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2007

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Table Of Contents - Issue 4 Jan 2007

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4

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Imposing A Cap On Capital Punishment, Adam M. Gershowitz Jan 2007

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Missouri Law Review

This Article argues that because prosecutors have discretion to seek the death penalty and too many cases, they lack the incentive to police themselves and choose carefully. Put simply, because there are too few legal constraints - and virtually no political constraints - on the sheer number of cases in which prosecutors can pursue the death penalty, the Government is not under sufficient pressure to limit its use of capital punishment to only the most heinous cases. As a result, two things happen. First, the death penalty is sought and meted out in some cases, which though terrible, are no …

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Missouri's Nonpartisan Court Plan From 1942 To 2005, Charles B. Blackmar Jan 2007

Missouri's Nonpartisan Court Plan From 1942 To 2005, Charles B. Blackmar

Missouri Law Review

Missouri's Constitution of 1821 provided for the appointment of all superior court judges by the governor, in the manner which prevailed in most of the states then members of the union. With the advent of Jacksonian democracy, a feeling developed that all persons holding important public positions should be elected by the voters, and most of the states opted for the popular election of trial and appellate judges. In 1848, Missouri amended its constitution to provide for popular election of all judges, including judges of the Supreme Court, on partisan tickets at the regular biennial elections. Missouri continued to elect …

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Charles B. Blackmar: Professor, Judge, Chief Justice And Charlie, Michael A. Wolff Jan 2007

Charles B. Blackmar: Professor, Judge, Chief Justice And Charlie, Michael A. Wolff

Missouri Law Review

This eulogy was delivered by Michael A. Wolff, Chief Justice of the Supreme Court of Missouri, at the funeral service for Judge Charles Blackmar, who died January 20, 2007, at the age of 84.

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Struggling To Give Meaning To The Concept Of Meaningful Interference: The Eighth Circuit Announces A New Rule, Joshua C. Devine Jan 2007

Struggling To Give Meaning To The Concept Of Meaningful Interference: The Eighth Circuit Announces A New Rule, Joshua C. Devine

Missouri Law Review

This Note examines United States v. Va Lerie, a recent Eighth Circuit case involving law enforcement interference with property entrusted to Greyhound, a third-party common carrier. In Va Lerie, the Eighth Circuit established a new test for determining when property entrusted to third-party common carriers is seized within the meaning of the Fourth Amendment. This Note argues that the Eighth Circuit's new test fails to comport with the holding of Jacobsen. As such, the Eighth Circuit should have adhered to a line of precedent that distinguishes between the touching of property by law enforcement officials and a more detailed inquiry …

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Viewpoint Discrimination In Law School Clinics: Teaching Students When And How To Just Say No, Jason A. Kempf Jan 2007

Viewpoint Discrimination In Law School Clinics: Teaching Students When And How To Just Say No, Jason A. Kempf

Missouri Law Review

In 1996, the American Bar Association ("ABA") amended its law school accreditation standards and required that all ABA-approved law schools offer "live-client or other real-life practice experience. '' In doing so, the ABA confirmed the increasingly important role of law school clinics in legal education. This unique teaching environment moves students and professors out of the classroom and into real-world courtrooms. As these "student-lawyers" work on behalf of live clients, they "experience the legal ethics issues lawyers face every day, such as client confidentiality, conflict of interest, and competency issues." Not surprisingly, with these ethical issues come difficult decisions for …

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Supreme Court Cordially Invited You To Sue In Federal Court: Hope You Don't Mind Waiting, The, Evan F. Fitts Jan 2007

Supreme Court Cordially Invited You To Sue In Federal Court: Hope You Don't Mind Waiting, The, Evan F. Fitts

Missouri Law Review

Congestion in the federal judiciary is so prevalent that it has become an afterthought. From the outset of their introductory Federal Civil Procedure course, most law students learn that any attorney who brings an action in a federal court better be prepared to wait. A recent report by the Federal Judicial Center indicated that the average time between filing and adjudication of issues in federal district courts was approximately two years. It can reasonably be asserted that this length of time is directly proportional to the amount of cases on the federal docket. Therefore, any step to reduce the caseload …

