International Law Commons^™

The Nature And Structure Of The State, Hermann Heller

Cardozo Law Review

The question of the "purpose" of the state has been a permanent and fundamental problem of all theories of the state ever since Aristotle opened his Politics with the theory of the purpose of the state and placed this sentence at its head: pasa koinonia agathou tivos heneka sunesteken. It was left to the Romantics to contest for the first time the appropriateness of this question and to maintain that the state "just as the plant and the animal" is selfdirected. From that time on, theories have neglected the question of the purpose of the state. They decline to …

Darkness In The Land Of The Rising Sun: How The Japanese Discriminate Against Ethnic Koreans Living In Japan, Paul E. Kim

Cardozo Journal of International and Comparative Law

The note examines the systemic discrimination faced by ethnic Koreans in Japan, rooted in historical, legal, and social structures. It argues that despite constitutional guarantees of equality, the Japanese judiciary and government perpetuate discrimination through restrictive nationality laws, naturalization processes, and the failure to enforce international human rights treaties effectively. The note advocates for legal reforms and international pressure to address these issues and ensure equal rights for ethnic minorities.

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 …

The Jerusalem Embassy Act, Malvina Halberstam

Articles

No abstract provided.

The Puerto Rican Independentistas: Combatants In The Fight For Self-Determination And The Right To Prisoner Of War Status, Lisa Napoli

Cardozo Journal of International and Comparative Law

No abstract provided.

The Victim-Plaintiff In Criminal Trials And Civil Law Responses To Sexual Violence, Alexandra Goy

Cardozo Journal of Equal Rights & Social Justice

The article examines the role of the victim-plaintiff in German criminal trials, particularly in cases involving sexual violence. It highlights the unique procedural rights granted to victim-plaintiffs, such as the ability to participate actively in trials and present evidence. However, the analysis reveals significant practical and systemic barriers that limit the effectiveness of this institution, including restrictive evidentiary rules, financial challenges, and gender biases within the judiciary. The article argues that while the victim-plaintiff institution offers opportunities for victims to seek justice, its impact is undermined by these obstacles, raising concerns about the protection of sexual autonomy and gender equality …

On The History Of Fathers' Rights And Mothers' Duty Of Care, Sibylla Flügge

Cardozo Journal of Equal Rights & Social Justice

The article examines the historical evolution of custody rights in Germany, focusing on the shift from maternal preference to increasing recognition of fathers' rights. It argues that the legal system's move toward joint custody and equal parental rights reflects broader societal changes in gender roles, while also critiquing the potential backlash against women's emancipation. The analysis highlights how improvements in fathers' legal standing have often coincided with decreased obligations for men to actively care for children, raising concerns about the practical implications for mothers and children.

Civil Defamation Law And The Press In Russia: Private And Public Interests, The 1995 Civil Code, And The Constitution, Part Two, Peter Krug

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Human Rights, International Law, And Domestic Courts, Edward D. Re

Cardozo Journal of International and Comparative Law

The article explores the role of domestic courts, particularly in the United States, in enforcing international human rights norms and the challenges posed by sovereign immunity. It argues that U.S. courts should give greater effect to international legal norms, especially in cases involving human rights violations by foreign states. The analysis critiques the U.S. Supreme Court's narrow interpretation of the Foreign Sovereign Immunities Act (FSIA) in Saudi Arabia v. Nelson and advocates for a more expansive approach to ensure accountability for human rights abuses.

Schrodinger’S Cat, Eugenics, And The Compulsory Sterilization Of Welfare Mothers: Deconstructing An Old/New Rhetoric And Constructing The Reproductive Right To Natality For Low-Income Women Of Color, Beverly Horsburgh

Cardozo Law Review

In Part I of this Article, I briefly trace the history of racism, sexism, and class bias in western scientific thought as well as the legal consequences that ensued in this country from scientific prejudice. In Part II, I turn to eugenics in our own time and explore the sterilization abuse of poor women of color as a disguised form of eugenics. I argue that the lack of popular sympathy for the reproductive problems of these women, due to their negative dehumanizing stereotyping and the pervasive influence of sociobiology, facilitates public acceptance of harsher measures in the future. I refer, …

The Right To Self-Defense Once The Security Council Takes Action, Malvina Halberstam

Articles

No abstract provided.

