The DC@UB Law Faculty Contributions to Books collection includes information on books, book chapters, encyclopedia entries and other contributions published in books by all current and emeritus University at Buffalo School of Law faculty members. Links to purchase books are included where the books are still in print. Full text chapters are included where publisher policies permit their inclusion.
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Zootopia: Utopia and Dystopia in the Zoological Garden
Irus Braverman
Published in Earth Perfect? Utopia, Nature, and the Garden, Annette Giesecle & Naomi Jacobs, eds.
In this essay I coin the term 'zootopia' to express the utopian and the dystopian impulses at work at the zoo and to allude to their tightly intertwined nature. The essay's first section explores zootopia as a paradise, a place where people live in harmony with a romanticized nature. Simultaneously, zootopia is also a rational project that involves careful planning and detailed control over both animals and their habitat. Finally, the zoo is a theme park: a garden for human entertainment and consumption. In order to survive, the zoo must sell tickets, animal figurines and sponsorships, crackers for feeding the elephants, giraffe art, and the like. Ultimately, the zoo's presentation of nature is utopian, in the sense that it confirms current ideals and makes room for hope about nature's future. However, the awe and amusement that this visitor experiences at the utopian zoo are often overlaid with the fear and guilt implied by the dystopian message that is also present in this space.
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Scientists at the Bar: The Professional World of Patent Lawyers
John M. Conley and Lynn Mather
Published as Chapter 16 in Lawyers in Practice: Ethical Decision Making in Context, Leslie C. Levin & Lynn Mather, eds.
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Legal Contours of Expert Testimony
Charles Patrick Ewing
Published as Chapter 4 in Handbook of Psychology Volume 11, Forensic Psychology, Second Edition, Irving B. Weiner & Randy K. Otto, eds.
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Achieving a Free Trade Area of the Asia-Pacific: Does the TPP Present the Most Attractive Path?
Meredith Kolsky Lewis
Published as Chapter 15 in The Trans-Pacific Partnership : A Quest for a Twenty-First Century Trade Agreement, C.L. Lim, Deborah K. Elms & Patrick Low, eds.
This chapter examines the prospects for the Trans-Pacific Partnership (TPP) to expand into a Free Trade Area of the Asia-Pacific (FTAAP). It does so by comparing the TPP to other potential models for Asian economic integration, and by identifying what factors might enhance or diminish the possibility of the TPP serving as the FTAAP model.
First, the chapter briefly traces the history of the TPP and its linkage to a potential FTAAP. Second, it examines other potential models for regional economic integration and discusses the pros and cons of each option for the major economies in the region. Third, it discusses reasons why the TPP might or might not be the preferred model, identifying important factors playing into this calculus.
The concept of an FTAAP has been bandied about for the past several years. C. Fred Bergsten has been a particularly strong advocate of this idea, espousing the pursuit of the Bogor goals of free trade and investment regimes throughout the Asia-Pacific Economic Cooperation (APEC). APEC initiated a study of the FTAAP concept in 2006, and in 2009 pledged to explore pathways to create an FTAAP. Bergsten’s early writings 3 on the subject assumed the only way an FTAAP could be accomplished would be to take the existing regional FTAs and agreements and combine them into an FTAAP. More recently, however, Bergsten has seized upon the TPP as the basis for an ultimate FTAAP.
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Why Context Matters
Lynn Mather and Leslie C. Levin
Published as Chapter 1 in Lawyers in Practice: Ethical Decision Making in Context, Leslie C. Levin & Lynn Mather, eds.
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Client Grievances and Lawyer Conduct: The Challenges of Divorce Practice
Lynn Mather and Craig A. McEwen
Published as Chapter 4 in Lawyers in Practice: Ethical Decision Making in Context, Leslie C. Levin & Lynn Mather, eds.
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The Multidimensional Turn: Revisiting Progressive Black Masculinities
Athena D. Mutua
Published as Chapter 3 in Masculinities and the Law: A Multidimensional Approach, Frank Rudy Cooper & Ann C. McGinley, eds.
