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Buffalo Law Review

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Full-Text Articles in Law

Calls For Speculation: An Experimental Examination Of Juror Perceptions Of Attorney Objections, Krystia Reed Jan 2019

Calls For Speculation: An Experimental Examination Of Juror Perceptions Of Attorney Objections, Krystia Reed

Buffalo Law Review

Should attorneys object during trial? Does preserving the record outweigh the potential costs of objections, such as upsetting the jury or drawing attention to the evidence? Legal scholars have opined on the delicate balance attorneys must strike in their decisions to object, but researchers have offered little to guide attorneys making these in-the-moment decisions. I discuss results from two empirical studies that provide evidence that attorneys have less to fear from objections than legal scholars suggest. Based on these results, I provide suggestions for practicing attorneys.


Expanding Access To Remedies Through E-Court Initiatives, Amy J. Schmitz Jan 2019

Expanding Access To Remedies Through E-Court Initiatives, Amy J. Schmitz

Buffalo Law Review

Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public ...


Not From Guile But From Entitlement: Lawful Opportunism Capitalizes On The Cracks In Contracts, Gastón De Los Reyes Jr., Kirsten Martin Jan 2019

Not From Guile But From Entitlement: Lawful Opportunism Capitalizes On The Cracks In Contracts, Gastón De Los Reyes Jr., Kirsten Martin

Buffalo Law Review

Few concepts have been more pivotal to contract law scholarship over the last forty years than the opportunism attributed ex ante and ex post to contracting parties, yet the lawful form of opportunism identified by Nobel Laureate Oliver Williamson in 1991 remains surprisingly overlooked in favor of the blatant forms of opportunism that result from “self-interest seeking with guile.” This Article extends Williamson’s inchoate account of lawful opportunism and reports the first empirical study of the phenomenon.

The conceptual analysis of lawful opportunism is developed with reference to the bargaining underlying the classic impossibility decision, Taylor v. Caldwell. Three ...


When Alternative Dispute Resolution Works: Lessons Learned From The Bashingantahe, Alexander J. Buszka Jan 2019

When Alternative Dispute Resolution Works: Lessons Learned From The Bashingantahe, Alexander J. Buszka

Buffalo Law Review

No abstract provided.


Finding A Better Way Around Employment At Will: Protecting Employees’ Autonomy Interests Through Tort Law, William R. Corbett Dec 2018

Finding A Better Way Around Employment At Will: Protecting Employees’ Autonomy Interests Through Tort Law, William R. Corbett

Buffalo Law Review

No abstract provided.


The First Amendment In The Second Gilded Age, Jack M. Balkin Dec 2018

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 ...


The Orwell Court: How The Supreme Court Recast History And Minimized The Role Of The U.S. Sentencing Guidelines To Justify Limiting The Impact Of Johnson V. United States, Brandon E. Beck Dec 2018

The Orwell Court: How The Supreme Court Recast History And Minimized The Role Of The U.S. Sentencing Guidelines To Justify Limiting The Impact Of Johnson V. United States, Brandon E. Beck

Buffalo Law Review

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States,1 struck a portion of the Armed Career Criminal Act2 as void for vagueness. Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions. Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson ...


Palsgraf-Ian Proximate Cause And Insurance Law: The State Of New York Additional Insured Coverage Following Burlington Insurance Co. V. Nyc Transit Authority, Ryan P. Maxwell Dec 2018

Palsgraf-Ian Proximate Cause And Insurance Law: The State Of New York Additional Insured Coverage Following Burlington Insurance Co. V. Nyc Transit Authority, Ryan P. Maxwell

Buffalo Law Review

No abstract provided.


The Public Service Loan Forgiveness Program: The Need For Better Employment Eligibility Regulations, Gregory Crespi Aug 2018

The Public Service Loan Forgiveness Program: The Need For Better Employment Eligibility Regulations, Gregory Crespi

Buffalo Law Review

A few people have now applied for and obtained tax-exempt debt forgiveness of their federal student Direct Loans under the Public Service Loan Forgiveness (PSLF) program after satisfying the requirements of 10 years of post-October 1, 2007 employment in a “public service job.” While only a relatively small number of people have received debt forgiveness to date, I estimate that as the number of persons eligible ramps up sharply in 2018 and thereafter eventually 200,000 people a year or more will obtain debt forgiveness under the PSLF program, at a total cost to the Treasury of $12 billion per ...