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Our Federalism Changes Course: The Supreme Court Limits State Sovereign Immunity In Bankruptcy Actions, Benjamin C. Hassebrock Jan 2007

Our Federalism Changes Course: The Supreme Court Limits State Sovereign Immunity In Bankruptcy Actions, Benjamin C. Hassebrock

Missouri Law Review

Although sovereign immunity jurisprudence is not the most highly publicized topic of debate in the mainstream media, it has recently become a major source of contention on the Supreme Court. The flurry of sovereign immunity litigation that has reached the high court in the last decade has yielded mostly 5-4 decisions that have expanded the state's ability to assert immunity as a defense. Given this trend, few could have predicted the outcome of the court's decision in Central Virginia Community College v. Katz. In Katz, the 5-4 decision broke the other direction, and the court held that states had waived …

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Safer Destination For Trespassers, A, Ross Mcferron Jan 2007

Safer Destination For Trespassers, A, Ross Mcferron

Missouri Law Review

Traditionally, Missouri courts have maintained the general rule that a possessor of land owes no duty of care to trespassers. However, Missouri courts have adopted some well-defined exceptions to the general rule, particularly in situations where trespassers are easily foreseeable. But, prior to the Humphrey v. Glenn decision in 2005, possessors of land had never owed a duty to adult trespassers regarding a condition on the land. In Humphrey, the Missouri Supreme Court addressed the issue of whether possessors of land had a duty to warn "constant" trespassers of dangerous artificial conditions on the possessors' property. The court determined that …

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Dusting Off The Blaine Amendment: Two Challenges To Missouri's Anti-Establishment Tradition, Aaron E. Schwartz Jan 2007

Dusting Off The Blaine Amendment: Two Challenges To Missouri's Anti-Establishment Tradition, Aaron E. Schwartz

Missouri Law Review

Using broad strokes to paint the rights and protections granted therein, the free exercise and the establishment clauses stand as dual monuments to the great-American experiment in separating the State and the sacred. Their sparse language is contrasted by comparatively specific manifestations of similar interests in the state constitutions. Echoing their federal counterpart, the state constitutions commonly command that the state may not fund religiously affiliated educational institutions. No fewer than thirty-eight states, including Missouri, adopted a so-called "Blaine Amendment," which prevent states from supporting sectarian or religious schools. Employing more detail than its federal counterpart, Missouri's constitution made explicit …

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Eliminating Fear Through Recreating Community In Rwanda: The Role Of The Gacaca Courts, Christine M. Venter Jan 2007

Eliminating Fear Through Recreating Community In Rwanda: The Role Of The Gacaca Courts, Christine M. Venter

Journal Articles

This article describes the institution of the Gacaca Courts in Rwanda, which were set up to try people charged with participating in the 1994 Rwandan genocide. The author examines the options available to the Rwandan government in seeding to prosecute people charged with crimes related to the genocide, and concludes that, while flawed, the gacaca courts were the best option available. The article explores how the courts were developed based on the participatory and restorative ideals of African indigenous legal systems, and how these courts provide an opportunity for some form of "truth telling" in post-genocide Rwanda.

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The Freedom Of The Church, Richard W. Garnett Jan 2007

The Freedom Of The Church, Richard W. Garnett

Journal Articles

This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It is tempting to assume or expect …

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Solving The "Initiatory Construction" Puzzle (And Improving Direct Democracy) By Appropriate Refocusing On Sponsor Intent, Glenn C. Smith Jan 2007

Solving The "Initiatory Construction" Puzzle (And Improving Direct Democracy) By Appropriate Refocusing On Sponsor Intent, Glenn C. Smith

University of Colorado Law Review

The U.S. Department of Justice and Department of Homeland Security has consistently attempted to make the process of becoming a lawful permanent resident of the United States difficult, at best. A 1997 Department of Justice regulation made this process impossible for a certain class of immigrants known as parolees, despite the fact that the Immigration and Nationality Act explicitly allowed these parolees the opportunity to become lawful permanent residents. The Department later withdrew this regulation because of the controversy it created in the federal circuit courts of appeal. However, new proposed regulations threaten to harm the position of immigrants in …

