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Articles 1 - 30 of 46
Full-Text Articles in Law
No Sword, No Shield, No Problem: Ai In Pro Se Section 1983 Suits, Michaela Calhoun
No Sword, No Shield, No Problem: Ai In Pro Se Section 1983 Suits, Michaela Calhoun
University of Colorado Law Review Forum
Originating during the Reconstruction era, 42 U.S.C. 1983 emerged as a legislative tool to safeguard individuals’ constitutional rights and liberties. Initially designed to combat state-sanctioned violence, its efficacy has been eroded over time by subsequent judicial and legislative action. Unfortunately, the current state of Section 1983 falls short of this envisioned role, particularly for incarcerated individuals who find themselves navigating the complexities of the federal court system as pro se litigants.
Faced with a landscape devoid of resources, incarcerated individuals struggle to realize their constitutional rights, further perpetuating their collective status as a second-class citizenry—a status imposed by their own …
Creative Jurisprudence: The Paradox Of Free Speech Absolutism, R. George Wright, Chris Rowley
Creative Jurisprudence: The Paradox Of Free Speech Absolutism, R. George Wright, Chris Rowley
University of Colorado Law Review Forum
Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it sidesteps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of …
Uncommon Carriage, Blake Reid
Uncommon Carriage, Blake Reid
Publications
As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.
This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that …
Contract Customization, Sex, And Islamic Law, Rabea N. Benhalim
Contract Customization, Sex, And Islamic Law, Rabea N. Benhalim
Publications
Common law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships as exclusively under the realm of contract law governed by private actors. This Article brings Islamic law into the larger conversation on the use of contracts for sexual and relationship agreements. It further proposes that Islamic law has something to offer Muslims and non-Muslims alike by empowering individuals to use …
Valuing Social Data, Amanda Parsons, Salome Viljoen
Valuing Social Data, Amanda Parsons, Salome Viljoen
Publications
Social data production—accumulating, processing, and using large volumes of data about people—is a unique form of value creation that characterizes the digital economy. Social data production also presents critical challenges for the legal regimes that encounter it. This Article provides scholars and policymakers with the tools to comprehend this new form of value creation through two descriptive contributions. First, it presents a theoretical account of social data, a mode of production that is cultivated and exploited for two distinct (albeit related) forms of value: prediction value and exchange value. Second, it creates and defends a taxonomy of three “scripts” that …
Climate Risk, Insurance Retreat, And State Response, Mark Nevitt, Michael Pappas
Climate Risk, Insurance Retreat, And State Response, Mark Nevitt, Michael Pappas
Publications
Climate change is fundamentally destabilizing the private insurance industry, with many high-profile insurance companies exiting states in the face of catastrophic, climate-induced risk. This rapid “insurance retreat” represents a major market signal in response to climate-exacerbated risks. Private businesses are making actuarial decisions, assessing that some locations are just too vulnerable to insure. At the same time, this insurance retreat also poses a policy challenge for states as they react to the mounting insurance gaps left by exiting private insurers.
This Article analyzes insurance retreat, its attendant policy challenges, and the lessons that can be drawn from state responses. It …
Voices In, Voices Out: Impacted Stakeholders And The Governance Of Ai, Margot Kaminski
Voices In, Voices Out: Impacted Stakeholders And The Governance Of Ai, Margot Kaminski
Publications
This Essay addresses reasons for impacted stakeholder involvement in AI governance, ranging from democratic accountability norms to principles of regulatory design. It evaluates several recent examples of both soft and hard law, noting a range of examples of impacted stakeholder participation. It closes with a critique: none of these laws adequately contemplates how to craft transparency and provide expertise so as to meaningfully empower impacted stakeholders.
Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski
Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski
Publications
No abstract provided.
