Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 212

Full-Text Articles in Law

The Failure Of The Criminal Procedure Revolution, William T. Pizzi Jan 2020

The Failure Of The Criminal Procedure Revolution, William T. Pizzi

Articles

No abstract provided.


Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff Jan 2020

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

Articles

Even the nation’s most cherished and protected public lands are not spaces apart from the workings of law, politics, and power. This Essay explores that premise in the context of Grand Canyon National Park. On the occasion of the Park’s 100th Anniversary, it examines how law — embedded in a political economy committed to rapid growth and development in the southwestern United States — facilitated the violent displacement of indigenous peoples and entrenched racialized inequalities in the surrounding region. It also explores law’s shortcomings in the context of sexual harassment and discrimination within the Park. The Essay concludes by ...


A Recent Renaissance In Privacy Law, Margot Kaminski Jan 2020

A Recent Renaissance In Privacy Law, Margot Kaminski

Articles

Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.


Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux Jan 2020

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Articles

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.


The Troubling Alliance Between Feminism And Policing, Aya Gruber Jan 2020

The Troubling Alliance Between Feminism And Policing, Aya Gruber

Articles

No abstract provided.


Do Abolitionism And Constitutionalism Mix?, Aya Gruber Jan 2020

Do Abolitionism And Constitutionalism Mix?, Aya Gruber

Articles

No abstract provided.


Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux Jan 2020

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Articles

No abstract provided.


The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson Jan 2020

The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson

Articles

Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of ...


A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos Jan 2019

A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos

Articles

This Article argues that, properly understood, the 25th Amendment is designed to allow the executive and legislative branches, working together, to remove a president from office when it becomes evident that the person elevated to that office by the electoral process is manifestly unsuited for what can, without exaggeration, be described as the most important job in the world.

It argues further that the first two years of Donald Trump’s presidency have provided a great deal of evidence for the proposition that President Trump has in fact demonstrated the requisite level of fundamental unfitness for the office that would ...


Negotiating The Lender Of Last Resort: The 1913 Federal Reserve Act As A Debate Over Credit Distribution, Nadav Orian Peer Jan 2019

Negotiating The Lender Of Last Resort: The 1913 Federal Reserve Act As A Debate Over Credit Distribution, Nadav Orian Peer

Articles

“Lending of last resort” is one of the key powers of central banks. As a lender of last resort, the Federal Reserve (the “Fed”) famously supports commercial banks facing distressed liquidity conditions, thereby mitigating destabilizing bank runs. Less famously, lender-of-last-resort powers also influence the distribution of credit among different groups in society and therefore have high stakes for economic inequality. The Fed’s role as a lender of last resort witnessed an unprecedented expansion during the 2007–2009 Crisis when the Fed invoked emergency powers to lend to a new set of borrowers known as “shadow banks”. The decision proved ...


Human Rights Racism, Anna Spain Bradley Jan 2019

Human Rights Racism, Anna Spain Bradley

Articles

International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She ...


Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff Jan 2018

Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff

Articles

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or ...


The Government's Manufacture Of Doubt, Helen Norton Jan 2018

The Government's Manufacture Of Doubt, Helen Norton

Articles

“The manufacture of doubt” refers to a speaker’s strategic efforts to undermine factual assertions that threaten its self-interest. This strategy was perhaps most famously employed by the tobacco industry in its longstanding campaign to contest mounting medical evidence linking cigarettes to a wide range of health risks. At its best, the government’s speech can counter such efforts and protect the public interest, as exemplified by the Surgeon General’s groundbreaking 1964 report on the dangers of tobacco, a report that challenged the industry’s preferred narrative. But the government’s speech is not always so heroic, and governments ...


"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson Jan 2018

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Articles

No abstract provided.


Its Own Dubious Battle: The Impossible Defense Of An Effective Right To Strike, Ahmed White Jan 2018

Its Own Dubious Battle: The Impossible Defense Of An Effective Right To Strike, Ahmed White

Articles

One of the most important statutes ever enacted, the National Labor Relations Act envisaged the right to strike as the centerpiece of a system of labor law whose central aims included dramatically diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. These goals have never been more relevant. But they have proved difficult to realize via the labor law, in large part because an effective right to strike has long been elusive, undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right ...


The First Queer Right, Scott Skinner-Thompson Jan 2018

The First Queer Right, Scott Skinner-Thompson

Articles

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme ...


Book Review, Anna Spain Bradley Jan 2018

Book Review, Anna Spain Bradley

Articles

No abstract provided.


Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel Jan 2018

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

Articles

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At ...


The Potemkin Temptation Or, The Intoxicating Effect Of Rhetoric And Narrativity On American Craft Whiskey, Derek H. Kiernan-Johnson Jan 2018

The Potemkin Temptation Or, The Intoxicating Effect Of Rhetoric And Narrativity On American Craft Whiskey, Derek H. Kiernan-Johnson

Articles

No abstract provided.


Excavating The Forgotten Suspension Clause, Helen Norton Jan 2018

Excavating The Forgotten Suspension Clause, Helen Norton

Articles

No abstract provided.


Administrative Dissents, Sharon B. Jacobs Jan 2017

Administrative Dissents, Sharon B. Jacobs

Articles

Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. Yet while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationships between agencies and other actors. This Article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to move beyond two common generalizations about ...


Response, Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux Jan 2017

Response, Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Articles

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and ...


Government Speech And The War On Terror, Helen Norton Jan 2017

Government Speech And The War On Terror, Helen Norton

Articles

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's ...


The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux Jan 2017

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Articles

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases ...


Book Review, Ahmed White Jan 2017

Book Review, Ahmed White

Articles

No abstract provided.


Book Review, Anna Spain Bradley Jan 2017

Book Review, Anna Spain Bradley

Articles

No abstract provided.


A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Desautels-Stein Jan 2016

A Context For Legal History, Or, This Is Not Your Father’S Contextualism, Justin Desautels-Stein

Articles

This short essay attempts a systematic rehearsal of the structuralist approach to legal historiography.


How Presidents Interpret The Constitution, Harold H. Bruff Jan 2016

How Presidents Interpret The Constitution, Harold H. Bruff

Articles

No abstract provided.


Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton Jan 2016

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Articles

No abstract provided.


The Forgotten Core Of The Telecommunications Act Of 1996, Philip J. Weiser Jan 2016

The Forgotten Core Of The Telecommunications Act Of 1996, Philip J. Weiser

Articles

No abstract provided.