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You Need to Calm Down: Examining the Origin and Eliminating the Future of the “Gay Panic” Defense
Get PDFWhile Waiting for Rain: Community, Economy, and Law in a Time of Change
Get PDFWhat might a sensible community choose to do if its economy has fallen apart and becoming a ghost town is not an acceptable option? Unfortunately, answers to this question have long been measured against an implicit standard: the postwar economy of the 1950s. After showing why that economy provides an implausible standard—made possible by the lack of economic competition from the European and Asian countries, winners or losers, touched by the war—John Henry Schlegel attempts to answer the question of what to do.
While Waiting for Rain first examines the economic history of the United States as well as that of Buffalo, New York: an appropriate stand-in for any city that may have seen its economy start to fall apart in the 1960s, 70s, and 80s. It makes clear that neither Buffalo nor the United States as a whole has had an economy in the sense of “a persistent market structure that is the fusion of an understanding of economic life with the patterns of behavior within the economic, political, and social institutions that enact that understanding” since both economies collapsed. Next, this book builds a plausible theory of how economic growth might take place by examining the work of the famous urbanist, Jane Jacobs, especially her book Cities and the Wealth of Nations. Her work, like that of many others, emphasizes the importance of innovation for economic growth, but is singular in its insistence that such innovation has to come from local resources. It can neither be bought nor given, even by well-intentioned political actors. As a result Americans generally, as well as locally, are like farmers in the midst of a drought, left to review their resources and wait. Finally, it returns to both the local Buffalo and the national economies to consider what these political units might plausibly do while waiting for an economy to emerge.https://digitalcommons.law.buffalo.edu/books/1178/thumbnail.jp
Ford\u27s Underlying Controversy
Get PDFPersonal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to a cause of action or its elements, while others understand it to encompass the controversy underlying the litigation. What is worse, few have noticed that these discrepancies even exist, much less explained why. This Article does just that. We show that how a court chooses to define claim, while usually left implicit, controls the scope of jurisdiction. That choice can force parties to litigate piecemeal and effectively foreclose restitution for underresourced plaintiffs by shutting them out their home courts. This chaos harms litigants, disrupts the judicial system, and undermines civil procedure values. As of this year, it also flies in the face of Supreme Court precedent. We show how the recent decision in Ford v. Montana settles the matter and helps cohere personal jurisdiction with its underlying due process commitments
Baldy Center Podcast Episode 12 Picture
No full textHarm reduction provides safe rooms for drug consumption. Photograph courtesy of Mehdi Chebil, 2019.https://digitalcommons.law.buffalo.edu/baldy_center_images/1011/thumbnail.jp
Baldy Center Podcast Episode 22 Picture
No full texthttps://digitalcommons.law.buffalo.edu/baldy_center_images/1019/thumbnail.jp
Generic \u3cem\u3eAb Initio\u3c/em\u3e
Get PDFFrom comic conventions to disbanded dioceses, courts continue to struggle with a unique but puzzling question of trademark law. Federal law protects certain terms that refer to a product or service from a specific producer instead of to a product generally. Terms that refer to products are considered generic and cannot receive protection. Courts have also held that a term that was generic at the time the party adopted the mark cannot receive protection, even if the public later views it as being specific to a particular producer. But, many marks were adopted decades or centuries ago. As a result, courts and parties have struggled to find tools that will let them explore what the public understood a term to mean at the time of its adoption. Current methods, such as dictionaries, have fatal flaws. This paper proposes a new and empirical method to make this determination: corpus linguistics.
Corpus linguistics is the study of the meaning of words and phrases using large databases of language use. It allows the user to understand how people used certain words or phrases at a specific point in time instead of being limited to how people understand them now. Using two recent cases as examples, this paper shows how corpus linguistics can provide parties and courts with concrete data on the meaning of a term when the party adopted it, eliminating guess work and other unreliable sources
Police Killings as Felony Murder
Get PDFThe widely applauded conviction of officer Derek Chauvin for the murder of George Floyd employedthe widely criticized felony murder rule. Should we use felony murder as a tool to check discriminatory and violent policing? The authors object that felony murder—although perhaps the only murder charge available for this killing under Minnesota law—understated Chauvin’s culpability and thereby inadequately denounced his crime. They show that further opportunities to prosecute police for felony murder are quite limited. Further, a substantial minority of states impose felony murder liability for any death proximately caused by a felony, even if the actual killer was a police officer, not an “agent” of the felony. In these “proximate cause” jurisdictions, felony murder is far more often used to prosecute the (often Black) targets of police violence, than to prosecute culpable police.
Previous scholarship on prosecution of felons for killings by police criticized such proximate cause rules as departures from the “agency” rules required by precedent. But today’s proximate cause felony murder rules were enacted legislatively during the War on Crime and are thus immune to this traditional argument. The authors instead offer a racial justice critique of proximate cause felony murder rules as discriminatory in effect, and as unjustly shifting blame for reckless policing onto its victims. Noting racially disparate patterns of charging felony murder, and particularly in cases where police have killed, the authors call on legislatures to reimpose “agency” limits on felony murder as a prophylactic against discrimination. Finally, the authors widen this racial justice critique to encompass felony murder as a whole, urging legislatures to abolish felony murder wherever racially disparate patterns of charging can be demonstrated
The Dilemma of Liberal Pluralism
Get PDFSupporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The Article sets forth a conception of the proper agnostic approach of the modern liberal state and explains how there is a distinctive case for accommodating religious belief. The Article also takes a wider lens to the problem, describing a case against political obligation and legitimacy and for acknowledging multiple possible sources of authority, and showing how the pairing of the two buttresses claims for accommodation from general law. In the final Part, the Article addresses types of harm to the body politic that may outweigh substantial burdens on religious practice, focusing on protection of equality in public accommodations law. The Article also explores issues presented by religious groups that wish to live apart from the rest of the community. While the state should accommodate such groups to the extent possible, liberal pluralism demands that when members choose to remain in the group, the decision is knowing and voluntary. The Article concludes that there is no “tragic loss” when the state accommodates, or fails to accommodate, a person or group following their own comprehensive conception of the good. Accommodation often reflects appropriate toleration of, and perhaps even respect for, the dissenting person or group, while insistence on uniform application of law may reflect core conditions such dissenters must accept, conditions that help buttress their own (often religious) liberty
