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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 …

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 …

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.

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 …

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.

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 …

A Curious Document Recently Discovered In The Archives, Peter Tillers

Cardozo Law Review

The document reproduced below, which appears to be a letter written by Peter Pilgrim to "Lash, " was recently discovered in the archives of the library of the Benjamin N. Cardozo School of Law. Peter Pilgrim is the late Doctor of Facts at Cardozo. "Lash" is probably L.H. LaRue, Story Professor of Law at Washli University. Professor LaRue is also known as the Delphic Oracle of Lex, possibly because no one knows for sure what the letters "L.H." represent. The annotations to the text of the putative letter appear to be a mixture of notes by its author and comments …

The Idea Of A Legal Unconscious, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.

The Two Faces Of Janus: Rethinking Legal Pluralism, Gunther Teubner

Cardozo Law Review

No abstract provided.

Operational Closure And Structural Coupling: The Differentiation Of The Legal System, Niklas Luhmann

Cardozo Law Review

No abstract provided.

Judicial Choice And Disparities Between Measures Of Economic Values, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

An important idea, which characterizes law in society, is a reluctance to move from the status quo. In general, one can argue that legal institutions and legal doctrine are not engaged in the redistribution of wealth from one party to another. This paper explores a possible explanation for that principle. The authors' research suggests that, across a wide range of entitlements and in a variety of contexts, individuals value losses more than foregone gains. The paper argues, as a matter of efficiency, that law and social policy might have developed in a manner consistent with this valuation disparity. Furthermore, this …

Some Comments On Deconstruction, Justice And The Ethical Relationship, Seyla Benhabib

Cardozo Law Review

Roundtable - The Call to the Ethical: Deconstruction, Justice and the Ethical Relationship - Group 1

Everything Great Stands In The Storm That Blows From Paradise, David Farrell Krell

Cardozo Law Review

No abstract provided.

Suicide And Justice, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.

Ouse, Paul M. Shupack

Cardozo Law Review

No abstract provided.

Procedural Options For Resolving Hearsay Issues, Roger C. Park

Cardozo Law Review

No abstract provided.

Decision And Inference, Peter Tillers

Cardozo Law Review

No abstract provided.

Expert-Novice Differences And Implications For Choice Of Bench Versus Jury Trial, Anne W. Martin

Cardozo Law Review

No abstract provided.

Improving The Procedure For Resolving Hearsay Issues, Richard D. Friedman

Cardozo Law Review

No abstract provided.