Human Rights Law Commons^™

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.

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 …

Estranged Fruit: The Reconstruction Amendments, Moral Slavery, And The Rearticulation Of Lesbian And Gay Identity, E. Nathaniel Gates

Cardozo Law Review

David A.J. Richards has composed a thoughtful and suggestive narrative that centers on the excavation of the antislavery constitutionalism forged by a small, but arguably influential, group of antebellum abolitionist feminists. Central to his narrative, and to the constitutional theses of the abolitionist feminists, is the concept of "moral slavery" which, on Richards' account, constitutes a crucial element of the hermeneutic background essential to a proper interpretation of the Reconstruction Amendments. According to Professor Richards, an understanding of the figure of the abolitionist feminist as a "multiple exile and outcast" who in opposing "moral slavery" played a vital role in …

The Moral Economy Of The Purchase Of Freedom: Ethical Lessons From The Slave Narratives, Lea Vandervelde

Cardozo Law Review

In his contribution to this symposium, Richard Weisberg tells us a subtle story of what he calls "twin hermeneutics." I will use one of these-"the hermeneutic of acceptance"-to launch my own discussion on the subject of ethical dilemmas. By this term, "the hermeneutic of acceptance," Weisberg means the gradual acceptance by French lawyers of the scheme of racial exclusion newly created by Vichy laws. He traces the digression in legal arguments made by French lawyers during the four years of Vichy rule. French lawyers loaned their prestige to these new laws by means which placed their legal arguments on a …

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.

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.

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 …

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 …

Paradigms Of Law, Jürgen Habermas

Cardozo Law Review

Among legal scholars expressions such as "social ideal" or "social model," and even "social vision," have become generally accepted ways of referring to the images of society inscribed in a legal system. Such expressions refer to those implicit images of one's own society that guide the contemporary practices of making and applying law. These images or paradigms provide the background for an interpretation of the system of basic rights. In other words, they orient the project of realizing an association of free and equal citizens. A paradigm is discerned primarily in paramount judicial decisions, and it is usually equated with …

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 …

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 …

The United Kingdom, The European Court Of Human Rights, And Constitutional Review, A. W. Bradley

Cardozo Law Review

The aim of this Article is to consider whether there is now in the United Kingdom the embryo of a procedure for constitutional review that results from the United Kingdom's adherence to the European Convention on Human Rights as well as the burgeoning case law being developed by the European Court of Human Rights. To the extent that such an embryo exists, I hope to show that this is a development which has not been directly willed by the United Kingdom Parliament, nor by successive United Kingdom governments. Assuming that this process deserves to be described as piecemeal constitution making, …

Democracy And Pluralism: A Critique Of The Rationalist Approach, Chantal Mouffe

Cardozo Law Review

In recent decades, categories like ,"human nature," "universal reason," and "rational autonomous subject" increasingly have been questioned. From different standpoints, a variety of thinkers have criticized the ideas of a universal human nature, of a universal canon of rationality through which that human nature could be known, as well as the possibility of an unconditional universal truth. Such a critique of Enlightenment's universalism and rationalism, which is sometimes referred to as "postmodernism," has been presented by some authors, for example, Jirgen Habermas, as constituting a threat to the modem democratic project. They consider that the link existing between the democratic …

Ideology As Cultural Software, J. M. Balkin

Cardozo Law Review

This essay concerns one of the apparent casualties of the rise of postmodernism-the theory of ideology. In fact, the "theory of ideology" has never been a unitary theory. From its inception the concept of ideology has always been contested, and hence the theory has generated many variations. The most common version asserts that individuals are afflicted with beliefs that in some way mystify or obscure social reality. This mystification in turn works to the advantage of some classes and to the disadvantage of others. This formulation was developed most prominently within the marxist tradition; it has proved a tempting but …

Rights In Psychoanalytic And Feminist Perspective, Renata Salecl

Cardozo Law Review

All major philosophical schools todaytake some position on the issue of human rights. On the one hand, so-called postmodern theorists ask how we can understand the narrative of human rights when we no longer believe that its claims are true or that metanarratives are even possible. Instead of searching for first principles and metanorms, postmodernists analyze the discursive form of the notion of rights and read this form as a part of the historically limited Enlightenment project that today has lost its relevance. Neo-Kantians, on the other hand, speak in favor of the notion of human rights and try to …

