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The Future of Chinese Administrative Law (at the University of Pennsylvania, Philadelphia, PA)
October 24, 2012
The ACLU in American Life
April 3, 2012
Constitutionalism, Ancient and Modern
April 2, 2012
Public Secrets: From the Pentagon Papers to Wikileaks
April 12, 2011
Gender, Sexuality and Democratic Citizenship
November 14-15, 2010
Acknowledging Race in a "Post-Racial" Era
April 30, 2010
Political and Legal Theology in Comparative Perspective
February 21-22, 2010
The Domestic Commander in Chief
April 16, 2007
The New Exceptionalism: Law and Literature Since 9/11
October 29, 2006
Preserving Civil Liberties in an Age of Global Terror: International Perspectives
September 20-21, 2006
Fundamentalism and the Rule of Law
March 14, 2006
Secret Evidence and the Courts in the Age of National Security
December 5-6, 2005
A Comparative Examination of Hate Speech Protection
November 6-7, 2005
Derrida/America: The Present State of America's Europe
February 20-21, 2005
Outsourcing the Government
February 18, 2005
Bellhead/Nethead: The FCC Takes on the Internet
September 28, 2004
Emergency Powers and Constitutions
May 4-5, 2003
Michel Rosenfeld's book, Law, Justice, Democracy, and the Clash of Cultures: A Pluralist Account, continues Professor Rosenfeld’s longstanding work on a theory of “comprehensive pluralism,” arguing that a political and legal philosophy based on pluralism can best confront the problems of the twenty-first century. By his account, monist theories such as liberalism are inadequate to respond to the stresses placed on liberal democracies by the spread of postmodern thought, religious fundamentalism, ethnic and cultural combat, and global terrorism. Relativism is dangerous. In their place, the book makes the case for pluralism from the standpoint of both theory and its application.
Andrew March, Lorenzo Lucca, and Ekow Yankah speaking on Panel I
Susanna Mancini, Tamara Relis, and Andrew Arato speaking on Panel II
10:30 am - 10:45 am
Coffee and Bagels
10:45 am - 12:15 pm
Panel One: Religion, Secularism, and Public Reason
12:15 pm - 1:30 pm
1:30 pm - 3:00 pm
Panel Two: Constitutionalism, Human Rights, Equality
Andrew Arato, New School for Social Research
Susanna Mancini, University of Bologna
Tamara Relis, London School of Economics and Touro Law Center
Michael Herz, Cardozo Law School (moderator)
Michel Rosenfeld, Cardozo Law School (respondent)
University of Pennsylvania Law School
October 24, 2012 • 9 a.m. to 6 p.m.
This is a particularly dynamic moment for Chinese administrative law. The long-term reformist effort to secure passage of a comprehensive administrative procedure law – a law, roughly akin to the U.S. Administrative Procedure Act, that would provide baseline standards for all types of Chinese agency action – appears to be gaining traction as a growing number of sub-national localities adopt regulations modeled upon the proposed national legislation. The scheduled upcoming revision of the two basic laws that define procedures for citizens to appeal unlawful government action has generated a vibrant scholarly discourse, and may lead to strengthening of these formal legal processes in the face of some enduring challenges. Substantive regulatory dilemmas – some familiar in countries like the United States, and others more specific to China – have provoked a deepening sense of crisis that creates new openings for innovations in regulation.
Featuring presentations by an outstanding and diverse group of Chinese administrative law scholars, specially invited to visit the United States by the American Bar Association’s Section of Administrative Law & Regulatory Practice, and with commentary from distinguished U.S. scholars of administrative law and Chinese law, this symposium took stock of the development of Chinese administrative law over the past thirty years, and explored possibilities for reform today. Topics included agency decision-making procedures, approaches to regulation, and external oversight in Chinese administrative law and practice. A central theme for discussion was the degree to which traditional U.S. administrative law values such as transparency, public participation, and judicial review, and newer regulatory approaches such as cost-benefit and risk-based analysis, have informed Chinese administrative law thus far and might help to shape its future.
This symposium was co-sponsored by Cardozo's Floersheimer Center for Constitutional Democracy, the University of Pennsylvania’s Center for the Study of Contemporary China and Center for East Asian Studies, and the Penn Program on Regulation, in conjunction with the American Bar Association’sSection of Administrative Law & Regulatory Practice and with financial support from the U.S. Chamber of Commerce.
Through litigation and public education, the American Civil Liberties Union has contributed to the national debate over issues such as national, security, public safety, freedom of thought, civil rights, reproductive rights, academic freedom and same sex marriage. An informed and highly accomplished panel explored many of these controversial topics, which have been signature issues for the ACLU and were so prominent during the 2012 election year.
Heather Mac Donald, Manhattan Institute for Policy Research, Inc.
Adam Liptak, The New York Times
Theodore B. Olson, Gibson, Dunn & Crutcher LLP
Deborah Pearlstein, Cardozo School of Law
Anthony D. Romero, American Civil Liberties Union
Steven R. Shapiro, American Civil Liberties Union
Moderated by Jeffrey Brown, PBS Newshour
Organized by Prof. David Rudenstine.
Co-sponsored by the Cardozo Student Chapter of the American Constitution Society.
Contemporary constitutional scholars commonly approach the issues in their field without reference to the constitutionalism of the states, cities, and empires of ancient times. It is as if the constitution and the whole of constitutionalism were born in late eighteenth century France and the United States. But this narrow and unknowing perspective deprives modern constitutionalism of a creativity and depth that contact with the ancients would foster and reveal. The purpose of this symposium was to put the constitutionalism of the ancients on the agenda of contemporary constitutional scholars. Among the themes the symposium explored are the challenges pre-modern constitutions pose to modern constitutionalism, the struggle for constitutional order and economic equality in Athens and Rome, religious sources of constitutionalism, direct versus representative lawmaking, and the relationship of constitutionalism to dictatorship and absolutism.
