Digital Commons Network^™

Appellate Review Of A "Strong Basis In Evidence" In Public Contracting Cases, Nicki Herbert

University of Colorado Law Review

In the context of state and local affirmative action programs in public contracting, federal circuit courts have split on the appropriate standard of appellate review of a district court's finding of a "strong basis in evidence, " a finding necessary to uphold the constitutionality of such programs. Using as a backdrop the premise that Rule 52(a) establishes a critical procedural requirement to which federal circuit courts should consistently adhere, the author discusses the history of the "strong basis in evidence" standard, appellate review in the federal court system generally, and the analysis used by federal appellate courts to resolve the …

Forensic Linguistics: An Introduction To Language In The Justice System, By John Gibbons, Drury Stevenson

University of Colorado Law Review

John Gibbons's book Forensic Linguistics provides an excellent introduction to the different areas of interdisciplinary studies involving linguistics and law. Gibbons explores many of the unique linguistic features of legal writing and courtroom speech, and discusses legal regulation of inappropriate uses of language (threats, lies, etc). This review surveys each of these sections of Gibbons's work, and adds in depth critique on issues related to "audience design " in legal documents and the linguistic pitfalls of relying on trial transcripts.

Table Of Contents (Vol. 77, Issue 2)

University of Colorado Law Review

No abstract provided.

Adverse Possession And Conservation: Expanding Traditional Notions Of Use And Possession, Alexandra B. Klass

University of Colorado Law Review

At common law, very minimal actions were needed to establish the "exclusive possession " necessary to acquire land by adverse possession when the land was "wild" or undeveloped. This minimal burden to adversely possess wild lands, which is still the general rule today, stands in contrast to the much higher standard necessary to adversely possess developed lands. This article explores why the lesser standard for adverse possession of wild lands remains a threat to many of the millions of acres of land in this country that are still undeveloped. This article then proposes that courts modernize the adverse possession doctrine …

Toward A New Horizontal Federalism: Interstate Water Management In The Great Lakes Region, Noah D. Hall

University of Colorado Law Review

This article presents a new model for environmental policy, called cooperative horizontal federalism. The cooperative horizontal federalism approach utilizes a constitutional mechanism for states to bind themselves to common substantive and procedural environmental protection standards, implemented individually with regional resources and enforcement. Here, the concept of the cooperative horizontal federalism model is illustrated through the recently proposed Great Lakes-St. Lawrence River Basin Water Resources Compact. Under this proposed compact, the eight Great Lakes states would cooperatively manage the world's largest freshwater resource under common minimum standards, which are then incorporated into state law and implemented individually. This cooperative horizontal federalism …

Beautiful Dreamer: Review Of A Life Of H.L.A. Hart: The Nightmare And The Noble Dream, By Nicola Lacey, Jeanne L. Schroeder

University of Colorado Law Review

H.L.A. Hart is probably the most important legal theorist in the modern English-speaking world. The intriguing subtitle of Nicola Lacey's intimate biography, "The Nightmare and the Noble Dream, " echoes the name of Hart's 1997 Georgia Law Review paper, in which he identifies two warring, equally inadequate, visions of law in American jurisprudence: the "nightmare" of complete indeterminacy and unbridled judicial discretion and the "noble dream " of a closed, deterministic legal system of judicial restraint. Lacey implies that Hart's life itself was both a nightmare and a noble dream. This book review expands on Lacey's work and suggests how …

Table Of Contents (Vol. 77, Issue 3)

University of Colorado Law Review

No abstract provided.

Double Jeopardy And Multiple Punishment: Cutting The Gordian Knot, Anne Bowen Poulin

University of Colorado Law Review

Courts treat as axiomatic that the Double Jeopardy Clause protects against both multiple punishment and successive prosecution. Unfortunately, applying the same rules to both multiple punishment and successive prosecution undermines double jeopardy protection. Instead, protection from multiple punishment should not be treated as a double jeopardy problem. This Article examines how multiple punishment analysis became entangled with successive prosecution protection. After considering the foundation of the axiom that double jeopardy protects against multiple punishment, it concludes that the axiom must be rejected. Multiple punishment analysis should be disentangled from double jeopardy rules governing successive prosecution and double jeopardy should play …

In Memoriam: Professor Edward J. Gac, Norton L. Steuben, Michael J. Waggoner, Wayne M. Gazur, Susan Morley, John T. (Jay) Ballantine

University of Colorado Law Review

No abstract provided.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

University of Colorado Law Review

No abstract provided.

Three Versions Of Nonsense, Paul Campos

University of Colorado Law Review

No abstract provided.

Constitutional Academic Freedom After Grutter: Getting Real About The "Four Freedoms" Of A University, J. Peter Byrne

University of Colorado Law Review

No abstract provided.

Bureaucracy And Distrust: Germaneness And The Paradoxes Of The Academic Freedom Doctrine, Alan K. Chen

University of Colorado Law Review

No abstract provided.

Permissive Discrimination And The Decline Of Religion Clause Jurisprudence: The Wearing Out Of The Joints, Karl Schock

University of Colorado Law Review

This article argues that modern Supreme Court decisions relating to the Establishment Clause and the Free Exercise Clause have caused both clauses to lose their constitutional force. Although the Court has long recognized a "play in the joints" between the clauses, it had previously resolved this problem exclusively in favor of the Establishment Clause through its well-established doctrine of permissive accommodation. However, the Court's recent decision in Locke v. Davey suggests that the Court is now willing to allow the overlap between the two clauses to pull in the opposite direction as well. This article explains that the Court's decision …

Race, Gender, Region And Death Sentencing In Colorado, 1980-1999, Stephanie Hindson, Hillary Potter, Michael L. Radelet

University of Colorado Law Review

This paper examines the administration of the death penalty in Colorado. We first identify all cases (n=21) in which defendants were sentenced to death in Colorado, 1972-2005, and all cases (n=10) in which the death penalty was sought, 1980-1999. We then compare the race and gender of all homicide victims with the race and gender of victims in the 110 death penalty cases. Overall, we find that the death penalty is most likely to be sought for homicides with white female victims, and that the probability of death being sought is 4.2 times higher for those who kill whites than …

The Ethics Of Electronic Record Sharing, Barbara A. Bintliff, Georgia Briscoe

Publications

No abstract provided.

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

Publications

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Publications

No abstract provided.

The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff

Publications

No abstract provided.

A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins

Publications

No abstract provided.

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Publications

No abstract provided.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

Publications

No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Foreword, Richard B. Collins

Publications

No abstract provided.

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

Publications

This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

Learning From Wal-Mart, Melissa Hart

Publications

This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women's workplace opportunities. The plaintiffs' arguments - both the narrative of discrimination their evidence set out and the legal strategies they chose - are strikingly similar to claims that have been made in many class action …

Let The People Know The Facts: Can Government Information Removed From The Internet Be Reclaimed?, Susan Nevelow Mart

Publications

Ms. Mart examines the legal bases of the public's right to access government information, reviews the types of information that have recently been removed from the Internet, and analyzes the rationales given for the removals. She suggests that the concerted use of the Freedom of Information Act by public interest groups and their constituents is a possible method of returning the information to the Internet.