Digital Commons Network^™

The Chow: Depictions Of The Criminal Justice System As A Character In Crime Fiction, Marianne Wesson

Publications

Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. …

"Make Him An Offer He Can't Refuse"-- Mezzanatto Waivers As Lynchpin Of Prosecutorial Overreach, Christopher B. Mueller

Publications

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say …

Firearms In The Family, Carolyn B. Ramsey

Publications

This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of …

Cognitive Competence In Executive-Branch Decision Making, Anna Spain Bradley

Publications

The decisions Presidents and those operating under their authority take determine the course of our nation and the trajectory of our lives. Consequently, understanding who has the power and authority to decide has captured both the attention of legal scholars across a variety of fields for many years and the immediate worry of the public since the 2016 Presidential election. Prevailing interventions look for ways that law can offer procedural and institutional reforms that aim to maintain separation of powers and avoid an authoritarian regime. Yet, these views commonly overlook a fundamental factor and a more human one: the individuals …

Bail Reform In Colorado: A Presumption Of Release, Joshua J. Luna

University of Colorado Law Review

Interest in bail reform has ebbed and flowed in the United States since the 1960s. Recently, a condemning look at bail administration and pretrial detention across various jurisdictions has pushed bail reform to the policy forefront at both the national and state levels. In 2013, Colorado's General Assembly reformed its bail statute to decrease reliance on monetary bail and promote pretrial services programs in an attempt to prevent unnecessary pretrial detention of low-income defendants who present low risks for flight and threat to community safety. This reform was a much-needed step in the right direction. But the new bail statute …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey

Research Data

These 19 comparative data tables relating to state and local certification standards for batterer intervention programs (BIPs), as of 2015, are electronic Appendices B-T to Carolyn B. Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn. St. L. Rev. 337 (2015), available at http://scholar.law.colorado.edu/articles/56/. Appendix A is not reproduced here because it simply contains citations to the state and local standards, but it is published with the journal article.

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

Concerning Data Collected By The Division Of Criminal Justice In The Department Of Public Safety Concerning The Study Of Marijuana Implementation., Colorado General Assembly

Session Laws 2001-Present

No abstract provided.

Concerning Protecting The Privacy Of Child Victims When Releasing Criminal Justice Records., Colorado General Assembly

Session Laws 2001-Present

No abstract provided.

Concerning The Creation Of An Alternative Simplified Process For The Sealing Of Criminal Justice Records Other Than Convictions, And, In Connection Therewith, Making An Appropriation., Colorado General Assembly

Session Laws 2001-Present

No abstract provided.

"State Inaction," Equal Protection, And Religious Resistance To Lgbt Rights, James M. Oleske, Jr.

University of Colorado Law Review

Now that the Supreme Court has held that states must recognize same-sex marriages, a new issue looms on the horizon: Must states also protect against sexual-orientation discrimination in the private marketplace? This Article contends that the answer under the Equal Protection Clause is "yes" for the forty-five-plus states that protect against marketplace discrimination on the basis of race, religion, national origin, and sex.

In the course of reaching that conclusion, this Article offers much-needed clarification of the Court's unsettled "state inaction" doctrine. Under that doctrine, a state's failure to act may be immunized from challenge on the ground that the …

Finding Safe Harbor: Eliminating The Gap In Colorado's Human Trafficking Laws, Jessica A. Pingleton

University of Colorado Law Review

In March 2014, the Colorado Court of Appeals acquitted Dallas Cardenas of all human trafficking charges. The court determined that under the 2014 version of Colorado's human trafficking statute, a defendant who sold the sexual services of a minor, as opposed to selling a minor for sex, did not commit the crime of human trafficking. Following the Cardenas decision, the state legislature passed House Bill 1273, which broadened the language of the statute and eliminated all possible affirmative defenses, including minor consent. Under the new law, a defendant can no longer argue that a minor consented to commercial sex. However, …

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

Tax Planning And Policy Drift, Sloan G. Speck

Publications

This Article proposes a framework for analyzing how private-sector legal interpretations influence public policy. Political scientists and legal scholars use the terms “bureaucratic drift” and “legislative drift” to describe how administrative agencies and future legislative coalitions affect public policy enacted by Congress. This Article identifies a third category of policy drift: “planning drift.” Planning drift describes deviations from an enacting legislature’s policy preferences that result from private experts’ interpretations of existing law. After Congress enacts a statute, the first people to interpret and apply the new legislation generally are not regulators or judges, but instead are private experts, such as …

Guns And Drugs, Benjamin Levin

Publications

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

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 …

Values And Assumptions In Criminal Adjudication, Benjamin Levin

Publications

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account …

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 …

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 …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

Publications

The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and …

Criminal Labor Law, Benjamin Levin

Publications

This Article examines a recent rise in civil suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In …

Whistling For The Dog In Affirmative Action, Daria Roithmayr

Publications

No abstract provided.

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 …

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

Privatization And Its Discontents: The Troubling Record Of Privatized Prison Health Care, Dan Weiss

University of Colorado Law Review

As part of a decades-long national trend towards privatization, local governments have turned to private contractors to provide health care in American prisons and jails. Ostensibly, the driving force behind this phenomenon is a desire to cut costs in an era of expanding prison health care expenditures and contracting governmental revenue streams. Local government officials build the cost-cutting incentive directly into their contracts via fixed-rate payment structures and cost-sharing provisions for off-site emergency treatment. While these contracts encourage cost-reduction, they simultaneously discourage proper oversight; their indemnification clauses render local governments largely immune from financial consequences when contractors deny emergency care …

How National Park Law Really Works, John Copeland Nagle

University of Colorado Law Review

This Article provides the first explanation of the relationship between three overlapping sources of national park law. It first explains how the Organic Act affords the National Park Service substantial discretion to manage the national parks, including deciding the proper balance between enjoyment and conservation in particular instances. It next shows how federal environmental statutes push national park management toward preservation rather than enjoyment. Finally, the Article explains that Congress often intervenes to mandate particular management outcomes at individual parks, typically but not always toward enjoyment rather than preservation. The result is that the National Park Service has substantial discretion …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The United States Of America, S. James Anaya

Publications

No abstract provided.

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

Revisiting The Mansions And Gatehouses Of Criminal Procedure: Reflections On Yale Kamisar's Famous Essay, William T. Pizzi

Publications

In 1965, Yale Kamisar published a now-famous essay entitled, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to... to make his case that the Court needed to take action to protect citizens in interrogation rooms, Kamisar used the powerful metaphors of the gatehouse and the mansion to contrast the treatment received in interrogation rooms in the back of police stations with the way defendants were treated when they arrived at courthouses where the power of the state was restricted and they had strong constitutional protections.

On its 50th anniversary since publication, …