Digital Commons Network^™

Rethinking Attempt Under The Model Penal Code, William T. Pizzi

Publications

No abstract provided.

Lies And The Constitution, Helen Norton

Publications

Although the Supreme Court declared almost forty years ago that “there is no constitutional value in false statements of fact,” the Court in United States v Alvarez ruled that the First Amendment protects at least some -- and perhaps many -- intentional lies from government prohibition. In Alvarez, a divided Court struck down the Stolen Valor Act, a federal statute that made it a crime for any person to state falsely that he or she had received a military decoration or medal. In three separate opinions, all of the Justices agreed that the First Amendment permits the government to …

Government Speech In Transition, Helen Norton

Publications

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own expressive choices from free …

Reining In The Rogue Squadron: Making Sense Of The "Original Source" Exception For Qui Tam Relators, Dayna Bowen Matthew

Publications

The qui tam provision of the Civil False Claims Act effectively serves to expand the government’s capacity to combat fraud, but also invites abusive prosecution against blameless public contractors. Although the public disclosure jurisdictional bar is designed to permit worthy claimants to proceed as whistle blowers while precluding parasitic opportunists from unfairly imposing litigation costs and reaping undeserved awards, the inconsistent judicial interpretation of the original source exception threatens predictable and just law enforcement. Christopher Alexion’s note categorizes the approaches courts have taken as ranging from permissive, to “middle ground” to restrictive based on the timing of the relator’s disclosure, …

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

Publications

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …

Tiger Cub Strikes Back: Memoirs Of An Ex-Child Prodigy About Legal Education And Parenting, Peter H. Huang

Publications

I am a Chinese American who at 14 enrolled at Princeton and at 17 began my applied mathematics Ph.D. at Harvard. I was a first-year law student at the University of Chicago before transferring to Stanford, preferring the latter's pedagogical culture. This Article offers a complementary account to Amy Chua's parenting memoir. The Article discusses how mainstream legal education and tiger parenting are similar and how they can be improved by fostering life-long learning about character strengths, emotions, and ethics. I also recount how a senior professor at the University of Pennsylvania law school claimed to have gamed the U.S. …

From Tiger Mom To Panda Parent, Peter H. Huang

Publications

This response to Yale Law Professor Amy Chua’s book, Battle Hymn of the Tiger Mother, complements a much longer and related article that is also in part a response to Chua’s book: Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting, 1 British Journal of American Legal Studies 297 (2012). This brief essay discusses the cultural differences between Chinese and Western views about education, learning, and parenting. This editorial draws on research in social psychology to analyze the stereotype of Asians and Asian Americans as being competent yet unsociable. Finally, this reflection draws …

Renegotiating The Social Contract, Jennifer S. Hendricks

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This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

Tax Neutrality And Tax Amenities, David Hasen

Publications

Efforts to identify and implement an appropriate tax neutrality benchmark have been persistent themes in scholarly and policy debates on international taxation for fifty years. This paper questions whether the concept of tax neutrality has been adequately specified for analyzing the efficiency properties of international tax systems. As distinct from the closed-economy setting, in the open-economy setting, neither tax revenues received nor the burdens that tax revenues pay for may be taken as fixed. Because tax revenues finance infrastructure and other productivity-enhancing goods - so-called "tax amenities" - and because capital burdens infrastructure, the reallocation of tax revenues among jurisdictions …

The Market As A Legal Concept, Justin Deystone

Publications

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

Publications

This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

Race As A Legal Concept, Justin Deystone

Publications

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

The Role Of Equipoise In Family Law, Deborah Cantrell

Publications

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and front-line family law advocates have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward, It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants--rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family …

Lawyers, Loyalty And Social Change, Deborah J. Cantrell

Publications

Fundamentally, cause lawyers engage in their work to make social change. Scholars of cause lawyering have generated a robust and rich literature considering important issues, such as what kinds of advocacy strategies best generate social change and what features of the relationship between cause client and cause lawyer are critical to an engaged and mutual relationship. But, the literature has neglected a key aspect of the cause lawyer and client relationship: whether the particular kind of loyalty that exists as between them hinders or helps in achieving social change. This Article fills that void. It first illuminates the particular features …

Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

Publications

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was …

The Crisis Of The American Law School, Paul Campos

Publications

The economist Herbert Stein once remarked that if something cannot go on forever, it will stop. Over the past four decades, the cost of legal education in America has seemed to belie this aphorism: it has gone up relentlessly. Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades. Meanwhile, for more than thirty years, the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector …

Suing Courts, Frederic Bloom, Christopher Serkin

Publications

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why …

Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd

Publications

Health, safety, and environmental regulation in the United States are saturated with risk thinking. It was not always so, and it may not be so in the future. But today, the formal, quantitative approach to risk provides much of the basis for regulation in these fields, a development that seems quite natural, even necessary. This particular approach, while it drew on conceptual and technical developments that had been underway for decades, achieved prominence during a relatively short timeframe; roughly, between the mid-1970s and the early 1980s--a time of hard looks and regulatory reform. Prior to this time, formal conceptions of …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Publications

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …

Internet Governance: The Role Of Multistakeholder Organizations, Joe Waz, Phil Weiser

Publications

With the increasing international focus on the future of the ITU and its role (or lack thereof) in Internet governance, there is greater attention being paid to the fact that much of the 'governance' of the Internet is in fact carried out by so-called 'multistakeholder ('MSH') organizations.' Over the last two decades, these entities have largely established the norms and standards for the global Internet, but they are little known to the general public and even to most regulators and legislators. Indeed, most governments do not understand the essential role of MSH organizations. Consequently, to develop an effective Internet governance …

Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis

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No abstract provided.

The Digital Collections At Colorado Law, Robert M. Linz

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No abstract provided.

The Importance Of The Political In Immigration Federalism, Pratheepan Gulasekaram, S. Karthick Ramakrishnan

Publications

This Article provides a systematic, empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. It also proffers a novel theory to explain the proliferation of these policies and queries the implications of this new model for federalism analysis. The story we tell in this paper is both political and legal; understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena that courts and commentators have traditionally ascribed to the federal government. Thus, this article connects the …

The Message And Means Of The Modern Terrorism Prosecution, Wadie E. Said

Publications

This Article, written in conjunction with Transnational Law and Contemporary Problems' 2011 Symposium on Ten Years After 9/11: Rethinking Counterterrorism, stemmed from a panel that examined "how the United States and other Western countries receive Islamic culture in their societies and how they export their Western cultures to the Islamic world, in each case to assess the degree to which their cross-cultural behaviors mitigate or worsen anti-Western terrorism from the Middle East and Central/South Asia and to recommend solutions if needed."' This contribution focuses on the criminal terrorism prosecution in the United States, and takes up the panel's theme by …

Nepa, Climate Change, And Public Lands Decision Making, Mark Squillace, Alexander Hood

Publications

One of the most difficult challenges facing public land managers today is how to address climate change in a meaningful way when making decisions affecting public lands. This problem is largely the product of the high levels of uncertainty surrounding climate change and the potential consequences of climate change for the large and complex landscapes and ecosystems that public land agencies manage.

In February 2010, the Council on Environmental Quality (CEQ) issued draft guidance to federal agencies describing how these agencies should address climate change in their decision documents. Recognizing the difficulty of the task, however, the CEQ’s draft guidance …

You Can Handle The Truth: Using Pop Culture To Teach Legal Research., Karen Skinner

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No abstract provided.

Legal Research Class Experiment Showed You Can’T Ignore The Basics, Karen Skinner

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No abstract provided.

Aall Secretary Is The Joint Institute Luncheon Speaker, Karen Skinner

Publications

No abstract provided.

Table Of Contents, Journal On Telecommunications & High Technology Law

Colorado Technology Law Journal

No abstract provided.

Remarks At The Digital Broadband Migration: The Dynamics Of Disruptive Innovation Internet Speculations, Vint Cerf

Colorado Technology Law Journal

No abstract provided.