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Dividing The Body Politic, James A. Gardner

Journal Articles

It has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.

The possibility of sorting …

Open Access Without Open Access Values: The State Of Free And Open Access To Law Reviews, John R. Beatty

Law Librarian Journal Articles

This study examines 648 currently published law journals to determine the amount of freely available content and whether the journals have adopted open access behaviors. Although most of the journals have volumes available online for free, the usual hallmarks of open access, including open licenses and clear reuse policies, are absent.

Re-Tribute: Reconsidering The Moral Psychology Of Culpability And Desert, Guyora Binder, Matthew Biondolillo

Journal Articles

No abstract provided.

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 …

Amphibious Legal Geographies: Toward Land–Sea Regimes, Irus Braverman

Contributions to Books

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the juridical thinking that has enshrined the land/sea divide into contemporary governmental infrastructures, disciplinary traditions, and regulatory apparatuses, and charts the disastrous implications that such a legal fixation on the land/sea binary has wrought on human and other-than-human lifeworlds. As the collection proceeds, a second broad theme emerges, building on the first: when one rethinks the abstraction of law as played out on the ground, the “ground” itself shifts and fundamental divisions between land and sea that serve as the …

Standing For Democracy: Is Democracy A Procedural Right In Vacuo? A Democratic Perspective On Procedural Violations As A Basis For Article Iii Standing, Helen Hershkoff, Stephen Loffredo

Buffalo Law Review

Many commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in …

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, …

Mapping Racial Capitalism: Implications For Law, Carmen G. Gonzalez, Athena D. Mutua

Journal Articles

The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of race-making. We understand race-making as including racial stratification, …

Protecting Our Spaces Of Memory: Rediscovering The Seneca Nation Settlement Act Through Archives, Rebecca Chapman

Law Librarian Journal Articles

Archival spaces act as collective memory, and the need to preserve and protect those spaces is critical for understanding historical events. To illustrate the idea of archival space as a space of memory, this article looks at the Seneca Nation Settlement Act, which is more fully understood through the use and interpretation of archival materials.

Taking Restorative Justice Seriously, Adriaan Lanni

Buffalo Law Review

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings thoseaffected by a criminal offense together in an attempt to address the harmcaused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful …

Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey

Journal Articles

Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, …

Mayor Pete, Obergefell Gays, And White Male Privilege, Russell K. Robinson

Buffalo Law Review

This Article argues that Mayor Pete Buttigieg seized the national imagination and a substantial number of Democratic delegates through the combination of his gay identity and his alignment with masculinity norms generally assigned to heterosexual men, and by taking aim at more senior and qualified women candidates, namely Senators Elizabeth Warren and Amy Klobuchar. Buttigieg’s unprecedented success suggests that some White gay men now enjoy a unique pathway to reclaiming their status as men and asserting White male privilege. In short, contrary to pervasive media claims, Buttigieg’s success should be read as a breakthrough for certain White gay men, but …

Environmental Justice, Settler Colonialism, And More-Than-Humans In The Occupied West Bank: An Introduction, Irus Braverman

Journal Articles

Our special issue provides a first-of-its kind attempt to examine environmental injustices in the occupied West Bank through interdisciplinary perspectives, pointing to the broader settler colonial and neoliberal contexts within which they occur and to their more-than-human implications. Specifically, we seek to understand what environmental justice—a movement originating from, and rooted in, the United States—means in the context of Palestine/Israel. Moving beyond the settler-native dialectic, we draw attention to the more-than-human flows that occur in the region—which include water, air, waste, cement, trees, donkeys, watermelons, and insects—to consider the dynamic, and often gradational, meanings of frontier, enclosure, and Indigeneity in …

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 …

Selective Incompatibilism, Free Will, And The (Limited) Role Of Retribution In Punishment Theory, Luis E. Chiesa

Journal Articles

No abstract provided.

Academic Law Library Director Status Since The Great Recession: Strengthened, Maintained, Or Degraded?, Elizabeth G. Adelman, Karen L. Shephard, Richard J. Patti, Robert M. Adelman

Journal Articles

The status of the academic law library director is central to the educational mission of the law library. We collected data from 2006 to 2016 showing a 25 percent decrease in tenure-track directorships. We also found one in four changes in directorships since 2013 resulted in the new director having a degraded status compared to her predecessor.

Decarcerating America: The Opportunistic Overlap Between Theory And (Mainly State) Sentencing Practice As A Pathway To Meaningful Reform, Mirko Bagaric, Daniel Mccord

Buffalo Law Review

Criminals engender no community sympathy and have no political capital. This is part of the reason that the United States has the highest prison population on earth, and by a considerable margin. Incarceration levels grew four-fold over the past forty years. Despite this, America is now experiencing an unprecedented phenomenon whereby many states are now simultaneously implementing measures to reduce prison numbers. The unusual aspect of this is that the response is neither coordinated nor consistent in its approach, but the movement is unmistakable. This ground up approach to reducing prison numbers suffers from the misgiving that it is an …

The Implications Of Inequality For Fiscal Federalism (Or Why The Federal Government Should Pay For Local Public Schools), Brian Highsmith

Buffalo Law Review

In designing public policy, a question of first principle is the degree to which government services—and the mechanisms of collecting revenue to finance those services—should be centralized within and across political systems. To inform their assessments of where redistribution should properly occur, public finance researchers have, to date, worked backwards from different assumptions about the mobility of residents within the political community. Scholars have disagreed about the viability of local governments’ efforts to redistribute wealth—with traditionalists arguing that these efforts are made impossible by residential mobility, and recent reformists countering that limitations on mobility indeed allow for limited redistribution at …

Crafted From Whole Cloth: Reverse Stash-House Stings And The Sentencing Factor Manipulation Claim, Molly F. Spakowski

Buffalo Law Review

Kenneth Flowers is currently serving a mandatory minimum sentence of 120 months imprisonment stemming from a conviction of conspiracy to possess with intent to distribute five or more kilograms of cocaine. While the ten-year prison sentence is very real, the five-kilograms of cocaine is not, and never was. Mr. Flowers was caught-up in one of the elaborate and overused “reverse stash-house sting” operations employed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

Mr. Flowers’ story is one of many similar cases resulting from the government operation conducted by the ATF known as a reverse stash-house sting operation. The …

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 …

Inclusion Imagined: Fair Housing As Metropolitan Equity, David D. Troutt

Buffalo Law Review

No abstract provided.

A Tale Of Two Clinics: Similarities And Differences In Evidence Of The Clinic Effect On The Development Of Law Students' Ethical And Altruistic Professional Identities, Jonel Newman, Donald Nicolson

Buffalo Public Interest Law Journal

No abstract provided.

Ian Harper, Tobias Kelly & Akshay Khanna's The Clinic And The Court: Law, Medicine, And Elizabeth Mertz, Anthropology & The Role Of Social Science In Law (Review Essay), Anya Bernstein

Book Reviews

This essay reviews The Clinic and the Court (Ian Harper, Tobias Kelly, and Akshay Khanna eds., 2015) and The Role of Social Science in Law (Elizabeth Mertz ed., 2008). One edited volume focuses on medicine; the other on social science. Each shows how expert discourses interact with the expert discourse of law, being shaped by it and shaping it from the inside. And each provides a chance to consider how we can study the role of context in law: how to recognize moments where legal actors pick out aspects of the world as relevant, how to evaluate their interpretations of …

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.

Personal Responsibility For Systemic Inequality, Martha T. Mccluskey

Contributions to Books

Published as Chapter 15 in Research Handbook on Political Economy and Law, Ugo Mattei & John D. Haskell, eds.

Equality has faded as a guiding ideal for legal theory and policy. An updated message of personal responsibility has helped rationalize economic policies fostering increased inequality and insecurity. In this revised message, economic “losers” should take personal responsibility not only for the harmful effects of their individual economic decisions, but also for the harmful effects of systemic failures beyond their individual control or action. In response to the 2008 financial crisis, this re-tooled message of personal responsibility promoted mass austerity in …

Human Rights In Nigeria's External Relations: Exigency, Methods, And Rebuttable Objections, Philip C. Aka

Buffalo Human Rights Law Review

No abstract provided.

Why Law Matters For Our Obligations, Guyora Binder

Journal Articles

Political philosophers have long debated the problem of political and legal obligation: how the existence of a political community and its laws can affect our obligations. This paper applies Alon Harel’s argument that law has intrinsic value to this venerable problem. It interprets Harel’s argument as a Kantian claim that law enables us to treat our fellows with the respect they deserve, by requiring us not only to treat them decently, but to recognize decent treatment as their right.

Stuck: Fictions, Failures And Market Talk As Race Talk, Athena D. Mutua

Journal Articles

ClassCrits is a network of scholars and activists interested in critical analysis of law, the economy, and inequality. We aim to better integrate the rich diversity of economic methods and theories into law by exploring and engaging a variety of heterodox economic theories; including reviving, from the margins and shadowy past, discussions of class relations and their possible relevance to the contemporary context.

As a participant in the ClassCrits VI conference entitled, “Stuck in Forward: Debt, Austerity and the Possibilities of the Political”, I sat there at the end of the first day and puzzled over the fact that our …