Law Commons^™

Places In The Heartland: Departure Jurisprudence After Koon, Frank O. Bowman Iii

Faculty Publications

There are two things upon which I suspect most observers will agree following the decision in Koon v. United States. First, the United States Supreme Court wants district courts to have more discretion to depart from the otherwise applicable guideline range, and wants appellate courts to have less authority to overturn those discretionary judgments. Second, in light of the conflicting signals the Court gave by, on the one hand, declaring that the standard of appellate review for departure decisions is to be abuse of discretion,” and on the other hand, finding that two of the five factors relied upon by …

Institutional Normative Order: A Conception Of Law , Neil Maccormick

Cornell Law Review

No abstract provided.

Burden Of Proof And Estimation Of Drug Quantities Under The Federal Sentencing Guidelines, Johan Bring, Colin Aitken

Cardozo Law Review

According to the United States Federal Sentencing Guidelines (the "FSG"), a person convicted for handling drugs should not only be sentenced for the quantity seized but also for the total quantity handled as "part of the same course of conduct or common scheme or plan as the offense of conviction." Hence, judges, probation officers, and lawyers often need to estimate the total quantity of drugs handled. The evidence on which to base such an estimation, however, differs greatly in both characteristic and quality. The types of evidence could include: the quantity of drugs seized, information concerning quantities handled …

Maladies Of The Legal Soul: Psychoanalysis And Interpretation In Law, Peter Goodrich

Washington and Lee Law Review

No abstract provided.

Choosing Ignorance In The Manufacture Of Toxic Products , Wendy E. Wagner

Cornell Law Review

No abstract provided.

Formal Neutrality In The Warren And Rehnquist Courts: Illusions Of Similarity, Rebecca L. Brown

Vanderbilt Law Review

I read recently that if one compares the genetic structure of humans to that of dogs, one finds that ninety-six percent of the DNA in the two species is identical. That is a lot of common ground. Yet it may not be enough to draw meaningful conclusions about the sameness of the two creatures. Without suggesting that either of the two Courts discussed in her Article is a "dog," I do think it is fair to say that Professor Sherry has perhaps underestimated the relative importance of the divergent four percent.

Professor Sherry argues that in the defining areas of …

Section 8(C) Of The Proposed Restatement (Third) Of Torts: Is It Really What The Doctor Ordered , Jeffrey D. Winchester

Cornell Law Review

No abstract provided.

Developing Jurisprudence On The Rights Of Youth: Review Of Problems And Prospects: North-South, William D. Angel

ILSA Journal of International & Comparative Law

Whatever civilization one analyses in history, one invariably finds generational conflicts of youth rebelling against the various systems (legal, political, economic, and/or socio-cultural) established by their adult generation.

The Developing Jurisprudence Of The Rights Of The Child - Contributions Of The Hague Conference On Private International Law, Peter H. Pfund

ILSA Journal of International & Comparative Law

I would like this morning to discuss with you three multilateral treaties produced since 1980 by the international organization known as the Hague Conference on Private International Law

An Introduction To The Developing Jurisprudence Of The Rights Of The Child, Cynthia Price Cohen

ILSA Journal of International & Comparative Law

The Convention on the Rights of the Child was adopted by the United Nations General Assembly on November 20, 1989.' At the time of the International Law Association's 1996 International Law Weekend, 187 countries had ratified the Convention.

Non-Representational Jurisprudence: A Centennial Reading Of "The Path Of The Law", Robert E. Rodes

Journal Articles

This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal …

The Prison Jurisprudence Of Justice Thurgood Marshall, Melvin Gutterman

Maryland Law Review

No abstract provided.

