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Articles 271 - 300 of 826
Full-Text Articles in Jurisprudence
Introduction: Can Constitutionalism, Secularism And Religion Be Reconciled In An Era Of Globalization And Religious Revival?, Michel Rosenfeld
Introduction: Can Constitutionalism, Secularism And Religion Be Reconciled In An Era Of Globalization And Religious Revival?, Michel Rosenfeld
Cardozo Law Review
No abstract provided.
Feminism And Its "Other": Female Autonomy In An Age Of "Difference", Maleiha Malik
Feminism And Its "Other": Female Autonomy In An Age Of "Difference", Maleiha Malik
Cardozo Law Review
No abstract provided.
Are Secularism And Neutrality Attractive To Religious Minorities? Islamic Discussions Of Western Secularism In The "Jurisprudence Of Muslim Minorities" (Fiqh Al-Aqalliyyat) Discourse, Andrew F. March
Cardozo Law Review
No abstract provided.
The Tail Wagging The Dog: Local Summary Judgment Rules That Deem Facts Admitted, Nathaniel S. Boyer
The Tail Wagging The Dog: Local Summary Judgment Rules That Deem Facts Admitted, Nathaniel S. Boyer
Cardozo Law Review
No abstract provided.
Not Confused? Don't Be Troubled: Meeting The First Amendment Attack On Protection Of "Generic" Foreign Geographical Indications, Scott Danner
Cardozo Law Review
No abstract provided.
Judicial Discretion In Talmudic Times And The Modern Era, A. David Pardo
Judicial Discretion In Talmudic Times And The Modern Era, A. David Pardo
Cardozo Public Law, Policy & Ethics Journal
The article explores the concept of judicial discretion within the Talmud, particularly comparing the approaches of the Palestinian Talmud (Yerushalmi) and the Babylonian Talmud (Bavli). It highlights how the Yerushalmi adheres to a stricter, more unified interpretation of the Halakhah, while the Bavli adopts a more flexible approach, incorporating extralegal considerations and societal context. The analysis demonstrates that these differences reflect broader jurisprudential theories about the role of discretion in legal decision-making.
Changing Language, Unchanging Standard: From 'Satisfied Conscience' To 'Moral Certainty' And 'Beyond Reasonable Doubt', Barbara Shapiro
Changing Language, Unchanging Standard: From 'Satisfied Conscience' To 'Moral Certainty' And 'Beyond Reasonable Doubt', Barbara Shapiro
Cardozo Journal of International and Comparative Law
The article explores the historical evolution of the "beyond reasonable doubt" standard in Anglo-American law, tracing its roots to earlier concepts such as "satisfied conscience" and "moral certainty." These ideas, influenced by Christian casuistry and Enlightenment thought, were integral to the development of legal evidence standards. The standard became a cornerstone of criminal jurisprudence, reflecting a shift from religious to secular language while maintaining a high threshold for conviction.
Commerce Flaws: "Taking Exception" With Garb V. Poland'S Misinterpretation Of The Commercial Activity And Takings Exceptions Of The Fsia, Joshua A. Kirstein
Commerce Flaws: "Taking Exception" With Garb V. Poland'S Misinterpretation Of The Commercial Activity And Takings Exceptions Of The Fsia, Joshua A. Kirstein
Cardozo Journal of International and Comparative Law
The Second Circuit's application of the Foreign Sovereign Immunities Act (FSIA) in the Garb case was flawed, as it incorrectly used the "core functions" test instead of the "legal characteristics" test. This led to the improper granting of sovereign immunity to Poland, denying justice to the plaintiffs in a Holocaust-era property dispute. The decision undermines the FSIA's intent and sets a concerning precedent.
Daniel Arises: Notes (Such As 30 And 31) From The Schlagaground*, Richard H. Weisberg
Daniel Arises: Notes (Such As 30 And 31) From The Schlagaground*, Richard H. Weisberg
Articles
The article critiques the state of legal academia, arguing that it has become mired in mediocrity and disconnected from the pursuit of justice and creative thinking. It contends that legal education and scholarly discourse have been stifled by a focus on narrow, unimaginative logic, leading to a decline in intellectual rigor and a failure to inspire meaningful change.