Women, Law, And Inequality: Rethinking International Human Rights, Mary Elizabeth Bartholomew, Drucilla Cornell

Cardozo Law Review

In 1984, Robin Morgan posed this remarkable question in her historic book Sisterhood is Global. The Feminist Legal Resource Center remains but an unrealized goal of the international feminist legal community. Such a center could benefit women, especially women in the law, seeking to obtain access to information about trends and movements worldwide in the struggle to expand the rights of women. Beginning for the most part with the aftermath of World War II, when individuals became subjects of international law with the creation and proliferation of human rights law, lawyers and others concerned with the promotion of good government …

Table Of Contents - Cardozo Law Review, Volume 16, Issue 1

Cardozo Law Review

No abstract provided.

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius By Edward De Grazia, Robert M. O'Neil

Cardozo Law Review

Such a headline from the 1990s reminds American readers that, however shameful may have been the treatment of obscenity and pornography in the United States during the past one hundred years, things could have been worse. Even so, the record here is hardly a source of pride-nor does the story have an altogether happy ending, if it has one at all. Yet it is a story that badly needs to be told, and never has it been better told than by Edward de Grazia in Girls Lean Back Everywhere.

Adoption Nightmares Prompt Judicial Recognition Of The Tort Of Wrongful Adoption: Will New York Follow Suit?, Marci J. Blank

Cardozo Law Review

On May 13, 1966, Martin and Phyllis Juman adopted a sixteenmonth-old baby boy named Michael. The adoption agency, Louise Wise Services, represented to the Jumans that Michael was healthy. However, over the past twenty-seven years, Michael, now twentyeight, has experienced a myriad of psychological problems and has been hospitalized on several occasions.

The Merryman Power And The Dilemma Of Autonomous Executive Branch Interpretation, Michael Stokes Paulsen

Cardozo Law Review

Most everybody today concedes some degree of executive branch autonomy in the interpretation of federal law. The examples most frequently given of areas of executive interpretive autonomy involve situations where the President interprets the law incident to the exercise of those constitutional powers that are thought to be exclusively presidential (and thus unreviewable by the courts), such as the pardon and the veto. The President may grant a pardon (it is generally conceded) on legal grounds rejected by the courts. For example, he may issue a pardon based on his opinion that a conviction was unconstitutional, notwithstanding the judiciary's contrary …

Protecting The Office Of Legal Counsel From Itself, Harold Hongju Koh

Cardozo Law Review

Pardon me if I act like a black sheep at this symposium of Office of Legal Counsel ("OLC") alumni. Like most OLC alumni, I share the genuine affection and respect for the Office and its traditions that this symposium reflects. But at the same time, I cannot fully accept the undertone of self-congratulation that pervades this panel's two principal papers. My discomfort grows from the inordinate amount of time that I have spent over the last few years disagreeing with OLC positions, particularly in three areas of United States foreign policy. The first concerns the "Iran-Contra" prosecution of Oliver North …

Preferred Generations: A Paradox Of Restoration Constitutions, András Sajó

Cardozo Law Review

No abstract provided.

Reactionary Constitutional Identity, Ruti G. Teitel

Cardozo Law Review

No abstract provided.

Autopoiesis And Positivism, Richard Weisberg

Cardozo Law Review

No abstract provided.

Open Justice In A Closed Legal System?, Bernhard Schlink

Cardozo Law Review

No abstract provided.

On The Necessity Of Violence For Any Possibility Of Justice: A Comment, Jean L. Cohen

Cardozo Law Review

No abstract provided.

Violence And Justice: Baudelaire's Assommons Les Pauvres!, Jonathan Culler

Cardozo Law Review

Roundtable - The Call to the Ethical: Deconstruction, Justice and the Ethical Relationship - Group 1

Intellectual Property Protection For The Creative Chef, Or How To Copyright A Cake: A Modest Proposal, Malla Pollack

Cardozo Law Review

No abstract provided.

Islam And The State, Ann Elizabeth Mayer

Cardozo Law Review

No abstract provided.

Islam And The State: The Problems Of Establishing Legitimacy And Human Rights, James C.N. Paul

Cardozo Law Review

No abstract provided.