John P. McCormick of the University of Chicago gave the keynote address. He is the author of a celebrated monograph, Machiavellian Democracy (Cambridge University Press 2011). The book is at once an attack on the traditional oligarchic reading of Machiavelli and a stunning examination of Machiavelli's meditations on the Roman constitution. Prof. McCormick proposes that modern American democracy could be enhanced by the introduction of an institution in the Roman constitution, the tribunate, to temper the force of oligarchy in the United States.
9:30 am Welcoming Remarks
Matthew Diller, Cardozo School of Law
9:35 am Introduction
Michael Herz, Cardozo School of Law
9:45 - 11:45 am Panel I: Ancient Constitutionalism: The Struggle Towards Constitutional Order
Clifford Ando, University of Chicago; University of South Africa
Melissa Lane, Princeton University
Adriaan Lanni and Adrian Vermeule, Harvard Law School
David A. Teegarden, SUNY Buffalo
Moderator: Michael Herz, Cardozo School of Law
Noon - 1:30 pm Lunch
Keynote Address: John P. McCormick, The University of Chicago: Keep the Public Rich and the Citizens Poor: Economic Equality and Ancient Constitutionalism
Response: Michel Rosenfeld, Cardozo School of Law
1:45 - 3:45 pm Panel 2: Constitutional Comparison
Janelle Greenberg, University of Pittsburgh
Arthur Jacobson, Cardozo School of Law
Pasquale Pasquino, New York University; Centre National de la Recherche Scientifique, Centre de Theorie et Analyse du Droit
Melissa Schwartzberg, Columbia University
Moderator: Ekow Yankah, Cardozo School of Law
3:45 - 4 pm Coffee Break
4 - 6 pm Panel 3: Modern Constitutionalism: Institutions and Theory
Kinch Hoekstra, University of California Berkeley School of Law; University Center for Human Values, Princeton University
Andreas Kalyvas, The New School for Social Research and the Eugene Lang College
David Rudenstine, Cardozo School of Law
Moderator: Deborah Pearlstein, Cardozo School of Law
6 pm Reception
Co-sponsored by the Cardozo Law Review.
Since Aristotle, the concept of proportionality has been central to understandings of justice and equality. Most generally, proportionality encompasses two distinct relations: fit and balance. First, are the means adopted to pursue a particular objective properly tailored to the desired end? Or are they excessive, wasteful, or unduly oppressive? Second, do the benefits to be gained from a policy or action outweigh the resulting burdens? Questions of fit and balance are constant and inescapable in a wide range of contexts. For example, are punishments "proportionate" in relation to the misdeeds they target? Is an object's price consistent with its value? Is a distribution commensurate with entitlement based on effort or desert?
The principle of proportionality has played a crucial role in philosophy and in law, in particular in administrative, constitutional, and criminal law. It also figures explicitly or implicitly in many other fields. For example, some military operations have been criticized as being disproportionate. Medical decisions relating to allocation of scarce resources, such as organs for transplant, or exceedingly expensive end-of-life treatment involve what are at least implicitly proportionality-based decisions. Moreover, economics implies recourse to proportionality in relation to at least two different principal concerns: questions of efficiency raise issues of fit; and reconciling efficiency with fairness in the distribution of wealth triggers questions of balance.
Part I of the conference was held in New York City in September 2011, and examined proportionality from an interdisciplinary and comparative standpoint. Does proportionality figure and function similarly across various fields and disciplines? Or, does it at best encompass a variety of loosely related principles and practices? And, within a single field that extends across diverse cultures, does recourse to proportionality lead to similar outcomes, or does it only provide a construct that in the end valorizes distinct cultural and ideological particularities? For example, it has been suggested that proportionality has become a quasi-universal standard of constitutional law. Should that lead to a worldwide confluence in the definition and protection of fundamental rights? Or, to a justification of differences across constitutional cultures?
Part I of the conference addressed these questions as they relate to the fields of philosophy, administrative and constitutional law, economics, and military affairs.
Part II of the conference, which took place in Frankfurt in June 2012, revisited philosophy and constitutional law, and also focused on architecture, criminal law, and medicine.
Part I Program
Sunday, September 25, 2011
10:10 -10:30 a.m.
Prof. Michael Herz
10:30 a.m. - 12:30 p.m.
Panel I: Philosophy
Chair: Prof. Rainer Forst, Cluster of Excellence on the "Formation of Normative Orders," Johan Wolfgang-Goethe-University, Germany
Prof. Barbara Herman, Department of Philosophy, UCLA, USA
Prof. Frances Kamm, Department of Philosophy, Harvard University, USA
Prof. Avishai Margalit, Van Leer Jerusalem Institute, Israel
Prof. Joseph Raz, Oxford University, UK; Columbia Law School, USA
12:30 p.m. - 2:00 p.m.
2:00 p.m. - 4:00 p.m.
Panel II: Economics
Chair: Prof. Bernhard Schlink, Faculty of Law, Humboldt University, Germany
Prof. Anne van Aaken, Wissenschaftskolleg zu Berlin, Germany
Michael Katz, Glenrock Global Partners, L.P., USA
Prof. Sanjay Reddy, New School for Social Research, USA
Prof. Susan Rose-Ackerman, Yale Law School, USA
4:00 p.m. - 4:30 p.m.
4:30 p.m. - 6:30 p.m.
