Benjamin N. Cardozo School of Law: Faculty Publications

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Open Access
Law against justice and solidarity: Rereading Derrida and Agamben at the margins of the one and the many
(Fordham University Press., 2017-09-06) Rosenfeld, Michel; Rosenfeld, Michel; Goodrich, Peter
Law and justice are in crucial ways against nature as well as against solidarity. As David Hume famously proclaimed, justice is an “artificial virtue” in contrast to the social bonds of family and community which are affectively grounded in solidarity and manifestations of mutual sympathy. Law is also artificial much in the same way as justice. Indeed, to the extent that law is conceived as a self-standing normative order propelled by its own inner logic, it tends to remain too abstract to command heartfelt internalization or commitment. Moreover, law often stands against justice as some laws are unjust and law can rarely if ever deliver full justice. The above insights pose difficult questions for proponents of critical jurisprudence and the respective contributions to legal theory by Derrida and Agamben enrich the debate and open fruitful perspectives in relation to the relation between law, justice and solidarity in the context of the nexus between the singular, the universal and the plural. For Derrida, law must pursue justice, but always falls short as there is tragically no way to ever reconcile the universal and the singular. For Agamben, in contrast, while reconciling law, justice and solidarity may be as elusive as it is for Derrida, it becomes masked by a ceremonial spectacle of religiously inspired mysterious harmony leading to consensus acclamation by those subjected to law combined with an unbridgeable gap between law and administration. This chapter places in context and compares Derrida’s deconstruction of law with Agamben’s reconstruction and inquires whether these two theorists complement one another and whether there are any solutions to the problems they confront that may open a way beyond despair or artifice. Suggested Citation:
Open Access
Binaries: Remarks on Chaim N. Sailman’s “Halakhah.”
(Villanova University School of Law, 2019) Weisberg, Richard H.
Binaries are helpful but deceptive, and this may be particularly true of simplistic theological dichotomies purporting to show that the Talmud is "Nitpicking" and Christian Biblical understandings "Expansive", or that Jews believe in the "letter" and Christians in the "spirit", Jews in strict Justice and Christians in "mercy", etc. This essay, which focuses on the character of Shylock and the legalistic cruelty inflicted upon him by Venice's Christians, dissolves such Binaries, leaving in their wake greater clarity about the contrary need to "re-binarize" the falsely unified
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The principles and nature of Jewish law
(Benjamin N Cardozo School of Law - Yeshiva University, 2019) Bleich, J. David
Any attempt to understand the nature and contents of the corpus of Jewish law - known in Hebrew as “Halakhah” - must begin with the awareness that it is a self-contained system predicated upon the axiological assumption that both its contents and canons of interpretation are the product of divine revelation. Thus it follows that man has no legal or moral right to manipulate the system in order to support predetermined conclusions, no matter how appealing or desirable they may seem. To be sure, human intellect may, and indeed must, be employed in order to apply Halakhah to novel or previously unexamined situations. But that process must be both methodologically rigorous and intellectually honest. In applying theory to practice the decisor must pursue the law to its logical conclusion. The underlying nature of the legal system is modified only by the narrowly defined and severely circumscribed legislative powers of properly constituted rabbinic bodies to create “fences” around the law, to promulgate social welfare legislation and to issue emergency ad hoc decrees. (from Introduction)
Open Access
Validity of DNA evidence for purposes of Halakhah (part 2)
(Rabbinical Council of America (RCA), 2019) Bleich, J. David; Rabbi Joseph Cohen
A conclusion of that nature does not have the immediacy of tevi’ut ayin. It does arise from the tevi’ut ayin that establishes the commonality of a certain number of alleles. However, since such comparison is analogous to comparing half a countenance with half a countenance that comparison, in itself, proves nothing. However, refl ection upon the number of alleles perceived to be shared in the context of known patterns of genetic behavior allows reason to make certain deductions. Those conclusions are logically deduced from the laws of nature governing genetic transmission. The result is a form of deductive evidence based upon established laws of nature that Tosafot declare to be recognized by Halakhah as universal truths for all purposes. If so, DNA evidence in instances of DNA comparison of samples derived from different individuals, although it is not valid as a simple form of tevi’ut ayin, serves as the basis for applying deductive reasoning brought to bear upon information gleaned by tevi’ut ayin. (from Conclusion)
Open Access
Autonomous automobiles and the trolley problem
(2019) Bleich, J. David
Autonomous vehicles employ advanced sensor technology to detect surroundings and sophisticated algorithms to predict the trajectory of nearby moving objects. Self-driving cars can also use information technology to communicate with each other, thereby achieving better coordination among various vehicles on the road. However, since automobiles are heavy and move at high speeds they have limited maneuverability and often cannot stop before traversing a significant distance. Therefore, even if automobile-to-automobile communication, sensors and algorithms are all functioning properly, autonomous automobiles will not always have sufficient time before collision with objects that suddenly change direction. It is inevitable that self-driving automobiles will sometimes collide with each other, with human-driven automobiles, and with pedestrians
Open Access
Judicial politics versus ordinary politics: Is the constitutional judge caught in the middle?
