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The Baldy Center Blog features interdisciplinary perspectives on research and current events from UB scholars whose work intersects with law, legal institutions, and social policy.
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BLOG Post 42
Deja Graham: Free Speech: A Sword That Needs A Shield
Celebration of Free Speech, February 22, 2024. Pictured, from left: Rev. Mark Blue, Athena Mutua, Legislator Howard Johnson, Serena Brahaspat, Mitchell Nowakowski, Deja Graham. Photo by Nancy Parisi.
Published March 15, 2024
Free speech is a foundational principle of our democracy and something we have often failed to fully appreciate. We have lived in a very politically charged space for what seems like an eternity, which was only exacerbated by the last presidency. In recent years, there has been a reluctance to exercise free speech due to fear of retaliation through doxing, loss of job, and overall alienation from peers. My participation in the Critical (Legal) Collective Inaugural Convening, and, the Celebration of Free Speech on UB’s North Campus has given me a deep-rooted appreciation for free speech and a framework to continue to take steps to protect it.
The Baldy Center Blog Post 42.
Blog Author: Deja Graham, 3L, School of UB Law
Blog Title: Free Speech: A Sword That Needs A Shield
In November 2023, I had the opportunity to attend and present at the inaugural Critical (Legal) Collective (“CLC”) conference at Duke University as Professor Athena Mutua’s research assistant. The CLC is an organization that was created in response to the wave of anti-CRT campaigns that has spread across the country. This inaugural convening was attended by students, faculty and activists.
The CLC conference was an opportunity for like-minded individuals to gather to teach, learn and discover how we can counteract that broad reaching mis-education campaign. Though I attended the conference to present our research and receive input regarding our shadow report we were expected to submit to the UN’s Special Rapporteur on Education, I learned more than I could have ever imagined by attending the CLC conference. I sat in on talks with professors, activists, members of the judiciary, and grass roots organizers.
There are two things that were transformative for me at the conference, the lunchtime talks with NC Supreme Court Justice Anita Earls and a workshop on project-based learning in law school. During Justice Earls lunchtime talk, she provided insight on how valuable free speech is especially in the politically charged times we are in today. Justice Earls, a liberal justice in what most would consider a “purple” state, shared her experience after voicing her opinion regarding racial, gender, and political biases on the NC Supreme Court. Justice Earls was a vision of what is necessary to protect free speech, take a stand when it is being threatened. I also attended a workshop, which in retrospect was geared towards the law professors in attendance, where the presenting professors spoke about their use of project-based learning. A professor from University of Chicago Law School, spoke about how she had a student rewrite the Dobbs decision through a critical lens and other students drafted did the same with brochures. My attendance at the CLC conference was transformative for me because it deepened my understanding of free speech and affirmative steps that can be taken to protect it, but also enthused my desire to become an educator and scholar in some capacity.
The lessons learned in both my work as Professor Mutua’s research assistant as well as through my attendance at the CLC’s conference informed my dedication to protecting free speech and celebrating free speech. The law school’s Office of Diversity, Equity and Belonging and Office of Student Affairs with the support of the Office of Inclusive Excellence and others planned and executed a riveting conversation regarding the celebration of free speech. The conversation was masterfully facilitated by Serena Brahasapat (2L) to discuss not only the importance of free speech but techniques we can implement to protect it. The diverse group of panelists provided expert insight and cunning stage presence which was filled with anecdotal stories and life experiences.
Free speech is something we must cherish, utilize, and protect by all means. Throughout the last few years, it has become abundantly clear that free speech has been under attack. In this moment, we must fight back and protect free speech. The knowledge shared at the CLC’s inaugural convening and the Celebration of Free Speech will be crucial for individuals to become advocates and protect this right we cherish.
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Deja Graham
Author’s bio: Deja Graham is a 3L student at UB Law School from Queens, New York. She's passionate about Antitrust and Civil Rights law. Deja serves as the Editor-In-Chief of the Buffalo Human Rights Law Review, Parliamentarian for the Black Law Students Association, and is a student representative for the Law School's dean search committee.
BLOG Post 41
Matthew Dimick: Predistribution or Redistribution?
Published January 19, 2024
Although it’s been fifteen years since the Great Recession, the social, political, and economic problems it revealed are still very much with us. Historically astronomical levels of income inequality are fracturing the American polity. Matthew Dimick's forthcoming book, The Law and Economics of Income Inequality, enters into debates about how to address these problems.