Panel III: Constitutional Law
Chair: Prof. Michel Rosenfeld, Cardozo School of Law, USA
Prof. Robert Alexy, Faculty of Law, Christian-Albrechts University of Kiel, Germany
Prof. Dieter Grimm, Wissenschaftskolleg zu Berlin, Germany; Former Justice German Constitutional Court
Hon. Renate Jaeger, Former Judge, European Court of Human Rights; Former Justice, German Constitutional Court
Hon. Andras Sajo, European Court of Human Rights
Prof. Alec Stone Sweet, Yale Law School, USA
Monday, September 26, 2011
10:00 a.m. - 12:00 p.m.
Panel IV: Military Affairs
Chair: Prof. Klaus Guenther, Cluster of Excellence on the "Formation of Normative Orders," Johann Wolfgang Goethe-University, Germany
Vice Admiral Kevin Cosgriff, U.S. Navy (Ret.), USA
Major General Vincent Desportes, Former Director, French Joint War College
General Klaus Naumann, Former Chief of Staff, German Armed Forces; Former Chairman, NATO Military Committee
Prof. Jochen von Bernstorff, Max Planck-Institut for Comparative Public Law and International Law, Germany
12:15 p.m. - 1:45 p.m.
2:00 p.m. 4:00 p.m.
Panel V: Administrative Law
Chair: Prof. Susan Rose-Ackerman, Yale Law School, USA
Hon. Sabino Cassese, Italian Constitutional Court, Italy
Prof. Michael Herz, Cardozo School of Law, USA
Prof. Martin Loughlin, London School of Economics, UK
Prof. Bodo Pieroth, Westfalische Wilhelms-Universitat - Institute fur Offentliches Recht und Politik, Germany
4:00 p.m. - 4:30 p.m.
Hon. Aharon Barak, Former President, Israel Supreme Court; Visiting Professor, Yale Law School, USA
Prof. Klaus Guenther, Cluster of Excellence on the "Formation of Normative Orders," Johann Wolfgang Goethe-University, Germany
Prof. Mattias Kumm, New York University School of Law, USA
Prof. Rainer Forst, Cluster of Excellence on the "Formation of Normative Orders," Johann Wolfgang Goethe-University, Germany
Prof. Michel Rosenfeld, Cardozo School of Law, USA
Prof. Bernhard Schlink, Faculty of Law, Humboldt University, Germany
Co-sponsored by The Floersheimer Center for Constitutional Democracy and The Program on Global and Comparative Constitutional Theory at the Benjamin N. Cardozo School of Law and The Cluster of Excellence on "The Formation of Normative Orders" at the Johann Wolfgang Goethe-University.
The Study Group on Immigrant Representation, launched by U.S. Circuit Judge Robert A. Katzmann, convened an exciting event focused on seeking innovative solutions to the immigrant representation crisis. Justice John Paul Stevens offered remarks.
Several exciting initiatives already underway were reviewed with the goal being to discuss and analyze such initiatives with an eye toward expansion and further innovation. In addition to Justice Stevens' remarks, key actors from the advocacy community, the private bar, and the federal, state, and city government spoke about their work on this issue, focusing particularly on efforts in and around New York City. Together, this group sought pragmatic and constructive responses to one of our legal system's most pressing and intractable challenges.
Papers from this symposium, including the remarks from Justice John Paul Stevens, and the two reports produced by the Study Group, were published by the Cardozo Law Review, Volume 33-2.
From the Pentagon Papers to the digital age, the rules and assumptions guiding disclosure of government secrets have changed. This conference brought together high-level insiders and experts with experience from the situation room, the newsroom, and the courtroom. Under the expert questioning of Jeffrey Brown of the PBS Newshour, panelists debated the real-world pressures on news organizations, government officials, leakers, and the courts.
The New York Times' publication of the Pentagon Papers has shaped every administration from Nixon to Obama. Four decades later, the Wikileaks releases have again altered the landscape, but the key moral, ethical, and legal issues are unchanged. We examined the key relationships of leaker to publisher and editor to government official, as well as the appropriate role of the courts.
The framework for the discussion will be Cardozo Professor David Rudenstine's seminal work The Day the Presses Stopped, A History of the Pentagon Papers Case. Attendees also heard excerpts of previously unreleased interviews with Robert McNamara, John Mitchell, William H. Rehnquist, and Arthur Ochs Sulzberger.
Floyd Abrams, Cahill Gordon & Reindel LLP
John B. Bellinger III, Arnold & Porter LLP
Leslie Gelb, Council on Foreign Relations
Adam Liptak, The New York Times
The Hon. Michael Mukasey, Debevoise & Plimpton LLP
David Rudenstine, Cardozo Law School
Steven R. Shapiro, American Civil Liberties Union
Gender and sexual orientation have long figured prominently in the denial of equal citizenship. Though significant progress has been made over the last century, much remains to be done. New challenges arise as gains in rights provoke new bursts of resistance, as evidenced, for example, by the fierce controversy around same-sex marriage, and globalization and mass migration entwines Western and non-Western religions and cultures while exacerbating their divisions.
The purpose of this conference is to take stock and explore new directions in connection with the struggle for gender and sexual-orientation based equal citizenship. Drawing on an interdisciplinary and international group of leading scholars, the conference will explore the most salient theoretical and practical issues surrounding the quest for equal citizenship.
The conference will include five panels and a keynote address by Prof. Reva Siegel of the Yale Law School, this country's foremost scholar in the area of reproductive rights. Panel One will examine key theoretical issues regarding the debate over equal citizenship. Should equality be pursued merely by systematically eliminating barriers one by one? Or can it only be achieved through radical shifts in perspective? Panel Two will explore the political dimension of sexual and reproductive rights and assess how it impacts the quest for equal citizenship. Should political action or right-based strategies predominate? How do different countries handle these issues? Are international human rights norms or constitutional rights more likely to accelerate the path to equality? Panel Three will focus on the thirty-year worldwide experience with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Has it advanced or slowed women's rights? Panel Four will concentrate on the impact of gender on the practical aspects of politics. Drawing on the experience of several Western democracies, the panel will evaluate how women fare both as citizens and as elected officials. Finally, Panel Five will zero in on how culture and religion in increasingly multicultural societies are likely to affect the relationship between women and the state. What are the theoretical and constitutional consequences of claims to self-rule by non-liberal cultures and religions considered strongly gender-biased by Western standards? Should religious courts, for example, be allowed to grant divorces or dictate property settlements? How should freedom of religion and gender equality be reconciled?