(Cambridge University Press, 2019) Rosenfeld, Michel; Landfried, C.
Democratic politics are built upon the majority principle, but no contemporary constitutional democracy can live on that principle alone. To sustain key anti-majoritarian pillars of democracy, such as fundamental rights, it is often necessary to override majority politics through deployment of an anti-majoritarian institution—typically, the Constitutional or Supreme Court. In certain countries, like the US, all major divisive political issues, such as abortion and same-sex marriage, typically end up before the courts. Reactions to judicial decisions on these issues being usually highly political, courts figure prominently in politics thus triggering a shift from majoritarian to anti-majoritarian politics. Courts cannot avoid being in politics, but are judicial politics similar to ordinary politics? Is the nature of the politics involved the same and only its locus different? Or are judicial politics altogether different from ordinary politics, hence safeguarding salutary checks and balances against potential excesses stemming from the latter? I defend the thesis that judges have a politics of their own that is distinguishable from ordinary politics, but that often blends and overlaps with the latter. Judicial politics concern the ideals, ideology, practices and procedures of adjudication. Reasonable judges may disagree as to which of various positions within this ambit is preferable. For example, in the US there is a controversy between originalists and adaptionists, but neither of these positions necessarily aligns with any particular position within ordinary politics. In some exceptional cases, such as Bush v. Gore, judges stray from their judicial politics and lapse into ordinary politics. Far from undermining the thesis I defend, such latter cases reinforce it by highlighting the bounds between what ought to be judicially permissible and what would cross the line of legitimate judicial politics.
Open Access
Validity of DNA evidence for purposes of Halakhah (part 1)
(Rabbinical Council of America (RCA), 2019) Bleich, J. David; Rabbi Joseph Cohen
Deoxyribonucleic (DNA) testing is most often associated with attempts to identify criminal perpetrators or to exonerate persons accused of a crime. Identification by means of DNA is particularly useful in placing a suspect at the scene of a crime. Except for identical twins no two persons are known to possess identical DNA. In 1984 scientists developed a means of isolating DNA in a sample provided by a crime suspect or victim and comparing it with a sample recovered from a crime scene or from clothing worn by the suspect. Although the presence of DNA does not in itself conclusively prove the guilt of a suspect, it is a crucial factor in establishing guilt by means of circumstantial evidence. •DNA evidence is, logically speaking, most compelling in establishing paternity since a shared DNA profile constitutes extremely strong statistical evidence of a paternal-filial relationship. In paternity cases, a partial overlap of some DNA structures in different individuals is evidence that the persons compared had at least one common progenitor and hence are related
Open Access
The methodology of Psak.
(Rabbinical Council of America (RCA), 2019) Bleich, J. David
Zot ha-Torah lo tehe muḥlefet;1 Halakhah is immutable. Therefore, Halakhah is not subject to change. Facts change; situations change. When applied to different facts and variegated situations, halakhic determinations need not be uniform but they are not inconsistent. Halakhah exists in two diverse realms: in the abstract and in the concrete. There is certainly room for disagreement and controversy in the realm of theoretical Halakhah – Elu va-elu divrei Elokim ḥayyim. But it is impossible to apply conflicting theoretical principles to matters of normative practice. Perforce, Halakhah must incorporate canons of decision-making. Those canons are themselves not without some degree of controversy. Thus, different decisors, applying different canons, may on occasion issue diverse rulings.
