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University at Buffalo School of Law

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Articles 1 - 30 of 55

Full-Text Articles in Judges

Democratizing Interpretation, Anya Bernstein Nov 2018

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose ...


Active Judicial Governance, James A. Gardner Sep 2018

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.


Before Interpretation, Anya Bernstein Apr 2017

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to ...


On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen Nov 2016

On The Place Of Judge-Made Law In A Government Of Laws, Matthew Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or ...


Linking Law And Life: Justice Sotomayor’S Judicial Voice, Laura Krugman Ray Jan 2016

Linking Law And Life: Justice Sotomayor’S Judicial Voice, Laura Krugman Ray

The Docket

No abstract provided.


Differentiating Deference, Anya Bernstein Jan 2016

Differentiating Deference, Anya Bernstein

Journal Articles

When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not ...


Judicial Review And Non-Enforcement At The Founding, Matthew Steilen Nov 2014

Judicial Review And Non-Enforcement At The Founding, Matthew Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this ...


Dressing And Addressing The Kenyan Judiciary: Reflecting On The History And Politics Of Judicial Attire And Address, Willy Mutunga Apr 2014

Dressing And Addressing The Kenyan Judiciary: Reflecting On The History And Politics Of Judicial Attire And Address, Willy Mutunga

Buffalo Human Rights Law Review

No abstract provided.


Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua Jan 2014

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially ...


Meaningful Information, Meaningful Retention, Jordan M. Singer Apr 2012

Meaningful Information, Meaningful Retention, Jordan M. Singer

The Docket

Jordan M. Singer reflects on the uncertain future of judicial retention elections, in response to Todd E. Pettys's Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism, 60 Buff. L. Rev. 69.


Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weakness Of Consequentialism, Todd E. Pettys Jan 2012

Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weakness Of Consequentialism, Todd E. Pettys

Buffalo Law Review

No abstract provided.


Response: Catch-All Doctrinalism And Judicial Desire, Anya Bernstein Jan 2012

Response: Catch-All Doctrinalism And Judicial Desire, Anya Bernstein

Journal Articles

This brief piece responds to Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 University of Pennsylvania Law Review 509 (2013).

Vázquez and Vladeck's provocative article suggests that courts dismiss Bivens claims because judges believe that “extending” Bivens into any “new context” instantiates disfavored judicial lawmaking. Focusing on Bivens’s peculiar place in federalism and federal law, Vázquez and Vladeck demonstrate that the logic of courts’ own legal interpretations suggests expanding Bivens remedies, yet courts paradoxically choose to narrow them instead. Why, and how, does that happen? Courts claim ...


New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner Jan 2010

New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner

Journal Articles

The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on ...


Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen Jan 2010

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the ...


Recusal And Recompense: Amending New York Recusal Law In Light Of The Judicial Pay Raise Controversy, Jeffrey T. Fiut Dec 2009

Recusal And Recompense: Amending New York Recusal Law In Light Of The Judicial Pay Raise Controversy, Jeffrey T. Fiut

Buffalo Law Review

No abstract provided.


How Great Judges Think: Judges Richard Posner, Henry Friendly, And Roger Traynor On Judicial Lawmaking, Edmund Ursin Jul 2009

How Great Judges Think: Judges Richard Posner, Henry Friendly, And Roger Traynor On Judicial Lawmaking, Edmund Ursin

Buffalo Law Review

No abstract provided.


Chief William's Ghost: The Problematic Persistence Of The Duty To Sit, Jeffrey W. Stempel May 2009

Chief William's Ghost: The Problematic Persistence Of The Duty To Sit, Jeffrey W. Stempel

Buffalo Law Review

No abstract provided.


Courting Failure, Lynn M. Lopucki Jul 2006

Courting Failure, Lynn M. Lopucki

Buffalo Law Review

No abstract provided.


Comments, Brady C. Williamson Jul 2006

Comments, Brady C. Williamson

Buffalo Law Review

No abstract provided.


Words That Wound: Defining Discussing, And Defeating Bankruptcy "Corruption", A. Mechele Dickerson Jul 2006

Words That Wound: Defining Discussing, And Defeating Bankruptcy "Corruption", A. Mechele Dickerson

Buffalo Law Review

No abstract provided.


Comments, Robert D. Martin Jul 2006

Comments, Robert D. Martin

Buffalo Law Review

No abstract provided.


Where Do You Get Off - A Reply To Courting Failure'S Critics, Lynn M. Lopucki Jul 2006

Where Do You Get Off - A Reply To Courting Failure'S Critics, Lynn M. Lopucki

Buffalo Law Review

No abstract provided.


Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua Feb 2001

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Mutua

Journal Articles

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.


Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky Jan 1997

Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky

Journal Articles

No abstract provided.


The Ambiguity Of Legal Dreams: A Communitarian Defense Of Judicial Restraint, James A. Gardner Mar 1993

The Ambiguity Of Legal Dreams: A Communitarian Defense Of Judicial Restraint, James A. Gardner

Journal Articles

No abstract provided.


Citizenship And Scholarship (Review Essay), George Kannar Nov 1990

Citizenship And Scholarship (Review Essay), George Kannar

Book Reviews

Review of Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990); Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (1989); Michael Pertschuk & Wendy Schaetzel, The People Rising: The Campaign Against the Bork Nomination (1989); Patrick B. mcGuigan & Dawn M. Weyrich, Ninth Justice: The Battle for Bork (1990).


The Constitutional Catechism Of Antonin Scalia, George Kannar Apr 1990

The Constitutional Catechism Of Antonin Scalia, George Kannar

Journal Articles

No abstract provided.


The Judge Who Could Not Tell His Right From His Left And Other Tales Of Learning Disabilities, Jeffry Gallet Oct 1988

The Judge Who Could Not Tell His Right From His Left And Other Tales Of Learning Disabilities, Jeffry Gallet

Buffalo Law Review

No abstract provided.


A Tribute To Chief Judge Charles S. Desmond, Mario M. Cuomo, William J. Brennan Jr., Sol Wachtler, Stanley H. Fuld, Matthew J. Jasen, Michael F. Dillon, Wade J. Newhouse, Charles S. Desmond Ii Jan 1987

A Tribute To Chief Judge Charles S. Desmond, Mario M. Cuomo, William J. Brennan Jr., Sol Wachtler, Stanley H. Fuld, Matthew J. Jasen, Michael F. Dillon, Wade J. Newhouse, Charles S. Desmond Ii

Buffalo Law Review

No abstract provided.


Public Rights And The Federal Judicial Power: From Murray's Lessee Through Crowell To Schor, Gordon G. Young Oct 1986

Public Rights And The Federal Judicial Power: From Murray's Lessee Through Crowell To Schor, Gordon G. Young

Buffalo Law Review

No abstract provided.