Law Commons^™

Combating Judicial Misconduct: A Stoic Approach, Michael D. Cicchini

Buffalo Law Review

Judicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights.

This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and …

The Urgent Need For Legal Scholarship On Firearm Policy, Dru Stevenson

Buffalo Law Review

Restrictions on federal funding for research pertaining to firearm policy have stymied academic inquiry by social science and public health researchers for over two decades. As a result, most researchers agree that our public discourse about this urgent issue is woefully under-informed, or even ill-informed, on both sides of the debate. Legal academia, which does not operate under the same grant-writing regime as most other disciplines, can and should help fill this gap in researching and theorizing the unresolved questions related to firearm policy. In fact, theoretical development and clarification from the legal academy is often a necessary antecedent for …

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

Buffalo Law Review

No abstract provided.

Abandoning Realization And The Transition Tax: Toward A Comprehensive Tax Base, Henry Ordower

Buffalo Law Review

No abstract provided.

Ai Goes To School—Implications For School District Liability, Harold J. Krent, John Etchingham, Alec Kraus, Katharine Pancewicz

Buffalo Law Review

No abstract provided.

Attorney-Client Privilege: Expanding The Crime-Fraud Exception To Intentional Torts, Stacy Kochanowski

Buffalo Law Review

No abstract provided.

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 …

The Equifax Data Breach: An Opportunity To Improve Consumer Protection And Cybersecurity Efforts In America, Gregory S. Gaglione Jr.

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 …

‘Otro Mundo Es Posible’: Tempering The Power Of Immigration Law Through Activism, Advocacy, And Action, Susan Bibler Coutin

Buffalo Law Review

No abstract provided.

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.

Transnational Law As Socio-Legal Theory And Critique: Prospects For “Law And Society” In A Divided World, Peer Zumbansen

Buffalo Law Review

No abstract provided.

“Those People [May Yet Be] A Kind Of Solution” Late Imperial Thoughts On The Humanization Of Officialdom, David A. Westbrook, Mark Maguire

Buffalo Law Review

No abstract provided.

What’S The Point Of The Rule Of Law?, Martin Krygier

Buffalo Law Review

No abstract provided.

Tempered Power, Variegated Capitalism, Law And Society, John Braithwaite

Buffalo Law Review

No abstract provided.

Foreword: Tempering Power, Errol Meidinger

Buffalo Law Review

No abstract provided.

Law And Power In Health Care: Challenges To Physician Control, Mary Anne Bobinski

Buffalo Law Review

No abstract provided.

What Good Is Abstraction? From Liberal Legitimacy To Social Justice, Nimer Sultany

Buffalo Law Review

No abstract provided.

Is China A “Rule-By-Law” Regime?, Kwai Hang Ng

Buffalo Law Review

No abstract provided.

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 …

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 …

Phantom Income And Domestic Support Obligations, Timothy M. Todd

Buffalo Law Review

The tax code is designed to raise government revenue. Domestic support obligations (DSOs)—namely, child support and spousal support—are designed to ameliorate the financial burdens that arise upon divorce. To determine the amount of domestic support obligations, statutes often refer to commonly used taxation concepts, such as “income.”

Courts determining domestic support obligations have been confronted with the question of how to treat “phantom income”—that is, amounts that are includible as gross income under the federal tax code but that have not resulted in any actual current cash receipt. Individuals obligated to make domestic support payments have argued that phantom income …

Deception, Professional Speech, And Cpcs: On Becerra, Abortion, And The First Amendment, Mark Strasser

Buffalo Law Review

In National Institute of Family & Life Advocates v. Becerra, the United States Supreme Court struck down a California law requiring crisis pregnancy centers to post certain signs.1 The Court implied that the case involved a relatively straightforward example of governmental overreaching, with the government allegedly attempting to commandeer private entities and force them to convey the government’s message.2 Yet, the Court omitted important background information when discussing the state’s implicated interests,3 and the Court’s analyses and rationales may have important First Amendment implications. While the Court may have reached the right result, its analyses bode poorly for a reasoned …

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 …

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 component …

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

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 …

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

Buffalo Law Review

No abstract provided.