Jurisprudence Commons^™

The First Amendment's Challenge Function And The Confusion In The Supreme Court's Contemporary Free Exercise Jurisprudence, Marci A. Hamilton

Articles

No abstract provided.

Jurisprudence And Personality In The Work Of John Rawls, David G. Carlson

Articles

The article argues that John Rawls's concept of the person undergoes a significant shift between A Theory of Justice and Political Liberalism, necessitating a corresponding change in jurisprudence. In A Theory of Justice, Rawls employs a "correlative jurisprudence," where law is determinate, complete, and judges merely apply existing law. This approach is tied to a narrow, passive view of personality, treating individuals as mere loci of liberty and rights. In contrast, Political Liberalism presents a dynamic, contradictory conception of the person as a union of moral capacity and a determinate conception of the good. This shift, the article contends, requires …

Revisiting The Corporatist And Contractualist Models Of Labor Law Regimes: A Review Of The Brazilian And American Systems, Stanley A. Gacek

Cardozo Law Review

During the late 1970s, Brazilian workers captured world attention by mobilizing gigantic strikes in the auto industry of Greater São Paulo. Defying the intervention of the labor courts, they directly confronted the transnational automakers and negotiated impressive wage gains. They also established the celebrated comissões de fábrica, or factory commissions, which served as new vehicles for the negotiation of agreements and the resolution of labor disputes.

“Now The Machine Runs Itself”: Carl Schmitt On Hobbes And Kelsen, David Dyzenhaus

Cardozo Law Review

Carl Schmitt claimed that the fundamental distinction of politics is the distinction between friend and enemy. That distinction, he said, has to be put on a substantive basis, which, in the era of the nation state, he supposed must amount to an idea of the homogeneity of the people. Since liberal democracy is opposed to this kind of substance, Schmitt argued that liberalism cannot make the distinction between friend and enemy. It thus cannot defend itself against its enemies. It is no wonder that he remains the leading theorist of fascism.

The Other Path Of The Law, Arthur J. Jacobson

Articles

The article argues that the informal economy plays a crucial role in shaping jurisprudence, challenging the traditional state-oriented, "static" approach to law. It introduces the concept of "dynamic jurisprudence," which emphasizes individual dignity, mutual recognition, and the constant reshaping of legal norms through interpersonal interactions. This dynamic approach contrasts with static jurisprudence, which relies on a correlating agency like the state to maintain rights and duties. The article contends that dynamic jurisprudence enhances personal and collective power, allowing individuals to resist or reform state commands, and highlights the importance of recognizing the interplay between formal and informal legal systems.

Discussion And Decisions: A Proposal To Replace The Myth Of Self-Rule With An Attorneyship Model Of Representation, Marci A. Hamilton

Articles

The traditional model used by legal scholars to describe our system of representative democracy seeks to justify representation as a fulfillment of the self-rule ideal Many scholars, however, have argued that certain features of the modem legislative process undermine self-rule, and have proposed means by which judicial review can correct legislative failures and restore self-rule to primacy. Drawing on German philosopher Carl Schmitt's critique of parliamentary democracy in Weimar Germany, Professor Hamilton posits that scholarly attempts to reconcile self-rule with representative democracy are misguided. Representation based on self-rule will inevitably lead to interest-group politics, resulting in meaningless and endless debate …

The Legal Framework Of European Community Participation In International Environmental Agreements, Martin Hession, Richard Macrory

Cardozo Journal of International and Comparative Law

The article examines the European Community's legal framework for participating in international environmental agreements, focusing on the evolution of its external competence and the challenges inherent in this process. It highlights the role of mixed agreements, the division of competences between the Community and its Member States, and the influence of the Court of Justice in shaping these dynamics. The analysis underscores the tension between legal principles and political realities in the EC's external relations.

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 …

The Impact Of Daubert On The Admissibility Of Scientific Evidence: The Supreme Court Catches Up With A Decade Of Jurisprudence, Arvin Maskin

Cardozo Law Review

Over the past several years a host of new civil damage theories has emerged, notably in the mass tort area. These include claims for increased risk of disease, fear of disease, hedonic damages, immunotoxicity, and medical surveillance. In the great majority of these cases, the dispositive issue reduces to causation, which invariably turns upon scientific evidence. Moreover, the stakes in these cases have greatly escalated. For example, the $180 million settlement in the Agent Orange case seemed like a lot of money in 1984, until several years later when the Dalkon Shield litigation, which involved the sale of a single …

On The Threshold Of Ethics, Adam Thurschwell

Cardozo Law Review

Can the judiciary exercise its authority to interpret the law without committing itself to particular, substantive views of the Good? If not, can law maintain its legitimacy in a democratic society when this legitimacy rests on the state's democratic claim to neutrality vis-i-vis the competing moral visions of its citizens? The fear addressed by these questions-the familiar "counter-majoritarian difficulty"-is that unelected judges will irresponsibly impose their individual moral preferences on an unwilling citizenry. The traditional answer is that interpretation requires no recourse to moral or ethical judgment, because case outcomes may be rationally determined from precedent and other authoritative legal …

Table Of Contents - Cardozo Law Review, Volume 15, Issue 5

Cardozo Law Review

No abstract provided.

