Law and Society Commons^™

Rethinking The Beyond Of The Real, Drucilla Cornell

Cardozo Law Review

It is commonplace to note that Sigmund Freud "discovered" another reality. This reality is the reality of the psychic life. The meaning of its unconscious underpinnings surfaces in the other world of dreams and in the slips of the tongue that indicate a beyond to the day-to-day life given to us by conventions of our form of life. Certainly, Freud always returns us to the Jenseits, the other side, the beyond of the unconscious, which leaves its traces and marks on so-called "real objects," but which, on the other hand, can never be simplistically identified with them. An obvious …

Primary Perversion And Universal Law, Alan Bass

Cardozo Law Review

My title is a deliberate reference to a paper by Janine Chasseguet-Smirgel, Perversion and the Universal Law. I imagine that Chasseguet-Smirgel would be surprised to hear her name invoked at a conference on Law and the Postmodern Mind, given her commitment to an essentialist model of truth. Within psychoanalysis, though, her theory of perversion has been much discussed and much criticized. Whatever the ultimate assessment of her thinking, Chasseguet-Smirgel does provide a framework for the discussion of the relations between law and the crucial psychoanalytic topic of perversion. The reasons are simple: She understands law as "the law …

Grant Gilmore, Holmes, And The Anxiety Of Influence, Charles M. Yablon

Articles

The article explores Grant Gilmore's ambivalent relationship with Oliver Wendell Holmes, particularly in The Death of Contract. Gilmore both praises Holmes's intellectual brilliance and critiques his formalistic approach to contract law. Drawing on Harold Bloom's The Anxiety of Influence, the analysis suggests that Gilmore engages in a struggle with Holmes's legacy, reflecting a mix of admiration and opposition, akin to how strong poets handle influential predecessors.

Environmental Performance Review: Self-Regulation In Environmental Law, Eric Bregman, Arthur Jacobson

Cardozo Law Review

Americans have explored self-regulation as a strategy for the legal treatment of environmental issues only slowly and reluctantly. This is surprising. The intellectual roots of environmentalism, after all, are in ecology, the science of self-regulating, autonomous systems. With the notable exception of the National Environmental Policy Act of 1969 ("NEPA"), the image of the human actor in environmental regulation has been that of a threat to, rather than a participant in, the ecological systems which regulation is designed to protect by controlling human interventions. The role of regulation, from this perspective, is to stop avoidable interventions and to control the …

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius By Edward De Grazia, Robert M. O'Neil

Cardozo Law Review

Such a headline from the 1990s reminds American readers that, however shameful may have been the treatment of obscenity and pornography in the United States during the past one hundred years, things could have been worse. Even so, the record here is hardly a source of pride-nor does the story have an altogether happy ending, if it has one at all. Yet it is a story that badly needs to be told, and never has it been better told than by Edward de Grazia in Girls Lean Back Everywhere.

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 …

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Redefining The Bases For Admissibility Of Expert Scientific Testimony, Clifton T. Hutchinson, Danny S. Ashby

Cardozo Law Review

Daubert v. Merrell Dow Pharmaceuticals, Inc. is not only, or even primarily, a case about the viability of Frye v. United States and "general acceptance" as the criterion for evaluating expert testimony. Principally, it is a case about the preconditions of Federal Rule of Evidence 702, the sole provision in the Federal Rules that authorizes the use of expert testimony. The question as framed by petitioners in the course of argument was whether trial courts may screen scientific expert testimony under any real test. The Supreme Court answered this question strongly in the affirmative.

Petitioners' recurring theme was that Rule …

The Next Step After Daubert: Developing A Similarly Epistemological Approach To Ensuring The Reliability Of Nonscientific Expert Testimony, Edward J. Imwinkelried

Cardozo Law Review

On June 28, 1993, after much fanfare, the United States Supreme Court rendered its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The decision was not only preceded by intense media attention; the decision was also immediately followed by a massive-and growing-volume of commentary. As is usually true with landmark decisions, it is imperative to identify what the Court decided and what the Court left unresolved.

Looking For Rights In All The Wrong Places: Resolving Custody Disputes In Divorce Proceedings, Katherine Hunt Federle

Cardozo Law Review

Eleven-year-old Shane P. left the office of his court-appointed law guardian in tears. Already upset by the escalating custody battle between his divorcing parents, Shane told his father that he wanted to "get rid of" his law guardian and subsequently sent her a letter notifying her that she was fired. Influenced, in part, by the case of Gregory K., Shane then retained the services of another attorney with funds provided by his father. Although the trial judge initially ruled that only the court could dismiss the law guardian who had been appointed to represent Shane's best interests, the judge subsequently …

Identities, Sexualities, And The Postmodern Subject: An Analysis Of Artistic Funding By The National Endowment For The Arts, Carl F. Stychin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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, …

Presidential Interpretation Of The Constitution, David A. Strauss

Cardozo Law Review

May the executive branch disagree with the Supreme Court's interpretation of the Constitution, and act in accordance with its own view? We tend to associate this question with a few great constitutional crises. Disputes between President Jackson and the Supreme Court over the Bank of the United States; between President Lincoln and the Court over slavery; and between President Franklin Roosevelt and the Court over New Deal legislation, all produced memorable statements by presidents claiming a broad power to act independently from the Court's decisions. The school desegregation controversy was between the Court and some state governments, not the President, …

In Appreciation Of Jack Burns, Frank J. Macchiarola

Cardozo Law Review

Jacob Burns was a good and gentle man. He did many fine and generous things in his lifetime, but the qualities that best describe him are the personal ones-good and gentle. The gentleness did not mean that he was unable to handle difficult matters or to exert the kind of strength that gave others solace. It meant that through these situations there was a contentment that always reassured the rest of us. The gentleness came from his concern for others and in the way he approached people. It was always thrilling for me to see Jack Burns in the company …

