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The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight 2010 University of Missouri School of Law

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight

Faculty Publications

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication ...


Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten 2010 University of Missouri School of Law

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing ...


Shining A Light On Democracy's Dark Lagoon, Helen Norton 2010 University of Colorado Law School

Shining A Light On Democracy's Dark Lagoon, Helen Norton

Articles

Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices ...


Critique Of U.S. House Bill 2454 On Climate Change, Michael J. Waggoner 2010 University of Colorado Law School

Critique Of U.S. House Bill 2454 On Climate Change, Michael J. Waggoner

Articles

The U.S. House of Representatives, in June 2009, approved a bill to create a cap and trade system and a system of regulations and subsidies to address the problems of climate change. The U.S. Senate is now considering remedies for climate change. The approach of House Bill 2454 is ill-advised, and should be rejected by the Senate, because of the problems outlined below. I propose that these problems that would not be presented by a carbon tax, a simpler and more effective remedy for the risk of climate change.


Note, A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin 2010 University of Colorado Law School

Note, A Defensible Defense?: Reexamining Castle Doctrine Statutes, Benjamin Levin

Articles

Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.

Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which it ...


A Standard Clause Analysis Of The Frustration Doctrine And The Material Adverse Change Clause, Andrew A. Schwartz 2010 University of Colorado Law School

A Standard Clause Analysis Of The Frustration Doctrine And The Material Adverse Change Clause, Andrew A. Schwartz

Articles

In the darkest depths of a corporate merger agreement lies the MAC clause, a term that permits the acquirer to walk away from a transaction if, between signing and closing, the target company experiences a "Material Adverse Change." Multibillion-dollar deals rise or fall based on the anticipated interpretation of a MAC clause, and invocation of the clause in a sensitive transaction could trigger the collapse of the global financial system. In short, the MAC clause is the most important contract term of our time. And yet--due to an almost total lack of case law--no one knows what it means.

In ...


Placing Your Faith In The Constitution, Harold H. Bruff 2010 University of Colorado Law School

Placing Your Faith In The Constitution, Harold H. Bruff

Articles

No abstract provided.


Quality Of Academic Law Library Online Catalogs And Its Effect On Information Retrieval, Georgia Briscoe 2010 University of Colorado Law School

Quality Of Academic Law Library Online Catalogs And Its Effect On Information Retrieval, Georgia Briscoe

Articles

Quality in online catalogs is generally presumed to be high. Ms. Briscoe examined a number of online catalog entries and documented the accuracy of selected bibliographic records. After finding a high level of errors, she surveyed reference librarians to determine if they believed that these errors would affect their ability to answer reference questions.


The False Promise Of Retributive Proportionality, Aya Gruber 2010 University of Colorado Law School

The False Promise Of Retributive Proportionality, Aya Gruber

Articles

No abstract provided.


Ways Of Seeing In Environmental Law: How Deforestation Became An Object Of Climate Governance, William Boyd 2010 University of Colorado Law School

Ways Of Seeing In Environmental Law: How Deforestation Became An Object Of Climate Governance, William Boyd

Articles

Few areas of law are as deeply implicated with science and technology as environmental law, yet we have only a cursory understanding of how science and technology shape the field. Environmental law, it seems, has lost sight of the constitutive role that science and technology play in fashioning the problems that it targets for regulation. Too often, the study and practice of environmental law and governance take the object of governance--be it climate change, water pollution, biodiversity, or deforestation--as self-evident, natural, and fully-formed without recognizing the significant scientific and technological investments that go into making such objects and the manner ...


Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd 2010 University of Colorado Law School

Climate Change, Fragmentation, And The Challenges Of Global Environmental Law: Elements Of A Post-Copenhagen Assemblage, William Boyd

Articles

The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure -a referendum in the eyes of many on the top-down, comprehensive approach to climate governance embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime. Despite a modest agreement on future work toward a new agreement, the most recent climate meeting in Cancún, Mexico reinforces this view, underscoring the conclusion that Copenhagen represents an important inflection point for international climate policy. Although much of the post-Copenhagen commentary has correctly identified various problems, even fatal flaws, with the process, very little ...


Propaganda For War And Transparency, Richard B. Collins 2010 University of Colorado Law School

Propaganda For War And Transparency, Richard B. Collins

Articles

No abstract provided.


Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding 2010 University of Colorado Law School

Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding

Articles

This article presents the following model of two regulatory classes of financial institutions interacting in financial and political markets to spur deregulation and riskier lending and investment, which in turn contributes to the severity of a financial crisis: 1) Regulation creates two categories of financial institutions. The first class faces greater restrictions in lending or investment activities but enjoys regulatory subsidies, such as an explicit or implicit government guarantee, while the second class is more loosely regulated and can make riskier loans or investments and earn additional profits. 2) These additional profits leads to calls for deregulation to enable the ...


Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen 2010 University of Colorado Law School

Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen

Articles

This article revises widespread application of the racialization thesis to Arabs, Muslims, and South Asians following September 11. It suggests in its place an “alienation thesis” to describe the formation of an alien identity for those perceived and treated as noncitizens. This thesis draws on Asian American and critical race scholarship to re-interpret sociological understandings of the post-September 11 response to Arabs, Muslims, and South Asians. The article concludes that shifting conceptions of this phenomenon is critical to reforming “alienating” practices that function not only to cause harm to their intended targets, but also to distort the legal requirements of ...


A Distributive Theory Of Criminal Law, Aya Gruber 2010 University of Colorado Law School

A Distributive Theory Of Criminal Law, Aya Gruber

Articles

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in ...


What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell 2010 University of Colorado Law School

What's Love Got To Do With It?: Contemporary Lessons On Lawyerly Advocacy From The Preacher Martin Luther King, Jr., Deborah J. Cantrell

Articles

Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King's religious values were not ...


An Arm's Length Solution To The Shareholder Loan Tax Puzzle, Wayne M. Gazur 2010 University of Colorado Law School

An Arm's Length Solution To The Shareholder Loan Tax Puzzle, Wayne M. Gazur

Articles

No abstract provided.


Can Compassionate Practice Also Be Good Legal Practice?: Answers From The Lives Of Buddhist Lawyers, Deborah J. Cantrell 2010 University of Colorado Law School

Can Compassionate Practice Also Be Good Legal Practice?: Answers From The Lives Of Buddhist Lawyers, Deborah J. Cantrell

Articles

What does it mean to say that one is a "good lawyer" in the United States? The dominant view is that a lawyer is a zealous advocate owing loyalty to, and taking direction from, the client. The lawyer is singularly focused and hyper-rationality is prized. This article challenges that narrative. Using the real lives of a group of lawyers across the United States, this article offers rich and nuanced descriptive data about the possibilities of "good lawyering" through compassion, equanimity, and an expanded notion of honesty. This article contributes importantly to the debate about what it means to be a ...


The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff 2010 University of Colorado Law School

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Articles

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described ...


Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff 2010 University of Colorado Law School

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Articles

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from ...


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