Constitutional Law Commons^™

The Pentagon Papers - Victory For A Free Press, William R. Glendon

Cardozo Law Review

No abstract provided.

The Pentagon Papers Case And The Path Not Taken: A Personal Memoir On The First Amendment And The Separation Of Powers, Joel M. Gora

Cardozo Law Review

No abstract provided.

Inequities Of The Drug War: Legislative Discrimination On The Cocaine Battlefield, Andrew N. Sacher

Cardozo Law Review

No abstract provided.

Origins Of The Fifth Amendment And Its Critics, Leonard W. Levy

Cardozo Law Review

No abstract provided.

Warren E. Buffett On Corporate Constituency Laws And Other Newfangled Ideas: An Imaginary Conversation, Bevis Longstreth

Cardozo Law Review

No abstract provided.

Liability For Uncertainty: Making Evidential Damage Actionable, Ariel Porat, Alex Stein

Cardozo Law Review

Because factual uncertainty distorts the allocation of civil liability, this Article argues that the law should impose liability for uncertainty. Justified on both corrective justice and economic efficiency grounds, this liability should be imposed upon any person who negligently aggravates the uncertainty of a civil case by making its evidential base deficient. Because "evidence" belongs to the world of inferences rather than things, evidential damage may be inflicted in a variety of ways, far beyond destruction of documents and other physical tampering with evidence. Through adoption and refinement of this insight, the Article diagnoses the presence of evidential damage …

Dealing With Evidentiary Deficiency, Richard D. Friedman

Cardozo Law Review

Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency.

Justices At Work: An Introduction, Michel Rosenfeld

Cardozo Law Review

"Justices at Work," a day long conference which took place on September 19, 1995 at the Benjamin N. Cardozo School of Law, brought together Justices and constitutional scholars from seven different countries to consider a hypothetical constitutional case dealing with fundamental rights. This issue of the Law Review includes the facts of the hypothetical case, the applicable hypothetical statute, the briefs submitted to the International Moot Courtall of which were the product of a collaborative effort among the seven scholars involved-as well as a transcript of the proceedings and of the deliberations of the seven Justices: Justice Ruth Bader Ginsburg …

The Persistent Nation State And The Foreign Sovereign Immunities Act, Mark L. Movsesian

Cardozo Law Review

One hears a great deal these days about the decline of the nation state. The concept of a sovereign country whose inhabitants share a common ancestry or culture is said to be obsolescent, if not already obsolete. Several factors, apparently, are responsible: the creation of supranational institutions like the European Union and the World Trade Organization; the growing influence of nongovernmental organizations; the emergence of a new global economy; and the formation of a worldwide consumer culture, to name just a few. The law, it is argued, must adapt.

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), …

Condemned By Substance And Process: A Comment On “Doubly Condemned”: Adjustments To The Crime And Punishment Regime In The Late Slavery Period In The British Caribbean Colonies And “Under The Present Mode Of Trial, Improper Verdicts Are Very Often Given”: Criminal Procedure In The Trials Of Slaves In Antebellum Louisiana, Raymond T. Diamond

Cardozo Law Review

The substance of modem criminal law and the procedures through which that law is enforced are a subject of current debate. On the one hand, some call into question the use of criminal sanctions as a means of enforcing schemes of regulation meant to guarantee public welfare. By the same token, violent crime and crime that is otherwise malum in se has caused increasing levels of fear and concomitant calls for more vigorous enforcement of the criminal law. As a result, the rights that protect the accused from intrusions by a potentially tyrannical state and from arbitrary decision making by …

Comment On The First Slave (And Why He Matters) By Jonathan Bush, Peter Kolchin

Cardozo Law Review

In his Article The First Slave (And Why He Matters), Professor Jonathan Bush returns to a persistent question in the history of the colonial Chesapeake: the status of blacks in the seventeenth century. He frames this question, however, in a new way. Rather than seeking to determine whether or not blacks were slaves before the codification of slave law-a largely unanswerable question that revolves, at least in part, around what one means by "slaves"-he asks, how could the English have imposed slavery on blacks in America when slavery was non-existent in England and under English law? In response, he …

Abolitionist Feminism, Moral Slavery, And The Constitution: “On The Same Platform Of Human Rights”, David A.J. Richards

Cardozo Law Review

The analogy between race and gender plays an increasingly important role in the interpretation of the Equal Protection Clause of the Fourteenth Amendment. However, interpretive arguments about the analogy make little or no reference to the abolitionist historical background of the Reconstruction Amendments in general and the Fourteenth Amendment in particular. This might make some sense if the only legitimate interpretive appeal to history were Raoul Berger's version of originalism, namely, the specific denoted things (including persons and practices) to which the relevant drafters and ratifiers of the pertinent constitutional text would or would not have applied the language in …

