Showing papers in "Buffalo Law Review in 2014"

Democracy, Solidarity, and the Rule of Law: Lessons from Athens

Abstract: This Article applies lessons from democratic Athens of the fifth and fourth centuries B.C.E. to shed light on contemporary theories about the rule of law, popular constitutionalism, and transitional justice. First, using methods from philosophy and history, it shows that Athens largely satisfied the demands of the rule of law, and, consistent with the philosophical theory that the author has developed elsewhere, the Athenians saw the rule of law as protecting the equality of the democratic masses against individual and collective threats from overweening aristocrats. It then turns to political science methods to account for events in Athens at the end of the fifth century. At that time, there were two short-lived oligarchic coups, the second of which, the notoriously blood-soaked regime of the Thirty Tyrants, was followed by an amnesty protecting those who had collaborated with the regime. This Article explains why the amnesty was obeyed. The success of the amnesty has puzzled generations of historians; here, it is argued that the amnesty was obeyed because Athenian democrats had learned that respecting the rule of law was necessary for their collective self-defense against oligarchic threats. Finally, the article draws lessons from the Athenian experience for contemporary communities, arguing: a) that popular constitutionalism is compatible with the rule of law in contemporary states, and b) that the rule * Associate Professor of Law, University of Iowa College of Law, adjunct associate professor (by courtesy), University of Iowa Department of Political Science. J.D., Harvard; Ph.D., Political Science, Stanford. I am particularly grateful for the assistance of Josiah Ober, both for the individual advice he generously offered, and for the invitation to present this paper and receive feedback from a seminar he ran in March 2012 across the Stanford University Classics and Political Science departments. I also thank Joshua Cohen, Avner Greif, Jim Fearon, Angela Onwauchi-Willig, and participants in the 2012 Big Ten Untenured Faculty Conference at Indiana University Maurer School of Law, and my research assistants, Shawn McCullough and Estiven Rojo. A note on citations: generally, this Article follows Bluebook format. However, the Bluebook does not prescribe a convention for citation of Ancient Greek original sources. I have generally followed the convention used by classicists, and cited to documents by abbreviated forms of author, title, and line number in standard form. Sources for translations are given at the end of this Article, except where specified in the notes. Where my argument depends on close interpretations of original sources, I have endeavored to verify the translations from which I have worked with my own rudimentary Greek. Generally, I have also followed the conventions of historians with respect to the density of citations in factually dense narratives. 2 DEMOCRACY, SOLIDARITY, AND THE RULE OF LAW [21-Aug-13 of law can facilitate post-conflict democratic transitions. 21-Aug-13] DEMOCRACY, SOLIDARITY AND THE RULE OF LAW 3

Norm Supercompliance and the Status of Soft Law

Abstract: Recent empirical research, including my own, has exposed a previously overlooked behavior: instances in which people constrain themselves from doing something that they want to do because they believe a norm obligates them to do so, even though the norm in question does not, on a straightforward reading, contain such an obligation. I label this phenomenon “Norm Supercompliance.” Simply put, Supercompliers treat soft norms as if they are hard norms. For example, one who grudgingly complies with an aspirational norm, such as “a lawyer should aspire to render at least 50 hours of pro bono service per year” on the belief that it states an obligation is a Supercomplier. There is a vast literature in which authors assert that norms in legal contexts that possess certain weak or soft qualities — “soft laws” — do not deserve legal status because such norms fail to make a practical difference to the deliberation of those subject to them. This assertion unduly ignores or undervalues Supercompliance; as those engaging in it experience considerable changes in their decision-making when they follow soft law. While it is easy to write off Supercompliance as a self-defeating or masochistic mistake, it has the capacity to benefit those engaging in it, allowing them to reap the same rewards that come from accepting legal obligation under ordinary circumstances. In this Article, I set forth the elements of Supercompliance in detail, provide examples from the empirical literature in which those elements have been satisfied, and discuss the theoretical and practical implications thereof. In particular, I focus on how the discovery of this behavior might weaken arguments in support of Exclusive Legal Positivism. Illuminating the value of Supercompliance and, in turn, soft law, will give legislators a better sense of the tools at their disposal that can bring about improved behavior. It will help them build better legal norms.