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, …

The Reach Of Rights In The New Russian Constitution, Antti Korkeakivi

Cardozo Journal of International and Comparative Law

The new Russian Constitution incorporates a comprehensive catalogue of human rights, largely mirroring international standards and Western democracies, while retaining elements influenced by Soviet tradition. It rejects the socialist notion that rights are state-granted, declaring them inalienable and innate. However, the Constitution’s effectiveness in protecting these rights remains uncertain, as its success hinges on the judiciary’s ability to enforce them independently, despite historical weaknesses and ongoing concerns about judicial autonomy.

Social Legislation In The European Community And In The Member States-A Case Of Subsidiarity?, Reinhard Rack

Cardozo Journal of International and Comparative Law

The article examines the principle of subsidiarity within the European Community (EC), highlighting its role in balancing power between the EC and its Member States. While subsidiarity, formalized in the Maastricht Treaty, aims to ensure decision-making occurs at the most effective level, its application often serves political rather than legal purposes, particularly in social legislation. The article critiques the ambiguity of subsidiarity, questioning whether it effectively limits EC power or remains a political tool influenced by public opinion and referendums. It also explores the integration of non-Member States, such as EFTA countries, into the EC framework, emphasizing the challenges of …

The Legality Of Humanitarian Intervention, Malvina Halberstam

Cardozo Journal of International and Comparative Law

The article argues that humanitarian intervention, defined as the use of force by one state in another's territory to protect individuals from imminent death or injury when the host state cannot or will not act, is lawful under customary international law and not prohibited by the UN Charter. The author advocates for a narrow definition to ensure legitimacy and prevent misuse, emphasizing that such intervention should remain permissible even without UN Security Council authorization.

Rediscovering Francis Lieber: An Afterword And Introduction, Michael E. Herz

Cardozo Law Review

In our media age, more and more people are famous just for being famous, rather than for any particular achievement, notorious or otherwise. We spend a good deal of time transfixed by "celebrities" known for no obvious qualities other than fame itself. Francis Lieber, once this country's most respected law professor, of whom it was written in 1873 that "his fame will be secure in the lap of history," presents the opposite case: he is forgotten despite great accomplishment. At best, one might say he is famous for being forgotten. His name comes up, but almost every modem reference to …

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 …

A Rejoinder, Jonathan R. Macey

Cardozo Law Review

In a rare moment of self-restraint, I resolved not to bother to write a comment to David Ratner's spirited but unconvincing reply to my earlier article in the Cardozo Law Review. Since Ratner's response contained no defense whatsoever of the work of the Securities and Exchange Commission ("SEC"), no criticism whatsoever of my general theory of agency obsolescence, and no theory of its own to defend the SEC, it seemed to me at first that the best course of action was to allow Ratner's reply to serve as its own refutation.

Interwar German Theories Of International Law: The Psychoanalytical And Phenomenologicial Perspectives Of Hans Kelsen And Carl Schmitt, Anthony Carty

Cardozo Law Review

After 1918, the social foundations of legal positivism and formalism in Central Europe-especially where German was spoken-were shattered. The political neutrality of the legal profession had previously allowed it to equate legality and legitimacy in the form of the monarchical constitution. The breakdown of the traditional order led to a crisis of constitutional legitimacy. Power seemed destined to fall directly into the hands of the "masses" and neither traditional, liberal, nor conservative bourgeois (professional middle-class) opinion was comfortable about this prospect. There followed a profound debate about the nature of the state and political society.