The Fate Of “Megan’S Law” In New York, Alison Virag Greissman

Cardozo Law Review

Sexual crimes disgust, anger, and frighten Americans in a way that no other human act does. The transgressions of sex offenders leave victims with lifelong scars and violate society's most fundamental notions of right and wrong. Indeed, husbands beating their wives with frying pans, boyfriends punching their girlfriends with their fists, and men striking women with kitchen chairs and baseball bats in every city of our country are atrocities. Although barbaric, these examples of violent and often fatal attacks are not of the same nature as an assault in which a man desecrates a woman by invading the most intimate …

The Slavery Of Emancipation, Guyora Binder

Cardozo Law Review

The Thirteenth Amendment of the U.S. Constitution commands that "neither slavery nor involuntary servitude shall exist." What has been the effect of this command?

It will serve my present purpose to offer the following toosimple answer to this complex question: the Thirteenth Amendment secured little more than the manumission of slaves already practically freed by the friction of war. It guaranteed, in Confederate General Robert Richardson's now well-known phrase, "nothing but freedom."

Supposing this answer to be true, a further question presents itself: Did the Thirteenth Amendment's effect fulfill its command? Did universal manumission abolish slavery?

A full answer to …

Comments On James Oakes, “The Compromising Expedient”, Robert A. Burt

Cardozo Law Review

Professor Oakes's excellent paper convincingly characterizes the 1787 Constitution as a reactionary abandonment of the antislavery ethos of the 1776 Revolution that had appeared to set the new country on a course toward the abolition of slavery. "What," he asks, "accounts for the Constitution's failure to promote the cause already pushed so far by the Revolution?" If we could answer this question, we might not only explain the reactionary falling away from the Revolution, but also shed light on the historically parallel phenomena that Oakes identifies at the end of his paper-the abandonment of the emancipatory impulse from the Civil …

Comment On Earl Maltz, Kenneth M. Stampp

Cardozo Law Review

Professor Earl Maltz has written an excellent brief account of Benjamin R. Curtis's judicial record as it relates to slavery, including his dissenting argument in the famous Dred Scott case. He found Curtis to be a perfect example of mid-nineteenth century Northern conservative Whigs-the "Cotton Whigs," as their antislavery critics called them. They disliked slavery, but, in equal measure, they disliked those who agitated against it. Both Southern proslavery extremists and Northern abolitionists appalled them, for both groups endangered the Union. Conservative Whig President Millard Fillmore would not have appointed Curtis to the Supreme Court if he had shared the …

Comment On Guyora Binder, “The Slavery Of Emancipation”, Michael Les Benedict

Cardozo Law Review

When I first received Professor Binder's highly theoretical, speculative, and thought-provoking paper, I wondered whether I was the right person to comment upon it. Professor Binder has a philosophical turn of mind; he is at home in the world of Hegel. I am disoriented in territory more exotic than that of Locke. In the history department of the Ohio State University, I teach the course that introduces our graduate students to the philosophy of history. However, I have always considered that a cosmic practical jokeon my students more than me-cooked up by the shades of Hegel, Collingwood, and Croce.

The Fifteenth Amendment And "Political Rights", Akhil Reed Amar

Cardozo Law Review

Professor Xi Wang has offered us an altogether exemplary paper on black suffrage. Rather than trying to criticize it, I shall attempt to extend it by picking up where he left off. My main text is the Fifteenth Amendment. I would like to suggest that the best interpretation of the Fifteenth Amendment would read it as encompassing a cluster of political rights; the Amendment protects not only the right to vote, but also the right to hold office, the right to be voted for, the right to vote in a legislature, the right to serve on a jury, and even …

Black Suffrage And The Redefinition Of American Freedom, 1860-1870, Xi Wang

Cardozo Law Review

One of the most important outcomes of the Civil War was the establishment of a new constitutional order. Under this new order, African Americans, a people whose essential human rights had been denied under the old constitutional order, were constitutionally emancipated from slavery and recognized as American citizens. They received the privileges and immunities that white Americans had automatically assumed. Male black Americans also received the right to vote. This new order, as embraced by the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, was a truly remarkable achievement of Reconstruction. What is additionally significant is that these Amendments became …

Comment On Donald Nieman's Paper, Randall Kennedy

Cardozo Law Review

I have two responses to Professor Neiman's paper. One emphasizes a point he makes. The other disagrees a bit with his reading of the promise of Reconstruction.