Sunday, November 14
Moot Court Room
Michael Herz, Cardozo School of Law
10:15 am - 12 pm
Panel I: Equal Citizenship in a Changing World
Chair: Michel Rosenfeld, Cardozo School of Law
Nancy Fraser, Departments of Philosophy and Politics, The New School for Social Research
Christopher McCrudden, Faculty of Law, University of Oxford, UK
Jean Louise Cohen, Department of Political Science, Columbia University
12:15 am - 1:45 pm
Lunch and Keynote Address
2 pm - 3:45 pm
Panel II: Sexual and Reproductive Rights
3:45 pm - 4:15 pm
Panel III: CEDAW?
Chair: Hélène Ruiz-Fabri, University Paris I, Pantheon-Sorbonne, France
Frances Raday, Faculty of Law, Hebrew University of Jerusalem, Israel
Penelope Andrews, CUNY School of Law
Judith Resnik, Yale Law School
Monday, November 15
10:15 am - 12 pm
Panel IV: Political Citizenship
Chair: Susan Williams, Indiana University Maurer School of Law
Nadia Urbinati, Department of Political Science, Columbia University
Kathryn Abrams, University of California Berkeley School of Law
Julie Suk, Cardozo School of Law
12:15 pm -1:45 pm
2:00 pm -3:45 pm
Panel V: Culture, Religion, Gender and the State
Chair: Susanna Mancini, Faculty of Law, University of Bologna, Italy
Ayelet Shachar, Faculty of Law, University of Toronto, Canada
Cécile Laborde, Department of Political Science, University College London, UK
Lama Abu-Odeh, Georgetown University Law Center
3:45 pm - 4 pm
Sponsored by the Floersheimer Center for Constitutional Democracy and the Program on Global and Comparative Constitutional Theory.
1:00 pm - 1:15 pm
Matthew Diller, Benjamin N. Cardozo School of Law
1:15 pm - 3:15 pm
Panel I: Constitutional Identity and Community
Seyla Benhabib, Yale University
Rosalind Dixon, University of Chicago Law School
Deborah Hellman, University of Maryland School of Law
Pierre Legrand, University of Paris I, Panthéon - Sorbonne
Bernhard Schlink, Humboldt University
Moderator: Peter Goodrich, Benjamin N. Cardozo School of Law
3:15 pm - 3:30 pm
3:30 pm - 5:30 pm
Panel II: The Theory and Practice of Global Constitutionalism
Moderator: Julie Suk, Benjamin N. Cardozo School of Law
5:30 pm - 7:00 pm
The most important twentieth-century case in free exercise of religion jurisprudence was decided twenty years ago. Employment Div. v. Smith, 494 U.S. 872, might have been a case limited to its facts - drug counselors who used illegal drugs during religious services - but the Supreme Court did not simply decide whether there is a right of Native American Church members to use peyote during worship services. The Justices in the majority also surveyed the full range of free exercise of religion cases back to the earliest ones and rendered an opinion that apparently intended to give litigants and courts a definitive explanation of the Court's free exercise cases. While the Court's description of its case law was not inaccurate, Smith set off shock waves in the legal world, and triggered extraordinary legislative reforms, including the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act and state counterparts. This symposium was organized to bring together distinguished professors and clergy, some of whom were involved in either the case or the political reaction to it, to reflect on a Supreme Court opinion that sparked a revolution.
Wednesday, October 6
Welcome and Introduction
Dean Matthew Diller, Benjamin N. Cardozo School of Law
Keynote Address: "Anniversary Reflections on Employment Division v. Smith: The Sky that Did Not Fall"
David Frohnmayer, President Emeritus, University of Oregon
Prof. Marci A. Hamilton, Benjamin N. Cardozo School of Law
Behind the Scenes at the Smith Court
Thursday, October 7
9:00 am - 10:15 am
Prof. Michael Herz, Benjamin N. Cardozo School of Law
Moderator: Prof. Richard Weisberg, Benjamin N. Cardozo School of Law
Prof. Daniel Conkle, Indiana University Maurer School of Law
Associate Dean Richard Garnett, University of Notre Dame Law School
Prof. Steven Smith, University of San Diego School of Law
10:30 am - 11:45 am
Family Law and Women's Rights
Moderator: Prof. Melanie Leslie, Benjamin N. Cardozo School of Law
Prof. James Dwyer, William and Mary School of Law
Prof. Leslie Griffin, University of Houston Law Center
Prof. Jessie Hill, Case Western Reserve University School of Law
11:45 am - 1:00 pm
Lunch Break and Keynote
Jason Berry, Author of Vows of Silence
Milestones in the Catholic Church's Clergy Abuse Crisis
2:15 pm - 3:30 pm
The Court and the Political Culture
3:45 pm - 5:00 pm
Smith in Operation
Moderator: Prof. Linda McClain, Boston University School of Law
Prof. Caroline Mala Corbin, University of Miami School of Law
Prof. Bernadette Meyler, Cornell Law School
Prof. Nelson Tebbe, Brooklyn Law School
Prof. Laura Underkuffler, Cornell Law School
Friday, October 8
9:00 am - 10:15 am
RFRA and RLUIPA
Moderator: Associate Dean Mark Graber, University of Maryland School of Law
Prof. Ira C. Lupu, George Washington University School of Law
Prof. Marci Hamilton, Benjamin N. Cardozo School of Law
Prof. Robert Tuttle, George Washington University School of Law
Rev. J. Brent Walker, Baptist Joint Committee for Religious Liberty
10:30 am - 11:45 am
Smith's Interaction with First Amendment Principles Beyond the Free Exercise Clause
Moderator: Lawrence Stratton, Waynesburg University
Prof. Alan Brownstein, UC Davis School of Law
Prof. Angela Carmella, Seton Hall School of Law
Prof. Steven Jamar, Howard University School of Law
Prof. William Marshall, University of North Carolina School of Law
Sponsored by the Floersheimer Center for Constitutional Democracy, Jacob Burns Center for Ethics in the Practice of Law, and the Cardozo Law Review. Organized by Prof. Marci Hamilton and the Cardozo Law Review.