Freud As Law Professor: An Alternative History, Charles Yablon

Cardozo Law Review

We are gathered here today to pay tribute to one of the great legal minds of the twentieth century. In his long and fruitful career as lawyer, law professor, and legal theorist, Sigmund Freud literally revolutionized both the theory and practice of the legal profession. His contributions are to be found everywhere; from his early work on alternative dispute resolution, to his fundamental reconceptualization of the lawyer-client relationship, to his trenchant critiques of the law and economics movement, even the standard fifty-minute billable hour are all reflections of his vast influence on law and legal theory.

Freeing Copyright From Formalities, Shira Perlmutter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Market For Loyalties: Electronic Media And The Global Competition For Allegiances, Monroe E. Price

Articles

The article critiques the traditional "marketplace of ideas" metaphor in First Amendment jurisprudence and proposes a more accurate framework: the "market for loyalties." This model highlights how powerful entities, including governments and private actors, use communication regulation to shape identities and allegiances. The First Amendment, under this interpretation, functions as a regulatory allocation among these entities rather than a guarantee of unfettered speech. The rise of global communication technologies and competing loyalties challenges the nation-state's ability to control this market, reshaping the role of law and governance in identity formation.

The Invisible Cupola: From Casual To Collective Attribution In Ecological Liability, Gunther Teubner

Cardozo Law Review

When I speak about the cupola, it is not Brunelleschi's architectural masterpiece crowning the Florentine duomo that appears before my eyes. Rather, I see the ugly architecture of organized crime, the brutal supersecret "cupola" on top of the Mafia's hierarchy which overshadows social life in Italy. Does this cupola exist or not? Over the recent years, the Mafia's cupola has been the object of a bitter struggle between Italian judges. While the lower courts have been sending numerous mafiosi to prison because they were part of the invisible cupola controlling "tutti i grandi delitti," the court of the next instance …

Libi The Fund For Strengthening Israel’S Defence V. Binstock, Mishael Cheshin, Meir Shamgar, Eliezer Goldberg

Translated Opinions

Facts: The late Shalom Wagner, in his last will, disinherited his sister and her children, who were his closest family, and left the residue of his estate to the LIBI Fund. The family challenged the will, on the grounds that the deceased had been hospitalized with mental illness shortly before making the will and also subsequently, and at those times he suffered from delusions that his sister was trying to poison him. The deceased’s lawyer, however, testified that the deceased’s reason for changing the will was the fact that his nephew had not returned to him money that he deposited …

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

Cardozo Law Review

No abstract provided.

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 …

Enterprise Liability For "Environmental Damage" In German Law And Ec Law, Gert Brüggemeier

Cardozo Journal of International and Comparative Law

The article explores the evolution of enterprise liability in German law, emphasizing its shift towards organizational defects and management systems. It highlights the integration of ecoaudits and environmental management systems to enhance protection, blending strict and fault-based liability. While effective in preventing damage, the system faces challenges in addressing environmental harm due to evidentiary burdens on victims.

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 …

Administrative Agency Obsolescence And Interest Group Formation: A Case Study Of The Sec At Sixty, Jonathan R. Macey

Cardozo Law Review

A fundamental precept of American law and jurisprudence is that "laws must change to meet the needs of changing times." In particular, the common law system of judging was thought to constitute a uniquely effective mechanism for dealing with the demands posed by rapid change. As Guido Calabresi presciently has observed, during the nineteenth century judges "creatively manipulated and changed common law rules in reaction to changing circumstances," and thereby "the common law was openly and legitimately kept up to date." But, as Dean Calabresi has observed, times have changed. The United States has become a nation dominated by statutes …

Response To Bert Van Roermund, Richard H. Weisberg

Articles

The article responds to Bert van Roermund's arguments about the relationship between law and literature, emphasizing that literature serves as a unique jurisprudential source when it mimetically imitates legal expression. The author argues that literature's value lies in its ability to capture the narrative structures of legal communication, particularly in genres like the novel or novella, which self-consciously replicate legal narrativity. This mimetic quality distinguishes literature from other forms of art and makes it uniquely relevant to legal theory.