Digital Commons Network^™

24/7 Clean Energy, Todd Aagaard

University of Colorado Law Review

In the face of the rapidly escalating climate crisis, the electricity sector is moving toward renewable energy. To date, policies and strategies have focused on increasing overall renewable energy generation, with little regard for timing and location. The result has been a misalignment of supply and demand in renewable energy markets. Renewable power projects produce energy when and where it is least expensive, leaving supply scarce at other times and places. Consumers, meanwhile, continue to use power when and where they need it. This mismatch increases the electricity grid’s dependence on fossil fuel–fired electricity to meet electricity demand at times …

Climate Change And Modern State Common Law Nuisance And Trespass Tort Claims, Jack Wold-Mcgimsey

University of Colorado Law Review

This Comment examines the use of state common law tort claims to address climate change. The aim of this work is not to provide an in-depth examination of these issues, but rather to provide a contextualized and comprehensive overview of some of the most important issues in this field using modern cases actively being litigated. This Comment comes to the conclusion that the future of common law nuisance and trespass claims in the context of climate change is, for now, unclear. Given the national and global implications of climate change, courts may find that isolated states cannot set binding precedents …

Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda

University of Colorado Law Review

Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …

Table Of Contents (Vol. 94, Issue 4)

University of Colorado Law Review

No abstract provided.

The Right To Vote Securely, Sunoo Park

University of Colorado Law Review

American elections currently run on outdated and vulnerable technology. Computer science researchers have shown that voting machines and other election equipment used in many jurisdictions are plagued by serious security flaws, or even shipped with basic safeguards disabled. Making matters worse, it is unclear whether current law requires election authorities or companies to fix even the most egregious vulnerabilities in their systems, and whether voters have any recourse if they do not.

This Article argues that election law can, does, and should ensure that the right to vote is a right to vote securely. First, it argues that constitutional voting …

Visions For The International Decade Of Indigenous Languages 2022-2032, Kristen A. Carpenter, Andrew Cowell, Alexis Palmer

Publications

The United Nations General Assembly recently proclaimed the International Decade of Indigenous Languages ( "IDIL") from 2022-2032 to "to draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages and to take urgent steps at the national and international levels." The Decade is an opportunity to expose and address the severe loss of Indigenous Peoples' languages locally, regionally, and globally. It is a chance for the entire world community to gather together and commit to bringing Indigenous languages back from the brink of dormancy or extinction.

Humans In The Loop, Rebecca Crootof, Margot E. Kaminski, W. Nicholson Price Ii

Publications

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these "human-in-the-loop" systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify "the MABA-MABA trap," which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decision-making process. Regardless of whether the …

Money Creation And Bank Clearing, Nadav Orian Peer

Publications

Like many other countries, the U.S. money supply consists primarily of deposits created by private commercial banks. How we understand bank money creation matters enormously. We are currently witnessing a debate between two competing understandings. On the one hand, a long-standing conventional view argues that bank money creation originates in individual market transactions. Based on this understanding, the conventional view narrowly limits the scope of banking regulation to market failure correction. On the other hand, authors in a new legal literature emphasize the public aspects of bank money creation, characterizing it as a “public franchise,” a “public-private partnership,” and part …

Book Review, Staci J. Pratt

Publications

No abstract provided.

“Aspirations”: The United States And Indigenous Peoples’ Human Rights, Kristen A. Carpenter

Publications

The United States has long positioned itself as a leader in global human rights. Yet, the United States lags curiously behind when it comes to the human rights of Indigenous Peoples. This recalcitrance is particularly apparent in diplomacy regarding the United Nations Declaration on the Rights of Indigenous Peoples. Adopted by the United Nations General Assembly in 2007, the Declaration affirms the rights of Indigenous Peoples to self-determination and equality, as well as religion, culture, land, health, family, and other aspects of human dignity necessary for individual life and collective survival. This instrument was advanced over several decades by Indigenous …

Sex Exceptionalism In Criminal Law, Aya Gruber

Publications

Sex crimes are the worst crimes. People generally believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes typically create a dedicated category for sex offenses, uniting under its umbrella conduct ranging from violent attacks to consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely elicits discussion, much less debate. Sex exceptionalism, however, is neither natural nor neutral, and its political history should give us pause. This Article is the first to trace, catalog, and analyze sex exceptionalism in criminal law …

The Future Of Intersectionality In Employment Law, Suzette Malveaux

Publications

No abstract provided.

How Academic Law Librarian Fellowship Programs Benefit Participants & Sponsoring Institutions, Aamir S. Abdullah, Cody B. James

Publications

No abstract provided.

The War On Terror & Vigilante Federalism, Maryam Jamshidi

Publications

No abstract provided.