The contemporary debate over regulating “hate speech” is stalled; free-speech absolutists, who would protect speech in all circumstances, and free-speech skeptics, who would accept all “reasonable” regulation of “hate speech,” have reached a deadlock. This conference sought to reinvigorate and advance that debate by exploring a middle ground that is contextual and historically specific. It was the closing event of the Spring 2010 weekly colloquium based on the book of the same title (Michael Herz & Peter Molnar eds., Cambridge University Press 2012). While details vary, in most of the world, “reasonable” regulation of “hate speech” is accepted as both important and supportive of democratic values. However, American courts have reasoned that it is more effective and consistent with democratic values to respond to “hate speech” with counter-speech rather than with suppression, holding the latter unconstitutional, an approach that has been quite firmly followed by post-Holocaust, post-communist Hungary since the early 1990s. Speech that expresses and promotes hatred of particular social groups poses one of the most difficult challenges regarding restrictions of speech from both a theoretical and a practical perspective. Not surprisingly, responses to this challenge have not been uniform. This conference proceeded on the assumption that this variation is an invitation rather than an obstacle to understanding and solving underlying problems. It brought together leading scholars, advocates, and practitioners to cast new light on an old issue.
By Thomas Adcock
Twenty-two scholars who participated in a lively April 30 seminar at the Benjamin N. Cardozo School of Law——under the quizzical title “Acknowledging Race in a ‘Post-Racial’ Era”—were keenly aware of historical occurrences as bookends to their panel remarks:
• The arrival of African slaves at Jamestown Colony, Virginia, in 1619.
• A stringent immigration bill signed by Arizona’s governor only six days prior to the Cardozo seminar——legislation scorned by commentators of the left and right as anti-Latino.
In between was the election in 2008 of the nation’s first nonwhite president——a departure of sorts from the sorriest characteristic of the American story, but no proof of a color-blind society envisioned by Supreme Court Justice John Marshall Harlan in his thunderous dissent from the 1896 decision in Plessy v. Ferguson.
As for the “Post-Racial” tag to the conference title, Cardozo Law Prof. Michael E. Herz stated the concensus of opinion in introducing the event’s keynote speaker, Theodore M. Shaw, former president of the NAACP Legal Defense and Educational Fund.
“There is an implied ‘so-called’ around those quotation marks,” said Professor Herz, director of the Floersheimer Center for Constitutional Democracy, which sponsored the conference along with the Cardozo Law Review.
In his address, Mr. Shaw, now a professor at Columbia Law School, asked, “Post-racial America? That’s nonsense. Color blindness? No. It’s too rich a history to give in to some simplistic notion that we should gouge out our eyes and pretend not to see what we can all see.”
As a people, Professor Shaw noted, African Americans have lived most of the past four centuries either as slaves or under the repression of Jim Crow law. Jurisprudential change was sparked in 1954 with Brown v. Board of Education, when the Supreme Court struck down the separate-but-equal standard set by Plessy, he said. But practical change would be another fifteen years coming with the adoption of federal statutes affecting such day-to-day matters as employment and housing.
“So we’ve only recently begun to be serious about addressing racial subordination sanctioned and put into place by law,” said Professor Shaw.
Of President Barack Obama’s ascendency to the White House, he added, “Everybody is conscious of the fact that we’re living in a time we couldn’t have imagined, [but still] we don’t know how to talk about racism. I respect [Obama] and I support him, but he is a politician. He can’t bear the burden of race, and I don’t want him to.”
Professor Shaw left his audience with the thought, “If Hillary Clinton had been elected president, do you think we’d be here talking about a post-gender era?”
Prof. Michelle Adams, whose classes at Cardozo Law involve civil rights and race discrimination, said she organized the seminar because American society is in a “paradoxical situation,” where “undeniable progress” co-exists with “undeniable disparities” and where “the role of racism has shifted.”
She added, “The challenge now is to recognize where we need to go.”
To that end, Professor Adams enlisted the Floersheimer Center for support in assembling scholars from nine campuses besides Cardozo Law——along with the corporation counsel for the City of New Haven, Conn., the American Civil Liberties Union, and the Mexican American Legal Defense and Educational Fund.
In accepting his Cardozo colleague’s proposal, Professor Herz said of the seminar, “This conference is a superb example of what the Floersheimer Center is here to do——to educate, to illuminate and to facilitate inquiry and dialogue.”
Beyond pleas for added public investment in education and social service, no formal policy prescriptions were advanced during four panels of dialogue, doubtless because the matter of American racism is so internalized and monetized, according to Professor Ian Haney López of the Boalt Hall School of Law at the University of California, Berkeley.
“It is important to understand racism as [economic] function,” he said.
On the dynamics of Arizona’s new immigration policy and its putative effect on undocumented, nonwhite workers, Professor López said, “We take them out of the protection of wage and working condition laws.” Easing the lot of poor migrant workers is thus difficult, he said, because “the problem is not just a bunch of ignorant bigots but [powerful] people who are benefitting.”