The original project on progressive black masculinities engaged multidimensional theory to assess whether black men lacked access to patriarchal privileges as nationalist scholars asserted or whether black men were privileged by gender and oppressed by race as certain interpretations of intersectionality theory maintained. Multidimensionality theory suggested that in some contexts black men were privileged by gender in relation to black women, and in other contexts they were oppressed by gendered racism as blackmen – one word – and one multidimensional entity. In this essay I ground the project more deeply in multidimensionality theory. I do so because I believe the multidimensional turn in intersectionality theory better situates masculine identities and practices within the matrix of socially constructed hierarchies, better explains the synergistic interplay between categories such as gender and race, and better explains the role context plays as well as demonstrating its necessity in understanding a particular interaction. As such, it is a useful tool in explaining and clarifying the gendered racial dynamics present in such phenomenon as lynching and racial profiling, as well as in understanding the justifications for the project of progressive black masculinities.
Part I of this essay defines progressive black masculinities. It also briefly summarizes the arguments that support the concept and which seek to encourage black men’s engagement with it. Part II discusses the development of the multidimensional turn in intersectionality theory in relation to masculinities studies. Part III turns to masculinities and hegemonic masculinity theory situating the insights about the patriarchal gender system and the ranking of masculinities within a multidimensionality framework. Part IV then briefly makes the argument for progressive masculinities, drawing on both multidimensionality and masculinities theory.
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Tribes as conservation easement holders: is a partial property interest better than none?
Jessica Owley
Published as Chapter 8 in Tribes, Land, and the Environment, Sarah Krakoff & Ezra Rosser.
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Preface (Prefácio em inglês)
John Henry Schlegel
Published in Ensino jurídico e teoria do direito nos EUA, Daniel Brantes Ferrera, ed.
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Importing Democracy: Promoting Participatory Decision Making in Russian Forest Communities
Maria Tysiachniouk and Errol E. Meidinger
Published in Environmental Democracy Facing Uncertainty, Cécilia Claeys & Marie Jacqué, eds.
This paper describes how the World Wildlife Fund for Nature (WWF) jump-started democratic institutions in Russian rural communities to create a basis for social, environmental, and economic modernization within the Russian forestry sector. In Russia’s post-soviet markets and institutions, a host of multinational companies and large transnational environmental organizations sought to promote the restructuring of Russia’s legal and economic infrastructure and active subsidiaries in Russia. In order for modern forestry approaches to be imported, management practices that had developed in the West needed to be adapted to Russia’s unique context, which led forestry holdings in Northwestern Russia to become involved in Forest Stewardship Council (FSC) certification. Due to this involvement with the FSC, community participation should have increased considerably as well. However, civil society organizations were limited in villages where there was no pre-existing tradition of acting as real stakeholders in the surrounding forests. This paper describes how networks, local communities, and cultural understandings (“social imaginaries”) are involved in instituting more democratic management practices in Russian forestry.
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Enforcement: A Survey of Three Approaches to Insurance Regulatory Enforcement: The USA, the UK and Sweden
Aviva Abramovsky, Ian Mason, Robert Tischner, and Stefan Bessman
Published as Chapter 16 in Research Handbook on International Insurance Law and Regulation, Julian Burling & Kevin Lazarus, eds.
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Further Consideration: Stronger Neighborhoods through City Gardens, Farms and Food
Lauren Breen
Published as part of Chapter 6 in Community Economic Development Law: A Text for Engaged Learning, Susan D. Bennett, Brenda Bratton Blom, Louise A. Howells, Deborah S. Kenn, eds.
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La Mignonette
Luis E. Chiesa
Published in Casos Que Hicieron Doctrina en Derecho Penal, Pablo Sanchez Ostiz, ed.
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Climate Change in Wetland Ecosystems: Meeting the Needs and Welfare of the People and the Planet
Kim Diana Connolly
Published in Climate Change: A Reader, William H. Rodgers, Jr., Michael Robinson-Dorn, Jennifer K. Barcelos & Anna T. Moritz, eds.
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Kanbanyaiphiset ruang lokaphiwat lae nitisamnük [Commencement Lecture on Globalization and Legal Consciousness]
David M. Engel
Published in Raphiphattanasak 2554.
