Law Commons^™

Natural Resources Law, Jan G. Laitos, Sandra B. Zellmer

Sturm College of Law: Faculty Scholarship

This treatise is a thorough assessment of the important and growing field of natural resources law. It provides comprehensive coverage of the laws, policies, and decision-making processes pertinent to the "core "commodity natural resources - rangeland, timber, mineral resources, energy resources, and water. It also covers the management and protection of non-commodity resources, such as wildlife, wilderness, and other types of preservation and recreation lands. As an essential addition to any environmental, natural resources, or public lands library, the book puts natural resources law in context with a review of the National Environmental Policy Act, a history of natural resources …

Communication In Cyberspace, Nancy Leong, Joanne Morando

Sturm College of Law: Faculty Scholarship

This Article examines a problem in cybercrime law that is both persistent and pervasive. What counts as “communication” on the Internet? Defining the term is particularly important for crimes such as cyberstalking, cyberharassment, and cyberbullying, where most statutes require a showing that the alleged perpetrator “communicated” with the victim or impose a similar requirement through slightly different language.

This Article takes up the important task of defining communication. As a foundation to our discussion, we provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying. We then examine the realities of the way …

Brief Of Amici Curiae Scholars Of The Constitutional Rights Of Children In Support Of Petitioners In Obergefell V. Hodges, Catherine E. Smith, Lauren Fontana, Susannah William Pollvogt, Tanya Washington

Sturm College of Law: Faculty Scholarship

Supreme Court precedent establishes that the government may not punish children for matters beyond their control. Same-sex marriage bans and non-recognition laws (“marriage bans”) do precisely this. The states argue that marriage is good for children, yet marriage bans categorically exclude an entire class of children – children of same-sex couples – from the legal, economic and social benefits of marriage.

This amicus brief recounts a powerful body of equal protection jurisprudence that prohibits punishing children to reflect moral disapproval of parental conduct or to incentivize adult behavior. We then explain that marriage bans punish children of same-sex couples because …

Setting Congress Up To Fail, Margaret B. Kwoka

Sturm College of Law: Faculty Scholarship

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. …

The Gardener And The Sick Garden: How Not To Address The Planet's Environmental Issues, Jan G. Laitos, Juliana E. Okulski

Sturm College of Law: Faculty Scholarship

A truly workable environmental strategy would start by being grounded in better, more realistic and empirically accurate models of how nature works, how humans behave, and humankind's relationship to nature. Such an environmental policy would realize that the gardener and the garden are not separate, but one. And this environmental policy would embrace two correlative legal norms: (1) we should recognize a positive right, held by both humans and their natural surroundings, to environmental conditions that may sustain human survivability'; and (2) we should impose an affirmative duty on humans to promote and support natural systems.

"Teaching" Formation Of Professional Identity, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

This Article is my attempt to provide a guide to what professional identity formation is—as distinct from more familiar concepts of professionalism and ethics—and what legal educators are doing, and could do in the future, to foster this sort of professional formation in their courses and curricula. In Part I, I offer some background and history of the topic, which supports a new definition provided in the Article for lawyer professional identity formation. I describe in Part II what some schools are doing to “teach” formation of professional identity and argue that those efforts have some significant limitations. I argue …

In-House Risk, Eli Wald

Sturm College of Law: Faculty Scholarship

Over the last thirty years or so, as the number of in-house counsel rose and their role increased in scope and prominence, increased attention has been given the various challenges these lawyers face under the ABA Model Rules of Professional Conduct, from figuring out who is the client the in-house lawyer represents, to navigating conflicts of interest, maintaining independence, and engaging in a multijurisdictional practice of law. Less attention, to date, has been given to business risk assessment, perhaps in part because that function appears to be part of in-house counsel’s role as a business person rather than as a …

Governance And Uncertainty, Justin R. Pidot

Sturm College of Law: Faculty Scholarship

Government actors create law against a backdrop of uncertainty. Limited information, unpredictable events, and lack of understanding interfere with accurately predicting a legal regime’s costs, benefits, and effects on other legal and social programs and institutions. Does the availability of no-fault divorce increase the number of terminated marriages? Will bulk-collection of telecommunications information about American citizens reveal terrorist plots? Can a sensitive species breed in the presence of oil and gas wells? The answers to these questions are far from clear, but lawmakers must act nonetheless.

The problems posed by uncertainty cut across legal fields. Scholars and regulators in a …

Social License To Operate: Hydraulic Fracturing-Related Challenges Facing The Oil & Gas Industry, Don C. Smith, Jessica Marie Richards

Sturm College of Law: Faculty Scholarship

The crossroads of urban development and improved technology allowing oil and gas development in new areas can result in contentious community issues. The debate over one of the improved technologies – i.e., hydraulic fracturing – can be highly emotional. Consequently, industry must address community issues, earning trust and therefore a “social license to operate.” This paper provides fundamental knowledge of the social license to operate concept, validates its application to the oil and gas industry, particularly with respect to shale gas development, discusses the current status of social license in the unconventional development sphere, analyzes current ongoing efforts for shale …

Defining Experiential Legal Education, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

This article offers in Part I the major sources for a possible new definition of experiential learning, and describes the limitations of the definitional elements that we currently have. Part II argues that the definitions we currently have are not only limited but their limitations are being further exposed by the growth and variety in experiential learning opportunities currently being offered in many law schools. Part III offers a new definition for experiential learning in law, together with a series of questions that can be used in applying the definition. Finally, Part IV offers application of the new definition to …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom Romero Ii

Sturm College of Law: Faculty Scholarship

This article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today.