Open Access
Erie doctrine, state law, and civil rights litigation
(University of Akron School of Law, 2019) Reinert, Alexander; 0000-0002-0258-7656
•How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in federal question cases. In this essay, I discuss these concerns in the specific context of federal civil rights litigation. •In general, when conflicts between state law and federal common law arise in federal question cases, federal law should not be unnecessarily displaced by a reflexive application of Erie in any case in which a state law claim is presented. After all, while forum shopping can be a necessary evil in diversity cases, it can also be a virtue in federal question cases, because litigants are encouraged to resort to the uniformity, experience, and solicitude of federal courts. •Moreover, in civil rights litigation in federal court, there may be even stronger reasons to prefer federal law – federal jurisdiction is made available in civil rights cases not only for the usual reasons. In most civil rights cases, whether founded on federal or state substantive law, state and local entities and their officials are defendants, raising suspicion about the application of state law that interferes with the vindication of federal rights. At the same time, where state law is more open to holding officials accountable for civil rights violations, there may be reasons to apply state law over more restrictive federal law. This essay will therefore consider how to analyze conflicts between state and federal law in civil rights litigation brought in federal court.
Open Access
Comparing Wayfair and Wynne: Lessons for the Future of the Dormant Commerce Clause
(Chapman University, Fowler School of Law, 2019-01-01) Zelinsky, Edward A.
•A comparison of South Dakota v. Wayfair with Comptroller of the Treasury of Maryland v. Wynne indicates that the prospect of the Supreme Court jettisoning the dormant Commerce Clause altogether is unlikely. However, the justices who would abandon the dormant Commerce Clause can exercise decisive influence in particular cases as they did in Wayfair. The current Court’s dormant Commerce Clause skeptics – Justices Thomas and Gorsuch –provided the crucial fourth and fifth votes in Wayfair to overturn Quill. •It will continue to be rare for the Court to reverse its own dormant Commerce Clause decisions. Far from opening the floodgates, Wayfair indicates that the Court is reluctant to overrule its dormant Commerce Clause cases in light of Congress’s ultimate constitutional power to regulate interstate commerce. However, when neither the Court nor Congress has spoken on a particular issue, the Court will consider extending the dormant Commerce Clause as it did in Wynne. •Going forward, an important issue under the dormant Commerce Clause will be the double taxation which results when an individual is deemed to be a resident for tax purposes by two states, each of which taxes all of the dual resident’s income. Wayfair and Wynne suggest that, despite the compelling arguments against the double state taxation of dual residents’ incomes, the Court will be reluctant to set aside its precedents upholding the double state taxation of dual residents. •The Court is more likely to extend dormant Commerce Clause protection when states are overly-aggressive in taxing the incomes of nonresidents. In particular, the Court is more likely to apply the dormant Commerce Clause apportionment principle to curb New York’s “convenience of the employer” doctrine to avoid New York’s double state income taxation of telecommuters on the days they work at their out-of-state homes.
Open Access
Measuring selection bias in publicly available judicial opinions
(The University of Texas School of Law, 2019-01-01) Reinert, Alexander; 0000-0002-0258-7656
To have an informed discussion about judicial performance and efficiency, we will sometimes want to explore what judges actually do on an everyday level. But in many ways, courts have not always been paragons of transparency. Often the parties are the only people who are aware of what action a court has taken in a case. This paper explores that dynamic, in the context of decisions made by federal trial courts at one particular procedural stage--decisions made on motions to dismiss for failure to state a claim--Rule 12(b)(6) motions. There is growing interest in the work of federal trial courts, and to date, most legal researchers have turned to the same resource: commercially available databases. But they have done so conscious of the risk that many district court decisions will never find their way onto Westlaw or LEXIS. If the universe of opinions available on commercially available services is not representative of the entire universe of district court decisions, it is harder to draw conclusions about the work of federal trial courts and therefore more difficult to draw conclusions about judicial performance. This paper shows that the fear is justifiable: certain kinds of decisions, issued by judges sitting in certain judicial districts hearing particular kinds of cases, are overrepresented in services like Westlaw and LEXIS. This has the potential to affect the kinds of conclusions one might draw from observations gleaned by reviewing decisions available only on commercial databases. More broadly, it has the potential to affect how lawyers and judges argue and adjudicate cases, and therefore to affect the corpus of law itself
Open Access
Habermas at 90: A personal and professional tribute.
