Jurisprudence Commons^™

Never Jam To-Day: On The Impossibility Of Takings Jurisprudence, Jeanne L. Schroeder

Articles

The article critiques the incoherence of takings jurisprudence under the Fifth and Fourteenth Amendments, arguing that property rights cannot be understood as absolute or natural but must be viewed through the lens of Hegelian dialectics. It contends that property is a socially constructed concept requiring pragmatic reasoning to balance individual rights and communitarian limits. The analysis emphasizes that the determination of when regulation constitutes a taking cannot be resolved through rigid legal frameworks but demands a pragmatic approach, as the balance between individualistic and communitarian interests is inherently empirical and subjective.

The Ten Precepts Of American Slavery Jurisprudence: Chief Justice Roger Taney's Defense And Justice Thurgood Marshall's Condemnation Of The Precept Of Black Inferiority, A. Leon Higginbotham Jr.

Cardozo Law Review

Approximately twenty-five years ago, a group of thoughtful scholars, under the tutelage of Stanley Katz and Owen Fiss, met at the University of Chicago to discuss slavery law. Stanley Katz has previously noted that the conference generated extraordinary academic inquiries, as well as many books and articles. In this Article, I will describe briefly the intellectual journey I have traveled which was, in no small part, shaped by the conference and the interrelationships I have had since then, with so many scholars, as we have tried to get better insights into the interrelated issues of bondage, freedom, and the Constitution.

Opening Address, Stanley N. Katz

Cardozo Law Review

I am more moved by this occasion than any of you other than Owen Fiss can imagine, for it takes me back to my first days teaching law at the University of Chicago in the fall of 1971. It was then and there that I began two of the most important friendships of my life with Harry Kalven and Owen Fiss. We agreed to begin a series of seminars on the law of slavery, which in the end carried on for three years.

The Hermeneutic Of Acceptance And The Discourse Of The Grotesque, With A Classroom Excercise On Vichy Law, Richard Weisberg

Cardozo Law Review

As a nonspecialist on the laws of slavery, I can best contribute to this discourse by suggesting some reflection on the comparative nature of racial discrimination in constitutionally based and seemingly enlightened legal systems. To the American system under close scrutiny in this Symposium, my recently completed work on Vichy law may lend some degree of further understanding. For the legalized persecution of Jews in France during the period 1940- 44 stands as a classic twentieth-century example of what I believe to have been at work in antebellum America: the elaboration through traditional patterns of legal reasoning of a discourse …

Law And Order, Arthur J. Jacobson

Cardozo Law Review

Every jurisprudence offers a distinctive image of order. Any order-whether of action, logic, or material-describes the ongoing operation of a set of principles or criteria. Principles define an order as the cause of an operation; criteria define it as the effect of other operations. The operation of a set of principles or criteria constituting an order allows observers effectively to distinguish that order from other orders or from no order at all.

An order is static when it is possible for observers to describe operation of the set of principles or criteria constituting the order at a single moment, without …

The Retrieval Of The Democratic Ethos, Richard J. Bernstein

Cardozo Law Review

For over thirty years I have been a sympathetic although critical reader of Habermas. Initially, I was struck by his nuanced insight into the American pragmatic tradition and his appropriation of the radical democratic ethos of the pragmatic movement. I felt then, and still believe, that Habermas has a more profound and subtle understanding of what is best and most enduring in pragmatism-especially in the thought of Peirce, Dewey, and Mead-than many of my American colleagues. I was also attracted to Habermas for other reasons. He is a dialectical thinker who has the courage to buck fashionable trends-who refuses to …

Liberties And Popular Sovereignty: On Jurgen Habermas’S Reconstruction Of The System Of Rights, Ingeborg Maus

Cardozo Law Review

The justifications Jurgen Habermas gives for a system of rights bring together the central intentions of his theory of law. The chapter of his book which provides these justifications is devoted in part to developing the underlying tension between "facticity and validity" as the basic structure of law taking the extreme and, for that reason, illuminating aspect of the guarantee of liberty through coercion. It also elucidates the motives for reestablishing the centuries-old connection between legal theory and social theory in the context of the most topical social problems. Whereas all subsectors of contemporary society have been juridified on a …

Quod Omnes Tangit: Remarks On Jurgen Habermas’S Legal Theory, Niklas Luhmann

Cardozo Law Review

Quod omnes tangit, omnibus tractari et approbari debet. The Middle Ages found this rule in Roman law. It had to do with the circumstance of a plurality of legal guardians over the same ward. In the typical case, one guardian's approval was legally sufficient authorization in legal transactions. Since every other rule had seriously damaged business dealings, the business partner's confidence had to be protected. On the other hand, this consideration-that one guardian's approval is legally sufficient authorization for an emancipation-could not have led to a fully realized emancipation of a ward. Nor could it have led to the …

