Digital Commons Network^™

Rules Vs. Standards In Private Ordering, Tomer S. Stein

Buffalo Law Review

The tradeoff between bright-line rules and general standards is one of the bedrocks of law design. This tradeoff determines how legal norms are composed. The tradeoff between rules and standards pervasively affects private ordering as well: it determines how contractual norms are composed. Yet, scholars exploring the rule vs. standard dichotomy have either entirely overlooked the tradeoff taking place in private orderings or equated it with the public tradeoff that dominates lawmaking.

This Article is the first to systematically examine the rule vs. standard tradeoff in private orderings. The Article carries out this task by identifying and analyzing the fundamental …

The Conceptual Problems Arising From Legal Pluralism, Jorge Luis Fabra-Zamora

Journal Articles

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, …

Legal Pluralism And Analytical Jurisprudence: An Inapposite Contrast, Jorge Luis Fabra-Zamora

Journal Articles

The intellectual tradition of legal pluralism characterizes itself by way of a contrast to legal centralism or monism. Self-styled pluralists typically attribute centralist and monist views to mainstream theories of law, which I call here analytical jurisprudence. This article argues that the pluralist foundational contrast with analytical jurisprudence suffers from three recurrent defects. First, the pluralist opposition to analytical jurisprudence conflates conceptual questions with empirical, doctrinal, and politico-moral inquiries. Second, pluralists misattribute to analytical jurisprudents an equation between law and state that they do not hold and have the resources to reject. Third, pluralists address the conceptual problems of legal …

Sez Who? Critical Legal History Without A Privileged Position, John Henry Schlegel

Contributions to Books

Published as Chapter 30 in Oxford Handbook of Historical Legal Research, Markus D. Dubber & Christopher Tomlins, eds.

Scholars active in the Critical Legal Studies movement of the 1980s regularly attacked the scholarship of liberal legalist scholars by using a variety of then contemporary epistemological theories that argued for the impossibility of any observer attaining a neutral position from which to observe social activities. Somewhat surprisingly, liberal legalist scholars seldom turned this criticism back at the work of CLS scholars who themselves never criticized their own work as they did that of other scholars. The examination of several pieces of …

Agency And Insanity, Stephen P. Garvey

Buffalo Law Review

This Article offers an unorthodox theory of insanity. According to the traditional theory, insanity is a cognitive or volitional incapacity arising from a mental disease or defect. As an alternative to the traditional theory, some commentators have proposed that insanity is an especially debilitating form of irrationality. Each of these theories faces fair-minded objections. In contrast to these theories, this Article proposes that a person is insane if and because he lacks a sense of agency. The theory of insanity it defends might therefore be called the lost-agency theory.According to the lost-agency theory, a person lacks a sense of agency …

Humbug: Toward A Legal History, Susanna Blumenthal

Buffalo Law Review

No abstract provided.

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

Buffalo Law Review

No abstract provided.

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Journal Articles

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

How The "Unintended Consequences" Story Promotes Unjust Intent And Impact., Martha T. Mccluskey

Journal Articles

In the guise of critical analysis of the limits of law reform, the familiar phrase “unintended consequences” serves to rationalize rising inequality and to undermine democratic accountability. This paper examines how the phrase promotes a story of disentitlement, using the recent financial crisis as an example. By naturalizing inequality as power beyond law’s reach, this phrase’s message that benign law is likely to bring unequal consequences dovetails with a seemingly contradictory message that benign intent, rather than harmful impact, is what primarily counts for evaluating inequality.

As part of a LatCrit XV symposium taking a “bottom-up” view of the recent …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Journal Articles

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Law, Economics, And The Theory Of The Firm, Michael J. Meurer

Buffalo Law Review

No abstract provided.

Righting Victim Wrongs: Responding To Philosophical Criticisms Of The Nonspecific Victim Liability Defense, Aya Gruber

Buffalo Law Review

No abstract provided.

The Prophylactic Remedy: Normative Principles And Definitional Parameters Of Broad Injunctive Relief, Tracy A. Thomas

Buffalo Law Review

No abstract provided.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Buffalo Law Review

No abstract provided.

But Pierre, If We Can't Think Normatively, What Are We To Do?, John Henry Schlegel

Journal Articles

No abstract provided.

Habermas's Discourse Theory Of Law And Democracy, Hugh Baxter

Buffalo Law Review

No abstract provided.

Fuzzifying The Natural Law—Legal Positivist Debate, Edward S. Adams, Torben Spaak

Buffalo Law Review

No abstract provided.

The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman

Journal Articles

No abstract provided.

The Future Of Legal Scholarship And The Search For A Modern Theory Of Law, Donald H. Gjerdingen

Buffalo Law Review

No abstract provided.

Not Socrates, But Protagoras: The Sophistic Basis Of Legal Education, William C. Heffernan

Buffalo Law Review

No abstract provided.

American Legal Realism And Empirical Social Science: From The Yale Experience, John Henry Schlegel

Buffalo Law Review

No abstract provided.

The Structure Of Blackstone's Commentaries, Duncan Kennedy

Buffalo Law Review

No abstract provided.

Studies In Boundary Theory: Three Essays In Adjudication And Politics, Al Katz

Buffalo Law Review

No abstract provided.

From Lovercamp To A Prisoner's Right To Escape: An Inescapable Conclusion?, Rodney L. Schermer

Buffalo Law Review

No abstract provided.

Retribution In A Modern Penal Law: The Principle Of Aggravated Harm, Ronald J. Allen

Buffalo Law Review

No abstract provided.

Contribution To An Explication Of The Activity Of The Warren Majority Of The Supreme Court, Mitchell Franklin

Buffalo Law Review

No abstract provided.

The Eighth Amendment, Beccaria, And The Enlightenment: An Historical Justification For The Weems V. United States Excessive Punishment Doctrine, Deborah A. Schwartz, Jay Wishingrad

Buffalo Law Review

No abstract provided.

Further Considerations Relating To Romanist Infamy And The American Constitutional Conception Of Impeachment, Mitchell Franklin

Buffalo Law Review

No abstract provided.

Justice And Judgment, Cornelius F. Murphy Jr.

Buffalo Law Review

No abstract provided.

Romanist Infamy And The American Constitutional Conception Of Impeachment, Mitchell Franklin

Buffalo Law Review

No abstract provided.