The Baldy Center Blog Post 41.
Blog Author: Matthew Dimick, Professor, School of Law, University at Buffalo
Blog Title: Predistribution or Redistribution?
Keywords: Great Recession; Income Inequality; Predistribution; Redistribution; Law and Economics; Minimum Wage Laws; Collective Bargaining; Antitrust; Intellectual Property; Taxation, Partisan Realignment; Education and Politics.
You increasingly hear the distinction between “redistribution” and “predistribution.” Redistribution refers to changing, through taxes and transfers, the distribution of income after people have already engaged in labor and consumer market transactions. Predistribution, on the other hand, refers to using legal rules—minimum wage laws, collective bargaining legislation, antitrust, intellectual property—to shape the influence of market forces that produce income inequality in the first place.
According to the received wisdom, it is more efficient—comes with less loss of economic resources—to redistribute income rather than predistribute income. Interference in the market causes additional waste, on top of the economic losses that taxation already causes. For legal scholars, this argument was given a precise and elegant form in a famous 1994 article entitled “Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income,” written by two Harvard law professors and economists, Louis Kaplow and Steven Shavell. By narrowing the distribution of income, both predistribution and distribution distort work incentives and reduce the supply of labor. But predistribution also distorts behavior in the activity regulated by the legal rule. A minimum wage law, for example, also reduces the demand for labor by making employers pay higher wages. The minimum wage is also imprecise: society’s poorest may not have jobs at all, and sometimes minimum-wage workers aren’t poor, such as the teenager from a rich household working at McDonald’s for the summer.
The view that redistribution is more efficient than predistribution has been enormously influential. In a working paper recently published by the National Bureau of Economic Research, the political economists Ilyana Kuziemko, Nicolas Longuet-Marx, and Suresh Naidu show that since the 1970s, the Democratic Party’s socio-economic policies have evolved from predistribution to redistribution. This policy evolution also caused a significant partisan realignment by education. More-educated voters support redistribution, while less-educated voters support predistribution; as the Democratic Party changed its socio-economic policy objectives, it lost less-educated voters and gained more-educated voters. This policy shift may have been prompted by the Democratic Party’s courting of wealthier voters and donors. But the intellectual justification for the shift was precisely the economists’ belief that redistribution was more efficient than predistribution.
My book argues that there is a much greater scope for predistribution than Kaplow and Shavell and other economists, legal scholars, and policymakers realize. In the case of the minimum wage, for example, higher wages may increase workers’ productivity on the job, by giving them something worth working hard for: a better-paying job. This productivity effect may offset the economic costs of the minimum wage and, if those offsets are large enough, make the minimum wage more efficient than taxes at redistributing income.
One problem with the debate is that it had been conducted in overly abstract terms. For instance, Kaplow and Shavell use the example of predistribution through tort law. But outside of products liability, no one really thinks about tort law as a way to predistribute income. Rather, the examples of predistribution that readily come to mind are similar to those I listed previously: minimum wage statutes, collective bargaining legislation, housing quality standards, competition and antitrust law, and intellectual property law. My book argues that in each of those more concrete cases there are compelling reasons to think that predistribution might be more effective than redistribution.
Part of the reason for growing income inequality is a policy failure. By avoiding market intervention, on the idea that predistribution is less efficient than redistribution, we’ve abandoned one of our most important policy tools for combating inequality. By showing that legal rules can be redistributive just as or more effectively than taxation, we expand the ranges of options available for tackling inequality in today’s income-divided societies.
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BLOG Post 40
Alan Clarke: Prosecuting Putin for the Crime of Aggressive War
Mariupol after shelling and bombing by Russian troops, March 2022. Photo courtesy of Wikimedia.
Published November 27, 2023
Blog Author: Alan W. Clarke, Senior Fellow, The Baldy Center, 2023-24; Professor Emeritus in the Integrated Studies Program, Utah Valley University
Title: Prosecuting Putin for the Crime of Aggressive War
Keywords: Putin war crimes, International Criminal Court, Nuremberg trials, Crime of aggression, Russia Ukraine conflict, Aggressive war prosecution, ICC jurisdiction, War crimes in Ukraine, Head of state immunity, Bucha massacre, Irpin atrocities, Mariupol war crimes, Charles Taylor, Slobodan Milošević trial, Rule of law, Human rights violations, International justice, Hybrid court, Ad hoc court, Rumsfeld Iraq war, Preventive wars.
