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Hermann Heller - An Introduction, David Dyzenhaus

Cardozo Law Review

Hermann Heller (July 17, 1891 - November 4, 1933) came from a Jewish family in the Austro-Hungarian Empire. He interrupted his law studies to volunteer for service in the Austrian army during the First World War. His experiences as a front-line fighter left him with a heart condition which contributed to his death at the age of forty-two. But his poor health did not dampen his deeply combative spirit-a spirit which he put at the service of German social democracy. In March 1920, together with Gustav Radbruch (who had just successfully promoted Heller's Habilitation, his senior doctorate, at Kiel), …

A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of Slave Property, Thomas D. Russell

Cardozo Law Review

The slave auction is among the most powerful images in the history of the United States. Depictions of slave auctions vary, but of the recurring compositional elements, the most fearful and moving is the separation by sale of a young child from his or her mother. The slave auction image starkly represents the inhumanity of American slavery, the racism of the United States, and the contradictions of American liberalism.

Outlawing Outcasts: Comparative Perspectives On The Differing Functions Of The Criminal Law Of Slavery In The Americas, Robert J. Cottrol

Cardozo Law Review

This is a commentary on some issues raised by Anthony De V. Phillips's "Doubly Condemned": Adjustments to the Crime and Punishment Regime in the Late Slavery Period in the British Caribbean Colonies and Judith K. Schafer's "Under the Present Mode of Trial, Improper Verdicts are Very Often Given": Criminal Procedure Trials of Slaves in Antebellum Louisiana, both of which appear in this volume. Both discussions highlight the role of criminal law, procedure, and punishment in helping to sustain systems of African and Afro-American chattel slavery in New World societies. They provide interesting contrasts between civil and common law approaches to …

What’S Pragmatic About Legal Pragmatism?, David Luban

Cardozo Law Review

Does legal pragmatism have anything at all to do with pragmatism? Both Thomas Grey and Richard Posner seem to suggest that in important respects the answer is no. Grey tells us that even a devout anti-pragmatist in matters ontological can endorse legal pragmatism, while Posner adds the converse, that pragmatic philosophy may at times impel a judge to decide cases like a formalist. These conclusions suggest that talk of legal pragmatism may simply be a pun on what philosophers take pragmatism to be. Lest this appear a far-fetched suggestion, remember that in philosophy the word "realism" often refers to the …

Legal Ethics And Fugitive Slaves: The Anthony Burns Case, Judge Loring, And Abolitionist Attorneys, Paul Finkelman

Cardozo Law Review

Judges and lawyers seek to enforce and uphold the "law" while also proclaiming an interest in an abstraction we call "justice." As we know, there is often a tension between the two. Consequently, serving the law often means not serving justice. Similarly, often a tension exists between a lawyer's duty both to seek a legal remedy to a problem and to act in the best interests of a client. Activist lawyers can have an agenda that is at odds with members of the class they claim to serve. These two problems are complicated by a third. Lawyers and judges have …

Ethics Under Slavery’S Constitution: Edward Loring And William Wetmore Story, Ruth Wedgwood

Cardozo Law Review

We can greatly admire Paul Finkelman's paper on the rendition of Anthony Burns in 1854 and the problematic role played by Judge Edward Loring in returning Burns to Southern bondage. Professor Finkelman draws thoughtfully from original source materials of this famous case in the harnessing of political feeling against slavery, including the diary of Richard Henry Dana, the papers of Senator Charles Sumner, and the records of Harvard College.

From Slaves To Citizens: African-Americans, Rights Consciousness, And Reconstruction, Donald G. Nieman

Cardozo Law Review

Addressing a racially mixed jury selected to try Ku Klux Klansmen in federal circuit court in Columbia, South Carolina in 1871, United States Attorney Daniel T. Corbin highlighted the dramatic changes that the previous decade had witnessed. "Gentlemen," he remarked, "we have lived over a century in the last ten years." Corbin did not exaggerate. The Civil War and Reconstruction years witnessed changes as revolutionary as any the nation has ever experienced. And nowhere were the changes as sweeping as in the realm of constitutional law.