Prof. Rachel F. Moran, a Boalt Hall colleague of Professor López, said the “false neutrality of technocratic practice” is unfair to brown-skinned children from Spanish-speaking homes, often made to take school tests in English before they are proficient in the new language.
“There is a perception that this is equality because everyone gets the same test,” said Professor Moran. “This notion of color-blindness limits [our] ability to recognize differences and a richly-textured vision of the real world.”
Prof. James Forman, Jr., of Georgetown University Law Center, suggested an especially perverse entanglement of racism and economy in noting that while twelve percent of Americans are black, some twenty-eight percent of the nation’s prison guards are likewise black——and in charge of an inmate population that is heavily black, male, uneducated and impoverished.
Effectively, he warned, a “new Jim Crow” aims not at African Americans generally but at “a core of poor black men” constituting roughly half the nation’s incarcerated citizens.
The criminal justice system that targets such a group is “the most punitive in the world and completely out of control,” according to Vanita Gupta, director of the ACLU’s Center for Justice. She added, “There is nothing post-racial about our country post-Obama.”
Prof. john a. powell of the Moritz College of Law at Ohio State University——who prefers that his name be spelled in lower-case——offered the most provocative notion of the daylong seminar, and perhaps a suggested step on a path to post-racialism.
Professor powell, who is black, said guilt has long been the fundament of white liberalism but that the Great Recession may have changed that motivation.
“Whiteness,” he said, “has been about exclusion.” But given today’s economy, he added, “We need to invite in our [white] brothers and sisters who are also being kicked in the teeth by corporate America.”
Political Theology is a mode of inquiry that understands the modern period as incompletely secularized. Theology has been adapted, reworked, and translated for secular use, but its hold on the political imagination remains strong. Although the Enlightenment and the rise of Western political liberalism attempted to keep the public, political, sphere completely secular while relegating religion to the private sphere, Political Theology argues that modern political systems have reoccupied the space that was one held by religious and theological systems. Little attention has been paid to the theological underpinnings of secular legal systems. Yet, a small but growing body of literature on legal theology has demonstrated that both in its origins and in its content, Western law preserves and reoccupies spaces once held by God, revelation, prophets and priests.In an age in which political globalization has been accompanied by legal globalization, there is a need not only for disparate studies of political and legal theology, but to bring political theology and legal theology into productive conversation with one another. This conference aimed to begin this new comparative and interdisciplinary conversation in political and legal theology.
A roundtable discussion held at Cardozo with prominent jurists, statesmen, academics, and practicing attorneys.
Prof. Malvina Halberstam
Irwin Cotler (on left) with Prof. Michael Herz
Prof. Marci Hamilton and Nathan Lewin
(From left) Michael Eitan, Richard Posner, and Prof. Malvina Halberstam
Richard Posner (on left) with Morris Fish
Nathan Lewin (on left) with Irwin Cotler
Irwin Cotler, Member of Parliament, former Minister of Justice and Attorney General of Canada
Elizabeth Defeis, Professor & former Dean, Seton Hall University School of Law
Michael Eitan, Member of Knesset, Chair, Committee on the Constitution, Law, and Justice
Morris Fish, Justice, Supreme Court of Canada
Daniel Friedmann, former Minister of Justice, Israel
Marci Hamilton, Professor, Benjamin N. Cardozo School of Law
Michael Herz, Vice Dean & Professor, Benjamin N. Cardozo School of Law
Nathan Lewin, Esq., Attorney, Lewin & Lewin
Richard Posner, Judge, United States Court of Appeals for the 7th Circuit
Elyakim Rubinstein, Justice, Supreme Court of Israel
Shlomo Slonim, Professor, The Hebrew University of Jerusalem
Dr. Janice Sokolovsky, Member of the Bar, U.S. and Israel
Moderator: Prof. Malvina Halberstam, Benjamin N. Cardozo School of Law
This symposium, organized by the Cardozo Journal of International and Comparative Law, addressed critical issues concerning the principle of reasonable doubt.
9:00 - 9:15 a.m.
Check-in and complimentary continental breakfast
9:15 - 10:50 a.m.
Panel I: Probability & Reasonable Doubt in Christian Theology
Panelists discussed the origins of the reasonable doubt standard, its moral ramifications, and alternatives to it.
Barbara Shapiro, UC Berkeley, Department of Rhetoric
Milbert Shin, Deputy Ambassador at Large for War Crimes Issues, U.S. Department of State
James Whitman, Yale Law School
Suzanne Last Stone, Cardozo School of Law, moderator
11:05 a.m. - 1:00 p.m.
Panel II: Confessions, Torture, and Reasonable Doubt
This panel focused on the reliability and admissiblity of evidence gained through torture.
Ronald Allen, Northwestern University School of Law
Mark Denbeaux, Seton Hall Law School
James Franklin, Department of Mathematics, University of New South Wales
David Hamer, University of Queensland
Peter Tillers, Cardozo School of Law, moderator
Prof. Michel Rosenfeld
Judge Andras Sajo, left, with Prof. Guy Harrscher
Prof. Pawel Kloczowski, left, Jagiellonian University (Poland); and Prof. Karl-Heinz Ladeur, University of Hamburg
Prof. Isabelle Rorive, left, with Prof. Susanna Mancini
Prof. Dieter Grimm delivered the keynote address
The revival of religion in pluralist and multicultural settings deeply immersed in identity politics poses serious theoretical and practical challenges to the legitimacy and viability of the dominant conception of constitutionalism which seems inextricably linked to the principle of secularism. Organized by Professors Michel Rosenfeld of Cardozo and Hélène Ruiz-Fabri, University of Paris 1, and featuring a keynote address by Dieter Grimm, formerly a Justice of the German Constitutional Court, this two-day conference brought together leading scholars of law, political science, religion, and sociology from around the world to discuss the effects on, and meaning for, secular constitutionalism of rising religious fundamentalism.