The Unlikely Hero Of Dred Scott: Benjamin Robbins Curtis And The Constitutional Law Of Slavery, Earl M. Maltz

Cardozo Law Review

The standard account portrays Dred Scott v. Sandford as a story of villains and heroes. The villains are the members of the majority, led by Chief Justice Roger Brooke Taney, who concluded that descendants of slaves could never become citizens of the Union and that Congress could not outlaw slavery in the territories. The heroes, on the other hand, are the two dissenters, John McLean and Benjamin Robbins Curtis, who rejected these conclusions and determined that Scott should be deemed a free man. McLean's opinion, however, was not tightly reasoned and was rather clearly designed to advance his presidential ambitions; …

Bondage, Freedom & The Constitution, Eric Foner

Cardozo Law Review

Linking the papers on this most interesting panel are questions that center on the meaning of freedom. What is freedom? Who has the power to define what freedom is? What are the consequences of slavery and its abolition for Americans' understandings of freedom? In one way or another, these papers, as well as many others in this conference, illuminate these questions.

Jurgen Habermas’S Theory Of Legal Discourse, Robert Alexy

Cardozo Law Review

Jurgen Habermas's discourse theory of law attempts to show that the ideal contents of the discourse principle can be realized within the institutional frame of a legal system. The result is a theory of the democratic constitutional state whose basic idea is the association and self-determination of free and equal consociates under the law. This theory is far more than a mere application of discourse theory to the law. Discourse theory, on the one hand, demands the institutionalization of a legal system for reasons internal to the theory. On the other hand, the positive law remains dependent on discourse theory …

Family Quarrel, Frank I. Michelman

Cardozo Law Review

In Chapter 6 of Between Facts and Norms, Jurgen Habermas examines what he calls the republican conception of lawmaking. He draws this conception, which he also styles "communitarian," partly from writings of this author that have in turn been much inspired by the works of Professor Habermas.

The Dynamics Of Constitutional Adjudication, Bernhard Schlink

Cardozo Law Review

Habermas determines the role and legitimacy of constitutional adjudication through three confrontations. First, he confronts both the liberal and the welfare-state paradigms of law, seeing constitutional adjudication move from the former to the latter. Habermas wants this move to arrive at a procedural paradigm of law. Second, he confronts a norm- and a value-oriented understanding of the constitution. Habermas indicates the dangers of the former and the merits of the latter, and attempts to show that principles, understood as norms, should guide constitutional adjudication. Third, he confronts the liberal and the republican views of the political and constitutional process, developing …

Constitutional Adjudication In Light Of Discourse Theory, András Sajó

Cardozo Law Review

In the last one hundred years the empirical consequences of applied rationality have destroyed the last remnants of the trust in reason (Vernunftvertrauen). Postmodern law suffers from its own contradictory trends, which may be cured according to social practices indicated by discourse theory. In Between Facts and Norms, Jurgen Habermas applies the theoretical scheme of communicative action in a specific argumentation context, namely to legal discourse.

Habermas's Ideal Paradigm Of Law, Gabriel Motzkin

Cardozo Law Review

It is a question that we have all considered: What is the function of critical theory after the implosion of Communism? More significantly, what can the basis of a critique of capitalist democracy be in the absence of a dogmatic alternative? Jurgen Habermas's answer is that the purpose of a critical theory of society is to provide a new basis of legitimacy for democracy. This issue-the provision of a new basis of legitimacy for democracy-is more significant after the collapse of Communism, not less; the demise of Socialism erodes the basis for the existence of liberal democracy, since liberal democracy …

Why Care? The Trouble With Social Rights, Günter Frankenberg

Cardozo Law Review

While not everybody will agree that social rights are good in general, the ranks of the "not-everybody" will fill when one wants to decide who needs which particular social rights. Even those who claim to be philosophically and practically supportive of the idea and the benefits of social rights find it difficult to come up with a strong argument for them and usually invoke vague or weak obligations to support the victims of capitalism or, if you will, the market society or the mere necessity to preserve social peace by a minimally redistributive social policy. Social scientists have plausibly claimed …

Constitutional Constancy: Why Congress Should Cure Itself Of Amendment Fever, Kathleen M. Sullivan

Cardozo Law Review

The annual Benjamin N. Cardozo Lecture was delivered at the House of the Association on October 25, 1995, in memory of Benjamin N. Cardozo.