Law Commons^™

Laws Against Bubbles: An Experimental-Asset-Market Approach To Analyzing Financial Regulation, Erik F. Gerding

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This article analyzes the effectiveness of proposed and actual securities, financial, and tax laws designed to prevent, or dampen the severity of asset price bubbles, including laws designed to mitigate excessive speculation. The article employs experimental asset market research to measure the effectiveness of these anti-bubble laws in correcting mispricings. Experimental asset markets represent complex simulations of stock markets in which subjects trade securities over a computer network. These markets allow scholars to test causal links between legal policies and market effects in ways that empirical research alone cannot. With these virtual markets, researchers can identify asset price bubbles - …

Liberalism And Ability Taxation, David Hasen

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Recent tax scholarship has embraced the idea of individual endowment taxation, or taxation of human abilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native abilities to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption, or wealth, that otherwise might be thought relevant to the assignment of tax burdens. This Article argues that endowment taxation is incompatible with political theories that might broadly be described as "liberal," to the extent such theories support redistribution. It also argues that limited forms of endowment taxation …

Judging Treaties, Lakshman Guruswamy

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No abstract provided.

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

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This Article has two primary goals. The first is descriptive and seeks to respond to what appears to be an increasing degree of confusion over the word "pragmatism," especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called "everyday" pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the Article is subsequently concerned with exploring this last category, …

Sending The Self-Execution Doctrine To The Executioner, Aya Gruber

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No abstract provided.

Essentially A Mother, Jennifer S. Hendricks

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This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, this article argues that a gestational mother has a constitutional claim to be recognized as a legal parent.

The article first discusses the "unwed father cases." Despite believing that natural sex differences justified distinctions in parental rights, the Supreme Court crafted a test giving men parental rights if they established relationships with their biological …

Beyond Enron: Regulation In Energy Derivatives Trading, Alexia Brunet, Meredith Shafe

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No abstract provided.

Who's Afraid Of Geneva Law?, Aya Gruber

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According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the …

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

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No abstract provided.

The Anxiety Of The Law Student At The Socratic Impasse - An Essay On Reductionism In Legal Education, Pierre Schlag

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No abstract provided.

Afterthoughts From A "Buzz Killer", Sarah Krakoff

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No abstract provided.

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Sarah Krakoff

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No abstract provided.

In Pursuit Of A Next Generation Network For Public Safety Communications, Philip J. Weiser, Dale N. Hatfield

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In the aftermath of Hurricane Katrina, a unitary reliance on Land Mobile Radio systems (LMRs) failed public safety agencies, leaving them without any source of communications once they lost transmission capability. Unfortunately, in the wake of this tragedy, many have dusted off traditional prescriptions for improving public safety communications, such as more dedicated spectrum and more money for single-purpose LMRs (or LMRs based on technology that fails to facilitate broader functionalities). As we explain, however, both the needs underscored by Katrina and the capabilities made possible by emerging technologies call for a different strategy.

In this paper, we argue that …

Public Interest Service At The University Of Colorado School Of Law, Norman Aaronson

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No abstract provided.

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

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First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …

Arbitration Of International Oil, Gas, And Energy Disputes In Latin America, Alexia Brunet, Juan Agustin Lentini

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No abstract provided.

Keeping An Eye On The Golden Snitch: Implications Of The Interdisciplinary Approach In The Fourth Generation Of Natural Resources Law Casebooks, Sarah Krakoff

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No abstract provided.

A Perspective On Federal Corporation Law, Mark J. Loewenstein

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No abstract provided.

Illuminating Secrecy: A New Economic Analysis Of Confidential Settlements, Scott A. Moss

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Even the most hotly contested lawsuits typically end in a confidential settlement forbidding the parties from disclosing their allegations, evidence, or settlement amount. Confidentiality draws fierce criticism for harming third parties by concealing serious misdeeds like discrimination, pollution, defective manufacturing, and sexual abuse. Others defend confidentiality as a mutually beneficial pay-for-silence bargain that facilitates settlement, serves judicial economy, and prevents frivolous copycat lawsuits. This debate is based in economic logic, yet most analyses have been surprisingly shallow as to how confidentiality affects incentives to settle. Depicting a more nuanced, complex reality of litigation and settlement, this Article reaches several conclusions …

Colorado Ethics Opinion 115: Next Steps For Colorado's Collaborative Lawyers, Scott R. Peppet

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No abstract provided.

Updating Our Understanding Of The Role Of Lawyers: Lessons From Mastercard, Scott R. Peppet

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No abstract provided.

Structural Rights In Privacy, Harry Surden

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This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …

The Revision Of The Colorado Trademark Registration Statute, Arthur H. Travers

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No abstract provided.

"Remarkable Stratagems And Conspiracies": How Unscrupulous Lawyers And Credulous Judges Created An Exception To The Hearsay Rule, Marianne Wesson

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This paper, a companion piece to the author's earlier exploration of the case of Mutual Life Insurance Company v. Hillmon, describes the remarkable record of unethical conduct compiled by the eminent and respectable attorneys for the insurance companies in the course of that litigation. When married with the Supreme Court Justices' uncritical willingness to accept the false narrative thus contrived, these attorneys' misconduct led to the creation of an important rule of evidence - a rule of questionable merit. This article aims to remind us that lawyers who are willing to distort the process of litigation have the power …

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

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No abstract provided.

Communicating During Emergencies: Toward Interoperability And Effective Information Management, Philip J. Weiser

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The suboptimal state of communications technology used by public safety agencies has emerged as a high profile political issue. In most cases, public safety agencies are able only to communicate using antiquated networks, engineered solely for providing voice communications and unable to interoperate beyond a select number of users. This type of system fails to provide the type of economies of scale, network flexibility, or the broader functionalities routinely used by the military and private sector enterprises. The challenge facing policymakers is thus how to develop a next generation architecture for public safety and spur adoption of a new set …

Professor Homer Clark: "Just Do It!", David H. Getches

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No abstract provided.

Indigenous Law And Its Contribution To Global Pluralism, James Anaya

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No abstract provided.

A Domestic Right Of Return?: Race, Rights, And Residency In New Orleans In The Aftermath Of Hurricane Katrina, Lolita Buckner Inniss

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This article begins with a critical account of what occurred in the aftermath of Hurricane Katrina. This critique serves as the backdrop for a discussion of whether there are international laws or norms that give poor, black Katrina victims the right to return to and resettle in New Orleans. In framing this discussion, this article first briefly explores some of the housing deprivations suffered by Katrina survivors that have led to widespread displacement and dispossession. The article then discusses two of the chief barriers to the return of poor blacks to New Orleans: the broad perception of a race-crime nexus …

Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss

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This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …