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Articles 1 - 30 of 1490
Full-Text Articles in Entire DC Network
A New Federalist Approach To Reducing Gun Violence: Model State Policy For Medicaid-Funded, Hospital-Based Violence Intervention Programs, Racquel Bozzelli
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.
When A Picture Is Worth A Thousand Sentences: A Call To Reword Federal Sentencing Of Non-Production Child Pornography Offenses In The United States, Lucy T. Shephard
When A Picture Is Worth A Thousand Sentences: A Call To Reword Federal Sentencing Of Non-Production Child Pornography Offenses In The United States, Lucy T. Shephard
Buffalo Law Review
No abstract provided.
Walking With Shadows And Phantoms: The Presumption Of Innocence And Bail Determinations, Davis Badger Anderson
Walking With Shadows And Phantoms: The Presumption Of Innocence And Bail Determinations, Davis Badger Anderson
Buffalo Law Review
One-hundred and twenty-eight years after “the Supreme Court of the United States had an opportunity to clear up the confusion and ambiguity that hang[s] over the common talk about the presumption of innocence,”1 the confusion persists. This lingering confusion is at its most stringent in federal bail determinations where, despite legislative intent, precedent, and logic to the contrary, it is invoked to discount the weight of the evidence against the defendant in deciding what conditions will secure presence at trial or safety to the community. Furthermore, the presumption’s path from an instrument of proof to its status as a right …
Life Without Parole: An Eighth Amendment Analysis, Alexis Dicarlo
Life Without Parole: An Eighth Amendment Analysis, Alexis Dicarlo
Buffalo Human Rights Law Review
This Article will analyze the constitutionality of life without parole under the U.S. Supreme Court’s test for categorical bans on sentencing practices. This article first addresses the cruelty of prison and how that affects individuals with life sentences specifically. Next, it will analyze life without parole under the Supreme Court’s Eighth Amendment analysis, starting with examining evolving standards of decency. In doing so, this article will address how the U.S. operates with respect to sentencing compared to the rest of the world. Importantly, it will engage in a culpability analysis, following the Supreme Court’s logic, that ultimately favors abolition of …
Addressing Root Causes: The Need For Ex-Ante Regulation In Business And Human Rights, Vidhya Karnamadakala
Addressing Root Causes: The Need For Ex-Ante Regulation In Business And Human Rights, Vidhya Karnamadakala
Buffalo Human Rights Law Review
With the rise of mandatory human rights due diligence (HRDD) laws across various jurisdictions, governments are turning to regulatory tools to tackle the transnational challenges of business and human rights. Yet, the dominant focus on an ex-post standard such as mandatory HRDD may not adequately address the root causes of rights abuses in commercial activities. The individualized ex-post enforcement model which underpins HRDD has limited potential to address the systemic infrastructure of exploitative business practices. The upstream purchasing and contracting practices which lead to human rights violations in supply chains are overlooked, and even reinforced, in such a model. Without …
Hate Speech, Historical Oppressions, And European Human Rights, Eva Nave
Hate Speech, Historical Oppressions, And European Human Rights, Eva Nave
Buffalo Human Rights Law Review
Today, around 5 billion people communicate through the Internet. While the benefits of online communication are undeniable, we also witness the proliferation of online hate speech, often associated with an increase in offline violence. Internet intermediaries and public bodies have developed frameworks to counter online hate speech. However, current frameworks lack a standardized approach to the conceptualization of hate speech. Some conceptualizations are overbroad, and others are underinclusive; overbroad because they lead to the removal of legal content (e.g. removal tools deleting legal content posted by marginalized communities), and underinclusive as the context of posts by linguistic minorities is often …
Talking About Talking About Surrogacy, Michael Boucai
Talking About Talking About Surrogacy, Michael Boucai
Buffalo Law Review
No abstract provided.
Progressive State Constitutionalism, Jorge M. Farinacci-Fernós
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), …
Medical Falsity: The False Claims Act’S Quagmire For Medicare And Medicaid Claims, Jordan R. Einhorn
Medical Falsity: The False Claims Act’S Quagmire For Medicare And Medicaid Claims, Jordan R. Einhorn
Buffalo Law Review
No abstract provided.
Patriarchal Violence, Rona Kaufman
Patriarchal Violence, Rona Kaufman
Buffalo Law Review
For over a century, feminist theorists and activists have sought equality for women. They have aimed their efforts at the many distinct and related causes of women’s inequality, among them gendered violence, sexual violence, domestic violence, and violence against women. Recognizing the need to understand problems in order to solve them, feminist theorists have devoted decades to conceptualizing various manifestations of such violence, ranging from private acts, such as sexual assault and intimate partner abuse, to public acts, such as the incarceration of mothers and the criminalization of pregnancy. In this article, I argue in favor of conceptualizing the many …
Remembering Isabel, Elizabeth M. Schneider
Gender, Violence, And The Rule Of Law: Remembering Isabel Marcus, Martha T. Mcclusky
Gender, Violence, And The Rule Of Law: Remembering Isabel Marcus, Martha T. Mcclusky
Buffalo Law Review
No abstract provided.
