Digital Commons Network^™

Cybersecurity In Critical Infrastructure Sectors: A Proactive Approach To Ensure Inevitable Laws And Regulations Are Effective, Chris Laughlin

Colorado Technology Law Journal

No abstract provided.

Non-Possession As One-Tenth Of The Law: Right To Refuse Or Duty To Deal In Molecular Monopolies, Jordan Moliver

Colorado Technology Law Journal

No abstract provided.

Table Of Contents, Colorado Technology Law Journal

Colorado Technology Law Journal

No abstract provided.

Keynote Address By The Assistant Secretary For Communications And Information At The Department Of Commerce, Lawrence E. Strickling

Colorado Technology Law Journal

No abstract provided.

Closing Fireside Chat With The Assistant Attorney General For The U.S. Department Of Justice Antitrust Division, William Baer, Philip J. Weiser

Colorado Technology Law Journal

No abstract provided.

Organizational Doxing: Disaster On The Doorstep, Colin J.A. Oldberg

Colorado Technology Law Journal

No abstract provided.

The Battle For Electronic Health Record Financing: The Next Epoch In The Story Of The American Health Care System, Abigail Rings

Colorado Technology Law Journal

No abstract provided.

Regulating Software When Everything Has Software, Paul Ohm, Blake Reid

Publications

This Article identifies a profound, ongoing shift in the modern administrative state: from the regulation of things to the regulation of code. This shift has and will continue to place previously isolated agencies in an increasing state of overlap, raising the likelihood of inconsistent regulations and putting seemingly disparate policy goals, like privacy, safety, environmental protection, and copyright enforcement, in tension. This Article explores this problem through a series of case studies and articulates a taxonomy of code regulations to help place hardware-turned-code rules in context. The Article considers the likely turf wars, regulatory thickets, and related dynamics that are …

When The Default Is No Penalty: Negotiating Privacy At The Ntia, Margot E. Kaminski

Publications

Consumer privacy protection is largely within the purview of the Federal Trade Commission. In recent years, however, the National Telecommunications and Information Administration (NTIA) at the Department of Commerce has hosted multistakeholder negotiations on consumer privacy issues. The NTIA process has addressed mobile apps, facial recognition, and most recently, drones. It is meant to serve as a venue for industry self-regulation. Drawing on the literature on co-regulation and on penalty defaults, I suggest that the NTIA process struggles to successfully extract industry expertise and participation against a dearth of federal data privacy law and enforcement. This problem is most exacerbated …

A New Governance Recipe For Food Safety Regulation, Alexia Brunet Marks

Publications

Although food safety is a significant and increasing global health concern, international economic law does not adequately address today’s global food safety needs. While most countries rely on a collection of formalized legal rules to protect food safety, these rules too often fall short. As fiscal constraints impede raising the number of border inspections, formal international commitments (treaties) frequently limit governmental efforts to raise food safety standards. Private companies, meanwhile, can readily adopt higher standards to meet consumer demands and supply chain needs, thus demonstrating more nimbleness and flexibility in adopting the highest food safety standards available. Can countries learn …

Meta-Mindfulness: A New Hope, Peter H. Huang

Publications

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the …

Classification Standards For Health Information: Ethical And Practical Approaches, Craig Konnoth

Publications

Secondary health information research requires vast quantities of data in order to make clinical and health delivery breakthroughs. Restrictive policies that limit the use of such information threaten to stymie this research. While the Notice of Proposed Rulemaking (NPRM) for the new Common Rule permits patients to provide broad consent for the use of their information for research, that policy offers insufficient flexibility. This Article suggests a flexible consenting system that allows patients to consent to a range of privacy risks. The details of the system will be fleshed out in future work.

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

Environmental Law, Big Data, And The Torrent Of Singularities, William Boyd

Publications

How will big data impact environmental law in the near future? This Essay imagines one possible future for environmental law in 2030 that focuses on the implications of big data for the protection of public health from risks associated with pollution and industrial chemicals. It assumes the perspective of an historian looking back from the end of the twenty-first century at the evolution of environmental law during the late twentieth and early twenty-first centuries. The premise of the Essay is that big data will drive a major shift in the underlying knowledge practices of environmental law (along with other areas …

The Social Boundaries Of Corporate Taxation, Sloan G. Speck

Publications

Historically, the tax law distinction between corporate and conduit treatment drew primarily on doctrinal understandings, treating state-law corporations as corporate for tax purposes and classifying unincorporated legal entities based on their resemblance to conventional state-law corporations. More recently, commentators and Treasury have abandoned these doctrinal touchstones in favor of efficiency, broadly construed, as the guiding principle in determining an entity’s tax classification. This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment. First, classical corporate taxation is, in many ways, deeply embedded within a larger network …

Beyond Legality: The Legitimacy Of Executive Action In Immigration Law, Ming H. Chen

Publications

Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges …

Anti-Rape Culture, Aya Gruber

Publications

This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due …

Consent Confusion, Aya Gruber

Publications

The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty …

Genetic Essentialism In Family Law, Jennifer S. Hendricks

Publications

No abstract provided.

