Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence Commons

Open Access. Powered by Scholars. Published by Universities.®

University at Buffalo School of Law

Discipline
Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 66

Full-Text Articles in Jurisprudence

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 ...


Interpreting The Constitution’S Elegant Specificities, Steven Semeraro May 2017

Interpreting The Constitution’S Elegant Specificities, Steven Semeraro

Buffalo Law Review

No abstract provided.


Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke May 2017

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

No abstract provided.


Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster Jan 2016

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

Buffalo Law Review

No abstract provided.


Causation, Legal History, And Legal Doctrine, Charles Barzun Jan 2016

Causation, Legal History, And Legal Doctrine, Charles Barzun

Buffalo Law Review

No abstract provided.


Writing The Social History Of Legal Doctrine, Cynthia Nicoletti Jan 2016

Writing The Social History Of Legal Doctrine, Cynthia Nicoletti

Buffalo Law Review

No abstract provided.


On Absences As Material For Intellectual Historical Study, John Henry Schlegel Jan 2016

On Absences As Material For Intellectual Historical Study, John Henry Schlegel

Buffalo Law Review

No abstract provided.


Why Law Matters For Our Obligations, Guyora Binder Oct 2015

Why Law Matters For Our Obligations, Guyora Binder

Journal Articles

Political philosophers have long debated the problem of political and legal obligation: how the existence of a political community and its laws can affect our obligations. This paper applies Alon Harel’s argument that law has intrinsic value to this venerable problem. It interprets Harel’s argument as a Kantian claim that law enables us to treat our fellows with the respect they deserve, by requiring us not only to treat them decently, but to recognize decent treatment as their right.


The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld Mar 2015

The Rejection Of Horizontal Judicial Review During America's Colonial Period, Robert J. Steinfeld

Journal Articles

No abstract provided.


Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud, Athena D. Mutua, Francisco Valdes Jan 2015

Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud, Athena D. Mutua, Francisco Valdes

Journal Articles

This article marks the twentieth anniversary of Latina and Latino Critical Legal Theory or the LatCrit organization, an association of diverse scholars committed to the production of knowledge from the perspective of Outsider or OutCrit jurisprudence. The article first reflects on the historical development of LatCrit’s substantive, methodological, and institutional commitments and practices. It argues that these traditions were shaped not only by its members’ goals and commitments but also by the politics of backlash present at its birth in the form of the “cultural wars,” and which have since morphed into perpetual “crises” grounded in neoliberal policies. With ...


Separate Is Inherently Unequal, Unless You're Religious: The Peculiar Constitutionalization Of Religious Segregation, Franciska Coleman Sep 2013

Separate Is Inherently Unequal, Unless You're Religious: The Peculiar Constitutionalization Of Religious Segregation, Franciska Coleman

Buffalo Public Interest Law Journal

This article seeks to explain how a relative newcomer to constitutional anti-discrimination jurisprudence, secular identity, has managed to gamer a far higher degree of protection than historically suspect classes, such as race and gender. It attributes this phenom- enon to the "separate but equal" model of equality inherent in the doctrine of "separation of church and state." It notes that, despite acknowledging that government segregation is per se unequal in the Brown decision, the Supreme Court has continued to enforce religious segregation as a requirement of the Establishment Clause. In doing so, the Court has created a new type of ...


Piety And Profession: Simon Greenleaf And The Case Of The Stillborn Bowdoin Law School, 1850–1861, Alfred S. Konefsky Dec 2012

Piety And Profession: Simon Greenleaf And The Case Of The Stillborn Bowdoin Law School, 1850–1861, Alfred S. Konefsky

Journal Articles

In 1850, Bowdoin College turned to former Harvard professor Simon Greenleaf when it sought to establish a law school. Although the school did not materialize, Greenleaf wrote a remarkable report that reveals anxieties about the profession, competing visions of legal education, and controversies over the meaning of the science of law in antebellum New England.


How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey Feb 2011

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources ...


Philip Hamburger's Law And Judicial Duty: The Origins Of Judicial Review (Book Review), Robert J. Steinfeld Aug 2010

Philip Hamburger's Law And Judicial Duty: The Origins Of Judicial Review (Book Review), Robert J. Steinfeld

Book Reviews

No abstract provided.


How Queer Theory Makes Neoliberalism Sexy, Martha T. Mccluskey Jan 2009

How Queer Theory Makes Neoliberalism Sexy, Martha T. Mccluskey

Contributions to Books

Published in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero, eds.

Some strands of queer theory have echoed conservative law-and-economics (neoliberalism) in criticizing feminism's turn to the state and to moral principle to solve problems of dependency and dominance. But on closer analysis, queer anti-statism and anti-moralism itself relies on and reinforces the identity conventions and regulatory constraints it claims to unsettle. The meaningful question for queer theory, for feminism, and for legal economics, is what kind of state and morality to pursue, not whether individual choice and private ...


Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey Jan 2007

Thinking With Wolves: Left Legal Theory After The Right's Rise (Review Essay), Martha T. Mccluskey

Book Reviews

Reviewing Wendy Brown & Janet Halley, Left Legalism/Left Critique (2001).

Left legal theory is in crisis. This crisis reflects a broader problem of contemporary U.S. politics: the lack of grand ideas capable of mobilizing meaningful opposition to the triumph of the political right. Right-wing legal theory has contributed to that dramatic political change by promoting ideas questioning the foundations of the twentieth century liberal welfare and regulatory state.

