{"title":"Common Sense, Rationality and the Legal Process","authors":"R. Allen","doi":"10.1007/978-3-7908-1792-8_3","DOIUrl":"https://doi.org/10.1007/978-3-7908-1792-8_3","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"25 1","pages":"43-54"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51413821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Hate Speech in Constitutional Jurisprudence: A Comparative Analysis","authors":"M. Rosenfeld","doi":"10.2139/SSRN.265939","DOIUrl":"https://doi.org/10.2139/SSRN.265939","url":null,"abstract":"The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to \"incitement to violence\" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to \"incitement to hatred.\" The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the article concludes that the United States approach is less defensible than its counterparts elsewhere.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"24 1","pages":"1523"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.265939","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68241863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Muddy Rules for Cyberspace","authors":"D. Burk","doi":"10.2139/SSRN.204188","DOIUrl":"https://doi.org/10.2139/SSRN.204188","url":null,"abstract":"Digital communication media such as the Internet pose difficult challenges for traditional forms of intellectual property protection. Much recent scholarship and considerable governmental attention has been focused on adapting and expanding copyright to encompass digital works of authorship. These efforts have been justified on the grounds that clear property rights are necessary to allow efficient allocation of intellectual property between private parties. However, these rationales ignore the literature regarding the efficiency of unclear or \"muddy\" property entitlements. Where transaction costs of private bargaining are high, \"muddy\" rules will tend to force parties into informal bargaining transactions. Transaction costs on the Internet may tend to be high because of the number of parties involved, the difficulty of locating the parties, increased opportunity for strategic behavior, and the transborder nature of the medium. Thus, informal transactions or \"self-help\" may be the most efficient means for provision of digital works. In such a case, \"muddy\" or unclear rules should perhaps be favored for on-line entitlements.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"21 1","pages":"121-179"},"PeriodicalIF":0.0,"publicationDate":"2000-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67876073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Traumatic Dimension in Law","authors":"D. G. Carlson","doi":"10.2139/SSRN.214830","DOIUrl":"https://doi.org/10.2139/SSRN.214830","url":null,"abstract":"This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that \"effect\" (judicial decision) precedes \"cause\" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious \"right answers\" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to the law. In short, knowledge of the law is the very definition of the superego. (3) Positive law is the fantasy of the subject that cannot bear the prodigal weight of pure morality. The failure of this fantasy, however, is psychosis itself. (4) Conservative jurisprudence (\"judges should follow and not make the law\") is fundamentally necessary to any jurisprudence. Yet the \"limit\" of conservative jurisprudence (in calculus terms) is the Freudian superego. (5) Pragmatism is the vainglorious conceit of self-sovereignty, but it is logically an impossible position.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"24 1","pages":"2287"},"PeriodicalIF":0.0,"publicationDate":"2000-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.214830","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67951340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Cardozo law reviewPub Date : 1998-01-01DOI: 10.1163/2468-1733_shafr_sim270040291
Joel M. Gora
{"title":"The Pentagon Papers Case and the Path Not Taken: A Personal Memoir on the First Amendment and the Separation of Powers","authors":"Joel M. Gora","doi":"10.1163/2468-1733_shafr_sim270040291","DOIUrl":"https://doi.org/10.1163/2468-1733_shafr_sim270040291","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"19 1","pages":"1311"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64433897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Schrodinger's cat, eugenics, and the compulsory sterilization of welfare mothers: deconstructing an old/new rhetoric and constructing the reproductive right to natality for low-income women of color.","authors":"B Horsburgh","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"17 3","pages":"531-82"},"PeriodicalIF":0.0,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24847276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Distribution of Damages in Car Accidents throught the Use of Neural Networks","authors":"L. Philipps","doi":"10.5282/UBM/EPUB.4865","DOIUrl":"https://doi.org/10.5282/UBM/EPUB.4865","url":null,"abstract":"After a traffic accident the damage has to be fairly divided among the parties involved, and a ratio has to be determined. There are many precedents for this, and judges have developed catalogues suggesting ratios for common types of accidents. The problem that \"every case is different,\" however, remains. Many cases have familiar aspects, but also unfamiliar ones. Even if a case is composed of several familiar aspects with established ratios, the question remains as to how these are to be figured into one ratio. The first thought would be to invent a mathematical formula, but such formulae are rigid and speculative. The body of law has grown organically and must not be forced into a sleek system. The distant consequences of using a mathematical formula cannot be foreseen; they might well be grossly unjust. I suggest using a neural network instead. Precedents may be fed into the network directly as learning patterns. This has the advantage that court rulings can be transferred directly and not via a formula. Future modifications in court rulings also can be adopted by the network. As far as the effect of the learning patterns on new cases is concerned, a relatively safe assumption is that they will fit in harmoniously with the precedents. This is due to the network's structure—a number of simple decisional units, which are interconnected, tune their activity to each other, thus achieving a state of equilibrium. When the conditions of such an equilibrium are translated back into the terms of the case, the solution can hardly be totally unjust.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"1991-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71102584","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Deconstruction and Legal Interpretation: Conflict, Indeterminacy and the Temptations of the New Legal Formalism","authors":"Drucilla Cornell, M. Rosenfeld, D. G. Carlson","doi":"10.4324/9781315539744-12","DOIUrl":"https://doi.org/10.4324/9781315539744-12","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"11 1","pages":"1211"},"PeriodicalIF":0.0,"publicationDate":"1990-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70648043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Move to Institutions","authors":"D. Kennedy","doi":"10.4324/9781315251974-1","DOIUrl":"https://doi.org/10.4324/9781315251974-1","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"1 1","pages":"3-150"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70641021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}