Habermas And The Counterfactual Imagination, Michael K. Power

Cardozo Law Review

The epistemological problem of critical theories is easy to state but hard to resolve. On the one hand, if the theories are too descriptive and draw their conceptual resources from the ideas and institutions which currently exist, they lose their critical force. While they may provide elaborate reconstructions of the structure of social practices, they remain internal to these practices, part of a field of knowledge in which, at worst, theory is merely a form of public relations. On the other hand, if they articulate forms of critique that are entirely external to the systems of knowledge and practice that …

Law And Undecidability: A New Vision Of The Proceduralization Of Law, Jacques Lenoble

Cardozo Law Review

As a leading citizen of the Age of Reason, Pierre Simon Laplace liked to remark that there never could have been two Isaac Newtons for there was but a single world to be discovered. Laplace's aphorism neatly captured a fundamental assumption that has underlain the classical unity of science and reason under modernity. Today, in the wake of challenges posed by intellectual developments such as unstable systems and chaotic structures, the classical presupposition of a stable, objective, and physical world that serves as the horizon of scientific knowledge has begun to teeter. New cracks in the grand edifice of modem …

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 …

Jurisprudence And Validity, David M. Rasmussen

Cardozo Law Review

The relationship between law and philosophy and their respective discourses has never been harmonious. Just as Plato wanted to throw the poets out of his Republic on the basis of their tendency to corrupt, the law as a discipline has not been overwhelmed by those whose Platonic fervor would purify their enterprise and set them straight. The difference between legal procedure and philosophical-political reflection has not been easy to reconcile. Hobbes argued for the virtues of sovereignty against the self-regulating legal discipline that Lord Coke represented as having confidence in the practical orientation of "Juris prudentia," Blackstone tried …

Legitimacy And Diversity: Dialectical Reflections On Analytical Distinctions, Thomas Mccarthy

Cardozo Law Review

Jurgen Habermas's discourse theory of democracy has repeatedly been criticized for placing too much emphasis on consensus and not enough on conflict. He wants, it seems, to defend a discourse-theoretical version of the "general will" as the key to democratic legitimacy, whatever the cost. The costs are usually reckoned in terms of the theory's tenuous relation to the hurly-burly of democratic practice, where disagreement is the rule and unanimity is in short supply. Many of these criticisms miss their target, for they are often based on superficial readings and serious misunderstandings. But enough of them hit the mark to indicate …

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.

Communicative Power And The Concept Of Law, Ulrich K. Preub

Cardozo Law Review

The idea that the law was founded on the self-interest and the will of rational individuals was first developed and proven in the social contract theories of Hobbes, Locke, and Rousseau. These theorists reacted-admittedly, in extremely different ways-to the problem of finding a collective basis in a world which had lost its common religious fundaments and the economic basis of feudal communal life. The European world of the seventeenth century had fallen apart. The universalism of the catholic world had been replaced by a plurality of subjective worldviews championed by individuals, groups, sects, and new social entities. How could one …

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 …

Law And Philosophy: Some Consequences For The Law Deriving From The Sociological Reconstruction Of Philosophical Theory, Mark Gould

Cardozo Law Review

Jurgen Habermas wants to provide a (quasi) transcendental grounding for democracy. He believes that the constituent attribute of Homo Sapiens is ordinary speech and that embedded in speech is a set of "validity claims" that are redeemable-asymptotically-only in an ideal speech situation. This ideal serves as a regulative fiction for our everyday world of social institutions. While it may not actually be present in institutional form, it serves as a ground for the normative critique of the actual social world in which we live.

Reply To Symposium Participants, Benjamin N. Cardozo School Of Law, Jürgen Habermas

Cardozo Law Review

Every author owes a debt to his readers. This is especially true when an author presents a wide-ranging and complex investigation that draws the critical attention of outstanding colleagues. I have profited a great deal from my colleagues' thoughtful commentaries, as will be evident from this Reply which is a token of my appreciation.