“[A] war of aggression . . . is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
—Judgement, International Military Tribunal at Nuremberg
Not since Admiral Dönitz’s prosecution at Nuremberg in 1945 has an international court prosecuted a head of state for a criminal war of aggression. While sitting heads of state have faced prosecution for crimes against humanity, war crimes and genocide, none have confronted charges involving “the greatest menace of our times - aggressive war.” [1]
It alone focuses solely on a nation’s leadership, and only it encompasses all other international atrocity crimes within its moral arc. Any prosecution of Vladimir Putin’s unprovoked, brutal and illegal attack on Ukraine navigates unknown terrain. Moreover, any such prosecution invites charges of selectivity and hypocrisy (the Iraq war, for example, is widely thought to violate this principle). Yet, if the international community is to confront the scourge of war, it must begin somewhere. Will the world finally confront Nuremberg’s challenge to outlaw and punish aggressive war?
The International Criminal Court (ICC or Rome Statute) codifies the international customary law of aggressive war employed by the Nuremberg and Tokyo trials. However, its jurisdiction with respect to this was, at the U.S.’s explicit behest, strictly limited to the nationals of state parties; the Court lacks jurisdiction over the nationals of nations (like Russia) not party to the Rome Statute. Such a limitation does not apply to other international atrocity crimes (war crimes, crimes against humanity, genocide). When these other atrocity crimes are committed on the territory of a state party or of a state that has accepted ICC jurisdiction, the nationals of a non-state party (like Russia) can be prosecuted in the ICC. This leads to an anomaly. Since Ukraine has accepted the ICC’s jurisdiction, individual Russians who commit, order, or are complicit in such crimes can, and are, being prosecuted there. Yet because of the jurisdictional limitation with respect to aggressive war, the ICC lacks jurisdiction over the Russian state's armed attack against Ukraine.
What about domestic national courts? Heads of state and high governmental officials are immune from prosecution in the domestic court systems of other nations. While those immunities do not apply to a Russian domestic court, as a practical matter, so as long as Putin remains in power, no prosecution will begin there. However, international law does permit certain international courts to pierce head of state and other governmental immunities for international atrocity crimes, including waging an aggressive war. For Putin to be prosecuted for Russia’s armed aggression an international court, with jurisdiction over the crime of aggression, would need to be created.
This, however, runs headlong into the charge of selectivity and hypocrisy. The U.S. and U.K., for example, do not come at this problem with clean hands. Before the war in Iraq, Donald Rumsfeld told President Bush that international law did not allow preventive wars. Bush replied: "I don't care what the international lawyers say, we are going to kick some ass." Later he said, “Any barriers in your way, they’re gone.” It is no wonder that international lawyers are very nearly of one opinion – the war in Iraq was an illegal war of aggression. [2]
Notwithstanding the problem of other recent illegal wars of aggression, there have been many calls from both scholars and governmental officials for the creation of an international criminal court to prosecute Russian officials, including Putin, for the crime of aggressive war. The scale and intensity of Russian massacres, torture chambers and other atrocities at places like Bucha, Irpin, and Mariupol, have astonished and revolted people everywhere. This has helped to soften the perspectives of nation states that have all too often elevated state sovereignty over human rights. The erosion of state sovereignty that began at the Nuremberg trials continues with the efforts to constrain a state’s pursuit of aggressive war. Whether this would be in the form of a hybrid court, like the Special Court for Sierra Leone, or an ad hoc court, like the International Tribunal for the Former Yugoslavia, or even a standing court with jurisdiction over the crime of aggression more broadly, and not limited to this war, remains to be seen. Nevertheless, for as long as Putin remains in power we will not see him or his henchmen in the dock.
The creation of such a court would do several things. An arrest warrant for Putin would advance international jurisprudence and our understanding of customary law concerning wars of aggression. Moreover, should he ever fall from power, the court would be there, ready, willing and waiting. Slobodan Milošević, President of the former Yugoslavia and Charles Taylor, President of Liberia, both learned that international criminal courts have a long memory. Even a threatened prosecution should contribute to a modest level of deterrence. The expressive function of criminal law should not be overlooked. Naming and blaming malefactors performs a useful social function. Moreover, to the extent that the law has educational, social, cultural and moral functions, changing perceptions surrounding aggressive war provides a long-term benefit. Finally, progress in international criminal law, especially with respect to wars of armed aggression, will advance the rule of law and human rights world-wide. These are modest goals, but incremental advances are nonetheless worthwhile.