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"The Spirits Were Always Watching": Buddhism, Secular Law, and Social Change in Thailand
David M. Engel
Published as Chapter 12 in After Secular Law, Winnifred Fallers Sullivan, Robert A. Yelle & Mateo Taussig-Rubbo, eds.
This chapter provides a counter-example to the usual story of legal secularization and modernization. It suggests that the enactment of a secular law code in a non-European setting can interact in unexpected ways with local religious traditions and customary law and can ultimately produce a widespread rejection of liberal legalism.
Legal modernization in Thailand during the early Twentieth Century brought the semi-autonomous Lanna region under the control of the emergent Thai state (Then known as Siam). Thai leaders sought to suppress a vibrant Lanna legal tradition that linked village-level customary practices to the formal laws of the Lanna princes. In this tradition, legal concepts and practices were closely connected to a distinctive form of Buddhism that incorporated non-Buddhist elements associated with spirit worship. When the Thai state adopted a European-style civil code, it aimed to shatter these connections between law and religion and curb local traditions that might challenge state supremacy. Instead, customary legal beliefs and practices were driven underground and continued to shape the behavior of potential litigants, lawyers, and judges in ways that could not be openly acknowledged. Only in recent years, with the disruptions and dislocations caused by global influences, have Lanna legal and religious practices begun to fade. Yet this recent development has not brought a greater acceptance of secular legalism but rather a new form of Buddhism that views law and religion as inherently oppositional. Focusing on injury cases, this analysis shows how religious consciousness can be transformed and strengthened within a modern state, leading to a widespread perception that secular law is contrary to fundamental values and beliefs.
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Trade Agreements and Regulatory Autonomy: The Effect on National Interests
Susy Frankel and Meredith Kolsky Lewis
Published in Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand, Susy Frankel, ed.
International economic law agreements – including the World Trade Organization (WTO); free trade agreements (FTAs); and bilateral investment treaties (BITs) – can impact regulatory freedom in a number of important ways. Such agreements may include provisions that either mandate or encourage regulatory reform. Reforms may be called for in order to effectuate harmonisation; to facilitate cross-border trade and investment through regulatory cooperation; or merely to comply with newly established international, plurilateral, or bilateral standards. New Zealand’s participation in an array of trading arrangements, therefore, has significant implications for the country’s regulatory autonomy and ability to effect policy decisions. Trade agreements can impact New Zealand’s regulatory options both directly – through provisions in agreements to which New Zealand is a party, and indirectly – as a result of agreements with or between some of New Zealand’s trading partners to which New Zealand is not a party. This indirect impact should not be underestimated. This chapter has three objectives: first, to identify the agreements that may impact upon New Zealand’s regulatory autonomy, both directly and indirectly (Parts II and III of this paper); second, to use the context of consumer interests to provide specific examples of the ways in which trade agreement commitments affect policymaking options (Part IV); and third to discuss empirical and further research that will be conducted in the next project phase with the aim of measuring the effects trade agreements have on New Zealand’s regulatory autonomy in the consumer interests area (Part V). Within the broad category of consumer interests, this project will focus on regulatory regimes that affect food safety/biosecurity; the safety and purchasing of pharmaceuticals and product safety and performance standards.
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Spain
Carlos Gómez Jara-Díez and Luis E. Chiesa
Published in The Handbook of Comparative Criminal Law, Kevin Jon Heller & Markus D. Dubber, eds.
The essay provides a broad overview of Spanish criminal law with multiple references to existing caselaw and authorities.
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Simon Greenleaf, Boston Elites, and the Social Meaning and Construction of the Charles River Bridge Case
Alfred S. Konefsky
Published in Transformations in American Legal History: Law, Ideology, and Methods: Essays in Honor of Morton J. Horwitz, Volume II, Daniel B. Hamilton & Alfred L. Brophy, eds.
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The Politics and Indirect Effects of Asymmetrical Bargaining Power in Free Trade Agreements
Meredith Kolsky Lewis
Published as Chapter 2 in The Politics of International Economic Law, Tomer Broude, Marc L. Busch & Amelia Proges, eds.