Law And Political Culture, Dick Howard

Cardozo Law Review

A decade ago Habermas announced a project in his The Theory of Communicative Action. Those who slipped into the habit of talking about this project as his Rechtsphilosophie may be surprised by the sobriety of Habermas's choice for the book's title. The foreword to Faktizitat und Geltung rejects any comparison with Hegel's systematic Grundlinien der Philosophie des Rechts. Habermas contrasts his "methodical-pluralistic" proposals to the idealistic concepts of Geist and Sittlichkeit, which are unable to account for complex modern societies. The apparent modesty of Habermas's claims is underlined by his subtitle, Contributions to a Discourse Theory of …

Replik Auf Beitrage Zu Einem Symposion Der Benjamin N. Cardozo School Of Law, Jürgen Habermas

Cardozo Law Review

Jeder Autor steht in der Schuld seiner Leser; das gilt erst recht ftr einen anspruchsvollen Autor, der eine umfangreiche und komplexe Untersuchung vorlegt und daftir-noch vor der Publikation des Buches in deutscher Sprache an einer amerikanischen Universitat-die kritische Aufmerksamkeit hervorragender Kollegen findet. Aus den sorgfaltigen Kommentaren habe ich grossen Gewinn gezogen. Diese Behauptung wird sich anhand meiner Antwort nachpriifen lassen, mit der ich zugleich meinen Dank abstatten mochte.

Preface, Michel Rosenfeld

Cardozo Law Review

This symposium issue of the Cardozo Law Review which coincides with the English publication of Jurgen Habermas's Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, represents the culmination of an extraordinary interdisciplinary and intercontinental intellectual journey. The papers published in this issue were first presented at a conference held at the Benjamin N. Cardozo School of Law on September 20 and 21, 1992, in which Jurgen Habermas and thirty-two scholars from the United States, Germany, and many other countries, representing the fields of law, philosophy, sociology, and political science engaged in two days of …

"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz

Articles

Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …

Taking Responsibility: Law's Relation To Justice And D'Amato's Deconstructive Practice, Arthur J. Jacobson

Articles

The Essay challenges the conventional view of law's relationship with justice by defending the indeterminacy thesis, arguing that law enhances the opportunity for taking responsibility, contrary to the usual perspective that sees justice as liability and law as defining liability. It critiques both D'Amato's belief in absolute justice and Derrida's assignment of determinacy to law, asserting that both underestimate law's capacity for justice. The Essay distinguishes between assigned and taken responsibility, advocating for a dynamic conception of law that aligns with substantive justice.

Introduction, Belinda Cooper

Cardozo Journal of Equal Rights & Social Justice

The article explores the emergence and gradual integration of feminist jurisprudence in Germany, highlighting the challenges and opportunities faced by women in law as feminist ideas begin to influence legal academia and practice. It traces the development of feminist legal scholarship in Germany, starting from its early stages in the 1980s to the establishment of institutionalized feminist jurisprudence at Humboldt University. The article introduces a collection of writings that examine key legal issues affecting women in Germany, emphasizing the interplay between German and European Community law, as well as the cultural and historical contexts that shape legal discourse.

A Different Approach To Jurisprudence? Feminisms In German Legal Science, Legal Cultures, And The Ambivalence Of Law, Susanne Baer

Cardozo Journal of Equal Rights & Social Justice

The integration of feminist theories into legal science and education faces significant challenges, particularly in Germany, where institutional and cultural barriers have slowed progress compared to other countries like Norway, Denmark, and the U.S. While feminist approaches have made inroads elsewhere, Germany remains hesitant, with the question of whether feminism belongs in legal education still unanswered. The tension between feminist perspectives and traditional legal methodologies, coupled with structural academia challenges, underscores the difficulty of achieving meaningful integration.

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.

Using The American Courts To Prosecute International Crimes Against Women: Jane Doe V. Radovan Karadzic And S. Kadic V. Radovan Karadzic, Rachel Bart

Cardozo Journal of Equal Rights & Social Justice

The note examines the use of the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA) to prosecute international crimes against women, focusing on the *Karadzic* cases. It argues that these cases represent a significant expansion of U.S. federal jurisdiction over human rights abuses, particularly gender-based violence, committed abroad. The Second Circuit's decision to reverse the district court's dismissal and the Supreme Court's denial of certiorari affirmed the applicability of ATCA and TVPA to non-state actors and clarified their role in enforcing international human rights standards.

The Duration Of Copyright And The Limits Of Cultural Policy, J. H. Reichman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Death And Transfiguration: The Myth That The U.C.C. Killed "Property", Jeanne L. Schroeder

Articles

The article examines the evolution of property concepts in legal frameworks, particularly focusing on the Uniform Commercial Code (U.C.C.) and its treatment of title in sales transactions. It argues that while the U.C.C. attempted to shift from traditional notions of property as a unitary right to a more process-oriented approach, it did not fully abandon the underlying imagery of property as a tangible, identifiable object. The analysis critiques the common law's emphasis on title and explores the idea that property should be viewed as a legal relation among subjects rather than a fixed, physical entity. The article proposes a reinterpretation …