Cardozo law review最新文献

{"title":"Spinoza's Dialectic and the Paradoxes of Tolerance: A Foundation for Pluralism?","authors":"M. Rosenfeld","doi":"10.1017/CBO9781139050982.005","DOIUrl":"https://doi.org/10.1017/CBO9781139050982.005","url":null,"abstract":"Tolerance and pluralism seem to draw on the same criterion of legitimacy. The liberal case for tolerance, however, leads to a series of paradoxes, including Popper's paradox of tolerance according to which tolerating theintolerant is self-defeating. Spinoza's defense of tolerance as it emergesfrom his Theological-Political Treatise and his Ethics is more pervasive and much more encompasssing than the liberal justification. Spinoza justifies tolerance as a private and public virtue as well as on prudential grounds. Although Spinoza's conception of tolerance appears in significant respects paradoxical and contradictory - e.g., it is puzzling why Spinoza, the philosopher of reason, should avocate tolerance of religious superstition that may lead to oppression and violence - it is ultimately coherent and relevant to contemporary debates provided it is understood dialectically. The article seeks to present Spinoza's dialectic of tolerance by placing it in the context of his philosophy and of the political conflicts that marked Dutch society during his lifetime. The article then explores the relevance of Spinoza's theory for a post-Enlightenment justification of tolerance and pluralism. The article concludes that although Spinoza focuses on reason and post-Enlightenment pluralists on identity (and hence differences), Spinoza's theory is in many ways compatible with a pluralist defense of tolerance which is arguably superior to traditional liberal defenses.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"25 1","pages":"759"},"PeriodicalIF":0.0,"publicationDate":"2003-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/CBO9781139050982.005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57107403","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 Market for Contingent Fee-Financed Tort Litigation: Is It Price Competitive?","authors":"L. Brickman","doi":"10.2139/SSRN.463226","DOIUrl":"https://doi.org/10.2139/SSRN.463226","url":null,"abstract":"Tort liability has undergone an enormous expansion in the past 40 years. So too has the effective hourly rate obtained by plaintiff lawyers which has increased well over 1000% in that time frame (adjusted for inflation). That the enormous increases in effective hourly rates parallel the enormous expansion in tort liability raises a number of issues. In this article, I examine one of them: whether the market for contingent fee-financing of tort litigation is price competitive. To do so, I examine certain indicia of a noncompetitive market including the fact of uniform pricing, the absence of economic justification for uniform pricing such as reductions in agency costs or transactional costs, inelasticity of the price in light of highly variable production costs and the absence of price advertising. I then examine factors which inhibit the emergence of a price competitive market including asymmetrical knowledge, the utility of uniform pricing in misleading consumers as to risk, and the signaling function of uniform pricing. I then examine the reasons for the persistence of uniform pricing in the face of the predictions of economists applying standard economic theory that some lawyers would undercut standard pricing thereby generating competitive behavior that would more closely align pricing with risk and the variable cost of producing the service. I attribute the persistence of uniform pricing to market failures and analyze the reasons for such failures. Finally, I examine the actions of the bar designed to prevent a competitive market from emerging. These actions include the maintenance of barriers to entry into the tort claiming market, prohibitions against the outright purchase of tort claims and adoption of rules of ethics effectively prohibiting price competition including prohibitions against providing financial assistance to clients and brokerage of lawyers' services for profit.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"29 1","pages":"65"},"PeriodicalIF":0.0,"publicationDate":"2003-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67740442","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 Copyright Divide","authors":"Peter K. Yu","doi":"10.2139/SSRN.460740","DOIUrl":"https://doi.org/10.2139/SSRN.460740","url":null,"abstract":"Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new. In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens. The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world. This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"13 1","pages":"331-445"},"PeriodicalIF":0.0,"publicationDate":"2003-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.460740","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67738311","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":"Adverse Selection and Moral Hazard in Forum Shopping: Conflicts Law as Spontaneous Order","authors":"Nita Ghei, F. Parisi","doi":"10.2139/SSRN.457500","DOIUrl":"https://doi.org/10.2139/SSRN.457500","url":null,"abstract":"In a world with multiple, overlapping jurisdictions, any given litigation could be pursued in more than one forum. Different laws can yield different outcomes. This leads to parties selecting a forum perceived as favorable to file suit. This practice, also known as forum shopping, has been much criticized, and various reforms to the law of conflicts of law have been proposed as a way to reduce this practice. The article examines the inefficiencies associated with forum selection, and the alleged shortcomings in conflicts law as it currently exists. We argue that forum selection cannot be eliminated in a world with multiple jurisdictions. Further, we argue that conflicts law has evolved, and continues to evolve, so that it tends toward correcting inefficiencies associated with the system. We draw an analogy between the system of conflicts of law and a market, where, despite the fact that the actors lack perfect information, the outcome is largely efficient. Therefore, conflicts of law might be considered to be an example of spontaneous order.