Failed Charity: Taking State Tax Benefits Into Account For Purposes Of The Charitable Deduction, Roger Colinvaux Aug 2018

Failed Charity: Taking State Tax Benefits Into Account For Purposes Of The Charitable Deduction, Roger Colinvaux

Buffalo Law Review

The Tax Cuts and Jobs Act (TCJA) substantially limited the ability of individuals to deduct state and local taxes (SALT) on their federal income tax returns. Some states are advancing schemes to allow taxpayers a state tax credit for contributions to a charity controlled by the state. The issue is whether state tax benefits are deductible as a charitable contribution for purposes of the federal income tax. Under a general rule of prior law—the full deduction rule—state tax benefits were ignored for purposes of the charitable deduction. If the full deduction rule is applied to the state workaround ...


From Marriage To Households: Towards Equal Treatment Of Intimate Forms Of Life, Deborah Zalesne, Adam Dexter Aug 2018

From Marriage To Households: Towards Equal Treatment Of Intimate Forms Of Life, Deborah Zalesne, Adam Dexter

Buffalo Law Review

Law and attitudes around marriage have changed drastically in our own history and are widely different across cultures. Same-sex marriage is now legal, polyamorous relationships are on the rise, and, as an empirical matter, marriage serves a different purpose than it did as little as forty years ago -- marriage is no longer a prerequisite for sexual intimacy, cohabitation, or parenthood. There are no essential elements to a definition of marriage to which the state can appeal without arbitrarily restricting citizens’ possibilities with respect to their most intimate relationships. Therefore, because any state-sanctioned version of marriage will be arbitrary, the only ...


Doctors On The Take: Aligning Tort Law To Address Drug Company Payments To Prescribers, Lars Noah Aug 2018

Doctors On The Take: Aligning Tort Law To Address Drug Company Payments To Prescribers, Lars Noah

Buffalo Law Review

The pharmaceutical and medical device industries aggressively market their wares to health care professionals, and the giving of gifts has become a central feature of this process. Most observers regard financial incentives tied to the use of specific therapeutic products as ethically impermissible, and various institutions have tried combating inappropriate gifts and payments to physicians: medical and industry groups adopted voluntary codes, federal agencies published advisory guidelines, and, most recently, state and federal legislatures enacted reporting laws. Self-regulation, threats of prosecution, and transparency initiatives have tempered the practice, but manufacturers continue to find clever ways of purchasing the loyalty of ...


Now We Know Better: A New Legal Framework On Sex To Better Promote Autonomy, Equality, Diversity And Care For The Poor, Helen M. Alvaré May 2018

Now We Know Better: A New Legal Framework On Sex To Better Promote Autonomy, Equality, Diversity And Care For The Poor, Helen M. Alvaré

Buffalo Law Review

Over especially the last 50 to 60 years, US laws and policies concerning the sexual relationships between men and women have more consciously articulated a need to pursue social justice according to the categories of autonomy, equality, diversity and care for the poor. These categories are admirable on their face and responsive to the times in which they emerged. They are particularly well-suited to the history of discrimination against women and African Americans in the US. They were strongly influenced, inter alia, by the development of contraceptive technology and an array of social welfare initiatives, the rise of feminism and ...


How The Rise Of The Daily Fantasy Sports Industry Can Catalyze The Liberalization Of Sports Betting Policies In The United States, Brendan F. Conley May 2018

How The Rise Of The Daily Fantasy Sports Industry Can Catalyze The Liberalization Of Sports Betting Policies In The United States, Brendan F. Conley

Buffalo Law Review

No abstract provided.


Ncaa Division I Transfers “Are Now Basically Screwed”: The Battle Against The Ncaa’S Year In Residence Rule In The Seventh Circuit, Joseph W. Schafer Apr 2018

Ncaa Division I Transfers “Are Now Basically Screwed”: The Battle Against The Ncaa’S Year In Residence Rule In The Seventh Circuit, Joseph W. Schafer

Buffalo Law Review

No abstract provided.


Thank You All The Same, But I’D Rather Not Be Seized Today: The Constitutionality Of Ruse Checkpoints Under The Fourth Amendment, Nadia B. Soree Apr 2018

Thank You All The Same, But I’D Rather Not Be Seized Today: The Constitutionality Of Ruse Checkpoints Under The Fourth Amendment, Nadia B. Soree

Buffalo Law Review

No abstract provided.


