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Presidential Selection: Historical, Institutional, and Democratic Perspectives
Get PDFPublished as Chapter 1 in The Best Candidate: Presidential Nomination in Polarized Times, Eugene Mazo and Michael Dimino, eds.
It has been nearly two centuries since an American presidential election has evoked a crisis of confidence like that following the election of 2016. Not since the election of Andrew Jackson in 1828 has there been such a public display of anxiety concerning the methods by which we choose our chief executive. As in the contest of 1828 pitting the Democrat Jackson against his Federalist opponent John Quincy Adams, the presidential nominating process of 2016 produced a contest between a celebrity populist, widely seen as unqualified by experience or temperament, and a highly experienced and competent but deeply uninspiring political insider who had been anointed by establishment elites.https://digitalcommons.law.buffalo.edu/book_sections/1396/thumbnail.jp
A Poll Tax by Another Name: Considering the Constitutionality of Conditioning Naturalization and the “Right to Have Rights” on an Ability to Pay
Get PDFPermanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status. In this Essay, I juxtapose the new fee regulations with a growing caselaw and scholarly literature about financial status, voting, and an individual’s ability to pay. Placed alongside the ability-to-pay caselaw—including Griffin v. Illinois and Bearden v. Georgia and, more recently, the litigation about Florida’s felony disenfranchisement provisions—it is clear that the new fee policies should be seen as due process and equal protection violations and struck down. I conclude by noting possibilities for litigation or legislation that would preserve a meaningful safety valve to allow low-income individuals to realize the full benefits of naturalization and access all the rights that come with i
Commentary on \u3cem\u3eEmerson v. Magendantz\u3c/em\u3e
Get PDFPublished 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 normalcy and centrality of fertility control to women’s experience to conclude that traditional tort principles of full damages for all foreseeable harm includes child-rearing costs for healthy and disabled children alike. The accompanying commentary presents the varying judicial measurements of damages in “wrongful birth” cases, and highlights how courts have undervalued the importance of reproductive autonomy while overlooking the disparate impact of even wanted healthy children on women’s economic and educational advancement.https://digitalcommons.law.buffalo.edu/book_sections/1390/thumbnail.jp
Climbing to 10\u3csup\u3e11\u3c/sup\u3e: Globalization, Digitization, Shareholder Capitalism and the Summits of Contemporary Wealth
Get PDFWhile we may find many sorts of inequality in the United States and elsewhere, this essay is about the specific form of inequality exemplified by Jeff Bezos or Bill Gates, that is, the Himalayan summits of contemporary wealth, mostly in the United States. Such wealth results from the confluence of three historical developments.
First, the social processes referred to under the rubric of “globalization” have created vast markets. A dominant position in such markets leads not only to great wealth, but the elimination of peers. Since there are few such markets, relatively significant wealth is possessed by very few people.
Second, digital markets powerfully tend toward monopoly for a number of reasons discussed below. Those fortunate enough to be the monopolists profit accordingly, both directly, by doing business, but especially by investor interest.
Third, the actors in such digital markets are generally corporations, which are in turn largely owned by their founders. As a result, a few individuals have acquired almost unbounded wealth, at least as wealth is conventionally measured, nominal US dollars.
Conversely, entire economic sectors (like “food” or “data”) are nominally under the dominance of such individuals. Political economy has been individualized, at least formally, to an astounding extent. A thorough normative political discussion of this state of affairs is beyond the bounds of this text
Unclear Hostility: Supreme Court Discussions of “Hostility to Religion” from \u3cem\u3eBarnette\u3c/em\u3e to \u3cem\u3eAmerican Legion\u3c/em\u3e
Get PDFAppeals to “hostility to religion” have been a regular part of the Supreme Court’s First Amendment jurisprudence for the last eighty years, but in all that time the Court has never provided a clear explanation of what constitutes “hostility to religion.” This lack of explanation has recently become increasingly troubling given the significant role that the concept of “hostility to religion” has played in several high-profile Supreme Court decisions within the last two years, including Masterpiece Cakeshop v. Colorado, Trump v. Hawaii, and American Legion v. American Humanist Association. In this paper, I provide a thorough and detailed history of the Court’s appeals to “hostility to religion.” Through the lens of that historical examination of the Court’s use of the concept of “hostility to religion,” I argue that the Court has come to use “hostility to religion” ambiguously to mean both the broad category of anything that fails to be neutral toward religion and the narrower category of specifically that which exhibits active animosity toward religion. I argue that this ambiguity has resulted in confused outcomes and may contribute to ratcheting up the culture wars. I further argue that the best remedy is for the Court to be clearer and more judicious in its appeals to “hostility to religion” going forward. I offer four suggestions for how the Court can do so
Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom
Get PDFFaith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The COVID-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential; they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts—the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public—we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it
David Gerber and Bruce Dierenfield discuss disability rights and religious freedom
Get PDFEpisode 6 of the podcast features David Gerber, emeritus professor of history at UB and Bruce Dierenfield of Canisius College. Professors Gerber and Dierenfield discuss their new book, focused on the Zobrest v. Catalina Foothills School District case at the crossroads of disability rights and church-state separation
Sarah Ludin discusses the socio-legal history of the Early Reformation in Germany
Get PDFIn episode 8 of the podcast Sarah Ludin discusses her developing book manuscript focused on the socio-legal history of the Early Reformation in Germany, which relies on close readings of 1521-1555 C.E. case files in the Holy Roman Empire to understand the historiography of secularism and the definition and significance of religion as a modern secular legal category
