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Articles 31 - 60 of 2133
Full-Text Articles in Entire DC Network
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. …
Does Houchins V. Kqed, Inc. Matter?, Matthew L. Schafer
Does Houchins V. Kqed, Inc. Matter?, Matthew L. Schafer
Buffalo Law Review
No abstract provided.
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 …
Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder
Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder
Journal Articles
This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …
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.
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.
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 …
The Conceptual Problems Arising From Legal Pluralism, Jorge Luis Fabra-Zamora
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
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, …
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 …
The Complexities Of Conscience: Reconciling Death Penalty L Aw With Capital Jurors’ Concerns, Meredith Martin Rountree, Mary R. Rose
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 …
Ai, On The Law Of The Elephant: Toward Understanding Artificial Intelligence, Emile Loza De Siles
Ai, On The Law Of The Elephant: Toward Understanding Artificial Intelligence, Emile Loza De Siles
Buffalo Law Review
Machine learning and other artificial intelligence (AI) systems are changing our world in profound, exponentially rapid, and likely irreversible ways.3 Although AI may be harnessed for great good, it is capable of and is doing great harm at scale to people, communities, societies, and democratic institutions. The dearth of AI governance leaves unchecked AI’s potentially existential risks. Whether sounding urgent alarm or merely jumping on the bandwagon, law scholars, law students, and lawyers at bar are contributing volumes of AI policy and legislative proposals, commentaries, doctrinal theories, and calls to corporate and international organizations for ethical AI leadership. Unfortunately, erroneous, …
Judicial Populism, Anya Bernstein, Glen Staszewski
Judicial Populism, Anya Bernstein, Glen Staszewski
Journal Articles
Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.
While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and …
The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke
The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke
Journal Articles
In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …
Roper’S Unfinished Business: A New Approach To Young Offender Death Penalty Eligibility, Nichole M. Austin
Roper’S Unfinished Business: A New Approach To Young Offender Death Penalty Eligibility, Nichole M. Austin
Buffalo Law Review
No abstract provided.
The Constitutionalization Of Parole: Fulfilling The Promise Of Meaningful Review, Alexandra Harrington
The Constitutionalization Of Parole: Fulfilling The Promise Of Meaningful Review, Alexandra Harrington
Journal Articles
Almost 12,000 people in the United States are serving life sentences for crimes that occurred when they were children. For most of these people, a parole board will determine how long they will actually spend in prison. Recent Supreme Court decisions have endorsed parole as a mechanism to ensure that people who committed crimes as children are serving constitutionally proportionate sentences with a meaningful opportunity for release. Yet, in many states across the country, parole is an opaque process with few guarantees. Parole decisions are considered “acts of grace” often left to the unreviewable discretion of the parole board.
This …
Title Page And Editorial Board, Buffalo Human Rights Law Review
Title Page And Editorial Board, Buffalo Human Rights Law Review
Buffalo Human Rights Law Review
No abstract provided.
Solidarity As A Constitutional Value, Tamar Hostovsky Brandes
Solidarity As A Constitutional Value, Tamar Hostovsky Brandes
Buffalo Human Rights Law Review
No abstract provided.
Considering Rehabilitation Of Minors Sentenced In Juvenile Military Courts - Initial Proposals And Thoughts For The Future, Shai Farber, Sharon Rivlin Achai
Considering Rehabilitation Of Minors Sentenced In Juvenile Military Courts - Initial Proposals And Thoughts For The Future, Shai Farber, Sharon Rivlin Achai
Buffalo Human Rights Law Review
No abstract provided.
Reparations For Slavery: A Productive Strategy?, Makau Wa Mutua
Reparations For Slavery: A Productive Strategy?, Makau Wa Mutua
Contributions to Books
Published as Chapter 1 in Time for Reparations: A Global Perspective, Jacqueline Bhabha, Margareta Matache & Caroline Elkins, eds.
Subnational Constitutionalism In The United States: Powerful States In A Powerful Federation, James A. Gardner
Subnational Constitutionalism In The United States: Powerful States In A Powerful Federation, James A. Gardner
Contributions to Books
Published as Chapter 19 in Routledge Handbook of Subnational Constitutions and Constitutionalism, Patricia Popelier, Nicholas Aroney & Giacomo Delledonne, eds.
The United States has an extremely robust network of subnational constitutions. It is one of the few federations in the world in which subnational entities are understood to be fully competent polities with virtually complete constituent powers of self-organization and self-authorization. The authority to adopt a subnational constitution is consequently understood to be an incident of subnational sovereignty, a concept in turn derived from a conception of the basic federal order itself as highly decentralized.
Muddying The Waters: The Need For More Clarity Under The Clean Water Act, Georgia D. Reid
Muddying The Waters: The Need For More Clarity Under The Clean Water Act, Georgia D. Reid
Buffalo Environmental Law Journal
No abstract provided.
One Man’S Trash: Constitutional Principles Of Federalism And Privacy Implicated In San Francisco’S Mandatory Recycling Ordinance And Future Similar Legislation, J. Tyler Smith
Buffalo Environmental Law Journal
No abstract provided.