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Beyond Agency Authority: Administrative Elimination Of Statutory Eligibility For Lawful Permanent Residence, Chelsy L. Knight Jan 2007

Beyond Agency Authority: Administrative Elimination Of Statutory Eligibility For Lawful Permanent Residence, Chelsy L. Knight

University of Colorado Law Review

The U.S. Department of Justice and Department of Homeland Security has consistently attempted to make the process of becoming a lawful permanent resident of the United States difficult, at best. A 1997 Department of Justice regulation made this process impossible for a certain class of immigrants known as parolees, despite the fact that the Immigration and Nationality Act explicitly allowed these parolees the opportunity to become lawful permanent residents. The Department later withdrew this regulation because of the controversy it created in the federal circuit courts of appeal. However, new proposed regulations threaten to harm the position of immigrants in …

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Secrecy And Access In An Innovation Intensive Economy: Reordering Information Privileges In Environmental, Health, And Safety Law, Mary L. Lyndon Jan 2007

Secrecy And Access In An Innovation Intensive Economy: Reordering Information Privileges In Environmental, Health, And Safety Law, Mary L. Lyndon

University of Colorado Law Review

This article examines the law concerned with access to information that is commercially valuable when it is kept secret but is also essential to environmental, health, and safety (EHS) risk evaluation. EHS law stimulates sustainable economic activity, including new technologies, and thus complements intellectual property law. Access to EHS information is essential to risk management, but current disclosure obligations are unclear, as the law is a patchwork of familiar but ill-fitting concepts and entitlements. The article discusses the current law that affects disclosure, taking into account recent changes in the technological and economic landscape. It also describes the contrasting uses …

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The Tragedy Of The Commons And The Myth Of A Private Property Solution, Amy Sinden Jan 2007

The Tragedy Of The Commons And The Myth Of A Private Property Solution, Amy Sinden

University of Colorado Law Review

According to generally accepted wisdom of welfare economics, there are two potential solutions to the tragedy of the commons: 1) government regulation, or 2) privatization. Government regulation and privatization can usefully be distinguished from each other based on who answers the "how much" question. Under the former, government answers the "how much" question, and under the latter, the market answers it. When the U.S. environmental movement began in the 1970s, government regulation seemed the obvious choice. But in recent years, intellectual fashions have changed, and privatization has become the preferred solution. The privatization solution, however, is a myth that exists, …

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Coalbed Methane: Crafting A Right To Sell From An Obligation To Vent, L. James Lyman Jan 2007

Coalbed Methane: Crafting A Right To Sell From An Obligation To Vent, L. James Lyman

University of Colorado Law Review

Coalbed methane ("CBM") is a rapidly growing source of energy in the United States, particularly in the Intermountain West. Rather than being captured and utilized, however, much of the recoverable CBM is released into the atmosphere as coal mine methane ("CMM), a byproduct of coal mining. Allowing a federal coal operator to capture and sell or otherwise consume CMM would reduce greenhouse emissions, provide additional fuel for power generation, and avoid the waste of valuable natural resources. However, there is sparse guidance from the federal government regarding the right of federal coal operators to engage in CMM sale. What little …

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From Martz To The Twenty-First Century: A Half- Century Of Natural Resources Law Casebooks And Pedagogy, Michael C. Blumm, David H. Becker Jan 2007

From Martz To The Twenty-First Century: A Half- Century Of Natural Resources Law Casebooks And Pedagogy, Michael C. Blumm, David H. Becker

University of Colorado Law Review

Clyde Martz published the first natural resources law casebook in 1951, combining the previously discrete subjects of water law, mining law, and oil and gas law. Martz relied almost exclusively on case excerpts and emphasized the creation of private rights in natural resources. Over the nexthalf century, through several generations of casebooks, the natural resources course developed in response to the rise of the environmental movement and a series of energy crises. This article traces the evolution of the natural resources law casebooks from Martz's pioneering effort through several generations of texts to a new generation of casebooks that has …

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Keeping An Eye On The Golden Snitch: Implications Of The Interdisciplinary Approach In The Fourth Generation Of Natural Resources Law Casebooks, Sarah Krakoff Jan 2007

Keeping An Eye On The Golden Snitch: Implications Of The Interdisciplinary Approach In The Fourth Generation Of Natural Resources Law Casebooks, Sarah Krakoff

University of Colorado Law Review

No abstract provided.

