Law Commons^™

The Emerging Importance Of Law Review Rankings For Law School Rankings, 2003-200 7, Alfred L. Brophy

University of Colorado Law Review

The release of the 2007 U.S. News rankings of law schools has set off another round of speculation on the meanings of the rankings and what, ifanything, schools can do to improve the quality of the education they provide, as well as their rankings. Drawing upon earlier evidence that there is a close connection between the citation rankings of law reviews and the ranking of their law schools, this paper looks to changes in both the U.S. News rankings and law journal rankings over the past few years. This paper tests and finds some support for a hypothesis that as …

Discovering Discovery: Non-Party Access To Pretrial Information In The Federal Courts, 1938-2006, Seymour Moskowitz

University of Colorado Law Review

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where "private attorneys general" may only function effectively with courtenforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This …

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

Publications

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

Publications

No abstract provided.

The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, Andrew A. Schwartz

Publications

In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.

In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a …

Sensational Reports: The Ethical Duty Of Cause Lawyers To Be Competent In Public Advocacy, Deborah J. Cantrell

Publications

This article argues that cause lawyers - those lawyers whose primary focus is on social change rather than on for-profit client-based work - have an ethical responsibility to be competent in public advocacy. That responsibility stems from a cause lawyer's commitment to the principles embodied in the particular social movement in which the lawyer is acting. It is reinforced by the requirement of competency under the Model Rules of Professional Conduct. To illustrate the contours of a competent public advocacy strategy, the article highlights two cause lawyering organizations, Legal Momentum and the Institute for Justice, and considers how each organization …

The Colorado Constitution In The New Century, Richard B. Collins

Publications

TABOR, gay marriage, pit bulls, guns, redistricting, ethics in government, school vouchers, and minimum wage have been on Colorado's constitutional agenda for the past seven years. Dale Oesterle and I authored a book-length study of the Colorado Constitution through 2001. This article reviews amendments and judicial decisions arising since. It should surprise no one that TABOR has generated by far the most decisions.

The Possibility Of Avoiding Discrimination: Considering Compliance And Liability, Melissa Hart

Publications

The gender discrimination class action Dukes v. Wal-Mart Stores, Inc., whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to …

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

Publications

No abstract provided.

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

Publications

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 …

Should Property Or Liability Rules Govern Information?, Mark A. Lemley, Philip J. Weiser

Publications

This Article focuses on an unappreciated and significant aspect of the debate over property rules in the technology law context. In particular, it argues that the classic justification for legal entitlements protected by a property rule - i.e., a right to injunctive relief - depends on the ability to define and enforce property rights effectively. In the case of many technology markets, the inability to tailor injunctive relief so that it protects only the underlying right rather than also enjoining noninfringing conduct provides a powerful basis for using a liability rule (i.e., awarding the relevant damages to the plaintiff) instead …

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

Publications

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 …

An External Perspective On The Nature Of Noneconomic Compensatory Damages And Their Regulation, Ronald J. Allen, Alexia Brunet, Susan Spies Roth

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No abstract provided.

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

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No abstract provided.

Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

Publications

No abstract provided.

From Martz To The Twenty-First Century: A Half- Century Of Natural Resources Law Casebooks And Pedagogy, Michael C. Blumm, David H. Becker

University of Colorado Law Review

Clyde Martz published the first natural resources law casebook in 1951, combining the previously discrete subjects of water law, mining law, and oil and gas law. Martz relied almost exclusively on case excerpts and emphasized the creation of private rights in natural resources. Over the nexthalf century, through several generations of casebooks, the natural resources course developed in response to the rise of the environmental movement and a series of energy crises. This article traces the evolution of the natural resources law casebooks from Martz's pioneering effort through several generations of texts to a new generation of casebooks that has …

The Citizen Assembly: An Alternative To The Initiative, Kevin O'Leary

University of Colorado Law Review

The Citizen Assembly is a superior alternative to direct mass democracy and the initiative. Building on the ideas of James Madison and Thomas Jefferson, it is possible to combine the traditional town hall and the Internet to fashion a new understanding of representative government that bridges the enormous gap that now exists between the political elite and the average voter. The assembly reform would increase opportunities for meaningful and intelligent participation by average citizens and improve public decisions. This article explains how a national network of citizen assemblies would work.

The Relationship Between Law School And The Bar Exam: A Look At Assessment And Student Success, Lorenzo A. Trujillo

University of Colorado Law Review

Law schools have a moral and ethical obligation to society-and, to an even greater degree, to their students-to adequately prepare the students to succeed as professionals. Ultimate success for law students is measured by the ability to competently practice in the legal profession, which requires passing the bar exam. A recent downward trend in national bar passage rates highlights the need for law schools to address the factors negatively affecting bar passage rates. Based on research conducted at the University of Colorado School of Law, this article discusses methods to reform new attorney licensure and also highlights strategies to improve …

In Restraint Of Trade: The Judicial Law Clerk Hiring Plan, Mark W. Pletcher, Ludovic C. Ghesquiere

University of Colorado Law Review

In an effort to bring order to what has historically been a chaotic process, federal judges and law schools implemented the Judicial Law Clerk Hiring Plan in 2002, prohibiting all students except those in their third year of law school from applying for federal clerkships. However, there is a serious problem with the Law Clerk Hiring Plan: it is an unreasonable restraint of trade. In this article, we explore the history of the Law Clerk Hiring Plan and analyze whether it would survive traditional antitrust scrutiny. We conclude that the Plan is an unreasonable restraint of trade. Further, based upon …

Dura Duress: The Supreme Court Mandates A More Rigorous Pleading And Proof Requirement For Loss Causation Under Rule Lob-5 Class Actions, Jared Neas