The World Trade Organization (WTO) has been, and continues to be, shaped in its agreements and institutional foci in significant part by political pressures emanating from its members, particularly those able to wield the most influence. Rather than being an institution with the singular focus of achieving free trade among all members, the WTO comprises a complex set of agreements, many of which represent a politically driven compromise among members as to how to manage trade rather than to liberalize it. Although the state of WTO liberalization reflects positions agreed to in part as a result of political realities, the reach of politics is more significant in the context of bilateral trade negotiations. Indeed, what members cannot accomplish through the WTO they may try to achieve through free trade agreements (FTAs), particularly with politically or economically weaker trade partners. In the case of the United States, FTAs have been used as an opportunity to impose provisions favored by domestic constituents – such as strengthened intellectual property provisions and labor and environment clauses – that it has not been able to get WTO members to agree to collectively in the multilateral forum. A similar phenomenon has occurred with respect to the European Union (EU) and its FTA partners. For countries with less bargaining power, the WTO's multilateral setting provides some buffer from power politics in the form of the consensus decision-making practice and the disproportionate number of developing and least-developed countries.
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How and Why Do Lawyers Misbehave? Lawyers, Discipline, and Collegial Control
Lynn M. Mather
Published as Chapter 6 in The Paradox of Professionalism: Lawyers and the Possibility of Justice, Scott L. Cummings, ed.
A fundamental principle of professional labor is that the members of a specialized occupation, as professionals, enjoy autonomy. In sociologist Elliot Freidson's words, professionals “control their own work.” The practitioners themselves decide what constitutes acceptable or appropriate behavior. Professions establish rules and systems of self-regulation to teach and enforce the expected standards of conduct on their members. One way, then, to assess legal professionalism is to ask how well lawyers regulate themselves. The extensive literature on lawyer regulation paints a negative picture.
The Watergate scandal of the early 1970s brought renewed scrutiny to the legal profession. Although a variety of changes have occurred since then to improve lawyer regulation, numerous problems remain. Law schools now require students to take legal ethics, but such courses generally lack stature and respect. Bar discipline was reorganized in the 1970s to transfer some control from bar associations to agencies of state supreme courts. State discipline agencies in turn have increased their investigation of grievances filed against lawyers. But the vast majority of grievances continue to be dismissed. Much professional discipline is private (such as a warning letter, reprimand, or confidential diversion program), which undermines public trust and confidence in the system. Further, even the most common forms of public sanctions on lawyers (public censure, suspension, or disbarment) are specific to that state, and nothing prevents a sanctioned attorney from seeking bar admission in another state (although they would be required to disclose any prior sanctions).
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Defending and Developing Critical Feminist Theory as Law Leans Rightward
Martha T. McCluskey
Published as Chapter 23 in Transcending the Boundaries of Law: Generations of Feminism and Legal Theory, Martha Albertson Fineman, ed.
As part of an anthology marking twenty-five years of the Feminism and Legal Theory Project, this essay explores how the rise feminism in law has been accompanied by the simultaneous rise in rightward leaning legal theory and practice. I argue that a critical approach to feminist legal theory is particularly important to engaging and countering the influence of this rightward, often anti-feminist approach to law. I explain how critical analysis upended the double bind of the equal treatment – special treatment debate in earlier years of feminist jurisprudence, leading to a deeper feminist analysis of the extent to which formal equality always rests on implicit substantive ideas of equality. But as that critique helped open the door to fresh discussions of how gender equality could be given meaningful substance, right wing legal theory advanced a two-prong ideological challenge to feminist equality ideals. One prong used seemingly objective economics to challenge substantive equality; the other prong focused on moral arguments against substantive equality. As with the early equal treatment – special treatment dilemma, each of these ideological attacks constructs a double bind for feminist visions of equality, making the choice for equality appear to be a choice ultimately leading to inequality. I show how critical feminist theory can respond to those challenges by uncovering the double standards of economics and morality that underlie these arguments. Further, I show how the rise of right wing law has posed not just ideological but material challenges to feminist legal theory, by changing the institutions of legal academia to make feminist scholarship more difficult. I suggest that these material challenges also underscore the value of a critical approach that challenges the division between theory and practice as well as the structural and political nature of legal theory.
