Judges Commons^™

Freestanding Legal Pragmatism, Thomas C. Grey

Cardozo Law Review

John Rawls has recently presented liberalism as a political philosophy that can stand free of the comprehensive moral and metaphysical views with which it has been associated. You don't have to be a neo-Kantian like Rawls, so he argues, to accept his Kantiansounding theory of justice. Millian utilitarians, Aristotelian perfectionists, and Thomistic theists can also commit to the basic liberal rights: democratic government, freedom of speech and religion, equal opportunity, the rule of law, private property, and a welfare safety net. Rawls believes that there is no need for citizens to resolve their deepest philosophical disagreements in order to be …

Pragmatism And Realism, Hilary Putnam

Cardozo Law Review

Let me begin by asking what will undoubtedly seem to many, if not all of you, a most peculiar question: How did it happen that the first philosopher to present a completely worked out version of direct realism in the entire history of modem philosophy was none other than the American pragmatist, William James?

Pragmatic Adjudication, Richard A. Posner

Cardozo Law Review

Pragmatism is at one level a philosophical position, just as scientific realism, transcendental idealism, existentialism, utilitarianism, and logical positivism are. It is the level well illustrated by a recently published book in which Richard Rorty and his critics go at each other hammer and tongs over such questions as whether language reflects reality, whether free will is compatible with a scientific outlook, and whether such questions are even meaningful. It is not the level at which this paper is pitched. My concern is with an issue in "applied" pragmatism, although after listening to Professor Grey's talk at the conference about …

Pragmatism And Law: A Response To David Luban, Richard Rorty

Cardozo Law Review

Judge Posner's "Pragmatic Adjudication" is enormously refreshing. It cuts through an immense amount of tiresome and pointless talk about "the nature of law" and "the relation of law to politics" and gets down to the question: how should appellate court judges in a particular country at a particular time do their work? It not only argues lucidly for a particular answer to that question, but it also gives a good sense of what it must be like to be in Judge Posner's shoes. Posner helps you understand what sorts of things judges have to worry about, and what sorts of …

It’S A Positivist, It’S A Pragmatist, It’S A Codifier! Reflections On Nietzsche And Stendhal, Richard H. Weisberg

Cardozo Law Review

Richard Rorty writes that "[n]owadays, Allan Bloom and Michael Moore seem to be the only people who still think pragmatism is dangerous to the moral health of our society." Given the source, I would not contest the generalization. Nor would I seek to correct the adjective about pragmatism used more than once by Professors Rorty and Grey: "banal." Indeed, the popularity of pragmatism may reflect its banality. Its amorphous nature has produced strange alliances. For example, the same Stanley Fish who once declared Richard Posner's humanistic forays to be "execrable" now joins Posner's pragmatic program almost without qualification. If Pragmatism's …

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.

The Journey Into Activism, Bernhard Schlink

Cardozo Law Review

In Anna Karenina, Leo Tolstoy teaches us that all happy families are alike and only unhappy families are different. It is the same with courts that engage in constitutional review. All happy constitutional courts, that is, all happily activist constitutional courts are alike and only those that do not play an activist role are different.

Constitutional Justice And Democracy, Michel Troper

Cardozo Law Review

The issue of the compatibility of constitutional justice and democracy is considered in a particular way in France, for reasons relating both to the history of the legal culture and tothe peculiarities of the Constitutional Council, the institution which reviews the constitutionality of legislation.

The One True Sense, Georgia Warnke

Cardozo Law Review

In his Legal and Political Hermeneutics, Francis Lieber claims that "No sentence, or form of words, can have more than one 'true sense,' and this is the only one we have to inquire for." He criticizes efforts to write all possible specifications into the laws and regulations with which a legal and political hermeneutics is concerned, as if the necessity of interpretation could simply be avoided. "Men," he writes, "have at length found out that little or nothing is gained by attempting to speak with absolute clearness and endless specifications, but that human speech is clearer, the less we …

Legal And Political Hermeneutics, Or Principles Of Interpretation And Construction In Law And Politics, With Remarks On Precedents And Authorities, Francis Lieber

Cardozo Law Review

The second edition of the Hermeneutics was published in 1839, and has now been out of print for almost forty years. In 1860 Dr. Lieber carefully revised it, and made additions to both text and notes, expecting to publish a third edition, with a second part, of "Special Hermeneutics, or Legal Rules of Interpretation and Construction," by an eminent member of the New York Bar, Mr. William Curtis Noyes. This plan, however, was not carried out, and Mr. Noyes died December 25, 1863, without having written his proposed part. The text of the present edition, and Dr. Lieber's own notes, …

"Fetch Some Soupmeat", William N. Eskridge Jr.

Cardozo Law Review

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible to surprising …

Some Implications Of Daubert And Its Potential For Misuse: Misapplication To Environmental Tort Cases And Abuse Of Rule 706(A) Court-Appointed Experts, Ellen Relkin

Cardozo Law Review

This Commentary will address an array of issues underlying and emerging from the disputes in Daubert v. Merrell Dow Pharmaceuticals, Inc., and its inevitable progeny, from a practitioner's perspective representing plaintiffs in toxic tort litigation. It is intended to provide real examples that debunk the quaint but unrealistic notion that science is pure and insulated from economics and politics, the propagandized suggestion that it is the plaintiff's expert who promotes "fringe" or "junk" science, and the belief that epidemiology is the sine qua non of proving causation of a disease. It will also address the potential perils of the …

Should Federal Evidence Rules Trump State Tort Policy? The Federalism Values Daubert Ignored, Michael H. Gottesman

Cardozo Law Review

I want to explore issues that the Supreme Court should have addressed in Daubert but did not. The Court decided that Rule 702 of the Federal Rules of Evidence ("FRE") assigns a "gatekeeping" function to federal trial judges, who are to exclude expert scientific opinions that do not meet a standard of "reliability" vaguely sketched out in the Court's opinion.

