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Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn Jan 2004

Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn

Faculty Scholarship

United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court …

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Court, Congress And Equal Protection: What Brown Teaches Us About The Section 5 Power, William D. Araiza Jan 2004

Court, Congress And Equal Protection: What Brown Teaches Us About The Section 5 Power, William D. Araiza

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No abstract provided.

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Cuban Exceptionalism : Migration And Asylum In Spain And The United States, Maryellen Fullerton Jan 2004

Cuban Exceptionalism : Migration And Asylum In Spain And The United States, Maryellen Fullerton

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No abstract provided.

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Isolated And Politicized: The Nlrb's Uncertain Future The National Labor Relations Board In Comparative Context: Introduction, James J. Brudney Jan 2004

Isolated And Politicized: The Nlrb's Uncertain Future The National Labor Relations Board In Comparative Context: Introduction, James J. Brudney

Faculty Scholarship

The National Labor Relations Board has managed to remain unusually detached or isolated in its decision-making even as it has come to operate in an openly partisan manner. There is a certain paradoxical quality to the coexistence of these two descriptors for Board conduct: isolation in agency performance ordinarily suggests a neutral separation from the political process whereas politicization implies a close connection to the elected branches. The explanation for this odd pairing involves a number of factors: some reflect political realities beyond the agency's ability to control, others relate to the structure of the NLRA, and still others are …

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At The Intersection Of North American Free Trade And Same-Sex Marriage, Laura Spitz Jan 2004

At The Intersection Of North American Free Trade And Same-Sex Marriage, Laura Spitz

Faculty Scholarship

Using same-sex marriage as a presently salient site of cultural struggle, this article asks whether the U.S. can expect economic integration with Canada-on the scale envisioned by the North American Free Trade Agreement (NAFTA)-without feeling the influence of Canadian culture. The author comes at this question from the United States side because, while much has been written from Canadian points of view as to whether it is possible to protect and maintain national differences in the face of economic integration with the United States, very little has been written about whether economic globalization in North America could mean that Canadian …

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Who Gets In? The Quest For Diversity After Grutter, Margaret E. Montoya, Athena Mutua, Sheldon Zedeck, Frank H. Wu, Charles E. Daye, David L. Chambers Jan 2004

Who Gets In? The Quest For Diversity After Grutter, Margaret E. Montoya, Athena Mutua, Sheldon Zedeck, Frank H. Wu, Charles E. Daye, David L. Chambers

Faculty Scholarship

Transcript of The 2004 James McCormick Mitchell Lecture. On March 8, 2004, the University at Buffalo Law School hosted its annual Mitchell Lecture,1 a panel discussion entitled, "Who Gets In? The Quest for Diversity After Grutter." The Mitchell Committee decided to focus this year's lecture on innovative proposals to ensure diversity in law school admissions in light of the Supreme Court's ruling in Grutter v. Bollinger, which confirmed that race and ethnicity could be taken into consideration in admission decisions for diversity purposes. Noting that much of the debate about Grutter thus far has emphasized the decision's constitutionality or its …

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Kierkegaard As An Enlightenment Thinker, Jeremy Bendik-Keymer Jan 2004

Kierkegaard As An Enlightenment Thinker, Jeremy Bendik-Keymer

Faculty Scholarship

What if Kierkegaard were not a counter-Enlightenment thinker, but were a deeper enlightenment thinker? In this talk, I want to propose an interpretation of S.K.’s work under which he continues the Enlightenment, rather than discontinuing it. I will claim that Kierkegaard deepened and advanced one of the most central aspects of “enlightenment”, at least as Kant and the subsequent tradition has defined it. Kierkegaard was an enlightenment thinker (lower case “e”!), and therefore it is misleading to see him as opposed to the heart of the Enlightenment (upper case “e”).

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Plakolide A, A New Γ‐Lactone From The Marine Sponge Plakortis Sp., Sarath P. Gunasekera, Richard A. Isbrucker, Ross E. Longley, Amy E. Wright, Shirley A. Pomponi, John K. Reed Jan 2004

Plakolide A, A New Γ‐Lactone From The Marine Sponge Plakortis Sp., Sarath P. Gunasekera, Richard A. Isbrucker, Ross E. Longley, Amy E. Wright, Shirley A. Pomponi, John K. Reed

Faculty Scholarship

Plakolide A (1), a new R-exomethylene-ç-lactone isolated from the marine sponge Plakortis sp., was found to inhibit inducible nitric oxide synthase (iNOS) activity. The isolation, structure elucidation, and biological activity of plakolide A is described.