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

Publications

Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …

Closing Fireside Chat With The Assistant Attorney General For The U.S. Department Of Justice Antitrust Division, William Baer, Philip J. Weiser

Publications

This Closing Fireside Chat was the final session of the 16th annual Silicon Flatirons Center conference, The Digital Broadband Migration: The Evolving Industry Structure of the Digital Broadband Landscape, held on Feb. 1, 2016 in the Wittemyer Courtroom of the University of Colorado Law School.

"At the time this conference was held, William J. Baer was Assistant Attorney General for Antitrust in the United States Department of Justice. On April 17, 2016, President Obama asked Mr. Baer to become Acting Associate Attorney General of the United States. Video of this interview with Assistant Attorney General Baer is available at https://www.youtube.com/watch?v=C351xEX0h4g …

Law, Science, And The Injured Mind, Govind Persad

Publications

Even while we widely recognize legal liability for physical injury, we frequently discount mental, emotional, and psychological injury. We disfavor tort liability for emotional distress; we prohibit prisoners from suing for purely psychological injuries; and we tax the damages victims of emotional injury receive even while leaving damages for physical injury untaxed. This Article argues that neuroscientific, psychological, and technological advances challenge our traditional ideas about the set of injuries that are possible and that merit legal redress. The Article goes on to contend that, while these advances challenge our traditional ideas, they do not inevitably overturn traditional distinctions within …

Health Theater, Govind Persad

Publications

"Security theater" has been defined as an effort to "provide the feeling of security instead of the reality. " The concept of security theater has been discussed in both the popular press and academic literature, but has not yet entered health law. This project suggests that a parallel category of "health theater" picks out a set ofpractices in medical screening and health care delivery that provide a mere simulacrum ofprotection against medical risk, rather than providing genuine medical benefit. Part I summarizes some of the distinctive advantages and disadvantages of health and security theater. Like security theater, health theater frequently …

Sufficiency, Comprehensiveness Of Healthcare Coverage And Cost-Sharing Arrangements In The Realpolitik Of Health Policy, Govind Persad, Harald Schmidt

Publications

This chapter explores two questions in detail: How should we determine the threshold for costs that individuals are asked to bear through insurance premiums or care-related out-of-pocket costs, including user fees and copayments? and What is an adequate relationship between costs and benefits? This chapter argues that preventing impoverishment is a morally more urgent priority than protecting households against income fluctuations, and that many health insurance plans may not adequately protect individuals from health care costs that threaten to drop their financial status below a decent minimum. A design that places greater emphasis on preventing impoverishment and finances the achievement …

The Guardian Ad Litem As The Child's Privilege Holder, Starla Doyal

University of Colorado Law Review

Children in therapy have a strong interest in maintaining the confidentiality of communications with their therapists. Without the assurance of confidential communications, children may not be as open with their therapists, which can make therapy less effective. Although children have privilege rights to their psychotherapist-patient communications just as adults do, their parents generally hold and exercise that privilege. Many courts have recognized that a parent should not hold a child's privilege when the parent and child have divergent interests. This raises the question of who should hold the privilege in the parent's place. In L.A.N. v. L.M.B., the Colorado Supreme …

Sharing Property, Kellen Zale

University of Colorado Law Review

The sharing economy-the rapidly evolving sector of peer-topeer transactions epitomized by Airbnb and Uber-is the subject of heated debate about whether it is so novel that no laws apply, or whether the sharing economy should be subject to the same regulations as its analog counterparts. The debate has proved frustrating and controversial in large part because we lack a doctrinally cohesive and normatively satisfying way of talking about the underlying activities taking place in the sharing economy. In part, this is because property-sharing activities-renting your car out to a tourist for a day, paying to spend the weekend in a …

Comments On Public Lands: Title Transfer Proposals, Chuck Howe

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

3 pages.

Amicus (Fall 2015), University Of Colorado Law School

Amicus

Issue at a glance:

• Illustrates Colorado Law's commitment to engaged faculty scholarship
• Describes cutting-edge faculty research and upcoming lectures
• Honors three of Colorado Law's most esteemed faculty
• Features law students' success in entrepreneurial competition
• Highlights the student-driven University of Colorado Law Review
• Delivers advice for current students from alumni
• Recognizes loyal donors
• Celebrates milestones and successes of Colorado Law alumni

Getches-Wilkinson Center Newsletter, Fall 2015, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

Slides: Wrapping Up The Big Horn Adjudication: Lessons After 38 Years And 20,000 Claims, Ramsey L. Kropf

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Ramsey L. Kropf, Deputy Solicitor for Water Resources, Office of the Solicitor, U.S. Department of the Interior

34 slides