This review essay analyzes a rare recent attempt to revive left legal theory in the face of the right's triumph: the anthology Left Legalism/Left Critique edited by Wendy Brown and Janet Halley (Duke University Press, 2002). In this book, Brown and Halley gather essays that present a yearning for justice that exceeds the imagination of liberal legalism, a critical and self-critical intellectual orientation, and a certain courage to open the door of political and legal thought as if the wolves were not there. The overarching argument of the book is that the left needs to be guided more by critical theory - and less by practical politics, law, and identity.

My essay situates the book in the context of the right's recent success in similarly challenging liberal legalism, albeit from a different ideological direction. I argue that the right's gains provide compelling evidence for this book's main point: impractical, ambitious theory is central to long-term radical political and legal change. But I show how Left Legalism/Left Critique falls short of its goal of providing bold left critique precisely because it follows conventional liberalism in measuring good left theory in opposition to left praxis, left legalism and left identity politics. In contrast, right-wing theory aims to redraw the liberal boundaries between theory and practical politics; between politics and law, and between identity and economic politics. Challenging the book's discussion of topics such as racial justice, disability discrimination, and sexual harassment, I show how resisting, rather than reinforcing, these boundaries is vital to left jurisprudence and politics.


Aesthetic Judgment And Legal Justification, Guyora Binder Jan 2007

Aesthetic Judgment And Legal Justification, Guyora Binder

Journal Articles

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ...


The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder Jul 2001

The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder

Journal Articles

The process by which we represent our society's will and welfare in the medium of law is an imaginative and expressive one, narrating the path from a virtuous past to a decent future, informed by aesthetic judgment. In Literary Criticisms of Law, Guyora Binder and Robert Weisberg argued that, because law is literary in this sense, scholars can use the methods of literary criticism to "read" the law and to subject it to critical evaluation and reflective aesthetic judgment. In reviewing that book, Judge Richard Posner reasserted his long-held position that it is most useful to evaluate law economically ...


Incommensurability And Alterity In Contemporary Jurisprudence, Nick Smith Apr 1997

Incommensurability And Alterity In Contemporary Jurisprudence, Nick Smith

Buffalo Law Review

No abstract provided.


Trading In Controversy, Neil Duxbury Apr 1997

Trading In Controversy, Neil Duxbury

Buffalo Law Review

No abstract provided.


Is Law Narrative?, Jane B. Baron, Julia Epstein Jan 1997

Is Law Narrative?, Jane B. Baron, Julia Epstein

Buffalo Law Review

No abstract provided.


Does Duncan Kennedy Wear Boxers Or Briefs? Does Richard Posner Ever Sleep? Writing About Jurisprudence, High Culture And The History Of Intellectuals (Review Essay), John Henry Schlegel Jan 1997

Does Duncan Kennedy Wear Boxers Or Briefs? Does Richard Posner Ever Sleep? Writing About Jurisprudence, High Culture And The History Of Intellectuals (Review Essay), John Henry Schlegel

Book Reviews

Reviewing Neil Duxbury, Patterns of American Jurisprudence(1995).


Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder Apr 1995

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning ...


Liberal Environmental Jurisprudence, David A. Westbrook Jan 1994

Liberal Environmental Jurisprudence, David A. Westbrook

Journal Articles

No abstract provided.


What's Left?, Guyora Binder Jul 1991

What's Left?, Guyora Binder

Journal Articles

Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers ...


Feminist Jurisprudence: The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda Finley, Carin Clauss, Joan Bertin Jan 1991

Feminist Jurisprudence: The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda Finley, Carin Clauss, Joan Bertin

Journal Articles

No abstract provided.


Mastery, Slavery, And Emancipation, Guyora Binder Mar 1989

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves ...


Beyond Criticism, Guyora Binder Jan 1988

Beyond Criticism, Guyora Binder

Journal Articles

During the 1980’s, Critical Legal Studies was frequently criticized for offering no policy prescriptions. This essay explained critical scholars’ reluctance to propose policy as a reflection of their epistemological and political critiques of instrumentalist policy analysis. Because critical scholars saw both causal relationships and interests as highly contingent on normative assumptions, they were skeptical of claims that well-intentioned law reforms would benefit the interests of the poor and the powerless. Valuing democratic participation, critical legal scholars were also reluctant to define the interests of the powerless for them. The essay proceeded to argue that critical legal scholars should see ...


On Critical Legal Studies As Guerilla Warfare, Guyora Binder Oct 1987

On Critical Legal Studies As Guerilla Warfare, Guyora Binder

Journal Articles

This sardonic 1987 essay defended Critical Legal Studies (CLS) against alarmist attacks from the right, claiming that CLS was dangerously subversive of the rule of law, and seemingly contradictory attacks from the left dismissing CLS as empty theorizing lacking any practical implications for reform. The essay responded that while CLS lacked proposals for legislative reform, it favored a highly participatory process of reform, drawn from experience in the student movements of the 1960’s. It distrusted state power and bureaucracy as engines of change, and favored community organization, civil society, and popular mobilization.


Truth And Hierarchy: Will The Circle Be Unbroken?, David Fraser Oct 1984

Truth And Hierarchy: Will The Circle Be Unbroken?, David Fraser

Buffalo Law Review

No abstract provided.