Law Commons^™

For The Love Of Lacan, Jacques Derrida

Cardozo Law Review

What wouldn't Lacan have said!

What won't he have said!

This is not a question, it is an exclamation: to get my voice right, to find the appropriate tone, before beginning to try out this idiomatic conjunction of negation, denial [denegation], conditional and future in the past, my hypothesis being that these grammars, now in succession, now simultaneously, play the role of a screen and of a mirror in the modalities of the with, as they do in the modalities of the since [depuis] that will have determined Lacan's relationship to the philosophers-to certain philosophers. These few reflections on temporal …

The Other Dimension Of Law, Pierre Legendre

Cardozo Law Review

What kind of a questioning would make it possible for psychoanalysis to become theoretically useful for jurists? How could such a questioning have an effect on the practice of law? In the same measure, is it theoretically plausible for psychoanalysts, attached as they are to their own casuistry, to interrogate the law? What must be recognized from the start, if this questioning is to be more than superficial, is that the intellectual and social dogmas of today are obstacles to the liberty of thought [esprit].

Anti-Intellectualism, Pierre Schlag

Publications

No abstract provided.

Forty Years In The Desert, Paul F. Campos

Publications

The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

International Environmental Law: Boundaries, Landmarks, And Realities, Lakshman Guruswamy

Publications

No abstract provided.

Sons Of Writ, Sons Of Wrath: Pierre Legendre’S Critique Of Rational Law-Giving, Anton Schutz

Cardozo Law Review

By nature we have been sons of wrath, according to a thoroughly explored passage of Pauline theology. I should like to put this text to a test. My purpose in this article is to view the work of a twentieth-century Sorbonne Professor of Law through the lens of this Pauline text. Clearly, such a procedure assumes some sort of extraordinary similarity of preoccupation as between these two thinkers. It assumes that the semantic components, filius and ira, and the question of their relationship, are equally crucial to both figures: to the fervent apostle and epistolographer who happened to have …

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 …

Justice Stephen Breyer: Purveyor Of Common Sense In Many Forums, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Unique And Different Subject Of Law, Alain Pottage

Cardozo Law Review

Might an idiom of love be instituted in law? This question is posed by Luce Irigaray's ethics of sexual difference, which, in the guise of a critique of law, depicts the semantic or symbolic structure of a law that articulates an ethical relation of love-not love as caritatis, but love as eros. This implausible association of love and law seeks to institute an immediate and idiomatic relation within the axiopoietic order of law. Irigaray's J'aime d toi prescribes a set of basic rights which law-in its role as cultural tutor-might institute as the coordinates of a new model …

Power Without Parents: Juvenile Justice In A Postmodern Society, Jonathan Simon

Cardozo Law Review

It is tempting at times to speak of a general crisis of childhood in America. We hear and read of record numbers of children living in poverty and unprecedented levels of violence against children and adolescents. With astounding frequency, stories emerge of child abuse in the nation's churches, schools, and day-care centers. But this characterization of a general crisis leaps over the specific contexts in which these disturbing images are arising and mistakes the democracy of the daily news for a common fate in America. Such a discussion also risks ignoring the specific technologies of power that are in play, …

Desperately Seeking Science, Francis J. Mootz Iii

Scholarly Works

In this commentary I offer a lawyer’s view of what law and linguistics interdisciplinary studies might mean for legal practice, as well as a legal theorist’s view of what importance they may hold for jurisprudence. I do not pretend to have more than cursory knowledge about linguistics, and so my remarks about what linguistics scholars might gain from an interdisciplinary exchange necessarily will be brief general.

Making Sense Of Metaphors: Visuality, Aurality, And The Reconfiguration Of American Legal Discourse, Bernard J. Hibbitts

Cardozo Law Review

While American legal discourse has embraced a range of figurative expressions evoking all sorts of sensory experience, it has long favored visual metaphors. We frequently consider law as a matter of looking: we "observe" it; we evaluate claims "in the eye of the law"; our high courts "review" the decisions of inferior tribunals. Alternatively, we speak of law as something one would usually look at: it is a "body," a "text," a "structure," a "bulwark of freedom," a "seamless web,'' and even a "magic mirror." We identify particular legal concepts with striking visual images: property rights are a "bundle of …

Lamb's Chapel V. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993), John E. Burgess

Vanderbilt Law Review

The First Amendment to the United States Constitution provides the primary foundation for the protection of several individual rights, including free speech and religious autonomy.' At times, how- ever, efforts to protect these rights appear to conflict with competing restraints on state action. The drafters of the First Amendment's Religion Clauses, for example, sought to guarantee religious freedom while maintaining a separation between church and state. The goal or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."

The Revival Of Tort Theory In Canada, Jamie Cassels

Dalhousie Law Journal

Tort scholarship in Canada has not traditionally been preoccupied with theory. Apart from several fine (doctrinally oriented) texts, by far the greatest amount of tort writing found in the journals is ad hoc and responsive to current is sues. It consists for the most part of case comments or 'recent development' articles inspired by important decisions from higher courts. Beyond this, a number of substantive topics and problem areas have recently been dealt with in some detail. There is alarge amount of literature, for example, on the liability of public authorities and professionals, sporting injuries, asbestos and environmental liability, and …

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.

