Law and Society Commons^™

Reforming Local Property For An Era Of National Decline, Daniel B. Rosenbaum

Buffalo Law Review

Following a century of rapid growth, the global human population is predicted to crest and then decline in the coming generations. Some industrialized countries are already grappling with the economic and societal consequences of population loss. Others, including the United States, have only started to realize that decline might arrive on their doorsteps far sooner than originally anticipated, a prospect for which policymakers and legal scholars are presently unprepared.

Global and national demographic change threaten to cause far-reaching dislocations, and local municipalities, too, will be asked to reckon with the aftermath. Yet local governance in the United States has long …

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, …

Comparing Colonial Water Legacies: Flow And Stagnation In Legal Development, Erum Sattar

Buffalo Environmental Law Journal

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

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from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all.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 …

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

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, …

What Counts As Data?, Anya Bernstein

Journal Articles

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …

Judith Shklar’S Critique Of Legalism, Seyla Benhabib, Paul Linden-Retek

Contributions to Books

Published as Chapter 16 in The Cambridge Companion to the Rule of Law, Jens Meierhenrich & Martin Loughlin, eds.

A Legislative Framework To Avoid A Vulgar Trademark System, Jordan Kilijanski

Buffalo Law Review

No abstract provided.

Wild Legalities: Animals And Settler Colonialism In Palestine/Israel, Irus Braverman

Journal Articles

This article examines the underlying biopolitical premises of wildlife management in Palestine/Israel that make, remake, and unmake this region's settler colonial landscape. Drawing on interviews with Israeli nature officials and observations of their work, the article tells several animal stories that illuminate the hierarchies and slippages between wild and domestic, nature and culture, native and settler, and human and nonhuman life in Palestine/Israel. Animal bodies are especially apt technologies of settler colonialism, I show here. They naturalize and normalize settler modes of existence, while criminalizing native livelihoods and relations. Utilizing the terra nullius doctrine, creating biblical landscapes by reintroducing extirpated …

Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey

Journal Articles

Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, …

Illiberalism And Authoritarianism In The American States, James A. Gardner

Journal Articles

Federalism contemplates subnational variation, but in the United States the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the U.S. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently that subnational variations in policy preferences and …

Topology Of The Closet, Michael Boucai

Journal Articles

Despite the closet’s centrality to queer culture and theory, the metaphor’s various meanings have yet to be disaggregated and defined. Following Eve Kosofsky Sedgwick’s identification of the closet with a “crisis of homo/heterosexual definition, indicatively male, dating from the end of the nineteenth century,” the present article uses an array of late-Victorian sources—especially The Memoirs of John Addington Symonds and Teleny, a pornographic novel sometimes attributed to Oscar Wilde—to describe and distinguish: (1) so-called latent homosexuality (“the unconscious closet”); (2) deliberate strategies of suppression, abstention, and reformation (“the conscious closet”); (3) clandestine pursuits of gay sex and sociability (“the double …

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

Buffalo Law Review

Confederate monuments have again received increased attention in the aftermath of George Floyd’s tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the “death” or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

Technologies Of Language Meet Ideologies Of Law, Anya Bernstein

Journal Articles

No abstract provided.

Commentary On Emerson V. Magendantz, Lucinda M. Finley

Contributions to Books

Published as Chapter 13 of Feminist Judgments: Rewritten Tort Opinions, Martha Chamallas & Lucinda M. Finley, eds. (Cambridge University Press 2020). Emerson v. Magendantz assesses how to measure harm when people get pregnant after a negligently performed sterilization, or have disabled children after genetic counseling or prenatal testing misdiagnosed the risk. The court permitted parents to recover child-rearing costs only for disabled children, reasoning that the emotional benefits of a healthy child invariably outweigh its economic burdens. Critiquing this reasoning as a double insult to the disabled and to the importance of reproductive autonomy, the feminist rewritten opinion uses the …

Access To Literacy Under The United States Constitution, Christine M. Naassana

Buffalo Law Review

No abstract provided.

States Of Uncertainty: The Origins Of Law And Community In Three American Towns, David M. Engel

Journal Articles

From Festschrift for Carol Greenhouse

Data Management Law For The 2020s: The Lost Origins And The New Needs, Przemysław Pałka

Buffalo Law Review

In the data analytics society, each individual’s disclosure of personal information imposes costs on others. This disclosure enables companies, deploying novel forms of data analytics, to infer new knowledge about other people and to use this knowledge to engage in potentially harmful activities. These harms go beyond privacy and include difficult to detect price discrimination, preference manipulation, and even social exclusion. Currently existing, individual-focused, data protection regimes leave law unable to account for these social costs or to manage them.

This Article suggests a way out, by proposing to re-conceptualize the problem of social costs of data analytics through the …

Secrecy & Evasion In Police Surveillance Technology, Jonathan Manes

Journal Articles

New technologies are transforming the capabilities of law enforcement. Police agencies now have devices to track our cellphones and software to hack our networks. They have tools to sift the vast quantities of digital silt we leave behind on the Internet. They can deploy “big data” algorithms meant to predict where crimes will occur and who will commit them. They have even transformed the humble closed-circuit video camera—and its more recent companion, the body camera—into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically …

Liberalism's Identity Politics: A Response To Professor Fukuyama, Athena D. Mutua

Journal Articles

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 …

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

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

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.

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

Buffalo Law Review

No abstract provided.

Foreword: Tempering Power, Errol Meidinger

Buffalo Law Review

No abstract provided.

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

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.