There appears to be a small, hesitant and reluctant movement towards making aggressive wars not simply illegal but prosecutable and punishable. Notwithstanding our manifest hypocrisy and selectivity perhaps the time to end the evil of war is now.
“Last night I had the strangest dream
I ever dreamed before
I dreamed the world had all agreed
To put an end to war”
— Ed McCurdy, Last Night I Had the Strangest Dream
Citations
[1] Robert Jackson’s Opening Statement Before the International Military Tribunal at Nuremberg.
[2] Alan Clarke, Chapter 6 , "Rendition to Torture" (Rutgers U. Press, 2012)
BLOG Post 39
CLC Organizing for Democracy and Liberation: The Right to Learn, The Right to Teach, The Right to Thrive
Published November 6, 2023
CLC emerged in response to the anti-Critical Race Theory (CRT) campaigns sweeping the nation – campaigns meant to silence the discussion of structural racism in the United States. As its founders met and talked, an overarching mission emerged: protecting the right to teach critical thinking and theory, the right to learn critical thinking and thought, and the right to thrive as teachers and learners. Today, these rights are under attack from two directions: not only from right-wing ideology, but also from decades of neoliberal policy fostered on both sides of the American political aisle. Overcoming both – and their conjunction – is key to CLC’s long-term mission.
On November 10-12, 2023, the Critical (Legal) Collective (CLC) will host its inaugural conference, “Organizing for Democracy and Liberation: The Right to Learn, The Right to Teach and The Right to Thrive,” at Duke University Law School. Hosted by Duke’s Center on Law, Race & Policy, CLC was formed in August 2021 by a group of scholars and activists affiliated with various strands of critical legal theory.
Blog Authors:
Athena D. Mutua, Professor of Law, University at Buffalo School of Law
Angela P. Harris, Professor Emerita, University California, Davis School of Law
Francisco Valdes, Professor of Law, University of Miami School of Law
Blog Title: Critical (Legal) Collective (CLC) conference: “Organizing for Democracy and Liberation: The Right to Learn, The Right to Teach & The Right to Thrive"
Keywords: Academic Freedom; Critical Thinking; CLC Conference; Right to Teach; Right to Learn; Democracy; Neoliberalism in Education; Education and Democracy; Critical Race Theory.
CLC emerged in response to the anti-Critical Race Theory (CRT) campaigns sweeping the nation – campaigns meant to silence the discussion of structural racism in the United States. As its founders met and talked, an overarching mission emerged: protecting the right to teach critical thinking and theory, the right to learn critical thinking and thought, and the right to thrive as teachers and learners. Today, these rights are under attack from two directions: not only from right-wing ideology, but also from decades of neoliberal policy fostered on both sides of the American political aisle. Overcoming both – and their conjunction – is key to CLC’s long-term mission.
The theory behind neoliberalism is that governmental power is inherently prone to corruption, and that private markets freed from burdensome regulations are the best way to build wealth and to create and distribute the goods and services necessary for human flourishing. In practice, neoliberal policy has dramatically increased economic precarity and concentrated wealth in fewer and fewer hands. In K-12 education, neoliberal initiatives such as voucher programs, charter schools, state funding for parochial schools, and attacks on teachers and teacher unions seek to undermine public education and create opportunities for private profiteering. In higher education, neoliberal policy involves dramatic reductions in state funding (which have rendered colleges and universities increasingly dependent on student tuition and students increasingly dependent on loans), the gradual replacement of tenure-track faculty with poorly paid adjuncts denied security of employment, and the closing of humanities departments and programs that teach students to think critically about the present but which neoliberals deem unnecessary for the work they demand in today’s economy.
