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Dividing the Body Politic
Full text linkIt has long been assumed in large, modern, democratic states that the successful practice of democratic politics requires some kind of internal division of the polity into subunits. In the United States, the appropriate methods and justifications for doing so have long been deeply and inconclusively contested. One reason for the intractability of these disputes is that American practices of political self-division are rooted in, and have been largely carried forward from, premodern practices that rested originally on overtly illiberal assumptions and justifications that are difficult or impossible to square with contemporary commitments to philosophical liberalism.
The possibility of sorting things out in a rational way—long the object of legal and political science scholarship in the field—has recently been greatly complicated by an unexpected resurgence of various forms of illiberalism, especially populist authoritarianism, a conception of popular self-governance that rejects liberal understandings of democratic processes and politics. This new political alignment is especially complicating because liberals and illiberals disagree profoundly about the nature of the body politic, its susceptibility to division, and the significance and proper goals of such division.
This Article traces the evolution of American practices of political self-division from premodernity through the present, explores how present political trends affect longstanding disputes over practices of legislative districting, and concludes with a brief examination of some possible ways of establishing a workable modus vivendi
A New Addition to the Trademark Litigator\u27s Tool Kit: A Neuroscientific Index of Mark Similarity
Full text linkWith trademark law always striving to keep abreast of new developments in science and technology, the authors of this article propose an innovative, neuroscience-based approach to answering the time-honored question of whether likelihood of consumer confusion exists in a particular dispute
Racial Isolation, School Police, and the “School-To-Prison Pipeline”: An Empirical Perspective on the Enduring Salience of “Tipping Points”
Full text linkTwo broad trends inform public K-12 education’s current trajectory. One involves persisting (and recently increasing) school racial isolation which helps account for an array of costs borne by students, schools, and communities. A second trend, involving a dramatically increasing police presence in schools, is evidenced by a rising school resource officer (“SRO/police”) presence in schools. Increases in the magnitude of a school’s SRO/police presence correspond with increases in the school’s propensity to engage law enforcement agencies in student disciplinary matters which, in turn, help fuel a growing school-to-prison pipeline problem. While these two broad trends propel two distinct research literatures, these research literatures do not meaningfully engage with one another. Empirical research is largely silent on the degree to which, if at all, variation in a school’s racial isolation level influences how its SRO/police presence interacts with the school’s propensity to report student discipline issues to law enforcement agencies. This Article examines whether variation in school racial isolation levels informs whether a school’s SRO/police presence influences the school’s law enforcement reporting rates. Results from this study imply that any such influence is confined to schools where non-white student enrollment ranges from 11% to 50%. The research literature on tipping points provides one helpful interpretative lens to better understand why this specific school racial isolation band systematically differs from others when it comes to SRO/police presence’s influence on a school’s propensity to report student discipline matters to law enforcement agencies
Standards in Law
Full text linkPublished as Chapter 12 in Teaching and Collecting Technical Standards: A Handbook for Librarians and Educators, Chelsea Leachman, Erin M. Rowley, Margaret Phillips & Daniela Solomon, eds.
This case study introduces students to how and why federal agencies use standards in regulations. Students will apply this learning in a homework assignment in which a law firm partner asks the student to research current regulations that may be applicable to a potential client. The assignment is designed for upper-level undergraduate students with an interest in law and policy.https://digitalcommons.law.buffalo.edu/law_librarian_book_sections/1010/thumbnail.jp
Tort Reform & the Takings Clause
Full text linkThe United States tort reform movement has capped noneconomic damage awards in many jurisdictions, thereby preventing the most injured plaintiffs from being fully compensated for their suffering. While litigants have asserted numerous state constitutional challenges to these tort recovery limits, with varying degrees of success, aggrieved plaintiffs have underutilized the Fifth Amendment’s Takings Clause. This Article advocates that judicial reduction of a jury’s noneconomic damage calculation after the court has informed the successful plaintiff of the full verdict is a regulatory taking in violation of the federal Takings Clause, as incorporated against the states through the Fourteenth Amendment.
A Takings Clause violation requires a government taking of private property for public use without just compensation. A noneconomic damage award of which an injured plaintiff has been informed is a vested property interest; a trial judge reduces that award based on a statute; this is a regulatory, rather than a physical, taking under the Penn Central ad-hoc, three-factor standard; the taking is uncompensated because the plaintiff does not receive an equivalent of the full noneconomic damage verdict; and the taking is for public use because it is intended to reduce liability insurance premiums for the general public and encourage business investment. Finding enforcement of noneconomic damage caps to be an impermissible regulatory taking is supported by the Fifth Amendment’s historical roots and the Supreme Court’s Takings cases since the Founding. Moreover, ensuring that the most injured members of society, who are damaged because of a tortfeasor’s actions, are adequately compensated and are not required by states to carry the burden of lower insurance costs and business investment for a whole jurisdiction is sound public policy