The Jurisprudence Of Mediation: Between Formalism, Feminism And Identity Conversations, Michal Alberstein
The Jurisprudence Of Mediation: Between Formalism, Feminism And Identity Conversations, Michal Alberstein
Cardozo Journal of Conflict Resolution
The paper explores the ties between schools of mediation and schools of law through an examination of their theoretical foundations. By weaving together discussions of rights, the rule of law, and formalism, with elements of dispute resolution as it is studied today, this article will demonstrate the importance of Alternative Dispute Resolution ("ADR") and mediation as a form of social order. It will also demonstrate the influence of philosophical jurisprudential debates on the development of mediation programs. The paper begins by exploring the ties between different jurisprudential traditions and evolving models of mediation. Scholars portray mediation models as incorporating diverse …
Challenging Class Action Bans In Mandatory Arbitration Clauses, F. Paul Bland Jr., Claire Prestel
Challenging Class Action Bans In Mandatory Arbitration Clauses, F. Paul Bland Jr., Claire Prestel
Cardozo Journal of Conflict Resolution
After a brief summary of relevant Supreme Court doctrine, this article sets out the argument that exculpatory class action bans violate many states' generally applicable contract law and responds to several common corporate defenses offered in support of such bans.
State Regulation Of Arbitration Proceedings: Judicial Review Of Arbitration Awards By State Courts, Stephen K. Huber
State Regulation Of Arbitration Proceedings: Judicial Review Of Arbitration Awards By State Courts, Stephen K. Huber
Cardozo Journal of Conflict Resolution
The thesis of this Article can be stated simply and concisely: States possess the power to adopt standards for the conduct of arbitration proceedings and review of arbitration awards that are significantly different from federal law standards. The major objective of this Article is to explore the most important possibilities for reform of arbitration law and practice at the state level. State law standards will be of increasing importance in the reformation of arbitration practice. This Article focuses on the standards of review of arbitration awards employed by state courts, because the power to vacate an arbitration award is the …
Multijurisdictional Adr Practice: Lessons For Litigators, Kristen M. Blankley, Emily E. Root, John Minter
Multijurisdictional Adr Practice: Lessons For Litigators, Kristen M. Blankley, Emily E. Root, John Minter
Cardozo Journal of Conflict Resolution
This article attempts to give an overview of the problem facing litigators in their increasingly global practice, as well as the steps that litigators can take to act in compliance with legal and ethical guidelines. Accordingly, this article is divided into two broad areas. First, this article will discuss what activities constitute the practice of law and which jurisdiction's law should govern, focusing on whether ADR practices constitute the practice of law. Second, if the litigator is engaged in the practice of law, this article considers what actions the litigator should take in order to comply with the applicable ethical …
Opening Remarks, Jack Himmelstein
Opening Remarks, Jack Himmelstein
Cardozo Journal of Conflict Resolution
No abstract provided.
Emerging As Heroes After The Devastation Of Natural Disaster: Can Women And Children Utilize Public Nuisance Claims To Catalyze Regulation Of Greenhouse Gas Emissions By U.S. Corporations?, Tressie K. Kamp
Cardozo Journal of Equal Rights & Social Justice
No abstract provided.
The Triumph Of Confucianism: How A Subjugated Legal System Is Failing A Generation Of Chinese Women And Girls, Yufan Stephanie Wang
The Triumph Of Confucianism: How A Subjugated Legal System Is Failing A Generation Of Chinese Women And Girls, Yufan Stephanie Wang
Cardozo Journal of Equal Rights & Social Justice
The note examines the resurgence of Confucianism in China's legal system, arguing that it undermines gender equality and fails to protect the rights of women and girls despite economic reforms. It highlights how traditional Confucian values, emphasizing morality and social hierarchy, have persisted and influenced laws, leading to the subjugation of women in both legal and societal contexts.
The Continuity Of Justification Defenses, Kyron J. Huigens
The Continuity Of Justification Defenses, Kyron J. Huigens
Articles
This Article presents a legal theory of legal justification. It examines the elements of offense definitions and justification defensesor, more accurately, the conjunctions and disjunctions between these elements-to resolve a longstanding issue in the theory of legal punishment. The unjustified actor who believes she is justified seems to deserve an acquittal, while the justified actor who does not know he is justified seems to deserve conviction. But we face a dilemma: we seem to have to acquit both or convict both. This Article shows a principled way to rule the mistakenly unjustified actor within, and the mistakenly justified actor out …
Theorizing About Self-Incrimination, Ronald J. Allen
Theorizing About Self-Incrimination, Ronald J. Allen
Cardozo Law Review
No abstract provided.
