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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Sexual Orientation and Human Rights: Putting Homophobia on Trial
Makau wa Mutua
Published as Chapter 48 in African Sexualities: A Reader, Sylvia Tamale, ed.
This chapter analyzes and critiques homophobia in Africa and argues that as a matter of general historical practice, Africans did not discriminate against, or socially stigmatize, gays and lesbians. The author contends that modern homophobia in Africa can be traced directly to mission Christianity and Islam whose doctrinal teachings have been used to promote homophobia. The writer takes the view that it is the normative obligation of human rights thinkers and advocates to deconstruct the intellectual bankruptcy of African homophobes and reconstruct a rights discourse that affirms the dignity of homosexuals. It is not un-African to be gay, as some have argued. Nor is there anything racial – or ethnic – about any form of sexual orientation. The author concludes by calling for a struggle based on anti-subordination to combat all forms of human powerlessness, including sexual orientation.
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"Intolerance of Intolerance" in the Unitarian Controversy: The Theology of Baker v. Fales
Stephanie L. Phillips
Published as Chapter 5 in After Secular Law, Winnifred Fallers Sullivan, Robert A. Yelle & Mateo Taussig-Rubbo, eds.
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The Early Anti-Majoritarian Rationale for Judicial Review
Robert J. Steinfeld
Published as Chapter 10 in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, Volume II, Daniel Hamilton & Alfred Brophy, eds.
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Introduction
Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-Rubbo
Published as the introduction to After Secular Law, Winnifred Fallers Sullivan, Robert Yelle & Mateo Taussig-Rubbo, eds.
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Juicios piratas, CIJ, y justicia de turbas: formas postcoloniales de justicia en Kenia
Mateo Taussig-Rubbo
Published as Chapter 4 in Inseguridad, Democracia y El Derecho, Seminario en Latinoamérica de Teoría Constitucional y Política, ed.
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Sacred Property : Searching for Value in the Rubble of 9/11
Mateo Taussig-Rubbo
Published as Chapter 16 in After Secular Law, Winnifred Fallers Sullivan, Robert Yelle & Mateo Taussig-Rubbo, eds.
Officials and others designated property damaged in the attacks of September 11, 2001 as ‘sacred.’ Some of the objects in question were unremarkable, often nothing more than rubble; some were even considered trash and sent to a landfill; but for those who possessed them they seem to have transcended such banal categorizations. This Chapter seeks to document and analyze the form of value created through destruction and the implicit norms that emerged around the use and circulation of various ‘sacred’ objects. Working through a number of detailed case studies — including the investigation of Federal Bureau of Investigation agents for taking souvenirs from ‘ground zero,’ as well as the litigation initiated by family members seeking to recover the remains of their loved ones from the Fresh Kills garbage dump on Staten Island — this Chapter examines who lays claim to this sacred form of value, to what purposes it is directed, and whether it momentarily overwhelmed the usual legal understandings of property and ownership
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The Unsacrificeable Subject?
Mateo Taussig-Rubbo
Published as Chapter 5 in Who Deserves to Die: Constructing the Executable Subject, Austin Sarat & Karl Shoemaker, eds.
Formalized, legalized and ritualized killing by political and religious authorities has been central to the maintenance, transformation and regeneration of a vast range of societies. Whether such killing or destruction involved human beings, other animals, or vegetable life, the action very often took the form of a sacrifice to sovereign powers. Sacrifice has thus often been understood as a form of mediation between sovereign and subject. In turn, the rejection of sacrificial action is at the heart of many conceptions of political modernity (for instance those of Rene Girard and Giorgio Agamben). Exploring the nature of the ‘executable subject,’ this Chapter asks whether the killing that takes place as a result of the imposition of the death penalty can be thought of as sacrificial, homicidal, or neither. It argues that sacrifice and the death penalty are in a complicated relation to one another — sacrifice emerges as the unauthorized narrative of some executions, a narrative that the state often struggles to contain. In sum, the rejection and containment of sacrifice plays an important role in the construction of the executable subject.
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Specific Types of Liability Insurance
Aviva Abramovsky
Published as Chapters 24 to 40 in New Appleman on Insurance Law Library Edition.
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Overview of the Law of Workplace Harassment
Dianne Avery and Catherine Fisk
Published in Litigating the Workplace Harassment Case, Marlene K. Heyser, ed.