University of Colorado Law Review

The Supreme Court's holding in Dura Pharmaceuticals, Inc. v. Broudo imposes a heightened pleading requirement for private plaintiffins misrepresentation or omission securities class actions under Rule lOb-5. The Court verified that a plaintiff must adequately plead loss causation in its complaint and rejected the Ninth Circuit's interpretation of the loss causation standard. The Supreme Court held that the plaintif's pleadings in Dura did not meet the loss causation requirement of the Private Securities Litigation Reform Act ("PSLRA'). The Court also rejected the Ninth Circuit's requirement that the alleged misconduct merely "touch upon " the economic loss. Instead, the Supreme Court …

After Gonzales V. Raich: Is The Endangered Species Act Constitutional Under The Commerce Clause, Bradford C. Mank

University of Colorado Law Review

In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In four separate cases, three circuit courts (the District of Columbia, Fourth, and Fifth Circuits) struggled with deciding whether Congress may still protect endangered and threatened species that have little commercial value under the Commerce Clause after Lopez and Morrison. In each case, the court concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small …

Local Decisions, National Impact: Why The Public School Textbook Selection Process Should Be Viewpoint Neutral, Rebecca Tanglen

University of Colorado Law Review

In its decision in Hazelwood School District v. Kuhlmeier, the Supreme Court determined that in the public school context, government restriction on speech must be related to "legitimate pedagogical concerns." However, the question remains open whether that standard requires such restrictions to be viewpoint neutral; the circuit courts are split on this question. This Comment explores the issue in the context of the public school textbook selection process, concluding that the process should be viewpoint neutral. As an initial matter, it argues that the selection of textbooks for use in the public schools should be analyzed under the public forum …

Attempt, Reckless Homicide, And The Design Of Criminal Law, Michael T. Cahill

University of Colorado Law Review

Most American criminal codes create an offense for recklessly killing another person, and nearly all contain a general provision covering any attempt to commit an offense. This article explores the relation between reckless homicide and attempt, which proves more complex than it appears and also turns out to provide a useful starting point for examination of several broader issues in attempt law and criminal law generally. The idea of "attempted reckless homicide" ("ARH") is largely disfavored by legal scholars and almost, but not quite, universally rejected in American law. Part I of the article questions that hostility. The theoretical arguments …

The Educative Effects Of Direct Democracy: A Research Primer For Legal Scholars, Daniel A. Smith, Caroline J. Tolbert, Daniel C. Bowen

University of Colorado Law Review

This article surveys recent studies by political scientists that examine the "educative effects" of ballot measures on political participation and civic engagement, as well as their impact on candidate elections. The article provides legal scholars with empirical evidence that can be used to bolster normative and theoretical claims about the process and politics of direct democracy. The authors conclude by presenting original empirical research on the effects of ballot measures on individual attitudes toward state government and political trust. The article hypothesizes that citizens who are given more opportunities to participate in politics will have more trust in state government. …

The Climate Of Environmental Justice: Taking Stock- Forward, Maxine A. Burkett

University of Colorado Law Review

No abstract provided.

Solving The "Initiatory Construction" Puzzle (And Improving Direct Democracy) By Appropriate Refocusing On Sponsor Intent, Glenn C. Smith

University of Colorado Law Review

The U.S. Department of Justice and Department of Homeland Security has consistently attempted to make the process of becoming a lawful permanent resident of the United States difficult, at best. A 1997 Department of Justice regulation made this process impossible for a certain class of immigrants known as parolees, despite the fact that the Immigration and Nationality Act explicitly allowed these parolees the opportunity to become lawful permanent residents. The Department later withdrew this regulation because of the controversy it created in the federal circuit courts of appeal. However, new proposed regulations threaten to harm the position of immigrants in …

Beyond Agency Authority: Administrative Elimination Of Statutory Eligibility For Lawful Permanent Residence, Chelsy L. Knight

University of Colorado Law Review

The U.S. Department of Justice and Department of Homeland Security has consistently attempted to make the process of becoming a lawful permanent resident of the United States difficult, at best. A 1997 Department of Justice regulation made this process impossible for a certain class of immigrants known as parolees, despite the fact that the Immigration and Nationality Act explicitly allowed these parolees the opportunity to become lawful permanent residents. The Department later withdrew this regulation because of the controversy it created in the federal circuit courts of appeal. However, new proposed regulations threaten to harm the position of immigrants in …

Coalbed Methane: Crafting A Right To Sell From An Obligation To Vent, L. James Lyman

University of Colorado Law Review

Coalbed methane ("CBM") is a rapidly growing source of energy in the United States, particularly in the Intermountain West. Rather than being captured and utilized, however, much of the recoverable CBM is released into the atmosphere as coal mine methane ("CMM), a byproduct of coal mining. Allowing a federal coal operator to capture and sell or otherwise consume CMM would reduce greenhouse emissions, provide additional fuel for power generation, and avoid the waste of valuable natural resources. However, there is sparse guidance from the federal government regarding the right of federal coal operators to engage in CMM sale. What little …

The Tragedy Of The Commons And The Myth Of A Private Property Solution, Amy Sinden

University of Colorado Law Review

According to generally accepted wisdom of welfare economics, there are two potential solutions to the tragedy of the commons: 1) government regulation, or 2) privatization. Government regulation and privatization can usefully be distinguished from each other based on who answers the "how much" question. Under the former, government answers the "how much" question, and under the latter, the market answers it. When the U.S. environmental movement began in the 1970s, government regulation seemed the obvious choice. But in recent years, intellectual fashions have changed, and privatization has become the preferred solution. The privatization solution, however, is a myth that exists, …