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A New Federalist Approach To Reducing Gun Violence: Model State Policy For Medicaid-Funded, Hospital-Based Violence Intervention Programs, Racquel Bozzelli

Buffalo Law Review

No abstract provided.

The Gettysburg Address: Lincoln’S Model Legal Argument, Patrick J. Long

Buffalo Law Review

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

Progressive State Constitutionalism, Jorge M. Farinacci-Fernós

Buffalo Law Review

Unlike the U.S. Constitution, many state constitutions are truly modern documents that address important social, economic, and political issues from a progressive perspective. This is due to the combination of several key features, including: socially oriented historical circumstances; democratic creation processes; significant substantive content guided by ideas of social justice; and adequate judicial enforcement that takes into account these crucial normative elements. As a result, these progressive state constitutions can become powerful allies in the search for a transformative constitutionalism in the United States that facilitates the goals of social justice and collective prosperity.

The constitutional processes in California (1880), …

Life And Afterlife In The Steel Seizure Case, Matthew Steilen

Buffalo Law Review

This Essay examines the proper role of the Supreme Court in deciding disputes between Congress and the President. Progressive commentators are now urging the Court to dismiss these cases as political questions, at least where doing so would give effect to congressional regulations of the President. The Court’s interference is criticized as antidemocratic. This Essay advances a different conception of the Supreme Court’s role by examining the famous Steel Seizure Case. In that case, the Court upheld an injunction barring President Truman from seizing the nation’s steel mills, on grounds that doing so was inconsistent with congressional will and without …

The Committee Of Style And The Federalist Constitution, David S. Schwartz

Buffalo Law Review

The conventional interpretation of the Constitution assumes that the Committee of Style, which created the final draft of the Constitution, lacked authority to engage with substance; therefore, any arguably substantive changes it purportedly made should be disregarded in favor of earlier draft language found in the records of the Constitutional Convention. This “Style doctrine” has been embraced by the Supreme Court and several leading constitutional scholars. This Article argues that the Style doctrine is historically unfounded and obscures the Constitution’s original meaning. The Committee of Style was not prohibited from proposing substantive changes. In any case, most of the revisions …

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 Presidential Coup, Anthony J. Ghiotto

Buffalo Law Review

What prevents the President from abusing the military power at his disposal to stage a coup and actively impose presidential rule upon the United States? What if generations of presidential assertions of authority, congressional acquiescence, and judicial abdication have not only laid the groundwork for the President to use military power to impose his will, but in fact have legally sanctioned such a presidential coup? And what if the informal checks and balances that historically protected against such abuse—specifically a benevolent President, a constitutionally faithful military, intra-executive branch checks, and public opinion—have also eroded to no longer function as checks? …

Developing Police, Madalyn K. Wasilczuk

Buffalo Law Review

No abstract provided.

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Buffalo Law Review

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …

The Irrepressible Myth Of Jacobson V. Massachusetts, Josh Blackman

Buffalo Law Review

During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent …

The Complexities Of Conscience: Reconciling Death Penalty L Aw With Capital Jurors’ Concerns, Meredith Martin Rountree, Mary R. Rose

Buffalo Law Review

Jurors exercise unique legal power when they are asked to decide whether to sentence someone to death. The Supreme Court emphasizes the central role of the jury’s moral judgment in making this sentencing decision, noting that it is the jurors who are best able to “express the conscience of the community on the ultimate question of life or death.” Manylower courts nevertheless narrow the range of admissible evidence at the mitigation phase of a capital trial, insisting on a standard of legal relevance that interferes with the jury’s ability to exercise the very moral judgment the Supreme Court has deemed …

Temporary Eminent Domain, Amnon Lehavi

Buffalo Law Review

Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimedat addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergencydiverge, if at all, from temporary takeovers in more ordinary times?

The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a …

Whither The Neutral Agency? Rethinking Bias In Regulatory Administration, Daniel B. Rodriguez

Buffalo Law Review

No abstract provided.