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Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee Jan 2004

Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee

Faculty Scholarship

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in …

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Executive Power Essentialism And Foreign Affairs, Martin S. Flaherty Jan 2004

Executive Power Essentialism And Foreign Affairs, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

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Understanding The Mark: Race, Stigma, And Equality In Context, Robin A. Lenhardt Jan 2004

Understanding The Mark: Race, Stigma, And Equality In Context, Robin A. Lenhardt

Faculty Scholarship

In its Fourteenth Amendment jurisprudence, the Supreme Court regards intentional discrimination as the principal source of racial injury in the United States. In this Article, R.A. Lenhardt argues that racial stigma, not intentional discrimination, constitutes the main source of racial harm and that courts must take the social science insight that most racialized conduct or thought is unconscious, rather than intentional, into account in their constitutional analyses of acts or policies challenged on the grounds of race. Drawing on the social science work of Erving Goffman and the ground-breaking work of Charles H. Lawrence, Professor Lenhardt argues that courts should …

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Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson Jan 2004

Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson

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In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …

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Religious Lawyering In A Liberal Democracy: A Challenge And An Invitation William A. Brahms Lecture On Law & Religion, Russell G. Pearce Jan 2004

Religious Lawyering In A Liberal Democracy: A Challenge And An Invitation William A. Brahms Lecture On Law & Religion, Russell G. Pearce

Faculty Scholarship

At a time when many believe that law is no longer a noble profession, many lawyers see no reason to devote time and energy to promoting the public good. Religious lawyering may offer a powerful antidote: a robust framework for lawyers to integrate into their professional lives their most deeply rooted values, perspectives and critiques, and persuasive reasons to improve the quality of justice and work for the common good. At its best, religious lawyering echoes Martin Luther King's advice to the street sweeper. How wonderful it would be, indeed, if we practiced law so well that the host of …

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Speculation On The Future Of The Bank For International Settlements, A , Carl Felsenfeld, Genci Bilali Jan 2004

Speculation On The Future Of The Bank For International Settlements, A , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

Financial crises around the globe place countries at risk. Not only do less developed countries like Mexico and Argentina tremble from the inadequacies of their banking systems, but large and developed economies such as Japan suffer similar apprehension. As a result, national financial authorities find themselves looking for a type of international financial entity that can coordinate the efforts of these authorities in maintaining safety and soundness in their respective financial and banking sectors. This being the case, financial markets need the assistance of an international institution that can regulate national banking systems and, in return, can avoid any future …

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The Rehnquist Court’S Two Federalisms, Ernest A. Young Jan 2004

The Rehnquist Court’S Two Federalisms, Ernest A. Young

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No abstract provided.

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Cost-Benefit Analysis, Static Efficiency And The Goals Of Environmental Law, Matthew D. Adler Jan 2004

Cost-Benefit Analysis, Static Efficiency And The Goals Of Environmental Law, Matthew D. Adler

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No abstract provided.

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Fraud By Hindsight, Mitu Gulati, Jeffrey J. Rachlinski, Donald C. Langevoort Jan 2004

Fraud By Hindsight, Mitu Gulati, Jeffrey J. Rachlinski, Donald C. Langevoort

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No abstract provided.

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The Deconstitutionalization Of Education, Erwin Chemerinsky Jan 2004

The Deconstitutionalization Of Education, Erwin Chemerinsky

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No abstract provided.

