Jurisprudence Commons^™

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 …

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.

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.

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 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 …

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 …

"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 …

Making Equality Law More Effective: Lessons From The German Experience, Ninon Colneric

Cardozo Journal of Equal Rights & Social Justice

The article examines the evolution and effectiveness of equality law in Germany, particularly focusing on gender equality. It highlights the significant influence of European Community (EC) law on German legislation and discusses the challenges in implementing these laws to achieve substantial gender equality. The analysis reveals that while progress has been made, there are persistent issues in effectively enforcing these laws.

Against Market Rationality: Moral Critiques Of Economic Analysis In Legal Theory, Jane B. Baron, Jeffrey L. Dunoff

Cardozo Law Review

Sometimes, apparently unrelated bodies of thought turn out to contain and express common themes. To our surprise, we found a set of common themes and concerns running through three bodies of theory that might otherwise appear unconnected: environmental ethics, civic republicanism, and commodification. In very different contexts, authors in all three areas seemed to ask some very similar questions. Collected together, these questions comprise a novel critique of the economic analysis of law-a "moral" critique that is quite different from technical and distributional critiques that have been offered in the past.

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, …

A Neo-Institutional Paradigm For Contracts Formed In Cyberspace: Judgment Day For The Statute Of Frauds, Marc E. Szafran

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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.

“A One Way Ticket To Palookaville”: Supreme Court Takings Jurisprudence After Dolan And Its Implication For New York City’S Waterfront Zoning Resolution, Jill Illan Berger Inbar

Cardozo Law Review

This Note will use the Waterfront Ordinance as a vehicle for examining the new heightened scrutiny standard introduced in Dolan. Part I provides an overview of takings jurisprudence and the traditional pre-Nollan and pre-Dolan standards, which were applied to determine whether an exercise of police power oversteps its bounds and interferes with private property rights guaranteed under the Fifth Amendment. Part II reviews the new standards espoused by the Supreme Court in Nollan and Dolan. Part III describes the purpose of New York City's 1993. Waterfront Zoning Ordinance and discusses its history, objectives, and provisions. Part …

The Constitutionality Of Legislative Supermajority Requirements: A Defense, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

William Gardiner Hammond And The Lieber Revival, Paul D. Carrington

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was first published in serial form in 1837. Jacksonian populism was then at high water and American judges and lawyers were acknowledged as politicians. Interpretation of legal texts was seen as a political activity. His work was so well received that a hard cover edition was published in 1839.

The edition presented in this issue was prepared by William Gardiner Hammond in 1880. Jacksonian politics were then in retreat before a rising tide of technocratic professionalism. Many lawyers and judges were disowning the political mission of American law and aspiring to be technocrats. To …

Back To The Parent: Holding Company Liability For Subsidiary Banks - A Discussion Of The Net Worth Maintenance Agreement, The Source Of Stength Doctrine, And The Prompt Corrective Action Provision, Cassandra Jones Havard

Cardozo Law Review

The unprecedented number of bank failures in the past several years has spawned a crisis in the industry and fueled an extensive debate about how federal regulators can effectively make banks more responsible for guaranteeing the soundness of their operations. For the federal regulators most involved-the Federal Deposit Insurance Corporation ("FDIC"), Office of Thrift Supervision ("OTS"), and the Federal Reserve Board ("FRB") -Congress is directing the effort to enhance the banks' guarantees of self-policing. Congress's basic response to the crisis has been to heighten the minimum capital levels the banks must maintain to avoid direct corrective intervention by the federal …

The Limits Of Lieber, Lawrence Lessig

Cardozo Law Review

Texts are transportable. They move. Because written, they are carried. Because carried, they are read-in different places and at different times. Nothing (save the loss of the original language or the original text) can stop this semiotic peripateticism. If you write it, it will roam.

Benjamin Nathan Cardozo The Teacher, Joseph W. Bellacosa

Cardozo Law Review

The forty-seventh Cardozo Memorial Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on November 9, 1994.

The Deconstruction Of Kantian Ethics And The Question Of Pleasure, Henry J. Staten

Cardozo Law Review

This Essay is primarily about the recent work of Bernard Williams, who is in my opinion the most radical thinker on the question of ethics in the analytic philosophy camp. In fact, Williams's work tests the limits of what we know as analytic philosophy. His project is rigorously deconstructive, yet it has been developed out of the materials of analytic philosophy itself quite independently of Derridean deconstruction. Thus, this project is extraordinarily rich in its resonance, and regardless of whether one comes at it from an analytic or deconstructive background, one is equally likely to find it surprising in its …

Critiquing The Legal Order In The Name Of “Critical Morality”, Julius Cohen

Cardozo Law Review

The moral criticism of the legal order has been a longtime sport (serious), if not an industry, for law teachers, theorists, judges, and other legal functionaries. In the process, they often reach for criteria beyond those utilized in conventional morality. Sometimes the reach "beyond" is ad hoc; sometimes it is accompanied by an awareness that it is toward a pattern of a higher-level, critical morality. The reach beyond is often triggered by a need to resolve conflicts within conventional morality. Or it is a function of the distrust of some of the sources of conventional morality, such as prejudice, unrefined …

Uncertainty In The Empire State: A Reevaluation Of New York’S Takings Jurisprudence After Dolan V. City Of Tigard, Clifford B. Olshaker

Cardozo Law Review

A hallmark of American property law is the acknowledgment of the government's ability to regulate the use of private parcels of land through the zoning laws. One of the chief goals of zoning law is to prevent overdevelopment and the accompanying strain on municipal resources. A landowner seeking to make significant changes to his property must obtain a permit from the local governing body. Denial of a building permit or certificate of occupancy is the chief means for enforcing zoning regulations. If a potential developer wishes to alter his property in a way that conflicts with applicable zoning laws, he …

The Alleged Unaccountability Of The Academic: A Biographical Sketch Of Carl Schmitt, Manfred H. Wiegandt

Cardozo Law Review

In recent years, especially after the breakdown of the Soviet bloc, we have witnessed numerous attempts to establish viable democratic structures in states formerly in the tight grip of dictatorially ruling elites, be it in the countries of the former Communist bloc, at the African Cape, or in Latin America. The questions that concern people in these regions above all are how their systems can be made strong enough to survive the economic crises that go along with establishing democratic frameworks and how the states can ensure the necessary coherence to survive on the background of a lingering challenge by …

Law As Discourse: Bridging The Gap Between Democracy And Rights, Michel Rosenfeld

Articles

No abstract provided.

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.

A Unique And Different Subject Of Law, Alain Pottage

Cardozo Law Review

Might an idiom of love be instituted in law? This question is posed by Luce Irigaray's ethics of sexual difference, which, in the guise of a critique of law, depicts the semantic or symbolic structure of a law that articulates an ethical relation of love-not love as caritatis, but love as eros. This implausible association of love and law seeks to institute an immediate and idiomatic relation within the axiopoietic order of law. Irigaray's J'aime d toi prescribes a set of basic rights which law-in its role as cultural tutor-might institute as the coordinates of a new model …

Anti-Intellectualism, Pierre Schlag

Cardozo Law Review

There is a recurrent sameness to American legal thought. It is the sameness that comes from saying over and over again what the law is and saying it, of course, in a way that conforms with the law itself.