Introduction, John O. Mcginnis

Cardozo Law Review

Executive branch interpretation of the law is a subject both timely and enduring. Just prior to the convening of this symposium, an election ended twelve years of Republican administration in which controversy over executive branch legal interpretation was greater than that in any period since the New Deal. Both Presidents Ronald Reagan and George Bush were committed to very different jurisprudential views from those which had predominated on the Supreme Court in the Warren and even Burger years. Therefore, it was not surprising that during their tenure the Department of Justice provided renewed justifications for both the autonomy and unitariness …

Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld

Cardozo Law Review

The United States Constitution is remarkably silent on the subject of ultimate responsibility for constitutional interpretation, despite its elaborate prescriptions for a scheme of separation of powers that interweaves elements of independence and of interdependence among the distinct branches of the federal government. It is hardly surprising, therefore, that there have been several disputes between the President and the Supreme Court concerning the scope of executive autonomy in constitutional interpretation. In recent years, moreover, the conflict between judicial authority and executive autonomy has been exacerbated by efforts to legitimize presidential interpretations of the Constitution that are inconsistent with Supreme Court …

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.

Judaism And Postmodernism, Suzanne Last Stone

Cardozo Law Review

No abstract provided.

Monolingualism And Judaism, José Faur

Cardozo Law Review

No abstract provided.

Identifying The Jewish Lawyer: Reflections On The Construction Of Professional Identity, Sanford Levinson

Cardozo Law Review

No abstract provided.

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

Cardozo Law Review

No abstract provided.

The Constitution Outside The Courts, Frederick A.O. Schwarz Jr.

Cardozo Law Review

The forty-fourth Cardozo Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on December 5, 1991.

Liberal Philosophy's Troubled Relation To The Rule Of Law, David G. Carlson

Articles

The article critiques Andrew Altman's defense of liberalism against critical legal studies (CLS), arguing that his account of the rule of law relies on unexamined presuppositions and fails to address the indeterminacy of legal meaning. Altman's metaphor of the rule of law as a checkerboard of zones of freedom is challenged for its definitional ambiguity and reliance on natural law, which undermines his critique of CLS. The analysis suggests that liberalism's inability to tolerate political intrusion into the rule of law exposes its dogmatic underpinnings, while deconstruction offers a more nuanced understanding of legal meaning and its ethical implications.

On Property And Constitutionalism, Cass R. Sunstein

Cardozo Law Review

No abstract provided.

The Moment Of Constitutional Opportunity, Marci A. Hamilton

Cardozo Law Review

Professor Sunstein speaks perceptively to the debate over how the Eastern European countries should proceed following their sudden constitutional crises. The Eastern European framer would do well to keep his checklist of constitutional features at hand. Two aspects of his task, however, raise rather interesting and related questions. At base, I raise the question of whether Eastern Europe has reached the "moment of constitutional opportunity" that Professor Sunstein asserts it has.

The Screening Of Jacques Tati: Broadcasting And Cultural Identity In The European Community, Richard Collins

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius, Chapter 30, Edward De Grazia

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Catharine's Wheel: Mackinnon's Pornography Analysis As A Return To Traditional Christian Sexual Theory, Jeanne L. Schroeder

Articles

The article argues that Catharine MacKinnon's analysis of pornography and sexuality, while presented as radical feminist theory, ultimately incorporates traditional elements from Christian sexual theory and modern liberalism. MacKinnon's critique of pornography as a mechanism of gender subordination aligns with Augustine's view of sexuality as a loss of subjectivity, where involuntary sexual desire symbolizes the Fall's consequences. Despite her sociopolitical analysis, MacKinnon's failure to recognize these influences and her lack of a positive vision for female subjectivity limit her critique's transformative potential.

The Taming Of The Shrew: The Liberal Attempt To Mainstream Radical Feminist Theory, Jeanne L. Schroeder

Articles

The article critically examines the opposing views of Cass Sunstein and Catharine MacKinnon on pornography and its legal implications, highlighting their divergent definitions and approaches. Sunstein advocates for a narrow, violence-focused antipornography legislation, while MacKinnon pushes for a broader definition that encompasses gender subordination. The analysis reveals how Sunstein's critique of MacKinnon unintentionally weakens feminist challenges to masculinism by separating sexuality from power dynamics. MacKinnon's theory, rooted in a premodern Christian view of sexuality, posits that pornography constructs women as objects, reinforcing gender inequality. The article underscores the tension between legal reform and the deeper structural changes needed to address …

Subject: Object, Jeanne L. Schroeder

Articles

The article explores the concept of objectivity in legal theory, examining its complexity and the various ways it is defined and applied. It critiques the left's tendency to associate objectivity with liberalism and masculinity, while highlighting the right's defense of subjectivity. The analysis emphasizes the need for a nuanced understanding of objectivity's forms and implications in legal discourse.

Stories Versus Theories At The Cardozo Evidence Conference: It’S Just Another Metaphor To Me, L. H. Larue

Cardozo Law Review

Cardozo Law School was host to an evidence conference on March 24-26, 1991. The papers have been published, so the conference has been duly memorialized. However, the conference had a "subtext" that differed from the "text," that is, the theme of the conference, judging from the hallway gossip, differed from the officially proclaimed theme; if one reads the published text carefully, one can see the subtext within the text, the unofficial theme alongside the official theme. I asked the editors of this Review to let me record my evaluation of the unofficial theme, so that it may have equal status …