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Discussion And Decisions: A Proposal To Replace The Myth Of Self-Rule With An Attorneyship Model Of Representation, Marci A. Hamilton

Articles

The traditional model used by legal scholars to describe our system of representative democracy seeks to justify representation as a fulfillment of the self-rule ideal Many scholars, however, have argued that certain features of the modem legislative process undermine self-rule, and have proposed means by which judicial review can correct legislative failures and restore self-rule to primacy. Drawing on German philosopher Carl Schmitt's critique of parliamentary democracy in Weimar Germany, Professor Hamilton posits that scholarly attempts to reconcile self-rule with representative democracy are misguided. Representation based on self-rule will inevitably lead to interest-group politics, resulting in meaningless and endless debate …

Nationalism And The Right To Self-Determination: The Arab-Israeli Conflict, Malvina Halberstam

Articles

Self-determination is a slogan that has captured the imagination of people throughout the world. Numerous U.N. General Assembly resolutions have exalted self-determination, often above the fundamental rights specifically provided for in the U.N. Charter. Notwithstanding these resolutions, in practice, self-determination generally has been applied only to the dismemberment of colonial empires. Its universal application is neither possible nor desirable.

In the Arab-Israeli conflict, self-determination was never truly the issue. The conflict has been deliberately transformed into a claim for self-determination as a political tactic designed to gain the support of third world countries in the United Nations. The issues in …

The Gnat Is Older Than Man: Global Environment And Human Agenda. By Christopher D. Stone, Michael E. Herz

Cardozo Journal of International and Comparative Law

No abstract provided.

Masthead, Cardozo Journal Of International And Comparative Law, Vol. 2 (1994)

Cardozo Journal of International and Comparative Law

No abstract provided.

The Environmental Liability Fund Under The Hamburg Model-A False Step Towards Flexibilization Of Environmental Law?, Karl-Heinz Ladeur

Cardozo Journal of International and Comparative Law

The article critiques the traditional first-order (individual) and second-order (collective) liability systems for environmental harm, arguing that both fail to adapt to the complexities and uncertainties of environmental damage. It advocates for a new, knowledge-based liability system that integrates scientific expertise, societal learning, and adaptive decision-making to address these challenges effectively.

Enterprise Liability For "Environmental Damage" In German Law And Ec Law, Gert Brüggemeier

Cardozo Journal of International and Comparative Law

The article explores the evolution of enterprise liability in German law, emphasizing its shift towards organizational defects and management systems. It highlights the integration of ecoaudits and environmental management systems to enhance protection, blending strict and fault-based liability. While effective in preventing damage, the system faces challenges in addressing environmental harm due to evidentiary burdens on victims.

Germany's Environmental Take-Back Legislation: Ensuring What Goes Around Comes Around, Bryan A. Liang, Shannon M. Biggs

Cardozo Journal of International and Comparative Law

The article argues that Germany's 1991 "Ordinance on the Avoidance of Packaging Waste" provides a successful model for waste management by shifting the financial and operational responsibility for packaging disposal from the public sector to producers and distributors. By utilizing market-based incentives and industry-funded infrastructure, the analysis contends that Germany has fostered technological innovation and economic advantages in the recycling sector.

The Legal Framework Of European Community Participation In International Environmental Agreements, Martin Hession, Richard Macrory

Cardozo Journal of International and Comparative Law

The article examines the European Community's legal framework for participating in international environmental agreements, focusing on the evolution of its external competence and the challenges inherent in this process. It highlights the role of mixed agreements, the division of competences between the Community and its Member States, and the influence of the Court of Justice in shaping these dynamics. The analysis underscores the tension between legal principles and political realities in the EC's external relations.

Table Of Contents, Cardozo Journal Of International And Comparative Law, Vol. 2, Iss. 1

Cardozo Journal of International and Comparative Law

No abstract provided.

Never Again? The "Concentration Camps" In Bosnia-Herzegovina: A Legal Analysis Of Human Rights Abuses, Alan C. Laifer

Cardozo Journal of International and Comparative Law

The note draws parallels between the atrocities committed during the Holocaust and the ongoing violence in Bosnia, emphasizing the need for international accountability. It advocates for the establishment of a War Crimes Tribunal, modeled after the Nuremberg Tribunal, to prosecute individuals responsible for genocide and other war crimes. The analysis critiques the international community’s inaction and underscores the importance of upholding international law to prevent future atrocities.

Table Of Contents - Cardozo Law Review, Volume 15, Issues 6-7

Cardozo Law Review

No abstract provided.