"Reading At The Limit", Elizabeth Weed

Cardozo Law Review

In the future, when we reflect upon the phenomenon of "postmodernity," we may be most surprised by its permissiveness. Accustomed as we are to the blurring of genres and disciplinary boundaries, we can forget that the disciplinary gates have been open only a few decades and that they may well close again. Of course, philosophers have always moved freely within the discipline of the law; historians and sociologists have had their place; and now, literary critics and feminist theorists move there as well, through Critical Legal Studies (PoL pp. 100-05), feminist studies (PoL pp. 100-03), critical race theory, …

Doctor Duxbury’S Cure: Or, A Note On Legal Historiography, Peter Goodrich

Cardozo Law Review

No abstract provided.

Language And Materialism, Christina Crosby

Cardozo Law Review

A report issued by the United Nations recently predicted that "[i]t will take nearly 1,000 years for women to gain the same economic and political clout as men if current trends continue." Indeed, when one reflects on the wrongs done worldwide to women-the silent violence of exploitation and indifference, the pervasive violence of disgust and contempt, the brutal violence of murder and mutilationone wonders, first, whether even a millennium will bring "equal representation in 'the higher echelons of political and economic power,' and second, whether anything would really be changed if women one day come to exercise the same "clout" …

Alienability Restrictions And The Enhancement Of Author Autonomy In United States And Continental Copyright Law, Neil Netanel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Justice Byron White And The Argument That The Greater Includes The Lesser, Michael E. Herz

Articles

No abstract provided.

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.

Deconstruction: The Road To A Derridian Cul-De-Sac Where "There Is No There There" And "There Is No About About For Anything To Be About", Arthur Austin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Failure Of The Act: Conceptions Of The Law In The Merchant Of Venice, Bleak House, Les Miserables, And Richard Weisberg’S Poethics, Daniel H. Lowenstein

Cardozo Law Review

Richard Weisberg is a leading participant in the academic subfield known as "Law and Literature," which is dedicated to what Weisberg aptly describes as "the delightful task of associating two major human enterprises: establishing justice and telling stories."In his most recent book, Poethics: And Other Strategies of Law and Literature, Weisberg attempts to provide, "more systematically . . . than elsewhere," a "guidebook to Law and Literature theory and practice." Several of the chapters in Poethics were written for other occasions and previously published; accordingly, it is no surprise that Weisberg succeeds more in demonstrating his critical acuity, the …

Faith In Reason: The Process Tradition In American Jurisprudence, Neil Duxbury

Cardozo Law Review

Even the most cursory survey of the history of jurisprudence reveals a remarkable tendency on the part of legal philosophers to develop concepts, for want of a better word, which are purportedly foundational to the existence of a legal system. Positivists and natural lawyers alike have long been committed to the search for that special concept which stands as the fons et origo of law. Legal philosophers typically frame this search in terms of a quest to discover something singular; and when they do try to conceive of a legal system as founded on a plurality of concepts, their assertions, …

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, …

Three Lessons From Law And Literature, Richard H. Weisberg

Articles

The article explores the intersection of law and literature, emphasizing the narrative nature of legal discourse and the importance of "considerate communication" in legal practice. It critiques the dominance of economic analysis in law and advocates for a more nuanced understanding of language and ethics in legal education and practice. The author uses literary works, such as Herman Melville's Billy Budd Sailor, and historical examples, like the Vichy regime in France, to illustrate the ethical and practical implications of how legal language is used.

Life As An Intrinsic Rather Than Instrumental Good: The “Spiritual” Case Against Euthanasia, J. David Bleich

Articles

No abstract provided.

Jacob Burns And The Institute For Advanced Legal Studies, David G. Carlson

Cardozo Law Review

Jacob Burns lived a long and fabled life, which was obviously its own reward. Among the very many things that could be said, and the thing I would like to memorialize here, is the profound legacy Mr. Bums left behind at Benjamin N. Cardozo School of Law, where he served as chairman of the board for many years and as founder of the Jacob Bums Institute for Advanced Legal Studies. In his memory, I would like to say a little about the history of this endeavor and Mr. Burns's role in it.

Jacob Burns's Generosity, June D. Wolfman

Cardozo Law Review

At Benjamin N. Cardozo School of Law, as in so many other places, Mr. Jacob Bums is known for his exceptionally generous financial contributions. Through the Jacob Bums Scholars Program, I had the opportunity to meet Mr. Bums on several occasions. It was clear to me, and to all of us in the program, that Mr. Bums's support of our school and its students was far more than financial. Mr. Bums supported our student body from his heart.

Readings By Our Unitary Executive, Lawrence Lessig

Cardozo Law Review

No abstract provided.

The Jewish Lawyer, Jerome Hornblass

Cardozo Law Review

No abstract provided.

Law And Hermeneutics In Rabbinic Jurisprudence: A Maimonidean Perspective, José Faur

Cardozo Law Review

No abstract provided.

Judaism And Postmodernism, Suzanne Last Stone

Cardozo Law Review

No abstract provided.

Monolingualism And Judaism, José Faur

Cardozo Law Review

No abstract provided.