Showing papers in "Buffalo Law Review in 2019"

The Urgent Need for Legal Scholarship on Firearm Policy

Abstract: Restrictions on federal funding for research pertaining to firearm policy have stymied academic inquiry by social science and public health researchers for over two decades. As a result, most researchers agree that our public discourse about this urgent issue is woefully under-informed, or even ill-informed, on both sides of the debate. Legal academia, which does not operate under the same grant-writing regime as most other disciplines, can and should help fill this gap in researching and theorizing the unresolved questions related to firearm policy. In fact, theoretical development and clarification from the legal academy is often a necessary antecedent for empirical researchers in other fields to frame and develop their own studies properly, especially about the real-world effects of competing policy approaches to firearms. This Essay sets forth a plea to law professors to undertake much-needed research in this area and offers suggestions of understudied topics with low entry barriers for legal commentators. Recommendations for interdisciplinary collaborative efforts round out this discussion. A brief conclusion reaches the endgame issue: ensuring access to the work we produce.

Transformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa

Abstract: Post-conflict or post-colonial constitutions are increasingly understood to be "transformative" constitutions. While initially a term used to describe South Africa's postapartheid constitutional order, the idea of a transformative constitution may be best described as the adoption of a constitutional order which is expected to "transform" the existing pre-constitutional order. To this extent, these constitutions are aspirational and are meant to empower the newly democratized state to make significant changes to the existing social and economic order. This perceived need for a powerful state, to overcome the legacies of conflict and the social conditions that divided the society, is in direct tension with the liberal constitutional notion of limited government. While constitutions establish and empower government, constitutionalism is thought to ensure that government continues to represent and respect the rights of the people in whose name most constitutions are now created.

Is China a “Rule-by-Law” Regime?

Abstract: This article discusses whether China is a “rule by law” regime. As a conceptual lens, does rule by law fit China? Does the concept resonate with the empirical reality that it attempts to explain? I answer the questions by identifying three essential characteristics of rule by law—commanding, opaque, and arbitrary. I conclude the concept of rule by law is of limited use in characterizing the behavior of the Chinese courts. The overall goal of the recent judicial reforms in China is to promote more faithful policy implementation. On this reading, the written laws are, first and foremost, policy statements of the party state. Law has been much developed and strengthened in China in the past few decades. But law in China comes in the form of primary rules. In practice, judges are given more power in the form of administratively guided discretions to carry out the law/policy of the central government. Such a conception of law is different from the rule of law ideal. Neither can it be easily equated with the random authority in rule by law regimes.

Expanding Access to Remedies Through E-Court Initiatives

Abstract: Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public courts have continued to insist on traditional face-to-face procedures. Nonetheless, e-courts and public ODR pilots are developing throughout the world in particular contexts such as small claims and property tax disputes, and are demonstrating how technology can be used to further efficiency and expand access to the courts. Accordingly, this Article explores these e-court initiatives with a critical eye for ensuring fairness, due process, and transparency, as well as efficiency, in public dispute resolution.

Not from Guile but from Entitlement: Lawful Opportunism Capitalizes on the Cracks in Contracts

Abstract: Few concepts have been more pivotal to contract law scholarship over the last forty years than the opportunism attributed ex ante and ex post to contracting parties, yet the lawful form of opportunism identified by Nobel Laureate Oliver Williamson in 1991 remains surprisingly overlooked in favor of the blatant forms of opportunism that result from “self-interest seeking with guile.” This Article extends Williamson’s inchoate account of lawful opportunism with reference to the bargaining underlying the classic impossibility decision, Taylor v. Caldwell, and reports the first empirical study of the phenomenon. Our findings show, inter alia, that participants who viewed themselves as more entitled (the top 25% of all participants) were three times more likely to choose a lawfully opportunistic behavior in the crack of the contract, reinforcing the conceptual conclusion that lawful opportunism springs from a sense of entitlement the way guile fuels blatant opportunism.