Check Your Crystal Ball At The Courthouse Door, Please: Exploring The Past, Understanding The Present, And Worrying About The Future Of Scientific Evidence, David L. Faigman, Elise Porter, Michael J. Saks

Cardozo Law Review

Since the earliest days of the use of expert witnesses, judges (and more recently legislatures) have struggled to design the juridical intersection where law and science cross paths. The effort has not met with notable success. This situation could be changing, however. Last term, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court adopted a novel approach to the age-old problem of scientific evidence. The -Court determined that the Federal Rules of Evidence require scientific evidence to be scientifically valid before it enters the courtroom. The Court has served notice that experts should trade in their crystal balls …

Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, Michael H. Gottesman

Cardozo Law Review

I want to explore issues that the Supreme Court should have addressed in Daubert but did not. The Court decided that Rule 702 of the Federal Rules of Evidence ("FRE") assigns a "gatekeeping" function to federal trial judges, who are to exclude expert scientific opinions that do not meet a standard of "reliability" vaguely sketched out in the Court's opinion.

The Daubert case involved exclusively state substantive law issues and was in federal court only because the defendant removed it from state court on the basis of diversity of citizenship. The Court held the gatekeeping function applicable in diversity actions, …

The Impact Of Daubert On The Admissibility Of Scientific Evidence: The Supreme Court Catches Up With A Decade Of Jurisprudence, Arvin Maskin

Cardozo Law Review

Over the past several years a host of new civil damage theories has emerged, notably in the mass tort area. These include claims for increased risk of disease, fear of disease, hedonic damages, immunotoxicity, and medical surveillance. In the great majority of these cases, the dispositive issue reduces to causation, which invariably turns upon scientific evidence. Moreover, the stakes in these cases have greatly escalated. For example, the $180 million settlement in the Agent Orange case seemed like a lot of money in 1984, until several years later when the Dalkon Shield litigation, which involved the sale of a single …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Redefining The Bases For Admissibility Of Expert Scientific Testimony, Clifton T. Hutchinson, Danny S. Ashby

Cardozo Law Review

Daubert v. Merrell Dow Pharmaceuticals, Inc. is not only, or even primarily, a case about the viability of Frye v. United States and "general acceptance" as the criterion for evaluating expert testimony. Principally, it is a case about the preconditions of Federal Rule of Evidence 702, the sole provision in the Federal Rules that authorizes the use of expert testimony. The question as framed by petitioners in the course of argument was whether trial courts may screen scientific expert testimony under any real test. The Supreme Court answered this question strongly in the affirmative.

Petitioners' recurring theme was that Rule …

Conflict Resolution In The Courts: The Role Of Science, Anthony Z. Roisman

Cardozo Law Review

This Article is a philosophical examination of an issue that now engages many lawyers and scientists-the proper role of science in courtroom litigation. More specifically, the issue is this: In cases where expert testimony is useful to lay jurors in resolving factual issues, what is the proper role of a judge in restricting what sorts of experts can testify and what they can say?

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Cardozo Law Review

Daubert's effect on forensic science is unclear because the opinion is unclear. The Daubert Court did start blazing a useful path by stating that before scientific testimony is admitted, the trial court must be convinced that "the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue." But the Court's trailblazing was incomplete and often misleading.

The Reliability Of Expert Psychological Testimony In Child Sexual Abuse Prosecutions, Lisa R. Askowitz, Michael H. Graham

Cardozo Law Review

For more than a decade now, courts have grappled with the distinctive evidentiary problems of child sexual abuse prosecutions. Unlike other prosecutions, child sexual abuse prosecutions rarely are supported by physical or medical evidence or a nonparticipant eyewitness to the crime. Unlike other complainants, the child sexual abuse victim generally is not forceful, convincing, nor consistent in her allegations. The case usually comes down to a credibility match between the child and the defendant, and expert psychological testimony offered by the prosecution often is the determinative factor.

After Daubert: The Relevance And Reliability Of Genetic Information, Dorothy Nelkin

Cardozo Law Review

The United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., intended to replace the "austere" admissibility standard of Frye, directed federal judges to assess the scientific validity of the reasoning or methodology underlying expert testimony and its relevance to the facts at issue pursuant to the Federal Rules of Evidence. Daubert is particularly interesting with respect to the use of genetic information in the courtroom. While the most familiar use of such information is in the field of DNA forensics, genetic studies are increasingly cited in cases concerning family relationships and criminal responsibility.