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Post A Message And Go To Jail: Criminalizing Internet Libel In Japan And The United States, Salil K. Mehra Jan 2007

Post A Message And Go To Jail: Criminalizing Internet Libel In Japan And The United States, Salil K. Mehra

University of Colorado Law Review

In the United States, criminal libel is all but dead. American law professors only write about it to denounce the continued existence of rarely enforced criminal libel statutes. In Japan, however, criminal libel laws have become vital tools in policing injurious speech on the Internet. Defamatory posts lead to police intervention and even arrest. Because the United States is considering regulation of online speech, potentially including criminal penalties, we can learn from the experience of Japan. From a positive perspective, this Article explains why Japan applies such laws to the Internet. From a normative perspective, the Article addresses why broadly …

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Colorado Hb 1061 And Advocating For The End Of Caveat Emptor In Residential Leases, David I. Blower Jan 2007

Colorado Hb 1061 And Advocating For The End Of Caveat Emptor In Residential Leases, David I. Blower

University of Colorado Law Review

In 2005, Governor Bill Owens vetoed House Bill 1061, which was an attempt by the Colorado legislature to enact some minimal protections for residential tenants. Governor Owens's veto was the latest chapter in Colorado's failure to provide residential-tenant protections. Although the vast majority of states have either judicially-implied or statutory tenant protections, Colorado has bucked the trend. First, in 1976, the Colorado Supreme Court refused to imply a warranty of habitability in residential leases, instead deferring to the legislature. Since then, in addition to Governor Owens's veto, the legislature has also failed to pass a residential warranty. Instead of maintaining …

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Colorado Lawyers Beware: Anstine V. Alexander And The Attorney's New Duty To Non-Clients, Michael David Delcour Jan 2007

Colorado Lawyers Beware: Anstine V. Alexander And The Attorney's New Duty To Non-Clients, Michael David Delcour

University of Colorado Law Review

In Anstine v. Alexander, the Colorado Court of Appeals addressed the issue of whether an attorney can be found liable for aiding and abetting his client's breach of fiduciary duty to a non-client. Although the attorneys in question were absolved of legal malpractice liability to the corporation they represented, the defendant-attorneys were found liable for aiding and abetting the president's breach of fiduciary duty to the corporation's creditors. Interestingly, the same piece of advice that was given by the attorneys to the president of the corporation was at the heart of both the malpractice claim and the aiding and abetting …

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Arrested Development: An Alternative To Juveniles Serving Life Without Parole In Colorado, Gail B. Goodman Jan 2007

Arrested Development: An Alternative To Juveniles Serving Life Without Parole In Colorado, Gail B. Goodman

University of Colorado Law Review

More than 100 years ago, reformers established a separate juvenile court system meant to protect and rehabilitate delinquent children. However, several U.S. Supreme Court cases in the 1960s and 1970s slowly eroded the special features that distinguished the juvenile court from the criminal court. In addition, newly enacted legislation has facilitated the transfer of juvenile cases to the adult system. As a result, more juveniles are being tried in adult courts and the goals furthered by the juvenile court system are being ignored. Recent Supreme Court decisions and studies regarding adolescent brain development indicate that the current system for treating …

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Table Of Contents (Vol. 78. Issue 40 Jan 2007

Table Of Contents (Vol. 78. Issue 40

University of Colorado Law Review

No abstract provided.

