Constitutional Law Commons^™

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), …

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 …

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 …

Changing America: Three Arguments About Asian Americans And The Law , Frank H. Wu

American University Law Review

No abstract provided.

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.

“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.

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.

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 …

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 …

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.

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 …

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 …

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.

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.

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 …

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

How To Do Things With The First Amendment, Pierre Schlag

Publications

No abstract provided.

Apostle Of Fundamental Fairness: New York Court Of Appeals Judge Stewart F. Hancock, Jr.'S State Constitutional Decision-Making, Thompson Gould Page

Touro Law Review

No abstract provided.

Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three-Pronged Test?, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Open Justice In A Closed Legal System?, Bernhard Schlink

Cardozo Law Review

No abstract provided.

The Relevance Of Time To The Relationship Between The Philosophy Of The Limit And Systems Theory, Drucilla Cornell

Cardozo Law Review

No abstract provided.

Sociological Theory In The Absence Of People: The Limits Of Luhmann’S Systems Theory, Alan Wolfe

Cardozo Law Review

No abstract provided.

Abrams V. United States: Remembering The Authors Of Both Opinions, James F. Fagan Jr.

Touro Law Review

No abstract provided.

Refocusing The New Evidence Scholarship, Terence J. Anderson

Cardozo Law Review

No abstract provided.

Tradition, Precedent, And Justice Scalia, David A. Strauss

Cardozo Law Review

No abstract provided.

My Pizza With Ninó, Alex Kozinski

Cardozo Law Review

No abstract provided.