Sunday, October 26
9:30 - 11:15 a.m.
Panel I: Religion and Public Reason
11:30 a.m. - 1:15 p.m.
Panel II: Religion and Secularism in Theory
Prof. Pierre Birnbaum, University of Paris I
Prof. Pawel Kloczowski, Jagiellonian University
Prof. Karl-Heinz Ladeur, University of Hamburg
Prof. Matthias Mahlmann, University of Zurich
Prof. Michel Rosenfeld, Benjamin N. Cardozo School of Law
1:15 - 3:00 p.m.
Keynote Address: "Conflicts Between Legal and Religious Norms"
Prof. Dieter Grimm, Former Justice of the German Federal Constitutional Court
3:00 - 4:45 p.m.
Panel III: State Sovereignty and Constitutional Models for the Relation Between Religion and the State
Monday, October 27
9:15 - 11:00 a.m.
Panel IV: Religious Symbols in the Public Space
Prof. Murat Borovali, Istanbul Bilgi University
Prof. Maleiha Malik, King’s College London School of Law
Prof. Susanna Mancini, University of Bologna
Prof. Isabelle Rorive, Université Libre de Bruxelles
Prof. Patrick Weil, University of Paris I, Yale Law School
11:15 a.m. - 1:00 p.m.
Panel V: Gender and Religion
1:00 - 2:30 p.m.
2:30 - 4:15 p.m.
Panel VI: State, Religion, Society: A Question of Mutual Respect?
Enjoining the Kiss: The Emerging International Right of Privacy versus News and Art Photography, brought together lawyers, scholars, journalists, and photographers, to examine the new legal terrain facing news and art photography as privacy rights and freedom of expression are pitted against one another.
For more than a century, news and art photography have defined the visual representation of our past and present. By capturing moments of both public and private life, photographers like Cartier-Bresson, Robert Doisneau, Dorothea Lange, W. Eugene Smith, Margaret Bourke-White, and Walker Evans forever shaped our sense of reality and gave us an enduring legacy. Now the photography of public life is being undermined by the expanding international laws of privacy and image rights – laws which can impede any photographer or photojournalist distributing work worldwide.
Pierre-Yves Gautier, professor at Universite Pantheon-Assas (Paris II), author of “Propriete Litteraire et Artistique” and privacy scholar
The panel was presented by The Floersheimer Center for Constitutional Democracy, Cardozo Arts & Entertainment Law Journal and The Howard M. Squadron Program in Law, Media and Society with generous support from La Délégation générale du Québec and The American Constitution Society.
Globalization and privatization are reshaping our constitutional system, altering the relationship between the nation-state and its citizens and other relevant parties. Transnational and global institutions have grown in significance, drawing power away from nation-states and creating conflicts between global and national constitutional systems. At the same time, private actors, who have traditionally been free from constitutional constraints, are increasingly performing governmental functions, effectively wielding public power. As a global constitutional system has emerged, religious fundamentalism has challenged the legitimacy of these new arrangements.
This two-day conference, held jointly at the New York University School of Law and the Cardozo School of Law, brought together scholars and judges from around the world to discuss the impact of globalization and privatization on constitutionalism.
The full details of the conference are available in the Rethinking Constitutionalism brochure.
What authority does the President's role as the Commander in Chief of the armed forces grant him to act in the domestic arena? By most accounts, the Commander-in-Chief Clause vests the President with broad power over the military and its conduct within a "theater of war." But when that theater overlaps with much of domestic life, the President's control over the military runs headlong into Congress's regulatory authority as well as constitutional protections for individual rights.
This clash of constitutional principle has surfaced repeatedly in the American response to the 9/11 terrorist attacks. President Bush has invoked his authority as Commander in Chief as a basis for detention of American citizens captured on domestic soil, a program for eavesdropping on communications from domestic sources, the establishment of military commissions in Guantanamo, and decisions to classify information. In view of the persistence of the invocation of the Commander-in-Chief Clause, the scope, impact, and dynamics of this source of the President's constitutional power merits sustained treatment. This conference brought together leading constitutional scholars and historians to discuss the proper scope of the President's domestic Commander-in-Chief authority.
Papers from the conference appeared in the Cardozo Law Review, Volume 29-3.
The conference brochure is available here.
This interdisciplinary conference analyzed the events of 9/11 and their effect on American society through the lens of law and literature. Symposium participants spoke on topics including discourses on “terror,” emergent cultural stories in immigration and asylum litigation, the naturalization of torture and other technologies of investigation, and the rewriting of criminal procedure and civil rights beyond the margins.
With the fifth anniversary of the September 11, 2001 terrorist attacks upon us, it is clear that global terror and the war against it will continue to affect profoundly constitutional democracies and call into question the optimal balance between liberty and security for years to come. This conference brought together judges, scholars, and government officials who have been involved in anti-terrorist activities from a number of key countries to compare differing approaches to the war on terror and to explore alternatives that might optimize the balance between law and security.
Preserving Civil Liberties conference brochure
Religious fundamentalism is on the rise around the world. Its truth claims often directly challenge not only competing social mores but also legal rules. That clash, which is just beginning to gain the attention of scholars around the world, was the subject of this timely and forward-thinking conference, which brought together leading sociologists, theologians, and legal scholars. Its interdisciplinary character was intended to spur communication between these often distinct fields of specialization and to foster original thinking about religion, the law, and our world.
