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Full-Text Articles in Law

Tribute To Professor Jim Mooney, Charles Wilkinson Jan 2008

Tribute To Professor Jim Mooney, Charles Wilkinson

Articles

No abstract provided.


Response, Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang Jan 2008

Response, Diverse Conceptions Of Emotions In Risk Regulation, Peter H. Huang

Articles

No abstract provided.


Emotional Adaptation And Lawsuit Settlements, Peter H. Huang Jan 2008

Emotional Adaptation And Lawsuit Settlements, Peter H. Huang

Articles

In Hedonic Adaptation and the Settlement of Civil Lawsuits, Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur note an unexplored aspect of protracted lawsuits: During prolonged litigation tort victims can adapt emotionally to even permanent injuries, and therefore are more likely to settle--and for less--than if their lawsuits proceeded faster. This Response demonstrates that this is a facile application of hedonic adaptation with the following three points. First, people care about more than happiness: Tort victims may sue to seek justice or revenge; emotions in tort litigation can be cultural evaluations; and people are often motivated by identity and meaning ...


Why And How To Tax Carbon, Michael Waggoner Jan 2008

Why And How To Tax Carbon, Michael Waggoner

Articles

Increased concern about possible global warming due to rising levels of greenhouse gases such as carbon dioxide ("CO2") suggests the need to control emissions of CO2. This article explores a system of revenue-neutral carbon taxes as a supplement or alternative to other CO2 control systems such as subsidies, regulation, and cap-and-trade. A system of carbon taxation should be, the Article suggests, sufficiently fairer and simpler and more efficient than the other possible systems of CO2 control and that it merits serious consideration. Because the carbon tax that is suggested would be revenue neutral, it should be politically acceptable. Problems with ...


The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun Jan 2008

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Articles

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.


Spectrum Policy Reform And The Next Frontier Of Property Rights, Philip J. Weiser, Dale N. Hatfield Jan 2008

Spectrum Policy Reform And The Next Frontier Of Property Rights, Philip J. Weiser, Dale N. Hatfield

Articles

The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for ...


Authentic Happiness & Meaning At Law Firms, Peter H. Huang, Rick Swedloff Jan 2008

Authentic Happiness & Meaning At Law Firms, Peter H. Huang, Rick Swedloff

Articles

We advocate that law firms can and should foster authentic happiness and meaning in the professional lives of their associates. Based upon empirical and experimental research in behavioral economics and positive psychology, we consider how law firms can implement policies to promote authentic happiness and meaning in their associates' professional lives. We also believe that law schools can and should help to reduce the anxiety, stress, and unhappiness that individuals feel as law students and help them develop abilities to achieve meaningful careers as law firm associates. We provide a guide as to how law firms and law schools can ...


Note, Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson Jan 2008

Note, Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson

Articles

This article explains that under international law nations are not permitted to use force to impose democracy on other nations and that such an approach is also impracticable and undesirable from a policy perspective.


The Wise Researcher: One Library’S Experience Implementing A Federated Search Product, Yumin Jiang, Georgia Briscoe Jan 2008

The Wise Researcher: One Library’S Experience Implementing A Federated Search Product, Yumin Jiang, Georgia Briscoe

Articles

No abstract provided.


Marriage And Practical Knowledge, Robert F. Nagel Jan 2008

Marriage And Practical Knowledge, Robert F. Nagel

Articles

No abstract provided.


The Measure Of Government Speech: Identifying Expression's Source, Helen Norton Jan 2008

The Measure Of Government Speech: Identifying Expression's Source, Helen Norton

Articles

States and other governmental bodies increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a public entity claims that same speech as its own, along with the ability to control its content.

In suggesting a framework for approaching these problems, this Article starts by examining the theoretical and practical justifications for insulating ...


Indian Nations And The Federal Government: What Will Justice Require In The Future? Claims Against The Sovereign 20th Jusicial Conference Of The United States Court Of Federal Claims, Charles Wilkinson Jan 2008

Indian Nations And The Federal Government: What Will Justice Require In The Future? Claims Against The Sovereign 20th Jusicial Conference Of The United States Court Of Federal Claims, Charles Wilkinson

Articles

No abstract provided.


Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom Jan 2008

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Articles

No abstract provided.


Shame, Paul Campos Jan 2008

Shame, Paul Campos

Articles

Here are some observations drawn from nearly seventeen years spent as a legal academic, using a particular device: the depiction of several fictional yet all-too-familiar legal academic characters. With one exception these characters are imaginary - yet their name is legion. The characters are The Drone, The Bully, The Hack, and The Fraud.

What can be done about them - or about us? Answering this question at all satisfactorily requires confronting more than the personal flaws of particular individuals: it necessitates grappling with the structural failures of the contemporary law school. It's true that some of what is wrong with legal ...


State Courts Unbound, Frederic M. Bloom Jan 2008

State Courts Unbound, Frederic M. Bloom

Articles

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they ...


Interpretive Sovereignty: A Research Agenda, Kristen A. Carpenter Jan 2008

Interpretive Sovereignty: A Research Agenda, Kristen A. Carpenter

Articles

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties--originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages--present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians' understanding of treaty terms and, more generally, to promote the interests of Indian ...


Opinion Testimony: Lay, Expert, Or Something Else?, H. Patrick Furman Jan 2008

Opinion Testimony: Lay, Expert, Or Something Else?, H. Patrick Furman

Articles

This article discusses opinion testimony of lay witnesses and expert witnesses. It provides an overview of lay opinion testimony and discusses the dividing line between lay and opinion testimony.


Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber Jan 2008

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Articles

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually ...


Delivering User-Centric Services At The Colorado Supreme Court Library, Robert M. Linz Jan 2008

Delivering User-Centric Services At The Colorado Supreme Court Library, Robert M. Linz

Articles

No abstract provided.


The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines Jan 2008

The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines

Articles

As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates' strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe's privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of ...


The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart Jan 2008

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Articles

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are ...


Real Property And Peoplehood, Kristen A. Carpenter Jan 2008

Real Property And Peoplehood, Kristen A. Carpenter

Articles

This Article proposes a theory of real property and peoplehood in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United ...


Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart Jan 2008

Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart

Articles

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing Co., was widely viewed as a victory rather than a defeat for plaintiffs. This surprising perception flowed from the Court's holding that such "after-acquired evidence" of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial ...


The Public Lands And The National Heritage, Charles F. Wilkinson Jan 2008

The Public Lands And The National Heritage, Charles F. Wilkinson

Articles

No abstract provided.


Unwinding Unwinding, David Hasen Jan 2008

Unwinding Unwinding, David Hasen

Articles

"Unwinding" is a common, if not ubiquitous, feature of tax practice. In a successful unwind, parties to a prior transaction or arrangement back out of it by means of a later transaction and are treated for tax purposes as having engaged in no transactions at all. In a failed unwind, the parties undertake the later transaction, but it is not treated as nullifying the effects of the first transaction; rather, two separate transactions are deemed to have taken place, each with its own tax consequences.

This Article develops the first unified theoretical framework for analyzing tax unwinding. It also provides ...


The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger Jan 2008

The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger

Articles

No abstract provided.


Government Workers And Government Speech, Helen Norton Jan 2008

Government Workers And Government Speech, Helen Norton

Articles

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has ...


The Ethics Of Collaborative Law, Scott R. Peppet Jan 2008

The Ethics Of Collaborative Law, Scott R. Peppet

Articles

The practice of Collaborative Law - in which both parties agree that should their case fail to settle, both lawyers will be disqualified from proceeding to court - has grown rapidly in the family bar over the last decade. At the same time, the ethics of this practice have been called into question. Competing ethics opinions in 2007 - from the Colorado Bar Association and the American Bar Association - alternately ban and permit the practice. This Article tries to clarify the underlying ethical issues in Collaborative Law, arguing that much confusion has resulted from imprecise understandings of what the practice is and how ...


The (New) Ethics Of Collaborative Law, Scott R. Peppet Jan 2008

The (New) Ethics Of Collaborative Law, Scott R. Peppet

Articles

No abstract provided.


Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson Jan 2008

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

Articles

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the ...