Entanglements: A Study Of Liberal Thought In The Promise Of Marriage,
2014
The Radzyner School of Law, Interdisciplinary Center (IDC)
Entanglements: A Study Of Liberal Thought In The Promise Of Marriage, Anat Rosenberg
Cardozo Journal of Equal Rights & Social Justice
The article examines the paradoxical relationship between liberal ideals and status commitments, focusing on the promise of marriage as a microcosm of broader liberal thought. It argues that liberalism did not eliminate or preserve statuses but reinterpreted them, creating a complex interplay where statuses were both maintained and transformed. This analysis reveals persistent conceptual patterns in liberal ideology that entangle progress and hierarchy, challenging the progressive elimination or preservation of statuses. The study suggests that understanding these patterns is crucial for ideology critique and highlights their relevance to contemporary issues like multiculturalism and identity politics.
In The Name Of The Son: The Strategic Importance Of Prenatal Personhood In Abortion Law,
2014
Georgetown Law Center
In The Name Of The Son: The Strategic Importance Of Prenatal Personhood In Abortion Law, Alejandro Madrazo
Cardozo Journal of Equal Rights & Social Justice
Prenatal personhood has been used as a vehicle for restricting abortion rights and other reproductive rights. This Article explores how, through narrative, the question of the status of prenatal life shapes the structure of debates over abortion law and reproductive rights. Whether prenatal hfe is deemed a person or not determines the narrative structures that can be deployed around abortion and, in consequence, strategically orients these debates by determining the key questions that must be addressed and the scope of answers that can be provided. By carrying out a comparative analysis of opinions of local, national and international courts from …
The Courts And National Security: The Ordeal Of The State Secrets Privilege,
2014
Benjamin N. Cardozo School of Law
The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine
Articles
The state secrets privilege, originally established in United States v. Reynolds, has evolved into a powerful tool for the Executive to shield actions from judicial scrutiny, undermining the rule of law and constitutional checks and balances. This expansion, driven by judicial deference and circuit court interpretations, now prioritizes national security over accountability, threatening core legal principles. The article argues for reform to balance national security concerns with judicial oversight and individual rights.
To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation,
2014
University of Georgia School of Law
To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett
Scholarly Works
The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …
Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor,
2014
Western New England University School of Law
Book Review: American Jericho: A Book Review Of The Hanging Judge By Michael A. Ponsor, Giovanna Shay
Faculty Scholarship
No abstract provided.
¿Con La Misma Vara? Los Altibajos De La Igual Protección De Las Leyes En Las Opiniones Del Juez Federico Hernández Denton,
2014
Touro College Jacob D. Fuchsberg Law Center
¿Con La Misma Vara? Los Altibajos De La Igual Protección De Las Leyes En Las Opiniones Del Juez Federico Hernández Denton, Jorge R. Roig
Scholarly Works
La carrera del juez presidente Federico Hernández Denton como juez del Tribunal Supremo de Puerto Rico abarca cuatro distintas décadas durante las cuales la sociedad puertorriqueña ha experimentado dramáticos cambios. Desde los intentos por eliminar el hostigamiento sexual y la violencia doméstica hasta el desarrollo de los derechos civiles de los individuos y las parejas homosexuales; desde el cierre de las urbanizaciones adineradas y el enclaustre de la clase media hasta los despidos masivos en el gobierno y la constitucionalización de las escoltas de los ex gobernadores; los cambios experimentados por los puertorriqueños no nos han tocado a todos por …
Judicial Leadership In Family Court: A Cautionary Tale,
2014
Columbia Law School
Judicial Leadership In Family Court: A Cautionary Tale, Jane M. Spinak
Faculty Scholarship
For the past 35 years I have been practicing in, teaching, and writing about the Family Court. The problem-solving court movement in the last two decades – with its proliferation of drug courts, mental health courts, and veterans courts, to name a few – renewed my interest in the historical roots of the family court because of the parallels between the original juvenile court and the recent problem solving court movement. One of the key elements – perhaps the defining element – in both is the role of the judge as the leader of the court. That is what I …
The Controversy Over Citations To Foreign Authorities In American Constitutional Adjudication And The Conflict Of Judicial Philosophies: A Reply To Professor Glendon,
2014
Benjamin N. Cardozo School of Law
The Controversy Over Citations To Foreign Authorities In American Constitutional Adjudication And The Conflict Of Judicial Philosophies: A Reply To Professor Glendon, Michel Rosenfeld
Articles
The controversy over U.S. Supreme Court justices citing foreign authorities in constitutional cases reflects a deeper ideological divide between restrictive and expansive judicial philosophies. This debate, evident in cases like Lawrence v. Texas and Roper v. Simmons, transcends traditional labels like originalism or political ideology, focusing instead on whether judges should defer to majoritarian decisionmaking or actively shape evolving rights. The article argues that the furor over foreign citations will diminish once the broader philosophical clash over judicial interpretation is resolved, as differences over foreign authorities are secondary to this central divide.
