Legal History Commons^™

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 …

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 …

Habermas And The Counterfactual Imagination, Michael K. Power

Cardozo Law Review

The epistemological problem of critical theories is easy to state but hard to resolve. On the one hand, if the theories are too descriptive and draw their conceptual resources from the ideas and institutions which currently exist, they lose their critical force. While they may provide elaborate reconstructions of the structure of social practices, they remain internal to these practices, part of a field of knowledge in which, at worst, theory is merely a form of public relations. On the other hand, if they articulate forms of critique that are entirely external to the systems of knowledge and practice that …

Liberties And Popular Sovereignty: On Jurgen Habermas’S Reconstruction Of The System Of Rights, Ingeborg Maus

Cardozo Law Review

The justifications Jurgen Habermas gives for a system of rights bring together the central intentions of his theory of law. The chapter of his book which provides these justifications is devoted in part to developing the underlying tension between "facticity and validity" as the basic structure of law taking the extreme and, for that reason, illuminating aspect of the guarantee of liberty through coercion. It also elucidates the motives for reestablishing the centuries-old connection between legal theory and social theory in the context of the most topical social problems. Whereas all subsectors of contemporary society have been juridified on a …

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 …

"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 …

The Politics Of Pediatric Aids, Jennifer Cooper

Cardozo Journal of Equal Rights & Social Justice

The article argues that mandatory HIV testing for pregnant women is crucial to prevent mother-to-child transmission of HIV, emphasizing that political and social barriers, rather than medical limitations, hinder effective prevention. It advocates for routine HIV screening as part of prenatal care, supported by the success of treatments like zidovudine, and addresses ethical and constitutional concerns while asserting the state's compelling interest in public health.

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.

Constitutional Justice And Democracy, Michel Troper

Cardozo Law Review

The issue of the compatibility of constitutional justice and democracy is considered in a particular way in France, for reasons relating both to the history of the legal culture and tothe peculiarities of the Constitutional Council, the institution which reviews the constitutionality of legislation.

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

Articles

No abstract provided.

Power, Responsibility, And Republican Democracy, Marci A. Hamilton

Articles

No abstract provided.

Editor's Note, Michael E. Herz

Cardozo Law Review

Francis Lieber's Legal and Political Hermeneutics was originally planned as a chapter in his Manual of Political Ethics. In 1837, while the larger work was in progress, this section was published under the title Political Hermeneutics, as a single, seventyeight page volume by the firm of Charles C. Little and James Brown. An expanded version, with modifications throughout and the addition of what is now chapter VII, then appeared as two articles in The American Jurist and Law Magazine in 1837 and 1838. After further additions and alterations, the articles were in turn published in book form by …

A Hermeneutic Thinker, Wolfgang Holdheim

Cardozo Law Review

What makes Francis Lieber's Legal and Political Hermeneutics intriguing is this early study's aim to unite two major traditions: that of American legal theory and that of German hermeneutic philosophy. On the face of it, these two powerful strains in the history of ideas should, each in its own right, clamor for such a convergence. Where indeed could a theory of interpretation find more fruitful material for application than in a sophisticated legal system, guided by a preponderant written constitution, evolving under the aegis of a Supreme Court that is eminently a hermeneutic institution? And where, conversely, could one hope …

Facts, Things, And The Orphans Of Girard College: Francis Lieber, Protopragmatist, Aviam Soifer

Cardozo Law Review

Rufus Choate, the dominant and domineering Boston lawyer and orator, once described Francis Lieber as "the most fertile, indomitable, unsleeping, combative and propagandizing person of his race." Lieber was indeed always scrambling, always proposing projects and looking for work, always reading and thinking and investigating. The proud inventor of words such as "penology," "bureaucracy," and "jural," Lieber delighted in terming himself a "publicist," yet another of his English neologisms. From his arrival in the United States in 1827 to his death in 1872, Lieber was a restless initiator who managed to be influential in myriad ways in his adopted land, …

The Virtues Of Interpretation In A Jural Society, Mike Robert Horenstein

Cardozo Law Review

This Essay could perhaps be titled "Why Lieber Now?": for this seems to me an unavoidable question when reviving a figure who has seemingly been lost in the archives. We encounter problems on all fronts, and just to ignore them and go about resuscitating Lieber would only provide an opportunity to quip that the operation 'was successful, though the patient died (was actually long dead). Even at the time of its publication, William Kent, Chancellor Kent's son, remarked of Lieber's Legal and Political Hermeneutics," 'What, in God's name, made you choose 'Hermeneutics'? ... Had you called your... …

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 …

"Fetch Some Soupmeat", William N. Eskridge Jr.