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Critical Legal Studies
Guyora Binder
Published as Chapter 16 in Companion to Philosophy of Law and Legal Theory, 2d edition, Dennis Patterson, ed.
This encyclopedia entry reviews the contributions of the Critical Legal Studies movement to the philosophy of law. Critical Legal Studies is most often associated with a controversial claim that all legal doctrine is necessarily indeterminate. This paper reveals that critical scholars have actually propounded two distinct and narrower claims. In the area of analytic jurisprudence, critical legal scholars have criticized liberal rights theory by stressing the economic and social interdependence of legal persons. They therefore argue that the liberal ideals of freedom to act without harming others, and freedom to transact with consenting others, are self-defeating. This “indeterminacy thesis” is a claim that classical liberalism’s aspiration to define spheres of liberty through a regime of rights is not formally realizable. The second claim concerns instrumentalist policy analysis. Critical legal scholars claim that legal standards requiring calculation of the effects of policies on the interests of actors necessarily involve the exercise of normative discretion. Such discretion is required in identifying and aggregating interests, ascribing causal responsibility, and measuring harm. Taken together, these two distinct claims ascribe indeterminacy to a great deal of legal doctrine, but they do not amount to categorical claim that all legal rules are necessarily indeterminate. There is not one “indeterminacy thesis,” but two.
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Potty Training: Nonhuman Inspection in Public Washrooms
Irus Braverman
Published as Chapter 4 in Toilet : Public Restrooms and the Politics of Sharing, Harvey Molotch & Laura Noren, eds.
The intimacies, privacies, and taboos of the public washroom render it almost inaccessible for direct human inspection. Especially with the decline of attendants and thus loss of a human policeman, nonhuman fixtures are set in place to do the dirty work. Moreover, in the United States, or at least in Buffalo, New York, where I have done fieldwork (and which is typical of American cities in these respects), government officials make only rare appearances on the toilet scene. Consequently, washroom inspection mostly takes place through the design of automated fixtures. Instead of placing a human policeman to make sure that the user flushes after every use – which might constitute an illegal, immoral, and also economically impractical act in the context of the public washroom – a nonhuman thing performs the task. Automated flushing, rinsing, soaping, and drying devices – and recently also automated doors – are the authorities. This spatially mandated public hygiene constitutes morality in practice, one that doesn’t always resonate well with the public. Perhaps unsurprisingly, various forms of human resistance to these impositions have mushroomed here and there: acts of vandalism directed at automated fixtures, their routine avoidance, or strategies of finagling how they operate.
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What is Tort Reform Really About?
Lucinda M. Finley
Published in Materials on Tort Reform, Andrew F. Popper, ed.
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Wisconsin v. Yoder: An Anthropologist Shapes a Supreme Court Decision
Rebecca Redwood French
Published as Chapter 3 in Law and Religion: Cases in Context, Leslie C. Griffin, ed.
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Ethnography in Ordinary Case Law
Rebecca Redwood French
Published as Chapter 5 in Law and Anthropology: Current Legal Issues Volume 12, Michael Freeman & David Napier, eds.
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Dual Enforcement of Constitutional Norms
James A. Gardner
Published as Chapter 1 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.
Not so very long ago, the story of American constitutional law was easy to understand and even easier to relate. Constitutional law was a story written by two actors: the framers of the U.S. Constitution and the U.S. Supreme Court. The U.S. Constitution provided the content of constitutional law and a Supreme Court told us what it meant. Today, this master narrative has begun to unravel in favor of new one that treats constitutional law as both the object and the venue of a plural and often remarkably inclusive ongoing conversation about the norms by which we live and govern ourselves. The U.S. Supreme Court remains, to be sure, an important and in many ways preeminent voice in the formal pronunciation of American constitutional law. But increasingly the Court is understood to share the stage with a plurality of other voices that speak together - sometimes cooperatively, sometimes competitively - in a collective enterprise of generating, elaborating, and ultimately applying and enforcing constitutional norms.
This paper, which comprises the introductory chapter of Dual Enforcement of Constitutional Norms: New Frontiers of State Constitutional Law (James A. Gardner and Jim Rossi, eds., Oxford University Press, forthcoming 2010), lays out the book’s principal thesis. Rejecting both the old dual federalism and the newer judicial federalism models, the contributors to this volume understand the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters of Dual Enforcement thus present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance, and our aim for the book is to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.