The expanding use of secret evidence in civil and criminal cases challenges bedrock principles of our legal system: access to evidence, a fair opportunity to contest facts and present a defense, and public access to information. It is one instance of the central civil liberties issue of our time: Will the government protect national security at the expense of, or while preserving, fundamental rights and civil liberties? This conference evaluated the use of secret evidence throughout the legal process -- in the investigative stages, in the Foreign Intelligence Surveillance Act courts, in civil and criminal cases in Article III courts, in immigration and military courts, and in Combatant Status Review Tribunals.
This scholarly conference brought together constitutional experts from the United States, Canada, Eastern and Western Europe, and Israel to discuss the permissibility of limitations on hate speech. This issue lies near the heart of what it means to be a tolerant, liberal, pluralist democracy. American courts tend to be reluctant to accept such limitations; there is a strong tradition of granting constitutional protection even for speech "we loathe” and an essentially irrebutable presumption that the remedy lies not in suppression but in counterspeech. In contrast, Canada and many European nations accept restrictions on hate speech, allowing “reasonable” limitations on speech that wounds or incites hatred against racial or religious groups. A comparative investigation is likely to lead to insights for participants in both traditions. The Fall meeting was part of a larger project undertaken in collaboration with the Central European University regarding the comparative study of hate speech regulation.
This gathering of American and European scholars took stock of the work of Jacques Derrida, particularly his 1989 article "Force of Law." Participants included Professors Balkin (Yale), Bhabha (Harvard), Critchley (New School), Culler (Cornell), Gasché (Buffalo), Haverkamp (NYU), Menke (Pottsdam), Mitchell (Chicago), Rebentisch (Berlin), Rödl (Pittsburg), Schlag (Colorado), Vinken (Munich), and Wheeler (Connecticut).
In recent years, both the federal and state governments have made increasing use of private contractors to handle traditional government functions such as prisons, schools, and military or quasi-military operations. This tendency raises a host of issues regarding both the theory and the practice of good government. This conference examined the legal issues implicated by the practice of contracting out to private entities the performance of management and governance functions delegated to government agencies by the Congress. The conference brought together managers, policymakers, legal experts and congressional staff to discuss actions that might be taken to protect the integrity of government operations and the institution of representative government under law in the context of the increase in outsourcing activity.
This conference, hosted by the Center in conjunction with Yale Law School’s Information Society Project, examined current plans by the Federal Communications Commission (FCC) to regulate the internet. The United States has no “national Internet agency.” But the FCC was considering major new regulations that could transform the Internet, making it into something much more akin to the traditional, heavily regulated telephone system. This conference brought together representatives from the FCC, leaders of the telecommunications and Internet industries, an array of public policy organizations, and the legal academic community to discuss the increased role of the FCC in regulating the Internet.
The conference led to a set of reports that will be of direct relevance and, we hope, some influence as the FCC and Congress wrestle with these issues. Four fellows from the Yale Information Society Project wrote summaries/reports of each of panels, was published by the Center, and is available here.
This one-day conference analyzed the constitutional and political issues surrounding the federal judicial appointments process. The event featured three panels: (1) Criteria for Judicial Selection; (2) The Constitutional Law of the Appointments Process; and (3) Proposals for Reform, as well as an address by Senator Patrick Leahy’s appointments counsel, Helaine Greenfeld.
Papers from the conference appeared in the Cardozo Law Review, Vol. 26-2 (January 2005)
This conference revisited the well-known litigation over The Progressive magazine’s plan to publish instructions for making a hydrogen bomb in 1979. One set of presentations assessed the case itself and the question of whether, in hindsight, publication posed a realistic threat to national security. Presenters included James Schlesinger, former Secretary of Defense and of Energy; Howard Morland, who authored the article; and three attorneys who worked on the case. The second set of presentations translated the underlying concerns of free speech in times of peril to the modern day. The symposium closed with a powerful talk by former New York Times columnist Anthony Lewis lamenting the failure of the press adequately to cast light on the post 9/11 erosion of civil liberties.
The use of extraordinary powers to deal with national emergencies is a long-standing, world-wide practice, although constitutional democracies are divided between those that have specific provisions authorizing and regulating the exercise of emergency powers in their written constitutions and those that do not. This conference reassesses the place, scope, and use of emergency powers in constitutional democracies. Topics include historical and theoretical analyses of emergency powers, international constraints on national uses of such powers, assessments of different constitutional approaches to emergency powers, balancing national security and democracy, and the relation of emergency powers and fundamental rights.
Papers from the conference appeared in Volume 2, number 2 of I•CON, the International Journal of Constitutional Law (April 2004)
This conference brought together almost two dozen leading scholars, lawyers, journalists, and theologians to examine how American society grapples with the challenges of an environment altered by the attacks on the World Trade Center and the Pentagon. Dealing with three interrelated themes, the conference explored the tolerance of the Constitution itself for “emergency measures,” such as those recently promulgated in the fight against terrorism; the struggle to pin down and define terms such as “emergency,” “terrorism,” “tolerance,” and “fundamentalism”; and the potential for tolerance by those who think of themselves as “fundamentalists” in various religious traditions and, conversely, the potential for understanding such fundamental beliefs among people who otherwise style themselves as “tolerant.”
Papers from the conference appeared in the Cardozo Law Review, Vol. 24-4 (April 2003).
A joint project with the Cardozo Studies in Law & Literature, this conference included two panels devoted to legal issues surrounding the 2000 election, including assessments of the Supreme Court’s decision in Bush v. Gore, followed by a roundtable devoted to the ways in which the election has changed the nature of public discourse. Four panelists published their papers in the Cardozo Law Review: Paul Finkelman wrote on the pro-slavery origins of the electoral college; Michael Herz elaborated the application of the World Series metaphor to the electoral college; Michael Glennon proposed amendments to the statutory requirements for counting electoral votes; and Nelson Lund provided what has proved the most compelling and frequently cited argument that Bush v. Gore was rightly decided.