Cardozo Law Review

Although first published over 150 years ago, Francis Lieber's Legal and Political Hermeneutics remains broadly influential, and the soupmeat hypothetical in particular has been reproduced in the most widely read twentieth-century legal texts for teaching statutory interpretation. The directive, "fetch some soupmeat," seems straightforward in most situations, because the housekeeper and the servant are operating under the same assumptions, and because their shared assumptions are borne out as the servant goes about his task. Lieber's project-and the project of any sophisticated theoretical treatment of statutory interpretation-was to explore the many ways in which "fetch some soupmeat" proves susceptible to surprising …

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.

From Advocacy To Management In Divorce: A Women's Issue?, Mavis Maclean

Cardozo Journal of Equal Rights & Social Justice

The article examines the shift in the role of law in divorce proceedings in the U.K., arguing that divorce is increasingly moving away from legal advocacy and toward administrative and managerial processes. This transformation raises critical questions about the implications for women, particularly regarding their access to justice, financial rights, and the role of legal professionals. The article highlights the growing influence of Alternative Dispute Resolution (ADR) and the Child Support Agency (CSA), which are reshaping how divorce, child support, and property disputes are handled, often reducing the involvement of courts and lawyers.

Law, Force, And The Russian Media, Monroe E. Price

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Sons Of Writ, Sons Of Wrath: Pierre Legendre’S Critique Of Rational Law-Giving, Anton Schutz

Cardozo Law Review

By nature we have been sons of wrath, according to a thoroughly explored passage of Pauline theology. I should like to put this text to a test. My purpose in this article is to view the work of a twentieth-century Sorbonne Professor of Law through the lens of this Pauline text. Clearly, such a procedure assumes some sort of extraordinary similarity of preoccupation as between these two thinkers. It assumes that the semantic components, filius and ira, and the question of their relationship, are equally crucial to both figures: to the fervent apostle and epistolographer who happened to have …

National Socialism And Constitutional Law: Carl Schmitt, Otto Koellreutter, And The Debate Over The Nature Of The Nazi State, 1993-1937, Peter Caldwell

Cardozo Law Review

On January 30, 1933, President von Hindenburg named Adolf Hitler chancellor of the German Republic. One year later, the conservative (and by then National Socialist) constitutional lawyer, Carl Schmitt noted that Hitler's chancellorship was an event that had "already led beyond the Weimar Constitution." But where had the seizure of power led? What was the nature of the new constitution of the German Empire? As historian David Schoenbaum has noted, 1933 was a kind of "constitutional no man's land"; it was unclear how the principles enumerated in the Nazi Party Program of 1920 would translate into the reality of the …

Table Of Contents - Cardozo Law Review, Volume 16, Issue 1

Cardozo Law Review

No abstract provided.

Daubert V. Merrell Dow Pharmaceuticals, Inc.: Epistemiology And Legal Process, Margaret G. Farrell

Cardozo Law Review

Justice Blackmun's majority opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. acknowledges that law and science have different goals, but it fails to recognize the implications of those differences for legal process. Recent increases in the scientifically-based claims brought in the federal courts, and in the size and complexity of the litigation in which such claims are made, have raised the stakes in the debate. At the same time, scientific concepts of relativity, uncertainty, and multiple causation are at odds with simple, legal notions about fact-finding and cause and effect. This disparity between legal and scientific understandings over the admission …

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

Cardozo Law Review

No abstract provided.

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

Cardozo Law Review

No abstract provided.

Virtual Reality, Appropriation, And Property Rights In Art: A Roundtable Discussion, Wendy J. Gordon, John Carlin, Rochelle Cooper Dreyfuss, Marci A. Hamilton, Peter Jaszi, Beryl Jones, Jaron Lanier, Martha Woodmansee, Russ Versteeg, Diane Zimmerman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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, …

The Unitary Executive In A Unified Theory Of Constituional Law: The Problem Of Interpretation, Geoffrey P. Miller

Cardozo Law Review

Among theoretical issues in the area of federal separation of powers, the status of the Unitary Executive may be the most controversial: To what extent does the Constitution establish the President as a national chief executive with ultimate authority over activities of national administration? In this paper, I propose a model of the Unitary Executive which differs in some respects from prior work, including my own work on independent agencies, which I now view as incomplete. The model is grounded in a unified theory of constitutional law-i.e., a theory that includes issues both of rights and of structure within a …

Models Of The Opinion Function Of The Attorney General: A Normative, Descriptive, And Historical Prolegomenon, John O. Mcginnis

Cardozo Law Review

The judiciary is not the only branch of government that offers authoritative constructions of the Constitution and other federal laws. Since the beginning of the Republic, the executive branch has made formal pronouncements on constitutional and statutory issues of such a substantial scope and variety that they rival the opinions of the Supreme Court. A public recording of the executive branch's most authoritative legal voice is contained in forty-three volumes of published opinions of the Attorney General and sixteen volumes of published opinions of the Office of Legal Counsel ("OLC")-the office to which the Attorney General now delegates the great …