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Putting The Gun Control Debate In Social Perspective, Erwin Chemerinsky Jan 2004

Putting The Gun Control Debate In Social Perspective, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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In Defense Of Judicial Review: The Perils Of Popular Constitutionalism, Erwin Chemerinsky Jan 2004

In Defense Of Judicial Review: The Perils Of Popular Constitutionalism, Erwin Chemerinsky

Faculty Scholarship

Since the 1920's progressives have flip-flopped on the merits of judicial review at least three times. In the last few years, they have been forging a return toward the anti-judicial review camp, which ironically puts them in line with today's conservatives. The trendy progressive movement against judicial review calls itself "popular constitutionalism." They contend in varying degress that people--not judges--are the best arbiters of constitutional interpretation. In his Baum Memorial Lecture on Civil Liberties and Civil Rights, Professor Erwin Chemerinsky demonstrates that popular constitutionalism is exactly the wrong strategy for progressives because it rests on flawed premises and comes to …

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Politics, Not History, Explains The Rehnquist Court, Erwin Chemerinsky Jan 2004

Politics, Not History, Explains The Rehnquist Court, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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‘Davey’ And The Limits Of Equality, Laura S. Underkuffler Jan 2004

‘Davey’ And The Limits Of Equality, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.

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Finding Cures For Tropical Diseases: Is Open Source An Answer?, Stephen M. Maurer, Arti K. Rai, Andrej Sali Jan 2004

Finding Cures For Tropical Diseases: Is Open Source An Answer?, Stephen M. Maurer, Arti K. Rai, Andrej Sali

Faculty Scholarship

Only about 1% of newly developed drugs are for tropical diseases, such as African sleeping sickness and dengue fever. While patent incentives and commercial pharmaceutical companies have made Western health care the envy of the world, the commercial model works only if companies can sell enough patented products to cover their R&D costs. The model thus fails for diseases found largely in the developing world, where markets for patented products are tiny. Any solution to the problem of tropical diseases must recognize the need for rigid cost-containment. An open source approach to identifying promising drug candidates would keep costs down …

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Firms, Courts, And Reputation Mechanisms: Towards A Positive Theory Of Private Ordering, Barak D. Richman Jan 2004

Firms, Courts, And Reputation Mechanisms: Towards A Positive Theory Of Private Ordering, Barak D. Richman

Faculty Scholarship

This Essay formulates a positive model that predicts when commercial parties will employ private ordering to enforce their agreements. The typical enforcement mechanism associated with private ordering is the reputation mechanism, in which a merchant community punishes parties in breach of contract by denying them future business. The growing private ordering literature argues that these private enforcement mechanisms can be superior to the traditional, less efficient enforcement measures provided by public courts. However, previous comparisons between public and private contractual enforcement have presented a misleading dichotomy by failing to consider a third enforcement mechanim: the vertically integrated firm. This Essay …

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On Military Commissions, Scott L. Silliman Jan 2004

On Military Commissions, Scott L. Silliman

Faculty Scholarship

With pretrial hearings for several detainees underway at Guantanamo Bay, and the prospect for full trials before military commissions1 starting either late this year or early in 2005, this little understood option for prosecuting terrorists has become the focus of intense debate within this country and abroad, even becoming an election year issue for the presidential contenders. Many have suggested that the military commission procedures should have grafted in more of the due process protections afforded in courts-martial under the Uniform Code of Military Justice, the criminal justice system created by Congress to govern the conduct of our own service …

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Reflections On Brown, Paul D. Carrington Jan 2004

Reflections On Brown, Paul D. Carrington

Faculty Scholarship

No abstract provided.

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‘Idiot’S Guide’ To Sovereign Debt Restructuring, Steven L. Schwarcz Jan 2004

‘Idiot’S Guide’ To Sovereign Debt Restructuring, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

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Freedom’S New Fight, Jedediah Purdy Jan 2004

Freedom’S New Fight, Jedediah Purdy

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Reviewing, Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (2004)

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Hormesis, Hotspots And Emissions Trading, Jonathan B. Wiener Jan 2004

Hormesis, Hotspots And Emissions Trading, Jonathan B. Wiener

Faculty Scholarship

Instrument choice -- the comparison of technology standards, performance standards, taxes and tradable permits -- has been a major topic in environmental law and environmental economics. Most analyses assume that emissions and health effects are positively and linearly related. If they are not, this complicates the instrument choice analysis. This article analyses the effects of a nonlinear dose/response function on instrument choice. In particular, it examines the effects of hormesis (highdose harm but low-dose benefit) on the choice between fixed performance standards and tradable emissions permits. First, the article distinguishes the effects of hormesis from the effects of local emissions. …

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Convergence, Divergence, And Complexity In Us And European Risk Regulation, Jonathan B. Wiener Jan 2004

Convergence, Divergence, And Complexity In Us And European Risk Regulation, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

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