A. Cunningham

Articles

No abstract provided.

Libi The Fund For Strengthening Israel’S Defence V. Binstock, Mishael Cheshin, Meir Shamgar, Eliezer Goldberg

Translated Opinions

Facts: The late Shalom Wagner, in his last will, disinherited his sister and her children, who were his closest family, and left the residue of his estate to the LIBI Fund. The family challenged the will, on the grounds that the deceased had been hospitalized with mental illness shortly before making the will and also subsequently, and at those times he suffered from delusions that his sister was trying to poison him. The deceased’s lawyer, however, testified that the deceased’s reason for changing the will was the fact that his nephew had not returned to him money that he deposited …

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.

Remarks At The Association Of American Law Schools Annual Meeting, R. William Ide Iii

Cardozo Law Review

Thank you very much. I bring you greetings from all those lawyers you taught. It is my distinct pleasure to represent the American Bar Association ("ABA") at your Association's most important annual meeting, and more than a little humbling considering the tremendous influence the people in this room have over every aspect of our American way of life.

Table Of Contents - Cardozo Law Review, Volume 16, Issue 1

Cardozo Law Review

No abstract provided.

The New Rawlsian Theory Of Bankruptcy Ethics, Mary Josephine Newborn

Cardozo Law Review

Bankruptcy law was once considered a rather insular sub-specialty of commercial law. Bankruptcy scholars of an earlier time devoted their energies to drafting bankruptcy legislation, mastering its particulars, and systematizing the case law. When these scholars attempted to locate larger themes in bankruptcy, they labored with great deference to positive expressions of bankruptcy's purpose.

Women, Law, And Inequality: Rethinking International Human Rights, Mary Elizabeth Bartholomew, Drucilla Cornell

Cardozo Law Review

In 1984, Robin Morgan posed this remarkable question in her historic book Sisterhood is Global. The Feminist Legal Resource Center remains but an unrealized goal of the international feminist legal community. Such a center could benefit women, especially women in the law, seeking to obtain access to information about trends and movements worldwide in the struggle to expand the rights of women. Beginning for the most part with the aftermath of World War II, when individuals became subjects of international law with the creation and proliferation of human rights law, lawyers and others concerned with the promotion of good government …

Unblinded Mandatory Hiv Screening Of Newborns: Care Or Coercion?, Linda Farber Post

Cardozo Law Review

The image of mother and child is perhaps the most universal symbol of love and protection. The concept of mother and sick child evokes instant compassion and the desire to do somethinganything-to help the mother help her baby. When the disease is both incurable and fatal, there is the expectation that the combined efforts of the state and the medical community will be mobilized to intervene on behalf of those who are afflicted. This Note looks at one such attempt and considers, not the good intentions that prompted it, but the legal ramifications of its implementation.

“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.

Pushing The Law To Encompass The Reality Of Our Families: Protecting Lesbian And Gay Families From Eviction From Their Homes - Braschi'S Functional Definition Of Family And Beyond, Paris R. Baldacci

Articles

No abstract provided.