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making Essay., Donna F. Coltharp

St. Mary's Law Journal

From 1967, when Thurgood Marshall took his seat as Supreme Court Justice, until 1990, when William Brennan, Jr. vacated his seat, the two Justices formed one of the most consistent liberal voting blocs in the history of the Court. Both Justices were judicial activists who labored in the tradition of Legal Realism. Although both Brennan and Marshall recognized the interpretation and application of the law as purposeful exercises, they differed in their approach to the task. Marshall, for instance, appealed to social consensus stating that his views were supported by society. Furthermore, Marshall strongly believed that the Constitution is a …

Taking Care Of Our Daughters, Katharine K. Baker

Cardozo Law Review

In The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies, Martha Fineman gives a powerful critique of the traditional family and proposes an innovative model for change. In the course of her critique, Fineman reveals a number of important truths. Primary among these truths are (1) that dependency begets dependency; (2) that equality rhetoric and practice are vacuous vehicles for justice in a world in which differing degrees of dependency beget different ability; (3) that the privacy and silence of dependency is crucial to patriarchy's construction of the family. Dependencies are created every time a baby is …

Law And Phrenology, Pierre Schlag

Publications

As the intellectual credentials of American law become increasingly dubious, the question arises: how has this discipline been intellectually organized to sustain belief among its academic practitioners? This Commentary explores the nineteenth-century pseudo-science of phrenology as a way of gaining insight into the intellectual organization of American law. Although there are, obviously, significant differences, the parallels are at once striking and edifying. Both phrenology and law emerged as disciplinary knowledges through attempts to cast them in the form of sciences. In both cases, the "sciences" were aesthetically organized around a fundamental ontology of reifications and animisms -- "faculties" in the …

The Empty Circles Of Liberal Justification, Pierre Schlag

Publications

No abstract provided.

Postures Of Judging: An Exploration Of Judicial Decisionmaking, Daniel J. Solove

GW Law Faculty Publications & Other Works

This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's …

What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam

Articles

No abstract provided.

Lynching Ethics: Toward A Theory Of Racialized Defenses, Anthony V. Alfieri

Articles

No abstract provided.

The Nature And Structure Of The State, Hermann Heller

Cardozo Law Review

The question of the "purpose" of the state has been a permanent and fundamental problem of all theories of the state ever since Aristotle opened his Politics with the theory of the purpose of the state and placed this sentence at its head: pasa koinonia agathou tivos heneka sunesteken. It was left to the Romantics to contest for the first time the appropriateness of this question and to maintain that the state "just as the plant and the animal" is selfdirected. From that time on, theories have neglected the question of the purpose of the state. They decline to …

Fugitives And Agrarians In A World Without Frontiers, Jim Chen

Cardozo Law Review

Rien de grand avant l'tat. Let the French have their Colbertisme; Americans hold steadfast their faith in constitutionalism, the unofficial civic religion of the United States. Implicit in originalism, the most rigidly orthodox variant of America's constitutional faith is the belief that the legal world began with the framing of the Constitution. "All things created before me were not eternal": with the Constitution as creation, the American legal imagination need not embrace anything that occurred before 1787.

Hermann Heller - An Introduction, David Dyzenhaus

Cardozo Law Review

Hermann Heller (July 17, 1891 - November 4, 1933) came from a Jewish family in the Austro-Hungarian Empire. He interrupted his law studies to volunteer for service in the Austrian army during the First World War. His experiences as a front-line fighter left him with a heart condition which contributed to his death at the age of forty-two. But his poor health did not dampen his deeply combative spirit-a spirit which he put at the service of German social democracy. In March 1920, together with Gustav Radbruch (who had just successfully promoted Heller's Habilitation, his senior doctorate, at Kiel), …

The Decline Of The Western Nation State And The Rise Of The Regime Of International Federalism, John O. Mcginnis

Cardozo Law Review

The nation state is in decline, at least among the Western industrialized nations. Decline is a relative term. It does not suggest that the nation state has disappeared, but rather, that it is no longer as defining a feature of geopolitics as it once was, and will likely remain a less controlling feature. In the West, the era of the nation state was characterized by entities that approximated, even if they never attained, absolute control over their territory. First, the nation state had substantial control over economic affairs within its borders. While the world has always been to some extent …