The racial history of the Roberts Court is centrally informed by the context and …

Trademark Laundering, Useless Patents, And Other Ip Challenges For The Marijuana Industry, Sam Kamin, Viva Moffat

Sturm College of Law: Faculty Scholarship

Marijuana law is changing rapidly in the United States today – since 1996, 23 states and the District of Columbia have legalized medical marijuana and five jurisdictions have made marijuana legal for all adults. Because marijuana remains a prohibited substance under federal law, however, the states are significantly limited in their ability to control marijuana policy within their borders. For example, because banking is regulated by the federal government, state-licensed marijuana businesses cannot gain full access to banking services; because bankruptcy is a federal benefit, it is unavailable to those involved in the business of violating federal law.

This article …

Understanding The Costs Of Experiential Legal Education, Martin J. Katz

Sturm College of Law: Faculty Scholarship

Law schools across the country are under pressure to do two seemingly contradictory things. First, we must do a better job of preparing our graduates for practice. Most commentators, including me, believe that this requires law schools to increase the quantity and quality of experiential education we provide. At the same time, law schools are under pressure to control costs. If we do not do so, we risk pricing a large and growing segment of the population out of our market. Can law schools meet both of these mandates simultaneously? The received wisdom seems to be that experiential education is …

Distance Education And The Evolution Of Online Learning In The United States, Hope Kentnor

Sturm College of Law: Faculty Scholarship

Online education is no longer a trend, rather it is mainstream. In the Fall of 2012, 69.1% of chief academic leaders indicated online learning was critical to their long-term strategy and of the 20.6 million students enrolled in higher education, 6.7 million were enrolled in an online course (Allen & Seaman, 2013; United States Department of Education, 2013). The advent of online education and its rapid growth has forced academic institutions and faculty to question the current styles and techniques for teaching and learning. As developments in educational technology continue to advance, the ways in which we deliver and receive …

Public Lawyers And Marijuana Regulation, Sam Kamin, Eli Wald

Sturm College of Law: Faculty Scholarship

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution …

Representing Clients In The Marijuana Industry: Navigating State And Federal Rules, Eli Wald, Eric Liebman, Amanda Bertrand

Sturm College of Law: Faculty Scholarship

As the number of states legalizing medicinal and recreational marijuana increases and marijuana emerges as a growing lawful industry, lawyers find themselves in an awkward position. In most states, lawyers who represent clients in the marijuana industry risk discipline for assisting clients in the commission of a (federal) crime. Even in jurisdictions like Colorado, where the rules of professional conduct have been amended to permit lawyers to assist clients who comply with marijuana state laws, lawyers who are admitted to practice in federal courts risk being disciplined by these tribunals for assisting clients in the commission of a crime pursuant …

Biglaw Identity Capital: Pink And Blue, Black And White, Eli Wald

Sturm College of Law: Faculty Scholarship

This Article advances a new capital framework for understanding the bargain between large law firms and their lawyers, depicting BigLaw relationships not as basic labor-salary exchanges but rather as complex transactions in which large law firms and their lawyers exchange labor and various forms of capital — social, cultural, and identity. First, it builds on the work of Pierre Bourdieu regarding economic, cultural, symbolic, and social capital by examining the concepts of positive and negative capital, exploring the meaning of capital ownership by entities, and developing the notion of identity capital — the value individuals and institutions derive from their …

The Immortal Accusation, Lindsey Webb

Sturm College of Law: Faculty Scholarship

In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering its larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to …

Weber V. N. Loup River Pub. Power & Irrigation Dist., 854 N.W.2d 263 (Neb. 2014), Kylie Wyse

Water Law Review

No abstract provided.

Enduring Acequias: Wisdom Of The Land, Knowledge Of The Water, Joey Risch

Water Law Review

No abstract provided.

San Luis & Delta-Mendota Water Auth. V. Locke, 776 F.3d 971 (9th Cir. 2014), Victoria Hambley

Water Law Review

No abstract provided.

Marvin M. Brandt Revocable Trust V. United States: Turning A National Asset Into A Private Gain, Hannah Christian

Denver Law Review

No abstract provided.

Choice At Work: Young V. United Parcel Service, Pregnancy Discrimination, And Reproductive Liberty, Mary Ziegler

Denver Law Review

No abstract provided.

Vol. 92, No. 2: Full Issue, Denver University Law Review

Denver Law Review

No abstract provided.