(Oxford UP, 2019-10) Rosenfeld, Michel
As I reflect on Habermas’s contributions to the fields in which I have labored, I am certain that his theories will endure well beyond our own times. In this respect, the analogy between Habermas and Kant strikes me as particularly apt. Kant’s categorical imperative is exemplary though impossible. In a world in which none of us are self-sufficient, we cannot but rely on others as means. And precisely because of that, we should be mindful of the moral ideal according to which every one of us is an end in him/herself. Similarly, in the case of Habermas, pure procedural justification, consensus, and universalization will always remain beyond our horizon, but we should incessantly strive toward them in order to coexist fairly and peacefully in our increasingly pluralistic settings. Finally, constitutional patriotism may never stand alone, but its essence should always remain within our compass. (from Conclusion)
Open Access
How U.S. family law might deal with spousal relationships of three (or more) people.
(Arizona State University, 2020) 0000-0002-2323-6185
For much of this nation’s history, the vast majority of people have believed that being married to more than one person at the same time is deeply problematic. Further, polygamous marriage has never been legal in the United States. Despite this, some people have been in plural or group relationships and some of these people have wished to gain legal recognition for these relationships. The arguments for recognizing such relationships are persuasive, but the prospects for legalization of polygamous marriage seem slim in the near future. This Article offers a suggestion of how the law of domestic relations might deal with such relationships, focusing on same-sex “triads.” The proposal is that domestic partnership or civil union laws, which remain on the books in some jurisdictions, but are now rarely used, could be repurposed and adapted to recognize and protect triads and perhaps other group and plural relationships.
Open Access
Adultery, infidelity, and consensual non-monogamy
(Wake Forest UP, 2020) Stein, Edward; 0000-0002-2323-6185
Thirty-eight states have laws in place that relate to adultery. Though criminal laws against adultery are not frequently enforced, the network of criminal laws, tort laws, and domestic relations laws related to adultery disincentivize extra-marital sex, an effect heightened by the stigma and other social attitudes associated with adultery. This essay argues that the socio-legal state of affairs concerning adultery is bad for marriages (and similar relationships), bad for public health, and is simply bad public policy. This is the case, in no small part, because the law treats infidelity — having sex with someone other than your primary partner without his or her consent or knowledge — and consensual non-monogamy in the same manner. In fact, infidelity and consensual non-monogamy are significantly different ethically, psychologically, and practically, a claim buttressed by social scientific research. In contrast to proposals to abolish laws that disincentivize adultery whole cloth, this essay argues for more nuanced set of reforms that would end the negative treatment of consensual non-monogamy while leaving unchanged laws relating to infidelity.
Open Access
Supervisory liability and Ashcroft v. Iqbal.
(Benjamin N Cardozo School of Law - Yeshiva University, 2020) Reinert, Alexander A.; 0000-0002-0258-7656
In sum, Iqbal has changed little about the substance of supervisory liability claims. But itspleading analysis appears to have affected the viability of these claims nonetheless. I doubtthis observation will come as a surprise to the participants in this symposium. Butrecognizing the role of pleading doctrine, rather than substantive law, in adjudicatingconstitutional claims against supervisors should clarify an ongoing debate amongpractitioners about the viability of longstanding supervisory liability theories. (from Introduction)
Open Access
The myth of personal liability: Who pays when Bivens claims succeed.
