Law Commons^™

Defensor Fidei: The Travails Of A Post-Realist Formalist, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article explores common formalist themes, asking not whether formalism's aspirations are attainable but why formalists still struggle to attain them in the face of sustained attacks by anti-formalists. After briefly sketching the tenets of formalism in Section I, this Article turns to an examination of Summers' "post-realist formalism." Finally, this Article probes the philosophical and psychological attractions of formalism and suggests that formalism's promise of stability and order may be essential to the effective functioning of the legal system, even if this promise can never be realized.

“A One Way Ticket To Palookaville”: Supreme Court Takings Jurisprudence After Dolan And Its Implication For New York City’S Waterfront Zoning Resolution, Jill Illan Berger Inbar

Cardozo Law Review

This Note will use the Waterfront Ordinance as a vehicle for examining the new heightened scrutiny standard introduced in Dolan. Part I provides an overview of takings jurisprudence and the traditional pre-Nollan and pre-Dolan standards, which were applied to determine whether an exercise of police power oversteps its bounds and interferes with private property rights guaranteed under the Fifth Amendment. Part II reviews the new standards espoused by the Supreme Court in Nollan and Dolan. Part III describes the purpose of New York City's 1993. Waterfront Zoning Ordinance and discusses its history, objectives, and provisions. Part …

The Constitutionality Of Legislative Supermajority Requirements: A Defense, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs

Dalhousie Law Journal

Professor Arthurs argues that with the growth and diversification of knowledge, the common body of knowledge that underpins a unified profession is becoming more difficult to sustain. The desire to know, the need to know and the resources to know have divided lawyers into subprofessions, increasingly defined by the non-lawyers with whom they work and the clienteles they serve, bound togetherif at all-only by nostalgia and some residuum of self-interest.

The First Cut Is (Not) The Deepest: Deconstructing "Female Genital Mutilation" And The Criminalization Of The Other, David Fraser

Dalhousie Law Journal

Deconstruction, as a 'philosophy'andas a strategy for the reading of texts, offers us the ability to engage in a politics and ethics of justice which seeks to recognize our responsibility to the Other. By 'reading' 'female genital mutilation' with this obligation in mind, this article attempts to deal with the prejudices and barriers to justice which present themselves to those of us in the West who seek an engagement with the Other. The article offers a warning and a reading of the 'text' of 'female genital mutilation' informed by our obligation to justice.

Judicial Jurisdiction In International Cases: The Supreme Court's Unfinished Business, Geneviève Saumier

Dalhousie Law Journal

While the shortcomings of the common law rules of private international law were being reformed by statute in England, Canadian law, left to judicial development, remained mired in nineteenth-century thinking. A much overdue reassessment was finally undertaken by the Supreme Court earlier this decade. In Morguard Investments Ltd. v. De Savoye and Hunt v. T & N plc the Court recast the common law rules on jurisdiction and the enforcement of foreign judgments to conform with its perception of the "new world order" and Canadian federal structure. It then proceeded to endow these rules with constitutional authority. Although the Court's …

Judgment, Philippe Nonet

Vanderbilt Law Review

To judge, in Latin judicare, is to say the law, jus dicere, whence juris-dictio.

The above sentence is a possible answer to the question: what is judging? It spells out what the word "to judge" says, by recalling the history from which the word originates. Why would anyone ask this question? How helpful is such an answer?

Everyone knows what it is to judge. Only on the ground of such self-evidence could there be that unabating debate on the ' justification" of particular judgments, which is the day to day business of lawyering. Only because the question can be passed …

The Extraordinary Counter-Majoritarian Power Of The New Supreme Court Of Nepal, Richard Stith

Law Faculty Publications

No abstract provided.

Benjamin Nathan Cardozo The Teacher, Joseph W. Bellacosa

Cardozo Law Review

The forty-seventh Cardozo Memorial Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on November 9, 1994.

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.