Virtual Trials: Necessity, Invention, And The Evolution Of The Courtroom, Susan A. Bandes, Neal Feigenson

Buffalo Law Review

Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The COVID-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts …

Police Body Cameras: Go Big Or Go Home?, Ronald J. Coleman

Buffalo Law Review

Police body-worn cameras have proliferated since the deaths of Michael Brown and Eric Garner, and the recent George Floyd-related protests seem set to continue or even accelerate that trend. Indeed, in her recent Nieves v. Bartlett dissent, Justice Sotomayor took time to note that many departments equip their police officers with body cameras. Body camera advocates have touted the cameras’ benefits, such as decreasing misconduct, reducing complaints, and improving accountability. At the same time, serious concerns have been raised regarding the impact of these cameras on privacy, public resources, and fairness. Despite the increased interest in body cameras, important empirical …

Access To Literacy Under The United States Constitution, Christine M. Naassana

Buffalo Law Review

No abstract provided.

Blights Out And Property Rights In New Orleans Post-Katrina, Yxta Maya Murray

Buffalo Law Review

In 2018’s Saint Bernard Parish Government v. United States, Federal Appeals Judge Timothy Dyk reversed a lower court decision finding that the federal government had violated the Fifth Amendment’s Takings Clause rights cherished by home-owning New Orleanians. The lower court maintained that such taking occurred via the Army Corps of Engineers’ building, maintaining, and failing to maintain the seventy-six mile long navigational channel known as the Mississippi River-Gulf Outlet (MRGO), which increased the surge storms of Hurricane Katrina. Though MRGO helped turn Katrina into a superstorm that devastated thousands of properties, Judge Dyk determined that the lower court’s takings analysis …

Benefit Or Burden?: Brackeen V. Zinke And The Constitutionality Of The Indian Child Welfare Act, Katie L. Gojevic

Buffalo Law Review

No abstract provided.

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Buffalo Law Review

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Buffalo Law Review

No abstract provided.

Drying Up The Slippery Slope: A New Approach To The Second Amendment, Stephanie Cooper Blum

Buffalo Law Review

Few issues are as divisive as guns in American society. In 2017, gun deaths in the United States reached their highest level in nearly forty years. The status quo is untenable as many gun rights groups feel that gun regulations are just a first step in a slippery slope of undermining the Second Amendment’s right to bear arms for self-defense. Conversely, many gun violence prevention activists insist that reasonable regulations concerning public safety can co-exist with the right to bear arms. This quagmire will never abate because on many levels both sides are right. For over 200 years, the courts …

Nondelegation And The Major Questions Doctrine: Displacing Interpretive Power, Marla D. Tortorice

Buffalo Law Review

No abstract provided.

Sexual Orientation Discrimination As A Form Of Sex-Plus Discrimination, Marc Chase Mcallister

Buffalo Law Review

This Article examines whether sexual orientation discrimination claims are a form of sex-plus discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment on the basis of “sex.” Until very recently, every United States Court of Appeals to have interpreted Title VII’s prohibition of sex discrimination had determined that it does not encompass claims on the basis of sexual orientation. Times, and judicial interpretations, are changing. In April 2017, the United States Court of Appeals for the Seventh Circuit overturned decades of precedent by holding that sexual orientation discrimination claims are indeed encompassed …

Transformative Constitutions And The Role Of Integrity Institutions In Tempering Power: The Case Of Resistance To State Capture In Post-Apartheid South Africa, Heinz Klug

Buffalo Law Review

No abstract provided.

The First Amendment In The Second Gilded Age, Jack M. Balkin

Buffalo Law Review

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a …

Two Examples Of “Quasi-Constitutional Amendments” From The Italian Constitutional Evolution—A Response To Richard Albert, Nicola Lupo

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Informal Constitutional Change, Oran Doyle

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Respecting The Mystery Of Constitutional Change, Jonathan L. Marshfield

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Quasi-Constitutional Change Without Intent—A Response To Richard Albert, Reijer Passchier

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Quasi-Constitutional Amendments, Richard Albert

Buffalo Law Review

No abstract provided.