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The Colorado Constitution In The New Century, Richard B. Collins Jan 2007

The Colorado Constitution In The New Century, Richard B. Collins

University of Colorado Law Review

TABOR, gay marriage, pit bulls, guns, redistricting, ethics in government, school vouchers, and minimum wage have been on Colorado's constitutional agenda for the past seven years. Dale Oesterle and I authored a book-length study of the Colorado Constitution through 2001.1 This article reviews amendments and judicial decisions arising since. It should surprise no one that TABOR has generated by far the most decisions.

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The Educative Effects Of Direct Democracy: A Research Primer For Legal Scholars, Daniel A. Smith, Caroline J. Tolbert, Daniel C. Bowen Jan 2007

The Educative Effects Of Direct Democracy: A Research Primer For Legal Scholars, Daniel A. Smith, Caroline J. Tolbert, Daniel C. Bowen

University of Colorado Law Review

This article surveys recent studies by political scientists that examine the "educative effects" of ballot measures on political participation and civic engagement, as well as their impact on candidate elections. The article provides legal scholars with empirical evidence that can be used to bolster normative and theoretical claims about the process and politics of direct democracy. The authors conclude by presenting original empirical research on the effects of ballot measures on individual attitudes toward state government and political trust. The article hypothesizes that citizens who are given more opportunities to participate in politics will have more trust in state government. …

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Indigenous People And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie Jan 2007

Indigenous People And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie

University of Colorado Law Review

The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental selfdetermination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate …

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Marine Tucuxi In Sepetiba Bay: Why Do They Form Aggregations?, Laura Aichinger Dias Jan 2007

Marine Tucuxi In Sepetiba Bay: Why Do They Form Aggregations?, Laura Aichinger Dias

Electronic Theses and Dissertations 2000 - 2009

Between August 2005 and December 2006, 139 boat surveys were conducted in Sepetiba Bay, Brazil to sample behavioral patterns and environmental parameters during the occurrence of marine tucuxi groups and aggregations. Aggregations were defined as several groups gathered in an area totaling more than 100 animals, usually engaged in a specific behavior. A total of 65 aggregations (x=177) and 192 groups (x=18) were recorded. Marine tucuxi groups and aggregations differed regarding behavioral activity, geographical location and age composition. Aggregations were temporal associations of several marine tucuxi groups performing foraging/feeding activities probably in response to prey species, abundance, and distribution. Aggregations …

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Learning And Leading: Approaches To Leadership Self-Development Among Women Executives Of Philanthropic Organizations, Theresa N. Liddell Jan 2007

Learning And Leading: Approaches To Leadership Self-Development Among Women Executives Of Philanthropic Organizations, Theresa N. Liddell

Electronic Theses and Dissertations 2000 - 2009

The purpose of this grounded theory study was to explore the selfdevelopment of women executives of philanthropic organizations to determine their approaches to learning for leading. Women occupy 1.4% to 53% of the executive positions in the U.S. depending on the sector, yet little is known about their learning needs and strategies. The research questions asked how these women executives learned to develop successfully in their positions and what informal learning strategies they used. This study explored the perspectives of 22 women executives of philanthropic organizations in South Florida and Western Washington. The foundations represented by the participants varied widely …

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Metaphors Pilgrims Live By: Metaphor Systems Of The Modern Pilgrimage, Todd N. Valdini Jan 2007

Metaphors Pilgrims Live By: Metaphor Systems Of The Modern Pilgrimage, Todd N. Valdini

Electronic Theses and Dissertations 2000 - 2009

Pilgrimages have produced volumes of textual reflections by pilgrims and outside observers. These writers represent a wide variety of disciplines from travel theorists to travel bloggers, medieval historians to modern anthropologists and sociologists. The findings of this study reveal two major complex metaphor systems: one based on a series of interlaced existential metaphors orbiting the nuclear LIFE IS A JOURNEY and the other stemming from a network of economic metaphors of MORAL ACCOUNTING. The symbolic exchange embedded in these metaphorical systems reflects the human desire for a meaningful and worthy life. These mutually supporting complex systems of metaphor reveal an …

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