Reciprocal Share-Alike Exemptions In Copyright Law, Guy Pessach
Reciprocal Share-Alike Exemptions In Copyright Law, Guy Pessach
Cardozo Law Review
This article introduces a novel element to copyright law's exemptions' scheme, and particularly the fair use doctrine - a reciprocal share-alike requirement. I argue that beneficiaries of a copyright exemption should comply with a complementary set of ex-post reciprocal share-alike obligations that come on top of the exemption that they benefit from. Among other aspects, reciprocal share-alike obligations may trump contractual limitations and technological protection measures that are imposed by parties who relied on a copyright exemption in the course of their own use of copyrighted materials. Thus, fair use beneficiaries should be obliged to treat alike subsequent third parties …
Originalism's Expiration Date, Adam M. Samaha
Originalism's Expiration Date, Adam M. Samaha
Cardozo Law Review
The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …
Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz
Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz
Cardozo Public Law, Policy & Ethics Journal
The Fifth Amendment privilege against self-incrimination is a cornerstone of American constitutional law, yet it faces erosion through recent Supreme Court rulings and scholarly critiques. The article presents a novel defense of this privilege, focusing on the protection of the "literal voice" and "metaphorical voice," arguing that compelled speech uniquely harms dignity, identity, and autonomy. It critiques existing justifications as insufficient and proposes a framework rooted in social science and linguistic compulsion, emphasizing the privilege's role in preventing state overreach and safeguarding individual autonomy.
Social Reality And Philosophical Ideals In Transitional Justice, Jamie Rowen
Social Reality And Philosophical Ideals In Transitional Justice, Jamie Rowen
Cardozo Public Law, Policy & Ethics Journal
The article argues that transitional justice mechanisms in post-conflict societies, such as Bosnia, often fail to establish legitimate authority because they neglect the crucial role of community building. It emphasizes that community is a prerequisite for legal authority and highlights the dialectical relationship between law and community, where each can shape the other. The case of Bosnia illustrates how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the War Crimes Chamber (WCC) in Sarajevo have struggled to gain legitimacy due to their focus on procedural values over community engagement. The article advocates for a reoriented approach to transitional …
Employment Law As Labor Law, Benjamin I. Sachs
Employment Law As Labor Law, Benjamin I. Sachs
Cardozo Law Review
No abstract provided.
Preface (On Alain Badiou's Handwriting), Peter Goodrich
Preface (On Alain Badiou's Handwriting), Peter Goodrich
Cardozo Law Review
No abstract provided.
Is Judicial Review Compatible With Democracy?, Scott M. Noveck
Is Judicial Review Compatible With Democracy?, Scott M. Noveck
Cardozo Public Law, Policy & Ethics Journal
The article argues that judicial review can be compatible with democracy, particularly when democracy is viewed instrumentally as a means to achieve just outcomes rather than solely as a procedural ideal. It critiques Jeremy Waldron's procedural objections to judicial review and supports Ronald Dworkin's result-driven approach, emphasizing that non-majoritarian institutions like the judiciary can enhance democratic legitimacy by ensuring equal respect and protecting against flawed majoritarian processes.
The Event Of The Letter: Two Approaches To The Law And Its Real, Tracy Mcnulty
The Event Of The Letter: Two Approaches To The Law And Its Real, Tracy Mcnulty
Cardozo Law Review
No abstract provided.
Badiou's Nocturnal Jurisprudence, Igor Stramignoni
Badiou's Nocturnal Jurisprudence, Igor Stramignoni
Cardozo Law Review
How, in the philosophy of Alain Badiou, is the relation between thought and language, the true and the legal, between philosophy itself and the impersonal transcendental field made possible through the occurrence of unexpected events? With and against Badiou, I argue that such a relation is one of subtraction and so similar to that which from time immemorial has permitted the somewhat enigmatic dominion of night and day in nature and culture alike. What then might be at stake in Badiou's nocturnal jurisprudence, in his subtractive discourse of the truth of the legal?
Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy-A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald
Cardozo Journal of International and Comparative Law
The article explores the integration of restorative justice within Canada's criminal justice system, emphasizing its potential to enhance human capital development and community capacity through deliberative democratic processes. It argues that restorative justice offers a more effective and responsive approach compared to traditional punitive measures, which often fail to address the root causes of crime and may even exacerbate recidivism. By examining the Nova Scotia Restorative Justice Program as a model, the analysis highlights the benefits of combining restorative practices with formal criminal justice systems, advocating for a shift towards more inclusive and rehabilitative approaches to crime.
Transatlanticisms: Constitutional Asymmetry And Selective Reception Of U.S. Law And Economics In The Formation Of European Private Law, Fernanda G. Nicola
Transatlanticisms: Constitutional Asymmetry And Selective Reception Of U.S. Law And Economics In The Formation Of European Private Law, Fernanda G. Nicola
Cardozo Journal of International and Comparative Law
The recurrent claim made by judges, scholars, and lawyers shaping the debate on European private law is that there is a constitutional asymmetry in the European Union (EU). The asymmetry lies in the fact that European Community competences mostly encompass market and economic matters at the expense of social issues, while Member States have full jurisdiction over social matters but only limited jurisdiction over economic matters. Thus, the European constitutional structure leads to a market/technocratic orientation in its supranational institutions, as opposed to the social/political orientation of Member State governments. The pervasiveness of this claim allows jurists critiquing European adjudication …
The Three Negations, Alain Badiou