“Down Where The Grass Grows”: Municipal Abortion Policies After Dobbs, Martha F. Davis
“Down Where The Grass Grows”: Municipal Abortion Policies After Dobbs, Martha F. Davis
University of Colorado Law Review
When the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization referred future decisions about abortion policies to “elected representatives and the people,” there is no doubt that local governments were included in the designation. In fact, since the 1970s, local governments have been active in pursuing a range of abortion policies in their jurisdictions—both for and against abortion access—that may be in tension with their state governments. Because the ideological orientations of state and local governments often conflict, state preemption is a frequent threat hanging over these local initiatives. There are examples from both sides of the political …
The Voluntary Carbon Market: Market Failures And Policy Implications, Vittoria Battocletti, Luca Enriques, Alessandro Romano
The Voluntary Carbon Market: Market Failures And Policy Implications, Vittoria Battocletti, Luca Enriques, Alessandro Romano
University of Colorado Law Review
Many companies have made environmental pledges and launched products that claim to be carbon neutral. In most of these instances, corporations rely on carbon offsets. In this Article, we investigate the functioning of the market on which these offsets are created and exchanged, namely the voluntary carbon market, and look into the question of whether and, if so, how it should be subject to regulation. We start by shedding light on the mechanics of this market and then explain why a well-functioning voluntary carbon market is necessary to fight global warming and can also help developing countries build less carbon-intensive …
It’S Past Time: Unionization And Self-Determination In Minor League Baseball, Chris Rowley
It’S Past Time: Unionization And Self-Determination In Minor League Baseball, Chris Rowley
University of Colorado Law Review
For more than a century, labor disputes have tormented the relationship between American professional baseball players and management. Although Major League Baseball players unionized in the 1960s, disagreements over workplace conditions and ever-growing profit allocations endured for decades. The first thirty years of collective bargaining between players and League post-unionization fostered notable improvements in players’ labor conditions. However, those years were also plagued by acrimonious negotiations, grievances, lawsuits, lockouts, strikes, and eventually, the cancellation of the 1994 World Series. The story in Minor League Baseball is altogether different. Its players, despite their close nexus with the Major League game, did …
Estate To State: Pay-To-Stay Statutes And The Problematic Seizure Of Inherited Property, Brittany L. Deitch
Estate To State: Pay-To-Stay Statutes And The Problematic Seizure Of Inherited Property, Brittany L. Deitch
University of Colorado Law Review
Pay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or have formerly been incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation. Pay-to-stay laws have survived constitutional challenges thus far, but some state legislatures …
Politics Before Pensions: How New Esg Rules Expose Public Pension System Vulnerabilities, Danilo Risteski
Politics Before Pensions: How New Esg Rules Expose Public Pension System Vulnerabilities, Danilo Risteski
University of Colorado Law Review
As some of the largest institutional investors in the United States, public pension funds wield considerable power over investment decisions. A recent trend highlights this extraordinary power: state pension funds have started exploiting their retirees’ pensions to force investment companies to invest in accordance with their respective states’ political priorities. Nowhere is this trend more obvious than in the environmental, social, and governance field. On one hand, states like Maine have passed legislation prohibiting public pension funds from investing in fossil fuels companies. On the other hand, states like Texas have passed laws prohibiting state entities from doing business with …
Beyond Discrimination: Market Humiliation And Private Law, Hila Keren
Beyond Discrimination: Market Humiliation And Private Law, Hila Keren
University of Colorado Law Review
Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions …
Rethinking Antebellum Bankruptcy, Rafael I. Pardo
Rethinking Antebellum Bankruptcy, Rafael I. Pardo
University of Colorado Law Review
Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …
Facts On Trial: Alliance For Hippocratic Medicine V. Fda And The Battle Over Mailed Medication Abortion, Rachel Rebouché .
Facts On Trial: Alliance For Hippocratic Medicine V. Fda And The Battle Over Mailed Medication Abortion, Rachel Rebouché .
University of Colorado Law Review
No abstract provided.
The Minerals Challenge For Renewable Energy, Mark Squillace
The Minerals Challenge For Renewable Energy, Mark Squillace
Publications
One potential obstacle to a successful energy transition involves the critical minerals used in production of photovoltaic solar panels, wind turbines, electric vehicles, and batteries. A substantial portion of these will have to come from new and expanded mining operations around the world. But mining is controversial, in part due to the past failures of operators to protect communities and the environment. This Article considers how nations can responsibly identify, source, and process these minerals, and then deploy them in renewable energy products. Its scope is global, but U.S. laws and policies take center stage with a nod to the …
The Structure Of U.S. Climate Policy, Michael Pappas
The Structure Of U.S. Climate Policy, Michael Pappas
Publications
Urgent emission reduction and community adaptation efforts are necessary to avert catastrophic climate-change harms. To assess our nation’s progress toward such efforts, this Article develops a comprehensive structural analysis of U.S. climate policy at the federal, state, and local levels. It observes that current climate policies reflect disparate federal, state, and local strategies around emissions regulation, emission reduction subsidies, adaptation, and liability approaches. The Article then analyzes the dynamics between federal, state, and local strategies in these policy areas.