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Why Federalism and Constitutional Positivism Don't Mix
James A. Gardner
Published as Chapter 4 in New Frontiers of State Constitutional Law: Dual Enforcement of Norms, James A. Gardner & Jim Rossi, eds.
This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.
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Safety Standards and Indigenous Products: What Role for Traditional Knowledge?
Meredith Kolsky Lewis
Published as Chapter 8 in International Economic Law and National Autonomy, Meredith Kolsky Lewis & Susy Frankel, eds.
Indigenous communities have used native plants as foods and for medicinal purposes for thousands of years. Some of these indigenous products have proven sufficiently popular that individuals outside the indigenous community have sought to consume, purchase and market them. In certain instances, new products have been derived from the indigenous plant and sold outside the indigenous community. In other cases, the indigenous product has been exported in its original form, but utilized in non-traditional ways in the export market. In recent years, various WTO Members have imposed bans and other restrictions on the importation of certain indigenous products on the basis of health and safety concerns. These restrictions tend to be blanket bans on the products as a whole, thus curtailing both the ability to consume indigenous products according to their traditional uses, as well as the adapted versions of such products.
This chapter uses the example of the recent bans on kava from Pacific Island countries as context to argue that the safety of indigenous products with long histories of traditional use should be evaluated on their own merits. They should not be deemed the equivalent of new products with new uses that have been adapted from the indigenous plant, nor should their safety be assessed in combination with such new products. Bans on indigenous products may well be overbroad if they do not differentiate between traditional (quite possibly safe) uses and new (perhaps not-so-safe) uses.
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Mills v. Board of Education of Anne Arundel County, and Commonwealth of Pennsylvania v. Brown
Athena D. Mutua
Published in Encyclopedia of African American Education, Kofi Lomotey, ed.
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Law, Critical Race Theory, and Related Scholarship
Athena D. Mutua
Published in The Sage Handbook of Race and Ethnic Studies, Patricia Hill Collins & John Solomos, eds.
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Human Rights: Critiques
Makau Mutua
Published in The Oxford International Encyclopedia of Peace, Nigel J. Young, ed.
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On a Possible Instance of the Transmigration of Souls: From American Regal Legalism to American Legal Realism and Back Again
John Henry Schlegel
Published in Globalization and the U.S. Law School: Comparative and Cultural Perspectives 1906-2006, Stephen C. Hicks & Kjell Å Modéer, eds.
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A Profession of IT's Own: The Rise of Health Information Professionals in American Healthcare
Mark C. Suchman and Matthew Dimick
Published as Chapter 8 in Medical Professionalism in the New Information Age, David J. Rothman & David Blumenthal, eds.
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Stability, Integration and Political Modalities: Some American Reflections on the European Project After the Financial Crisis
David A. Westbrook
Published as Chapter 22 in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts, Pieter H. F. Bekker, Rudolf Dolzer & Michael Waibel, eds.
To those of us concerned with transnational law, and especially the role of German law on the global stage, it does not need saying that Professor Detlev Vagts is highly deserving of that Germanic and traditional scholarly honour, a Festchrift. (In this context, ‘does not need saying’ of course means ‘should be said repeatedly’.) We all owe Detlev Vagts, and as a Germanic traditionalist, I would be delighted to contribute to this volume on general principle, even if I did not know the man. But I also have personal reasons for wanting to honour Professor Vagts: he taught the basic course in corporations to generations of students at Harvard Law School. In addition, Vagts was one of the advisors to the Ford Fellows Program, which was designed to foster international law teachers. After being one such student and one such fellow, in due course I became a teacher of international and corporation law, so I owe Vagts a double debt of professional gratitude. And, as with so many other young (or once young) scholars, Vagts has been cordially supportive of my efforts to find my way in the academy, for which I am most grateful.
Such things said, however, there is another reason I am happy to have the chance to contribute to this Festschrift. A certain delicacy is called for here, especially since writing for Vagts carries me halfway back to Harvard, where such things are taken so seriously.
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Insurance and the Flood
Aviva Abramovsky
Published as Chapter 6 in Law and Recovery from Disaster: Hurricane Katrina, Robin Paul Malloy, ed.
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Marine Protected Areas
Kim Diana Connolly
Published in Ocean and Coastal Law and Policy, Donald C. Baur, Tim Eichenberg & Michael Sutton, eds.