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

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

The Idea Of A Public Basis Of Justification For Contract, Peter Benson

Osgoode Hall Law Journal

The essay has two main objects. The first is to take up and to develop certain of the difficulties that Professor Trebilcock finds with autonomy and welfare-based theories of contract law. The essay reaches the conclusion that efficiency, autonomy, and welfare approaches suffer from fundamental and yet qualitatively different kinds of defects. Moreover, in the course of its critical examination of these theories, the essay introduces and makes explicit an ideal of justification which The Limits of Freedom of Contract only implicitly assumes-an ideal of justification which the essay, following the recent work of Rawls, calls a "public basis of …

Critiques Of The Limits Of Freedom Of Contract: A Rejoinder, Michael J. Trebilcock

Osgoode Hall Law Journal

This rejoinder to the foregoing critiques of the author's book, The Limits of Freedom of Contract, focuses on several themes: a) what range of contractually-related issues do courts possess the requisite institutional competence to address? b) whether problematic normative issues in contract law are amenable to rational analysis and at least provisional resolution, or are inherently indeterminate, contingent, and political? c) what the value of individual autonomy implies in terms of the type of transactions parties should be permitted to engage in? d) whether an "internal" rather than consequentialist theory of contract law is conceivable? and e) whether autonomy values …

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 …

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 …

D.M. Gray Co, Inc., V. Deroche D/B/A Starr Construction, 94-Ap-25 (Blkft. Tr. Ct. App., March 6, 1995), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals the Court reversed and remanded case for improper service when service was improperly made to a minor. Ch. 9, Rule 12: Service of Process, states that service may be made “upon an individual other than a minor under the age of sixteen, or an incompetent person, by delivering a copy of the summons or notice of action, and give the complaint to him personally, or by leaving copies thereof where he lives with an adult living there, or by delivering a copy of the summons or notice of action and of the complaint …

Impossible Comparisons And Rational Choice Theory, Richard Warner

All Faculty Scholarship

No abstract provided.

Excluding Reasons: Impossible Comparisons And The Law, Richard Warner

All Faculty Scholarship

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 …

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 …

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 …

Love And Obligation: Family Law And The Romance Of Economics, Ann Laquer Estin

William & Mary Law Review

No abstract provided.

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 …

Dolan V. Tigard: The Myth And Reality Of Its Impact On Takings Jurisprudence And Land Use Regulation, Stephen Truesdale Carney

St. Thomas Law Review

In June of 1994, the evolution of constitutional law took another small step forward when the United States Supreme Court decided Dolan v. City of Tigard. This decision has specific implications for the fields of environmental and land-use law. While many see those implications as deleterious to environmental concerns, others see them as a necessary clarification in a narrow but previously vague area of law. In Dolan, the issue before the court was whether the city's demand that the petitioner dedicate her property along a floodplain to public use as a condition for a building permit approval violated the Fifth …

Analytic Deconstructionism? The Intellectual Voyeurism Of Anthony D'Amato, Alan R. Madry

Fordham Law Review

No abstract provided.

The Implicit "Takings" Jurisprudence Of Article 9 Of The Uniform Commercial Code, David Frisch

Fordham Law Review

No abstract provided.

Defensor Fidei: The Travails Of A Post-Realist Formalism, Lyrissa Lidsky

Faculty Publications

This Article probes the philosophical and psychological attractions of formalism and suggests that its promise of stability and order may be essential to the effective functioning of the legal system, even if the promise can never be realized.

Virtual Equality As Constitutional Reality: An Introduction, Berta E. Hernández-Truyol

UF Law Faculty Publications

Equality is, to be sure, an elusive concept. More often than not, we find it much easier to describe what is unequal (we know it when we see it) than affirmatively to explain equality. This definitional dilemma rises to new heights when courts, in exercising their interpretive legal functions, have to provide all persons the equal protection of the laws."

Over the course of American history and jurisprudence, the Supreme Court itself has a checkered past when it comes to judicial application of rights to equality. In the beginning, there was slavery - the quintessence of unequality - and the …

Domestic Relations Jurisprudence And The Great, Slumbering Baehr: On Definitional Preclusion, Equal Protection, And Fundamental Interests, Mark Strasser

Fordham Law Review

No abstract provided.

Anti-Intellectualism, Pierre Schlag

Cardozo Law Review

There is a recurrent sameness to American legal thought. It is the sameness that comes from saying over and over again what the law is and saying it, of course, in a way that conforms with the law itself.