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

The Admissibility Of Scientific Evidence After Daubert V. Merrell Dow Pharmaceuticals, Inc., David E. Bernstein

Cardozo Law Review

This past June, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., the most important case involving the admissibility of scientific evidence in seventy years. While some analysts have argued that Daubert will encourage the trend toward more careful judicial scrutiny of scientific evidence, others have contended that the opinion will reduce the role of the courts in screening scientific evidence and permit a flood of junk science evidence into American courtrooms. The early evidence strongly suggests that the former view is correct. So far, most federal courts are interpreting Daubert as giving them wide authority to restrict …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Epistemiology And Legal Process, Margaret G. Farrell

Cardozo Law Review

Justice Blackmun's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. acknowledges that law and science have different goals, but it fails to recognize the implications of those differences for legal process. Recent increases in the scientifically-based claims brought in the federal courts, and in the size and complexity of the litigation in which such claims are made, have raised the stakes in the debate. At the same time, scientific concepts of relativity, uncertainty, and multiple causation are at odds with simple, legal notions about fact-finding and cause and effect. This disparity between legal and scientific understandings over the admission …

Solomon Meets Galileo (And Isn’T Quite Sure What To Do With Him), Brian Stuart Koukoutchos

Cardozo Law Review

Unlike most of the other panelists, I am neither a tort lawyer nor an evidence scholar. I became involved in Daubert v. Merrell Dow Pharmaceuticals, Inc. because I am a Supreme Court advocate and was asked to author a brief amici curiae on behalf of an eclectic group of physicians, scientists, historians of science, and sociologists of science who were dismayed by the Ninth Circuit's opinion and wished to advise the Supreme Court on the nature of science and its uses in the courtroom. Accordingly, I am not particularly interested in engaging in the sort of spin-control about Daubert that …

Some Implications Of Daubert And Its Potential For Misuse: Misapplication To Environmental Tort Cases And Abuse Of Rule 706(A) Court-Appointed Experts, Ellen Relkin

Cardozo Law Review

This Commentary will address an array of issues underlying and emerging from the disputes in Daubert v. Merrell Dow Pharmaceuticals, Inc., and its inevitable progeny, from a practitioner's perspective representing plaintiffs in toxic tort litigation. It is intended to provide real examples that debunk the quaint but unrealistic notion that science is pure and insulated from economics and politics, the propagandized suggestion that it is the plaintiff's expert who promotes "fringe" or "junk" science, and the belief that epidemiology is the sine qua non of proving causation of a disease. It will also address the potential perils of the …

The Next Step After Daubert: Developing A Similarly Epistemological Approach To Ensuring The Reliability Of Nonscientific Expert Testimony, Edward J. Imwinkelried

Cardozo Law Review

On June 28, 1993, after much fanfare, the United States Supreme Court rendered its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The decision was not only preceded by intense media attention; the decision was also immediately followed by a massive-and growing-volume of commentary. As is usually true with landmark decisions, it is imperative to identify what the Court decided and what the Court left unresolved.

Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, Victor Gold

Cardozo Law Review

No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness. When first proposed, the provision was the subject of fierce debate, sparking repeated revision during its drafting and while it was under consideration by Congress. Ultimately, no one side in this legislative battle prevailed entirely; the Rule strikes a compromise between sharply conflicting policies. The text of Rule 609, incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms, leaves the task of resolving the …

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius By Edward De Grazia, Robert M. O'Neil

Cardozo Law Review

Such a headline from the 1990s reminds American readers that, however shameful may have been the treatment of obscenity and pornography in the United States during the past one hundred years, things could have been worse. Even so, the record here is hardly a source of pride-nor does the story have an altogether happy ending, if it has one at all. Yet it is a story that badly needs to be told, and never has it been better told than by Edward de Grazia in Girls Lean Back Everywhere.

The Priority Of Postpetition Retainers, Carve-Outs, And Interim Compensation Under The Bankruptcy Code, Criag B. Cooper

Cardozo Law Review

Although attorneys are specifically granted an administrative expense priority pursuant to section 507(a)(1) of the Bankruptcy Code ("Code"), other creditors might have even higher priorities. Three such examples come to mind. First, if a secured creditor has been promised adequate protection of its collateral which subsequently fails, the secured party is given a higher priority under section 507(b). Second, a debtor-in-possession ("DIP") under the authority of section 364(c)(1) may grant to a postpetition lender a higher priority than the one provided in section 507(a)(1). Third, if a Chapter 11 case is converted to Chapter 7 the fate of 90 percent …

Comprehensive References And Indexes, Volume 15 (1993-1994)

Cardozo Law Review

No abstract provided.

After Daubert: Going Forward With Lessons From The Past, Marc S. Klein

Cardozo Law Review

Ground zero in the ongoing battle over scientific evidence in toxic tort cases has clearly shifted in light of Daubert v. Merrell Dow Pharmaceuticals, Inc. In that case, the Supreme Court settled at least two profound issues. One has immediate practical consequences, the other has important philosophical implications.