Marijuana Edibles And “Gummy Bears”, Paul J. Larkin Jr. Apr 2018

Marijuana Edibles And “Gummy Bears”, Paul J. Larkin Jr.

Buffalo Law Review

Contemporary American society has decided that, whatever may be the benefits and harms of liberalizing marijuana use by adults, we should continue to outlaw the sale of recreational-use marijuana to children and adolescents. Even the states that permit recreational marijuana use under state law draw the line between adults and minors. Unfortunately, some companies pay only lip service to that line. The ability to develop products that closely resemble cookies, brownies, candies, and other substances that are attractive to children and adolescents — albeit, for different reasons — poses the risk that minors — some accidentally, some intentionally — will consume marijuana edibles found ...


Agency And Insanity, Stephen P. Garvey Jan 2018

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 ...


The New Wild West: Exploring Western New York’S Underground, Fraudulent Debt Collection Industry, Nathan Woodard Jan 2018

The New Wild West: Exploring Western New York’S Underground, Fraudulent Debt Collection Industry, Nathan Woodard

Buffalo Law Review

No abstract provided.


The Supreme Court’S Original Jurisdiction Over Disputes Between The United States And A State, Lochlan F. Shelfer Jan 2018

The Supreme Court’S Original Jurisdiction Over Disputes Between The United States And A State, Lochlan F. Shelfer

Buffalo Law Review

Does the Supreme Court have jurisdiction to hear controversies between a state and the United States? Although the Supreme Court has asserted this power, commentators have puzzled over the question for decades. Because Article III does not enumerate controversies between a state and the United States, many scholars have concluded that the Court’s exercise of this power is illegitimate, or at least atextual. This Article argues that the Constitution’s text does give the Supreme Court the power to hear such controversies, but to understand why it is necessary to understand the way that the framers would, for the ...


Social Security, Divorce, And The Scope Of Federal Preemption, Michael T. Flannery Jan 2018

Social Security, Divorce, And The Scope Of Federal Preemption, Michael T. Flannery

Buffalo Law Review

In light of the United States Supreme Court’s decision in Howell v. Howell, in May 2017, this article urges Congress to clarify its intent for the scope of federal preemption of state property distribution laws under the anti-assignment provision of the Social Security Act, 42 U.S.C. § 407.Congress enacted the Social Security Act in 1935 to serve as a federally regulated social insurance benefit program designed to ensure a continuing source of income to retired workers, age 65 or older. Within the Act, Congress reserved for itself the exclusive authority to regulate the program, with one of ...


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


Informal Constitutional Change, Oran Doyle Dec 2017

Informal Constitutional Change, Oran Doyle

Buffalo Law Review

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


Two Examples Of “Quasi-Constitutional Amendments” From The Italian Constitutional Evolution—A Response To Richard Albert, Nicola Lupo Dec 2017

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).


Fake News: No One Is Liable, And That Is A Problem, Emma M. Savino Dec 2017

Fake News: No One Is Liable, And That Is A Problem, Emma M. Savino

Buffalo Law Review

No abstract provided.


Turns Of The Contingent Fee Key To The Courthouse Door, Douglas R. Richmond Dec 2017

Turns Of The Contingent Fee Key To The Courthouse Door, Douglas R. Richmond

Buffalo Law Review

No abstract provided.


Respecting The Mystery Of Constitutional Change, Jonathan L. Marshfield Dec 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).


A Complete Analysis Of Carbon Taxation: Considering The Revenue Side, Shi-Ling Hsu Aug 2017

A Complete Analysis Of Carbon Taxation: Considering The Revenue Side, Shi-Ling Hsu

Buffalo Law Review

No abstract provided.


Re-Reading Legal Realism And Tracing A Genealogy Of Balancing, Curtis Nyquist Aug 2017

Re-Reading Legal Realism And Tracing A Genealogy Of Balancing, Curtis Nyquist

Buffalo Law Review

No abstract provided.


The Decline Of The Lawyer-Politician, Nick Robinson Aug 2017

The Decline Of The Lawyer-Politician, Nick Robinson

Buffalo Law Review

No abstract provided.