A rational theory of mitigation and aggravation in sentencing: why less is more when it comes to punishing criminals

Abstract: Sentencing involves the intentional infliction of pain. It is the legal domain where the state acts in its most forceful manner against individuals. It is important that the sentencing system is fair and effective. Unfortunately, this is not the case. In the sentencing arena there is a gulf between knowledge and practice. Sentencing is a politicized domain, and hence, law and practice are often detached from knowledge. This is evident in four key areas of sentencing policy and practice.

The Fraudulent Case Against Affirmative Action: The Untold Story Behind Fisher v. University of Texas

Abstract: For over thirty-five years, the Supreme Court has grappled with the controversial issue of affirmative action and race preference. Beginning with Justice Lewis Powell’s influential opinion in Bakke v. U. Cal. Davis in 1978, leeway has been permitted for admissions policies that take account of race, as long as it is not given determinative weight so as to exclude consideration of nonminority candidates, or used to set quotas. As the Court has become increasingly conservative, however, its license for race preference has tightened considerably, and it has become receptive to "reverse discrimination" plaintiffs challenging such policies in universities and the workplace. Grutter v. Bollinger (2003) purported to immunize good faith race-conscious university admissions for a period of twenty-five years, but with the retirement of its author, Sandra Day O’Connor, the Court chose to revisit the matter in Fisher v. University of Texas, decided on June 24. While remanding to the lower courts without a definitive ruling on UT’s program, it is the contention of this article that the decision may well seal the fate of race-sensitive decision-making by public actors. Seven justices, over the dissent of Ruth Bader Ginsburg, sign onto an exacting strict scrutiny standard of review anachronistically borrowed from cases challenging pernicious discrimination motivated by a desire to exclude and subjugate disfavored groups. This "searching" examination, which treats affirmative action in the interest of diversity as inherently suspect and presumptively unlawful, is unjustified legally and unwise as a matter of policy. Implicitly, the Court adopts a paradigm of white male victimhood, which has turned anti-discrimination provisions on their head.The article also challenges the contention that affirmative action inevitably sacrifices "merit" to preference, by confronting the misconceptions regarding merit, and particularly the glorification of standardized testing.

Corrective Justice as Making Amends

Abstract: † Ph.D. Candidate, University of Southern California, School of Philosophy; J.D., Columbia Law School. The author would like to thank Rima Basu, Sharon Lloyd, Andrei Marmor, Caleb Perl, Scott Soames, Gabriel Uzquiano-Cruz, and Gary Watson for their comments on earlier versions of what eventually became Parts I through III of this article. Special thanks are owed to Steve Bero, Greg Keating, Elizabeth Lee, and Aness Webster, each of whom gave invaluable and detailed feedback on the whole article. Finally, very special thanks are owed to Scott Hershovitz, whose detailed criticisms substantially improved this article—or so the author hopes. This article was written with support from the University of Southern California’s Provost Fellowship.

Presidential Politics as a Safeguard of Federalism: The Case of Marijuana Legalization

Abstract: How does the United States constitutional system best preserve federalism? The debate over the so-called “political safeguards of federalism” asks whether federal courts can and should defer to the political process or instead apply non-deferential judicial review when confronting a claim that federal legislation has exceeded the enumerated powers of Congress. With this debate now approaching its sixtieth year, its main lines of argument are well worn. Nevertheless, there are important aspects of the political

In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust

Abstract: We gratefully acknowledge the many valuable comments we received from Eric Adams, Harry Arthurs, James Atleson, Mary Bilder, Guyora Binder, Michael Boucai, Alfred Brophy, Hannah Buxbaum, Daniel Coquillette, Barry Cushman, David Engel, Daniel Ernst, Charles P. Ewing, Catherine Fisk, Robert W. Gordon, Gary Muldoon, Frank Munger, H. Jefferson Powell, John Henry Schlegel, Carole Silver, William H. Simon, Robert J. Steinfeld, Jay Tidmarsh, W. Bradley Wendel, David Westbrook, G. Edward White, John Fabian Witt, and Michael Zimmer. We are also grateful to Dianne Avery and Winnifred Fallers Sullivan, for their insights and patience through the various drafts of this Essay. Matt Kaiser, class of 2013, SUNY Buffalo Law School, provided important research assistance. The usual disclaimer as to final responsibility applies.