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 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 …

Against Subordination: Morality, Discourse, And Decision In The Legal Theory Of Jurgen Habermas, William Rehg

Cardozo Law Review

This reflection explores the manner in which Jurgen Habermas's Between Facts and Norms establishes a relationship between law (or legal procedures) and an idealized conception of rational practical discourse. Part I of this Article spells out a problem that arises if one subordinates law to such idealizations of practical reason; here I will argue that the subordination of law to morality is part of a larger problem that one does not escape simply by analyzing law in the broader terms of discursive justification in general. Part II pursues further the question of whether Habermas's legal theory escapes this difficulty, turning …

Reflexive Law, Civil Society, And Negative Rights, Andrew Arato

Cardozo Law Review

Jurgen Habermas has remained faithful to the heritage of Critical Theory-to the method and perspective of imminent social criticism. His concept of "paradigm" is fully intelligible only in context of such background. It means, first and foremost, enlightenment concerning a given society with a normative project in mind-in the present case, the actualization of the system of rights. Thus, a paradigm is a form of diagnosis, based on the rational reconstruction of forms of consciousness, filtered and synthesized into theory, that seeks to orient action. At all points, the construction of paradigms refers to a social totality which is subjected …

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 …

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.

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 …

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.

She’S Gotta Have It Now: A Qualified Rape Crisis Counselor-Victim Privilege, Euphemia B. Warren

Cardozo Law Review

This Note analyzes the justifications for a testimonial privilege for communications between a rape victim and her counselor. More importantly, it contends that a qualified privilege sufficiently protects the counselor-victim relationship and the rape victim's need for confidentiality, while at the same time securing the defendant's Sixth Amendment rights. This Note endorses a qualified privilege that requires a specific showing by the defendant that the information he seeks might be helpful to his case before the trial judge will conduct an in camera inspection of the confidential rape counseling records. In the in camera review, the judge will determine whether …

The One True Sense, Georgia Warnke

Cardozo Law Review

In his Legal and Political Hermeneutics, Francis Lieber claims that "No sentence, or form of words, can have more than one 'true sense,' and this is the only one we have to inquire for." He criticizes efforts to write all possible specifications into the laws and regulations with which a legal and political hermeneutics is concerned, as if the necessity of interpretation could simply be avoided. "Men," he writes, "have at length found out that little or nothing is gained by attempting to speak with absolute clearness and endless specifications, but that human speech is clearer, the less we …

Superego By Default, Slavoj Zizek

Cardozo Law Review

The proper way to approach "psychoanalysis and law" is to ask the question: what kind of law is the object of psychoanalysis? The answer is, of course: superego emerges where the law-the public law, the law articulated in the public discourse-fails. At this point of failure, the public law is compelled to search for support in an illegal enjoyment."

Legal Emotion: The Women's Story In Totem And Taboo, Arthur J. Jacobson

Cardozo Law Review

My aim is to uncover the unconscious emotions characteristically associated with some basic legal institutions. These emotions are ones we invariably have when we follow or enforce rules, fulfill duties, and claim or exercise rights. We know the conscious emotions that we experience-the cruelty of rules and our fear of them, the hopes in rights, security of duties, and so forth. Yet not all the emotions that we encounter in basic legal institutions are conscious. We experience unconscious emotions as well.

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 …

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 …

Lacanian Ethics And The Desire For Law, David S. Caudill

Cardozo Law Review

American Critical Legal Studies has its own antinomies, its own indeterminacies, such that it is difficult to talk as though it is a unified position or movement, or even a single methodology or strategy. Generally, however, those who are suspicious of Critical Legal Studies have, from the beginning, aSked how the critical theorist explains his or her own ideology, and the answer is often that ideology is inescapable. Thus the critical project is about disclosure of ideology, not about the claim to know the truth outside ideology.

Ideology As Cultural Software, J. M. Balkin

Cardozo Law Review

This essay concerns one of the apparent casualties of the rise of postmodernism-the theory of ideology. In fact, the "theory of ideology" has never been a unitary theory. From its inception the concept of ideology has always been contested, and hence the theory has generated many variations. The most common version asserts that individuals are afflicted with beliefs that in some way mystify or obscure social reality. This mystification in turn works to the advantage of some classes and to the disadvantage of others. This formulation was developed most prominently within the marxist tradition; it has proved a tempting but …

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.

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 …

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, …