Racial Isolation, School Police, And The “School-To-Prison Pipeline”: An Empirical Perspective On The Enduring Salience Of “Tipping Points”, Michael Heise
Buffalo Law Review
Two broad trends inform public K-12 education’s current trajectory. One involves persisting (and recently increasing) school racial isolation which helps account for an array of costs borne by students, schools, and communities. A second trend, involving a dramatically increasing police presence in schools, is evidenced by a rising school resource officer (“SRO/police”) presence in schools. Increases in the magnitude of a school’s SRO/police presence correspond with increases in the school’s propensity to engage law enforcement agencies in student disciplinary matters which, in turn, help fuel a growing school-to-prison pipeline problem. While these two broad trends propel two distinct research literatures, …
The Bitter Ironies Of Williams V. Walker-Thomas Furniture Co. In The First Year Law School Curriculum, Duncan Kennedy
The Bitter Ironies Of Williams V. Walker-Thomas Furniture Co. In The First Year Law School Curriculum, Duncan Kennedy
Buffalo Law Review
No abstract provided.
Rules Vs. Standards In Private Ordering, Tomer S. Stein
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 …
Measuring Judicial Collegiality Through Dissent, Jonathan Remy Nash
Measuring Judicial Collegiality Through Dissent, Jonathan Remy Nash
Buffalo Law Review
While scholars frequently offer ideology as a primary explanation for judicial behavior, judges, and some scholars, emphasize the importance of collegiality on multimember courts. But there is disagreement over how to determine when collegiality is at work, and what type of multimember court is more likely to exhibit collegiality among its judges. Resolving these competing claims calls for a valid measure of collegiality.
This Article develops novel measures of collegiality based on dissenting judges’ expressions of collegiality towards judges in the majority. It uses judge-level and court-level databases to validate these measures by showing that the novel measures correlate with …
Does Houchins V. Kqed, Inc. Matter?, Matthew L. Schafer
Does Houchins V. Kqed, Inc. Matter?, Matthew L. Schafer
Buffalo Law Review
No abstract provided.
Reading Section 230, Shlomo Klapper
Reading Section 230, Shlomo Klapper
Buffalo Law Review
In Gonzalez v. Google, the Supreme Court, for the first time, agreed to hear a case concerning the interpretation of Section 230 of the Communications Decency Act, the most important law governing the internet. As Justice Thomas and others have noted, judges have overlooked Section 230’s text in interpreting the statute, relying instead on purpose. Yet scholars and critics, too, have eschewed the statutory text, relying on intent or consequences to favor alternate interpretations, but depriving the Court and litigants of the richness the statutory text offers.
This Article offers the first comprehensive analysis of Section 230’s text and structure. …
The Betrayal Of The Red, White & Blue: The Failures Of Institutional Self-Regulation & The Military’S #Metoo Movement, Kristen M. Stone
The Betrayal Of The Red, White & Blue: The Failures Of Institutional Self-Regulation & The Military’S #Metoo Movement, Kristen M. Stone
Buffalo Law Review
No abstract provided.
The Principle Of Party Presentation, Jeffrey M. Anderson
The Principle Of Party Presentation, Jeffrey M. Anderson
Buffalo Law Review
Our adversarial system of adjudication is characterized by active parties and (relatively) passive judges; the parties identify the issues in dispute, and the judge decides those issues. Sua sponte decision-making—whereby a judge raises and decides new issues not presented by the parties—undermines this adversarial system. For decades, courts and commentators have struggled to explain when sua sponte decision-making may be appropriate. That issue was particularly important to the late Justice Ruth Bader Ginsburg, who has been described as “The Great Proceduralist.” In a series of oral arguments and opinions during her tenure on the Supreme Court, Justice Ginsburg repeatedly invoked …
The Future Of The Habitual Residence Analysis In The United States Post-Monasky, Katherine A. Fleming
The Future Of The Habitual Residence Analysis In The United States Post-Monasky, Katherine A. Fleming
Buffalo Law Review
No abstract provided.
Life And Afterlife In The Steel Seizure Case, Matthew Steilen
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 …
You Need To Calm Down: Examining The Origin And Eliminating The Future Of The “Gay Panic” Defense, Laura R. Conboy
You Need To Calm Down: Examining The Origin And Eliminating The Future Of The “Gay Panic” Defense, Laura R. Conboy
Buffalo Law Review
No abstract provided.
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
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 …
Corporate Directors: Who They Are, What They Do, Cyber Risk And Other Challenges, Lawrence J. Trautman, Seletha Butler, Frederick R. Chang, Michele Hooper, Rom Mccray, Ruth Simmons
Corporate Directors: Who They Are, What They Do, Cyber Risk And Other Challenges, Lawrence J. Trautman, Seletha Butler, Frederick R. Chang, Michele Hooper, Rom Mccray, Ruth Simmons
Buffalo Law Review
No abstract provided.
The Presidential Coup, Anthony J. Ghiotto
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
Focusing Presidential Clemency Decision-Making, Paul J. Larkin Jr.
Focusing Presidential Clemency Decision-Making, Paul J. Larkin Jr.
Buffalo Law Review
The Article II Pardon Clause grants the President authority to award clemency to any offender. The clause contains only two limitations. The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President’s authority is plenary. The clause authorizes the President to grant clemency as he sees fit, but the clause does not tell him when he should feel that way.
Historically, Presidents have generally used their authority for legitimate reasons, such as freeing someone who was wrongfully convicted, who is suffering under an unduly onerous …
The Irrepressible Myth Of Jacobson V. Massachusetts, Josh Blackman
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 …
An Ethical Gap In Agency Adjudication, Louis J. Virelli Iii
An Ethical Gap In Agency Adjudication, Louis J. Virelli Iii
Buffalo Law Review
There is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the …