(2020) Reinert, Alexander A.; Pfander, J.; Schwartz, J.; 0000-0002-0258-7656
•In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. On introducing the Bivens action, the Court described the award of damages for the violation of constitutional rights as a central feature of a liability rule that focused on deterring misconduct by individual officers. But for the last three decades Bivens’ personal liability rule, presumed to directly burden individual officers, has played a central role in the Court’s growing hostility to the Bivens doctrine. During this time, the Court has emphasized the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress. In its decision two Terms ago in Ziglar v. Abbasi, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than as a bug. But, to date, there has been no empirical examination of who pays when Bivens claims succeed. •This Article reports on the first study of its kind to assess the financial threat that successful Bivens claims pose to federal officers and their employing agencies. Information supplied by the Federal Bureau of Prisons in response to a Freedom of Information Act request identified successful Bivens actions over a ten-year period; in the vast majority of cases (over 95%), individual defendants contributed no personal resources to the resolution of the claims. Nor did the responsible federal agency pay the claims through indemnification. The data suggest, in short, that recent hostility to Bivens litigation rests on a perceived threat of personal liability that is much more theoretical than real. The data also raise important questions about the adequacy of existing constitutional remedies and the manner in which the Department of Justice exercises its settlement authority under the Federal Tort Claims Act and the Judgment Fund.
Open Access
How to stop a war
(Atlantic Monthly Group, 2020-01-09) Ingber, Rebecca; 0000-0003-0219-3849
This story was updated on January 9, 2020 at 8:30am. Following the U.S. drone strike that killed Qassem Soleimani last week, and the Iranian strikes on an Iraqi base housing U.S. troops earlier this week, the conflict between the United States and Iran appears to be teetering on a knife's edge. The president did not request or receive authorization from Congress before taking the strike, and many are now calling on Congress to step up and do something to prevent the country from sliding into full-blown war. With the immediate crisis possibly defused-for the moment-now is the time for Congress to engage, and it has a number of tools at its disposal to do so. (from Introduction)
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If there was no 'imminent' attack from Iran, killing Soleimani was illegal.
(The Washington Post, 2020., 2020-01-15) Ingber, Rebecca; 0000-0003-0219-3849
Ultimately, however, Congress and others outside the executive branch can do only so much to rein in a president who is determined to stretch the bounds of his or her power. The president has immediate control over the military. And while military officers and others in the chain of command may question or push back on his proposals, they will follow his orders (short of clear war crimes and other patently illegal acts). The most significant check on a president who has little inherent interest in law or norms is a political one. Elections matter. Law can constrain the president, but only if we care, sufficiently and in sufficient numbers, when he violates it. (from Conclusion)
Open Access
Applying the first amendment to the internal revenue code: Minnesota voters alliance and the tax law’s regulation of nonprofit organizations’ political speech.
(Albany Law School of Union University, 2020-01-17) Zelinsky, Edward
On its face, Minnesota Voters Alliance is about which t-shirts, hats, and buttons voters can wear at the polls. However, the Court’s First Amendment analysis in Minnesota Voters Alliance extends beyond apparel at polling places. That decision impacts the ongoing debate about the Johnson Amendment,12 the now controversial provision of the Internal Revenue Code (“Code”) that forbids organizations listed in section 501(c)(3)13 from intervening in political campaigns. Minnesota Voters Alliance also affects the proper construction of section 501(c)(3)’s ban on lobbying by tax-exempt entities14 as well as other provisions of the tax law taxing and precluding campaign intervention by tax-exempt organizations.15 (from Introduction)
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Inutilious propaedeutics: Performances in theatre and law.
(Sage Publications Ltd. (UK), 2020., 2020-01-30) Goodrich, Peter; 0000-0001-8013-5850
The profession of law, according to another early commentator, ‘wastes the greatest part of the verdour and vigour of youth’, and elsewhere the advice for neophytes is of ‘temperance . . . restraint’ and avoidance of all excess. Physical passivity, a reverence embodied in downcast eyes and dull decorum, seems to have been the prevalent desi- deratum by which to mirror a law that once writ moves on, ‘nor all your piety nor wit shall lure it back to cancel half a line, nor all your tears wash out a single word’. It is this textualist, fundamentally literary perception of a sedentary profession, lost in books, dormant in libraries, locked up in linguistic obscurity that comes under sustained critical scrutiny in the new materialism and for current purposes in Marett Leiboff’s (2020) recent opus Towards a Theatrical Jurisprudence. It is a work that seeks to recover the sensible life of the law, the art of the legal actor as thespian, the play and the performance of the trampler being wrested from its sillographic sense and returned to an active theatrical mode of emancipated encounter and embodied presence. (from Introduction)

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