The slow erosion of education and other public institutions has recently been joined by a fast-moving and vicious ideological campaign manifested, in part, in donor attempts to influence faculty hiring, firing, and promotion, attacks on students who protest right-wing speakers or programs on their campuses, and myriad initiatives championing censorship, disinformation, and miseducation, often in the name of “protecting children” from facts and opinions that might cause them to ask questions or “feel uncomfortable.” Although the groundwork for this ideological campaign was laid in the 1970s, with the establishment of organizations such as the Heritage Foundation, the Cato Institute, the Manhattan Institute, and the American Legislative Exchange Council, since the Trump presidency we have seen a new level of aggression. Racial justice and broad diversity initiatives remain a central target, with the term “critical race theory” weaponized to inaccurately mark any project linked to anti-racism - equal justice under law - as an unacceptable attack on America. But the alliance made between political conservatives and Christian nationalists has deliberately added women and LGBTQ communities as campaign targets. Using the whip of “parental rights,” there has been an explosion of book bans, especially of books in which the protagonists are racial and sexual minorities, gender fluid people, and women.
As a recent CLC op-ed states, campaign proponents have spearheaded “over 600 local, state, and federal bills designed to chill basic conversations about racism, sexuality, and related topics; thousands of book bans; coordinated campaigns to defund or shutter public libraries; systematic efforts to eliminate fundamental safeguards that protect academic freedom and university independence; [and] renewed efforts to disenfranchise voters, criminalize protest and erode reproductive healthcare.” These actions harm not only the right to teach and to learn critically; they also harm the right of students and others to thrive: to see themselves represented in literature and history, to reckon with our country’s past, and to participate fully in the project of American democracy.
CLC’s inaugural conference seeks to confront both prongs of the attack on these rights. First, the organizers center the concept of “academic freedom” grounded in both US and international human rights law. For CLC, academic freedom protects not only institutions and personnel in higher education, but also K-12 institutions and public teachers. Academic freedom involves the right of teachers to teach, and the right of students to learn, critical thinking – a vital skill in this world where disinformation and misinformation are rampant. Second, CLC calls for faculty at all levels – from graduate students to adjuncts to the incredible shrinking tenure track – to organize collectively, and to bargain not only for workplace justice but for the common good. An educated – and critical – citizenry is necessary to sustain democracy. Education is, therefore, not a private but a public good.
In keeping with the high stakes of this moment, the 2023 CLC inaugural conference at Duke will depart from the usual academic norms by focusing on action, not just analysis. Its workshop format seeks to give participants knowledge they can use back in their home institutions, from a greater understanding of academic unions to new skills for teaching critical thinking. In this moment of crisis for education and democracy, CLC hopes to rekindle a spirit of solidarity, joy, and discovery.
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Critical (Legal) Collective Members
Photo courtesy of Duke Center on Law, Race & Policy. Ten of the fifteen CLC Coordinating Committee members (pictured left to right) seated: Angela P. Harris (emerita, UC Davis), Mary Louise Frampton (emerita, UC Davis), Athena D. Mutua (Univ. at Buffalo), Vasuki Nesiah (NYU Gallatin School), Francisco Valdes (Univ. of Miami), Teri McMurtry-Chubb (Univ. of Illinois Chicago); standing: Jennifer Hill (Advocacy Partners Team Org.), Mario Barnes (UC Irvine), Lucy Jewel (Univ. of Tenn), Trina Jones (Duke University).
The Critical (Legal) Collective (CLC) is a group of legal scholars representing some of the many intellectual formations affiliated with critical legal theory – including Critical Race Theory, Asian American Legal Scholarship, ClassCrits, Critical Legal Studies, Feminist Legal Theory, eCRT, Indigenous Law and Policy, Jurisprudence of Distribution, LatCrit, Law and Political Economy, Third World Approaches to International Law, and more. The CLC promotes a more inclusive, democratic, and just society through scholarship, teaching, and advocacy that reckons honestly with past and present structural oppression. Learn more about the CLC.
Lawshia Prabath, Blog Host/Producer, 2023-24
Lawshia Prabath
Lawshia Prabath an international student from India, pursuing a master’s in data science at the University at Buffalo’s School of Engineering and Applied Sciences, is the host/producer for the 2023-2024 edition of The Baldy Center Blog. Prior to enrolling in the master's program, Lawshia was a consulting data scientist for 3+ years delving deeply into the intricacies of understanding the burden of chronic illness and the treatment gaps. These efforts bore fruit as the insights gained recognition and were celebrated through publication in esteemed journals. Lawshia's resolute dedication is directed towards the altruistic goal of employing data for the greater good.
Executive Producers
Samantha Barbas, JD, PhD
Professor, UB School of Law; Director, The Baldy Center
Amanda M. Benzin, MFA
Associate Director, The Baldy Center