This examination leads to some surprising conclusions. Under current policy alignments, further emission regulation measures do not appear to be realistic …
Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram
Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram
Publications
This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …
Corporate Climate Targets: Between Science And Climate Washing, Nadav Orian Peer
Corporate Climate Targets: Between Science And Climate Washing, Nadav Orian Peer
Publications
The use of corporate climate targets has exploded in recent years. Over three thousand corporations, including the largest and most profitable in the world, have adopted corporate climate targets as commitments to align their actions with climate science and the Paris Agreement. However, the broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise “climate washing” concerns, i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets, and explores potential theories of …
Constructing Ai Speech, Margot E. Kaminski, Meg Leta Jones
Constructing Ai Speech, Margot E. Kaminski, Meg Leta Jones
Publications
Artificial Intelligence (AI) systems such as ChatGPT can now produce convincingly human speech, at scale. It is tempting to ask whether such AI-generated content “disrupts” the law. That, we claim, is the wrong question. It characterizes the law as inherently reactive, rather than proactive, and fails to reveal how what may look like “disruption” in one area of the law is business as usual in another. We challenge the prevailing notion that technology inherently disrupts law, proposing instead that law and technology co-construct each other in a dynamic interplay reflective of societal priorities and political power. This Essay instead deploys …
Carbon Pricing For A Just Transition, Jeff Todd
Carbon Pricing For A Just Transition, Jeff Todd
University of Colorado Law Review
The legal tools to avoid the potential disasters of climate change are already available, at least according to economists. Economists overwhelmingly prefer carbon pricing tools like carbon taxes and cap-and-trade programs to combat climate change and guide the energy transition. Carbon pricing is more cost effective at lowering carbon and other greenhouse gases (GHGs) than other legal options such as efficiency standards, renewable portfolio standards, subsidies, and tax credits and deductions. Unlike those other options, carbon pricing targets both the supply of and the demand for GHG-emitting products and services; moreover, it gives firms and consumers flexibility in how best …
Adoption As Substitute For Abortion?, Malinda L. Seymore
Adoption As Substitute For Abortion?, Malinda L. Seymore
University of Colorado Law Review
In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito relied on adoption as part of the justification for holding that abortion is not constitutionally protected. First, he said, “[s]tates have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously.” Second, “a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Using adoption as an adequate substitute for abortion is a long-standing strategy for the antiabortion movement, but it is often embraced by pro-choice advocates as well. This position is supportable …
Consider Buffalo, Pierre Schlag
Trans Animus, Scott Skinner-Thompson
Chatgpt, Ai Large Language Models, And Law, Harry Surden
Chatgpt, Ai Large Language Models, And Law, Harry Surden
Publications
This Essay explores Artificial Intelligence (AI) Large Language Models (LLMs) like ChatGPT/GPT-4, detailing the advances and challenges in applying AI to law. It first explains how these AI technologies work at an understandable level. It then examines the significant evolution of LLMs since 2022 and their improved capabilities in understanding and generating complex documents, such as legal texts. Finally, this Essay discusses the limitations of these technologies, offering a balanced view of their potential role in legal work.
Protecting Water, Sustaining Communities: Transforming Groundwater Management Entities Into Sources Of Power During And After Environmental Crises, Sarah Matsumoto
Protecting Water, Sustaining Communities: Transforming Groundwater Management Entities Into Sources Of Power During And After Environmental Crises, Sarah Matsumoto
Publications
No abstract provided.
Intersectionality Matters In Food And Drug Law, Colleen Campbell
Intersectionality Matters In Food And Drug Law, Colleen Campbell
University of Colorado Law Review
Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain. This Article uses the regulation of skin-lightening cosmetics products to illustrate why and how intersectionality matters in food and drug law. While the …
Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid
Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid
University of Colorado Law Review
As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different …
Union Autonomy And Federal Intrusion, Hannah Borowski
Union Autonomy And Federal Intrusion, Hannah Borowski
University of Colorado Law Review
Union autonomy, a critical aspect of the health and growth of unions and employee power broadly, is weakened by (1) the Department of Justice’s (DOJ) attempts to target organized crime through civil Racketeer Influenced and Corrupt Organizations Act (RICO) litigation against unions and (2) the creation of federal trusteeships in settlement, both of which can be analyzed through litigation between the DOJ and the International Brotherhood of Teamsters (Teamsters or IBT) at the end of the 20th century. The field of compliance offers a solution to prevent these breaches of union autonomy. Relying on the Federal Sentencing Guidelines and the …