The Daubert case involved exclusively state substantive law issues and was in federal court only because the defendant removed it from state court on the basis of diversity of citizenship. The Court held the gatekeeping function applicable in diversity actions, …

The Supreme Court’S View Of Science: Has Daubert Exorcised The Certainty Demon?, Bert Black

Cardozo Law Review

The Supreme Court's mandate in Daubert that experts who give testimony based on science must confine themselves to valid scientific knowledge seems tautologically obvious, and hardly an issue requiring the attention of the nation's nine highest judges. The debate that led to Daubert was generated, however, by opponents of judicial screening who argued that holding experts to scientific standards somehow imposes an undue burden of proof on plaintiffs, especially in toxic tort cases - and the Supreme Court's decision has not put the issue completely to rest. Science, according to this "relaxed standards" argument, demands certainty far beyond the law's …

Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, Victor Gold

Cardozo Law Review

No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness. When first proposed, the provision was the subject of fierce debate, sparking repeated revision during its drafting and while it was under consideration by Congress. Ultimately, no one side in this legislative battle prevailed entirely; the Rule strikes a compromise between sharply conflicting policies. The text of Rule 609, incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms, leaves the task of resolving the …

After Daubert: Going Forward With Lessons From The Past, Marc S. Klein

Cardozo Law Review

Ground zero in the ongoing battle over scientific evidence in toxic tort cases has clearly shifted in light of Daubert v. Merrell Dow Pharmaceuticals, Inc. In that case, the Supreme Court settled at least two profound issues. One has immediate practical consequences, the other has important philosophical implications.

Table Of Contents - Cardozo Law Review, Volume 15, Issues 6-7

Cardozo Law Review

No abstract provided.

Judge Charles Edward Clark Edited By Peninah Petruck, Peter Charles Hoffer

Cardozo Law Review

For everyone who knew him while he lived and everyone whose career or education he touched, Charles Edward Clark (1889-1963) was a presence almost larger than life. A shade under six feet tall, with a bullfrog voice, barrel chest, and broad shoulders, he could not be missed in a crowd. A man whose habits and opinions had an "allor-nothing quality" during a critical era for legal education and government-lawyer relations, Clark's presence seemed to fill the law school he led and the bench on which he sat.

Pierre Schlag’S “The Problem Of The Subject”: Law’S Need For An Analyst, David S. Caudill

Cardozo Law Review

Pierre Schlag's book-length law review article, The Problem of the Subject, sets out to reveal, and succeeds in revealing, nothing - Schlag reveals a gap or void in contemporary legal philosophy with respect to the subject. Of course, the subject (for now, the "I" or self or individual) can be found in legal theory-people reflect on law, make law, and obey or break the law-but legal theorists generally avoid the question of who the subject is. Thus, accounts of the subject are rare in legal scholarship, and the problems that such accounts would raise are generally evaded. Of course, …

The Illegitimacy Of The Extrajudicial Source Requirement For Judicial Disaqualification Under 28 U.S.C. § 455(A), Adam J. Safer

Cardozo Law Review

According to 28 U.S.C. § 455(a), a judge shall disqualify himself from presiding over "any proceeding in which his impartiality might reasonably be questioned." Judicial disqualification under § 455(a) arises from a number of disparate situations, including a judge's financial conflict of interest and a judge's appearance of bias or prejudice. This Note focuses on judicial disqualification for bias under § 455(a) and the questionable legitimacy of a judicially created doctrine known as the "extrajudicial source requirement." The extrajudicial source requirement allows a judge to deny a disqualification motion based on bias if the judge's alleged bias arises solely from …

A Stalwart At The Bar, Arthur Norman Field

Cardozo Law Review

The New York legal community that Jack Bums found upon his admission to the Bar in 1932 was not given to welcoming all comers. It was changing rapidly. To many leaders of the Bar the change was not a positive one.

Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill

Cardozo Law Review

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …

Would Vince Lombardi Have Been Right If He Had Said: “When It Comes To Redistricting, Race Isn’T Everything, It’S The Only Thing”?, Bernard Grofman

Cardozo Law Review

No abstract provided.

Comment, Agnes Heller

Cardozo Law Review

No abstract provided.

The Code Of The Moral, Niklas Luhmann

Cardozo Law Review

No abstract provided.

Hermeneutics And Constitutional Interpretation, Aharon Barak

Cardozo Law Review

No abstract provided.

A Philosophical Reconstruction Of Judicial Review, Carlos Santiago Nino

Cardozo Law Review

No abstract provided.

John D. Appel, Leslie Berman

Cardozo Law Review

No abstract provided.

Forensic Expertise In Dutch Criminal Procedure, Johannes F. Nijboer

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