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Our Imperial Federal Courts
Get PDFThis essay is a response to Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74VAND.L.REV.621(2021).
“The article is significant for the archival work alone. It is useful, as well, for the impressive synthesis of the existing secondary literature, collected in the footnotes, which makes a convenient reading list for us mere mortals. The argument of the article is ambitious. As the Table of Contents suggests, its structure is complex: the author asks us to visit three different jurisdictions (two British and one American, each thousands of miles apart), in three different decades, in three different political and social contexts, with three different institutional frameworks. The author moves the reader discontinuously through time, interpreting each context both for its meaning to the historical actors embedded within it, and for its significance to contemporary constitutional law.
Taking Restorative Justice Seriously
Get PDFThose seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings thoseaffected by a criminal offense together in an attempt to address the harmcaused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process? Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses? Will the process be coopted by bureaucratic impulses? Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate. Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable. I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration. I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality. At the same time, vastly expanding restorative justice entails compromising some keyfeatures of restorative justice. I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration
Judith Shklar’s Critique of Legalism
Get PDFPublished as Chapter 16 in The Cambridge Companion to the Rule of Law, Jens Meierhenrich & Martin Loughlin, eds.https://digitalcommons.law.buffalo.edu/book_sections/1413/thumbnail.jp
Executive Order 13990: Protecting Public Health and the Environment and RestoringScience To Tackle the Climate Crisis
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Aldiama Anthony reflects on the article “School definitely failed me, the system failed me” — Identifying opportunities to impact educational outcomes for homeless and child welfare-involved youth.
Get PDFWhen you hear the word homeless, what exactly comes to mind? Most times, the term immediately conjures up an image of a single adult sleeping under a bridge, in a park, or a car. In fact, very few fully understand the growing crisis of homeless youth. There is a significant body of research on educational outcomes for children and youth who experience homelessness and on outcomes for youth in foster care, yet little research that focuses on youth who have experienced all of these challenges. A study conducted by three Baldy Center research grant recipients, Annahita Ball, Elizabeth Bowen, and Annette Semanchin-Jones, “School definitely failed me, the system failed me,” takes a cross-system research approach to this critical, but rarely addressed social issue affecting youths in our society
Athena Mutua discusses the origins and goals of ClassCrits
Get PDFEpisode 15 features Athena Mutua, Professor and Law and Floyd H. & Hilda L. Hurst Faculty Scholar in the University at Buffalo School of Law. Professor Mutua discusses the origins and goals of ClassCrits, which focuses on the heterodox, or political economy approach in law. She presents the new online journal, The Journal of Law and Political Economy and discusses ways in which ClassCrits engages with ongoing and on the ground activist work in significant social issues
Green Energy v. The Constitution: New York State’s Battle with Home Rule Provisions in the Age of Environmentalism
Get PDFIn the era of metal straws, reusable grocery bags, and glass water bottles, there is no doubt society is becoming more and more environmentally conscious. This ecological ethos has manifested itself inhuge policy shifts away from traditional fossil fuel energy and toward renewable energy, such as wind and solar power. Lawmakers throughoutthe world are making agreements and commitments aimed at decreasingreliance on fossil fuels. In the United States, New York State has taken a leading role in the quest toward renewable energy. With New York State’s ambitious climate goals, though, have come serious encroachments on powers traditionally held by local governments.
To keep up with its robust environmental policy goals, New York has seized power away from municipalities regarding the siting of large-scale energy projects, such as wind and solar plants. The State has, slowlybut surely, bestowed upon the executive branch the power to control energy siting. As a result, municipalities largely affected by these projectsgrapple for a voice, only to be silenced by unelected officials in Albany.Lawmakers have quelled local dissent through the use of “unreasonably burdensome” clauses nestled within the two controlling energy siting statutes. These clauses effectively allow State officials to ignore local laws or ordinances which conflict with a proposed energy siting project if they find the local legislation to be “unreasonably burdensome”—a term without a definition.
Many view the energy siting process embraced by New York as a violation of the “home rule” provisions found within the New York State Constitution. In short, the home rule provisions grant local governmentsa broad range of powers.1 Despite these home rule powers, however, thejurisprudence of the New York State Court of Appeals suggests the broad and overreaching energy siting process implemented by the Legislature would preempt any local rules to the contrary.
This Comment provides an analysis of New York’s environmentalpolicy, the statutory processes in place to approve large-scale energy siting projects, and proposed changes to the home rule jurisprudence embraced by New York courts to protect local interests and faithfully adhere to the Constitution’s home rule provisions. Part I details the evolution and current state of New York’s environmental policy. Part IIdiscusses energy siting generally and the regime adopted in New York to approve large-scale energy siting projects. Part III discusses the home rule provisions found within the New York State Constitution, along withdoctrines adopted by the courts which have limited their practical reach.Finally, Part IV argues New York courts should reconsider their jurisprudence surrounding home rule and, accordingly, invalidate the sections of the governing energy siting statutes which encroach upon local governments’ powers