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From the Welfare State to the Militarized Market: Losing Choices, Controlling Losers
Martha T. McCluskey
Published as Chapter 1 in Accumulating Insecurity: Violence and Dispossession in the Making of Everyday Life, Shelley Feldman, Charles Geisler & Gayatri A. Menon, eds.
Beneath a libertarian surface, free market economic ideas and policies have helped rationalize the strengthening of anti-democratic moral and political fundamentalism. The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres.
This chapter explains how a two-step rhetorical move in prevailing economic ideology turns authoritarianism and austerity into the route to freedom and growth. First, free market ideology constructs the increasingly limited and bad economic choices of a declining welfare state and rising plutocracy as an opportunity for enhanced market freedom. Second, free market rhetoric identifies welfare state protections with market losers who threaten others gains, so that security seems to come from controlling rather than supporting those who are most insecure.
As with the market fundamentalism in Lochner v. New York, constrained choices can be reconstructed as free choices by masking the role of law in coercing and penalizing many peoples’ choices in the interests of privileging some interests. The ideology of market freedom contains a contradiction: if freedom comes from maximizing unconstrained self-interested gain in a harsh world of zero-sum competition, then maximizing one’s freedom can mean imposing the most constraint on others. Market winners will not be those who best make the tough choices necessary to maximize resources within given constraints, but those who create better choices for themselves by mobilizing government power to constrain others. This strategy permeates foreign policy that links military and corporate power to control global competition, and it shapes domestic policies controlling struggling workers and racialized groups through mass incarceration and the criminalization of immigration.
I connect these authoritarian systems of popular control with the analysis of welfare reform policies of the 1990s, showing how restrictions on poor mothers were rationalized as expanding their “freedom of choice” by making their power to bargain for better choices appear pathological. Finally, I explore this construction of constrained choices as free choice in recent discussions of health care reform and the recent financial market crisis. In the prevailing contemporary debates about regulating financial and health insurance markets, individual freedom appears to come from concentrating rather than democratizing power because of an implicit assumption of a natural moral and political order in which most people deserve little freedom or security. Underneath the rhetoric of free choice lies a ideology of profound choicelessness that denies the freedom and power to use law to respond to insecurity by creating better market choices rather than by constraining market losers.
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Protect, Respect, Remedy and Participate: ‘New Governance’ Lessons for the Ruggie Framework
Tara J. Melish and Errol E. Meidinger
Published as Chapter 12 in The UN Guiding Principles on Business and Human Rights: Foundations and Implementation, Radu Mares, ed.
This piece addresses the legacy of Harvard Professor John Gerard Ruggie’s work as the first UN Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations, a UN mandate he held from 2005-2011. In it, we interrogate the theoretical underpinnings of the conceptual and policy framework for addressing human rights abuse in the business context that Professor Ruggie has endorsed as SRSG and query whether a conceptually and operationally more effective framework might have been produced had Ruggie and his team approached the task from a new governance or new accountability perspective.
After situating Ruggie’s work within a sociological institutionalist perspective to system transformation, we describe the key insights offered by new governance approaches for the construction of effective governance and accountability regimes – including those of expanded stakeholder participation, the addition of new kinds of non-traditional processes for holding social actors to account, and the role of orchestration in promoting learning and experimentation across sectors and individual governance entities. Taking these insights into account, we conclude that Ruggie’s “Protect, Respect, and Remedy” framework would have been significantly strengthened by the addition of a fourth “Participation” pillar. That pillar would have acknowledged the critical role that civil society actors play at all levels of global governance today and, importantly, provided a firm normative foundation for such actors to insist on direct participation in the monitoring, enforcement, and implementation of the diverse array of policies and practices that affect the enjoyment of human rights in the business context.
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A Critique of Rights in Transitional Justice: The African Experience
Makau wa Mutua
Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.
This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were based, while instructive, is severely constrained for the African landscape. It therefore makes the case for a holistic transitional justice approach that includes not just the revenge and other accountability elements of criminal judicial sanctions, but also focuses on truth, reconciliation, institutional reforms, and reparations. This “ubuntu” approach of “community wholesomeness” is necessary to heal society and restore its balance.”