“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.

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.

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 …

In Re Reprimand Of Davis & Haffeman, 93-Ap-27 (Blkft. Tr. Ct. App., May 11, 1994), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court clarified that attorney discipline for misconduct is an administrative decision that does not require a show cause hearing to decide the controversy. Rather, the attorneys are entitled to an administrative panel. Attorneys facing reprimand for misconduct may be allowed to complete their current case load, at the Courts discretion, until a final decision is made to determine their ability to practice law in tribal courts.

Rereading "The Federal Courts": Revising The Domain Of Federal Courts Jurisprudence At The End Of The Twentieth Century, Judith Resnik

Vanderbilt Law Review

A first enterprise in understanding and reframing Federal Courts jurisprudence is to locate, descriptively, "the Federal Courts." This activity-identifying the topic-may seem too obvious for comment, but I hope to show its utility. One must start with a bit of history, going back to the "beginning" of this body of jurisprudence. The relevant date is 1928, when Felix Frankfurter and James Landis, who began this conversation, published their book, The Business of the Supreme Court: A Study in the Federal Judicial System. Three years later, in 1931, Felix Frankfurter, then joined by Wilber G. Katz (and later by Harry Shulman), …

Lesbians, Gays And The Struggle For Equality Rights: Reversing The Progressive Hypothesis, Mary Eaton

Dalhousie Law Journal

The tale often told of Canadian law's advancement in the field of sexual orientation rights is simple but sublime: law has moved, however ploddingly and not without substantial prodding, out of an epoch of almost total repression, into an evermore enlightened era. Castigated by criminal law, pushed to the perimeter by administrative law, and ignored by human rights law, the "homosexual"' had once been law's quintessential "other." In recent years, however, legislatures and courts have increasingly been willing to recognize "homosexuals" as a constituency too long held down by the heavy hand of legal control. Most penal prohibitions against exercises …

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 …

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 Algebra Of Pluralism: Subjective Experience As A Constitutional Variable, Barbara J. Flagg

Vanderbilt Law Review

Adzan Bedonie is a Navajo woman who speaks no English, holds tightly to traditional Navajo beliefs, and lives in a one-room hogan on the wrong side of the line drawn by a federal court to partition Navajo and Hopi lands.' The law that mandates her relocation and thus threatens to sever what for her is a spiritual connection to the land on which she lives offers a potential escape route: Congress provided for a limited number of life estates for older individuals subject to relocation. But Adzan Bedonie, like most elderly Navajo, has not applied for a life estate, because …

Straightening The "Timber": Toward A New Paradigm Of International Law, Louis R. Beres

Vanderbilt Journal of Transnational Law

Immanuel Kant once remarked: " Out of timber so crooked as that from which man is made, nothing entirely straight can be built." Understood in terms of international law, this philosopher's wisdom points toward a far-reaching departure from traditional emphases on structures of global power and authority. Newly aware that structural alterations of international law are always epiphenomenal, ignoring root causes of international crimes in favor of their symptomatic expressions, we could craft from this departure a new and promising jurisprudence. Acknowledging that human transformations must lie at the heart of all world-order reform, we could build upon the knowledge …

Values, Pierre Schlag

Publications

No abstract provided.

The Public Trust Doctrine: The Public Trust Doctrine And Takings: A Post-Lucas View, Martin H. Belsky

Akron Law Faculty Publications

During the last five years, the United States Supreme Court has evolved a new "takings" doctrine. Starting with Nollan v. California Coastal Commission and then most recently in Lucas v. South Carolina Coastal Council, the Court has sent a clear message to land-use regulators. General regulatory control over land-use will now be carefully scrutinized. If a type of land-use is barred or substantially restricted, it will be found to be a "taking" requiring compensation, unless such controls can be justified as based on historic common law principles of property law. This Article will review the evolution of this new doctrine …

Living With Miranda: A Reply To Professor Grano, Martin H. Belsky

Akron Law Faculty Publications

Ten years ago, I wrote a review-Whither Miranda -of Liva Baker's book, Miranda: Crime, Law & Politics. In that article, I suggested that Miranda v. Arizona actually has had little impact on the day-to-day operations of the police or other investigative agencies. Interviews, questioning, and interrogations are conducted almost exactly as they had been before Miranda, except for the addition of warning cards in formal settings.

In addition, I argued Miranda's value as a legal precedent has been minimal. “Today, in almost all the cases involving admissions, the essential issue is voluntariness, the same issue stressed before Miranda. The only …

Pilgrim Law, Robert E. Rodes

Journal Articles

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose you. breath climbing, …

Gender Law, Katharine T. Bartlett

Duke Journal of Gender Law & Policy

The inauguration of the DUKE JOURNAL OF GENDER LAW & POLICY represents an exciting step in the institutionalization of a subject area in academic law formerly found only at the fringe of legal scholarship and law school curriculums. Often shunned as a political activity inappropriate to institutions committed to academic rigor, objectivity, and neutrality, gender law has begun to lay down roots as a disciplined set of inquiries that enhance the rigor of conventional legal study and offer tools for improving the objectivity and neutrality of law, even as it challenges the conventional meanings of those concepts. There are two …