Reconsidering The Public Square, Helen L. Norton

Publications

No abstract provided.

Regulating The Risks Of Ai, Margot E. Kaminski

Publications

Companies and governments now use Artificial Intelligence (“AI”) in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (“EU”) have turned to the tools of risk regulation in governing AI systems.

This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for …

How Private Actors Are Impacting U.S. Economic Sanctions, Maryam Jamshidi

Publications

Economic and trade sanctions are typically understood as the exclusive province of governments and intergovernmental organizations. Private parties have, however, long played a role in sanctions regimes. For example, private plaintiffs holding unsatisfied, terrorism-related civil judgments have used various U.S. federal statutes to enforce those judgments against assets blocked by U.S. sanctions. Most recently, plaintiffs with judgments against the Taliban have used some of those federal laws to execute against the financial assets of Afghanistan’s central bank. These and other efforts to enforce terrorism-related civil judgments are more than just attempts to collect on outstanding damages awards. Rather, they allow …

The Politicization Of Criminal Prosecutions, Wadie E. Said

Publications

This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the …

Electoral Maintenance, Douglas M. Spencer

Publications

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition …

Privacy Peg, Trade Hole: Why We (Still) Shouldn’T Put Data Privacy In Trade Law, Margot E. Kaminski, Kristina Irion, Svetlana Yakovleva

Publications

No abstract provided.

Accounting For Climate Impacts In Decisionmaking, Mark S. Squillace

Publications

Every significant decision made by government agencies, and many made by private organizations, impacts climate change. Ignoring those impacts is increasingly unacceptable. But how to account for a decision’s impact on the climate is far from clear. This article seeks to answer that question in the context of the greenhouse gas (GHG) emissions that will likely result from a proposed action and begins with a detailed description of the environmental impact assessment (EIA) process. EIA is crucial to understanding the likely consequences of a proposed action, including the climate-related consequences. EIA also serves as the primary vehicle for estimating GHG …

The Shifting Economic Allegiance Of Capital Gains, Amanda Parsons

Publications

Technological advances and the digitalization of the global economy have created an economic environment beyond the imagination of the original designers of the international tax system. Much scholarly attention has been paid to the question of how these economic transformations should affect which country is able to tax a multinational company's income. But which country should be able to tax capital gains income from the sale of that company's shares is an important and overlooked question.

This Article answers this question. It concludes that taxing authority over capital gains income must be reallocated to the countries in which companies conduct …

Constitutional Norms And State Judicial Confirmations, Adam B. Sopko

Publications

No abstract provided.

Catalyzing Judicial Federalism, Adam B. Sopko

Publications

No abstract provided.

Catch And Release Jurisdiction, Adam B. Sopko

Publications

No abstract provided.

Regional Venture Deals, Paige L. Wilson

Publications

What might allow a region to suddenly excel at attracting venture capital funding, and what role do lawyers play in such a shift? The Midwest offers a useful case study because it has succeeded at increasing the size of its venture capital market by more than five hundred percent over the past decade. This Article is the first-ever empirical study to explore in depth the changing practices of the region. This Article begins by comparing startup lawyering practices in the Midwest to startup lawyering practices in the major innovation hubs on the coasts. Drawing upon lawyer interviews, industry reports, and …

Unequal Homes, Unequal Health: Applying The Loss Of Chance Doctrine To Landlord-Tenant Cases, Delaram Takyar

Publications

Low-income families and families of color in the U.S. are disproportionately likely to live in homes that are negligently maintained by landlords, with significant implications for their physical health. Despite suffering harm, tenants often cannot seek legal relief without ruling out all possible alternate causes of their injuries. For example, if a tenant develops asthma after being exposed to black mold in her home and can show that her landlord had knowingly refused to remediate the mold, the tenant would still be barred from relief if she were genetically predisposed to developing asthma or could have also been exposed to …

Inside Out (Or, One State To Rule Them All): New Challenges To The Internal Affairs Doctrine, Ann Lipton

Publications

The internal affairs doctrine provides that the law of the organizing state will apply to matters pertaining to a business entity's internal governance, regardless of whether the entity has substantive ties to that jurisdiction. The internal affairs doctrine stands apart from other choice of law rules, which usually favor the jurisdiction with the greatest relationship to the dispute and limit parties' ability to select another jurisdiction's law. The doctrine is purportedly justified by business entities' unique need for a single set of rules to apply to governance matters, and by the efficiency gains that flow from allowing investors and managers …

Stopping To Smell The 1-800-Flowers: Dignitary Harms In Accessibility Litigation, Blake Reid, Zainab Alkebsi

Publications

No abstract provided.

Redress For Wrongful Convictions: A Response To Professor Medwed, Justin Murray

Publications

No abstract provided.