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"25 1","pages":"1367-1392"},"PeriodicalIF":0.0,"publicationDate":"2003-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67736778","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":"Reconstructing the Public Square","authors":"R. Lipkin","doi":"10.2139/SSRN.415760","DOIUrl":"https://doi.org/10.2139/SSRN.415760","url":null,"abstract":"This Article offers a rapprochement between two warring factions over the role of religion in publicly justifying laws. One faction, embracing \"inclusionism,\" is skeptical of any constraints on democratic debate and adopts an eclectic attitude welcoming religious arguments in the public square along with secular arguments. Yet, understood in this fashion, inclusionism is committed to the propriety of those religious arguments, which may in fact create a \"Tower of Babel\" environment in which American citizens are unable to genuinely communicate with one another. For this reason, and because religious arguments are sometimes divisive, the opposing faction embraces \"exclusionism\" which seeks to limit the public square to secular arguments only. Yet, restricting the freedom of religion and speech rights of religious citizens is unfair, and more dangerously, appears incompatible with both the purposes of the First Amendment and democracy. How then can the dangers associated with both inclusionism and exclusionism be avoided? This Article attempts to formulate a principled compromise between these two factions by replacing the distinction between the religious and the secular with the novel distinction between the dedicated and the deliberative. Dedicated arguments and reasons - including both religious and secular ones - insist on a canonical and fixed language and form of reasoning for discussing public policy. By contrast deliberative arguments and reasons - including both religious and secular ones - insist on a tentative, pragmatic, fallibilistic language and form of reasoning with which to conduct democratic debate. This Article then suggests that democracy in the public square is best understood as committed to the thesis that dedicated arguments be \"reconstructed\" into deliberative ones, and that all deliberative arguments - whether religious or secular - play an equal role in justifying coercive laws in democratic societies. The Article then evaluates an important objection to the Reconstruction Thesis, which helps to better illuminate the Thesis's rationale. The Article concludes with a conception of complex democracy, which is presupposed by the Reconstruction Thesis and enables us to see its plausibility and attractiveness.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2003-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68711684","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":"Civil Rights Plaintiffs and Joe Doe Defendants: A Study in Section 1983 Procedure","authors":"H. Wasserman","doi":"10.2139/SSRN.384102","DOIUrl":"https://doi.org/10.2139/SSRN.384102","url":null,"abstract":"In this article, Professor Wasserman addresses the problems encountered by Section 1983 plaintiffs who do not know the identities of the officers who violated their constitutional rights, file a Complaint naming Officers John Doe 1-3 as defendants, learn the officers' names in discovery after the statute of limitations has expired, and are time-barred from filing an Amended Complaint properly identifying those officers. Courts do not permit the amended pleading to \"relate back\" to the original time of filing, because the plaintiffs' lack of knowledge of the officers' names is not a \"mistake concerning the identity of the proper party\" for purposes of Fed. R. Civ. P. 15(c)(3). This interpretation and application of the rules is improperly restrictive, having a uniquely disparate impact on the substantive interests of civil rights plaintiffs and the substantive purposes of Section 1983. This is due largely to the Byzantine Section 1983 liability scheme, under which the officers, rather than the government, are the primary (and often sole) proper and liable defendants. Concluding that procedure should not unduly hamper the vindication of substantive rights in this manner, Professor Wasserman considers four changes that might resolve the dilemma. The first is to simply require the plaintiff to commence the action earlier, with more time to use to discovery to learn the defendants' names and amend the pleading before the limitations period has expired. The second is to alter substantive Section 1983 and Bivens law to establish governmental respondeat superior liability. This obviates the need to identify and sue the individual officers, because the government entity is the primary responsible defendant. The third solution is a reinterpretation or amendment of Rule 15(c)(3), permitting relation back where there has been a mistake or lack of knowledge or ignorance concerning the identity of the proper party. The final, and most important suggestion, is the creation of a limited pre-filing discovery procedure modeled on Fed. R. Civ. P. 27, through which a Section 1983 plaintiff could, prior to commencing the lawsuit by filing a Complaint, formally depose a government entity in order to learn the names of the officers whose conduct violated her rights, which officers then could be sued by name in a timely filed Complaint.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"25 1","pages":"793"},"PeriodicalIF":0.0,"publicationDate":"2003-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68657418","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 blooding of America: privacy and the DNA dragnet.","authors":"Jeffrey S Grand","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"23 6","pages":"2277-323"},"PeriodicalIF":0.0,"publicationDate":"2002-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24579289","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":"AIDS caps, contraceptive coverage, and the law: an analysis of the federal anti-discrimination statutes' applicability to health insurance.","authors":"Sharona Hoffman","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"23 4","pages":"1315-62"},"PeriodicalIF":0.0,"publicationDate":"2002-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25879768","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":"Signs of the Times: Dale V. Boy Scouts of America and the Changing Meaning of Nondiscrimination","authors":"A. Koppelman","doi":"10.2139/SSRN.297180","DOIUrl":"https://doi.org/10.2139/SSRN.297180","url":null,"abstract":"All antidiscrimination laws are unconstitutional in all their applications. Citizens are allowed to disobey laws whenever obedience would be perceived as endorsing some message. Both of these propositions are absurd. However, the Supreme Court's opinion in Dale v. Boy Scouts of America stands for at least one of them, and perhaps both. The already voluminous commentary on Dale is too polite, because almost all of it fails to notice the sheer lunacy of what the Court said. The Court's disastrous opinion offers a useful cautionary lesson in First Amendment jurisprudence: determinations of what is protected speech cannot defer either to individual speakers or to the culture as a whole, because such deference produces bizarre results.","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"23 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2002-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68454675","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":"Theories of Uncertainty: Explaining the Possible Sources of Error in Inferences","authors":"Vern R. Walker","doi":"10.1007/978-3-7908-1792-8_10","DOIUrl":"https://doi.org/10.1007/978-3-7908-1792-8_10","url":null,"abstract":"","PeriodicalId":80891,"journal":{"name":"Cardozo law review","volume":"22 1","pages":"197-236"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"51413730","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}