Why Wynne Worries Me,
2014
Benjamin N. Cardozo School of Law
Triadic Legal Pluralism In North Sinai: A Case Study Of State, Shari'a, And 'Urf Courts In Conflict And Cooperation,
2014
Duke Law School
Triadic Legal Pluralism In North Sinai: A Case Study Of State, Shari'a, And 'Urf Courts In Conflict And Cooperation, Mara R. Revkin
Faculty Scholarship
To the extent that legal scholars have addressed the post-authoritarian transitions underway in the Middle East, the scope of their work has been primarily confined to the formal infra-structure of state-manufactured law. Attention has focused on the activities of high courts, parliaments, and the administrative apparatus of official justice systems, while largely neglecting to acknowledge the importance of non-state institutions and systems of normative rules that operate in the shadow of modern bureaucratic governments. The concept of legal pluralism, defined as the coexistence of multiple legal or normative orders within a common geographical area, has been applied extensively in European, …
Law As Fact And As Reason For Action: A Response To Robert Alexy On Law's 'Ideal Dimension',
2014
Notre Dame Law School
Law As Fact And As Reason For Action: A Response To Robert Alexy On Law's 'Ideal Dimension', John M. Finnis
Journal Articles
Robert Alexy’s 2013 Natural Law Lecture, published in vol. 58 of the American Journal of Jurisprudence, presents law as having two dimensions, ideal and real, and thus a dual nature, to be elucidated by a conceptual analysis distinguishing between the observer’s and the participant’s perspective. It argues on this basis for a “non-positivist” theory of law that is “inclusive” in that it classifies some unjust laws as laws, but not all (and is thus not “super-inclusive”); it rejects the “exclusive non-positivism” that would treat every injustice in a law’s making or content as excluding it from the class of valid …
Private Law In The Gaps,
2014
Notre Dame Law School
Private Law In The Gaps, Jeffrey A. Pojanowski
Journal Articles
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
Human Rights Pragmatism And Human Dignity,
2013
Georgetown University Law Center
Human Rights Pragmatism And Human Dignity, David Luban
Georgetown Law Faculty Publications and Other Works
Human rights sound a lot like moral rights: rights that we have because we are human. Many philosophers think it follows that the list of international human rights must therefore be founded on some philosophical account of moral rights or of human dignity. More recently, other philosophers have rejected this foundationalist picture of international human rights (“foundationalist” meaning that moral rights are the foundation of international human rights). These critics argue that international human rights need no philosophical foundation; instead, we should look to the actual practices of human rights: the practices of international institutions, tribunals, NGOs, monitors, and activists. …
Cosmopolitanism In Constitutional Law,
2013
Boston College
Cosmopolitanism In Constitutional Law, Vlad Perju
Cardozo Law Review
No abstract provided.
Constitutionally Tailoring Punishment,
2013
Benjamin N. Cardozo School of Law
Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas
Articles
Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …
To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis,
2013
Texas A&M University School of Law
To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman
Faculty Scholarship
Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …
The Pallant V Morgan Equity Reconsidered,
2013
Singapore Management University
The Pallant V Morgan Equity Reconsidered, Man Yip
Research Collection Yong Pung How School Of Law
This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of …
Trademark As Promise,
2013
William & Mary Law School
Legal Summaries ,
2013
Pepperdine University
Legal Summaries , Emily Edwards
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Sotomayor's Empathy Moves The Court A Step Closer To Equitable Adjudication,
2013
Notre Dame Law School
Sotomayor's Empathy Moves The Court A Step Closer To Equitable Adjudication, Veronica Couzo
Notre Dame Law Review
On August 6, 2009, then-Judge, now-Justice, Sonia Sotomayor was confirmed as the nation’s first Latina Supreme Court Justice. While many Latinos embraced the idea of having “Sonia from the Bronx” on the bench, others were fearful that her jurisprudence, combined with her background, would result in “reverse racism.” These fears, while arguably unfounded at the time, have been completely dispelled. Just as Justice Thurgood Marshall transformed the adjudications of the Supreme Court through experiential discourse, so too, to a lesser extent, has Justice Sotomayor. In both oral arguments and written opinions, Justice Sonia Sotomayor has demonstrated educative leadership—enlightening her colleagues …