Freestanding Legal Pragmatism, Thomas C. Grey

Cardozo Law Review

John Rawls has recently presented liberalism as a political philosophy that can stand free of the comprehensive moral and metaphysical views with which it has been associated. You don't have to be a neo-Kantian like Rawls, so he argues, to accept his Kantiansounding theory of justice. Millian utilitarians, Aristotelian perfectionists, and Thomistic theists can also commit to the basic liberal rights: democratic government, freedom of speech and religion, equal opportunity, the rule of law, private property, and a welfare safety net. Rawls believes that there is no need for citizens to resolve their deepest philosophical disagreements in order to be …

Pragmatism And Realism, Hilary Putnam

Cardozo Law Review

Let me begin by asking what will undoubtedly seem to many, if not all of you, a most peculiar question: How did it happen that the first philosopher to present a completely worked out version of direct realism in the entire history of modem philosophy was none other than the American pragmatist, William James?

What’S The Use Of Calling Emerson A Pragmatist?, Stanley Cavell

Cardozo Law Review

I applaud the revival of interest in John Dewey and William James, on various intellectual and political grounds, and seek to learn what is at stake for others in their revival. But I also wish to suspend applause-doubtless more a transcendentalist than a pragmatist gesture on my part-for ideas that seem to be gaining prominence within this movement, expressed by writers and thinkers whom I admire, according to which Emerson is to be understood as a proto-pragmatist and Wittgenstein as, let's say, a neo-pragmatist. Perhaps I will be taken as struggling merely over labels; but sometimes labels should be struggled …

It’S A Positivist, It’S A Pragmatist, It’S A Codifier! Reflections On Nietzsche And Stendhal, Richard H. Weisberg

Cardozo Law Review

Richard Rorty writes that "[n]owadays, Allan Bloom and Michael Moore seem to be the only people who still think pragmatism is dangerous to the moral health of our society." Given the source, I would not contest the generalization. Nor would I seek to correct the adjective about pragmatism used more than once by Professors Rorty and Grey: "banal." Indeed, the popularity of pragmatism may reflect its banality. Its amorphous nature has produced strange alliances. For example, the same Stanley Fish who once declared Richard Posner's humanistic forays to be "execrable" now joins Posner's pragmatic program almost without qualification. If Pragmatism's …

Pragmatism, Pluralism, And Legal Interpretation: Posner’S And Rorty’S Justice Without Metaphysics Meets Hate Speech, Michel Rosenfeld

Cardozo Law Review

Not surprisingly, legal interpretation is in a crisis in pluralist societies with widely diverging conceptions of the good. When there is sharp disagreement over fundamental values, there seems to be a complete lack of objective criteria to interpret legal texts, and particularly broadly articulated wide ranging textual provisions such as those characteristic of constitutions. Accordingly, interpretation looms as hopelessly subjective, and the interpretive subject as indispensable but utterly problematic. In a homogeneous society with widely shared religious, ethical, and political values, legal interpretations will count as just if they manage to reconcile justice according to law with justice beyond law. …

Pragmatic Adjudication, Richard A. Posner

Cardozo Law Review

Pragmatism is at one level a philosophical position, just as scientific realism, transcendental idealism, existentialism, utilitarianism, and logical positivism are. It is the level well illustrated by a recently published book in which Richard Rorty and his critics go at each other hammer and tongs over such questions as whether language reflects reality, whether free will is compatible with a scientific outlook, and whether such questions are even meaningful. It is not the level at which this paper is pitched. My concern is with an issue in "applied" pragmatism, although after listening to Professor Grey's talk at the conference about …

Pragmatism And Law: A Response To David Luban, Richard Rorty

Cardozo Law Review

Judge Posner's "Pragmatic Adjudication" is enormously refreshing. It cuts through an immense amount of tiresome and pointless talk about "the nature of law" and "the relation of law to politics" and gets down to the question: how should appellate court judges in a particular country at a particular time do their work? It not only argues lucidly for a particular answer to that question, but it also gives a good sense of what it must be like to be in Judge Posner's shoes. Posner helps you understand what sorts of things judges have to worry about, and what sorts of …