Law Commons^™

Whither The Pickering Rights Of Federal Employees?, Paul M. Secunda

University of Colorado Law Review

As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Board of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978. This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First Amendment retaliation claims …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

University of Colorado Law Review

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ-and legitimate, separated-powers government-are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Civic Republicanism, Public Choice Theory, And Neighborhood Councils: A New Model For Civic Engagement, Matthew J. Parlow

University of Colorado Law Review

This Article analyzes the lack of civic engagement in local government decision-making and the problems that result from it. Public choice theory offers one explanation: dominant special interest groups capture local governments for their own private interests. Thus, average citizens are not only alienated from their local government, but they also find the barriers to entry into local politics too high for collective action and participation. While at first glance this account seems accurate, public choice theory's explanation of local governments has normative limitations because it fails to recognize these features of the local political process as problematic-much less to …

Opening The Door: Crowe V. Tull And The Application Of The Colorado Consumer Protection Act To Attorneys, Daniela Ronchetti

University of Colorado Law Review

In Crowe v. Tull, the Colorado Supreme Court held that the Colorado Consumer Protection Act ("CCPA") applies to attorneys. Putting consumers of legal services on par with consumers in other industries, the decision opened a new avenue of recovery in attorney-client disputes. This Note explores the ramifications of Crowe for attorneys and their clients. Specifically, the Note analyzes the elements of a CCPA claim and their interpretation by the courts and argues that in most cases, a client will not be able to successfully pursue a CCPA claim against his or her attorney. Particularly, a client will have difficulty proving …

Accounting For Federalism In State Courts: Exclusion Of Evidence Obtained Lawfully By Federal Agents, Robert M. Bloom, Hilary Massey

University of Colorado Law Review

After the terrorist attacks on September 11th, Congress greatly enhanced federal law enforcement powers through enactment of the U.S.A. Patriot Act. The Supreme Court has provided more leeway to federal officers in the past few decades by limiting the scope of the exclusionary rule, for example. At the same time, many states have interpreted their constitutions to provide greater individual protections to their citizens than provided by the federal constitution. This phenomenon has sometimes created a wide disparity between the investigatory techniques available to federal versus state law enforcement officers. As a result, state courts sometimes must decide whether to …

The Frontier Of Eminent Domain, Alexandra B. Klass

University of Colorado Law Review

The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government- initiated "economic development takings" led to eminent domain reform legislation in over forty states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state statutes to take private property to develop coal, oil, …

The Fight To Save Red Lady: Does The 1872 Mining Law Impliedly Preclude Review Of Patent Protest Determinations, Michelle Albert

University of Colorado Law Review

For over thirty years, residents and the local government of Crested Butte, Colorado have been fighting to keep a molybdenum mine out of their backyard. In 2004, the High Country Citizens Alliance, the town of Crested Butte, and the Board of County Commissioners filed an administrative protest challenging several applications to patent mineral land on nearby Mt. Emmons. The Bureau of Land Management denied their protest and issued nine mineral patents. The issuance of these patents increased the likelihood of a molybdenum mine on Mt. Emmons. The unsuccessful protestors appealed the BLM's decision in federal district court. In High Country …

The Future Of Federal Sentencing Policy: Learning Lessons From Republican Judicial Appointees In The Guidelines Era, David M. Zlotnick

University of Colorado Law Review

In the two years since the landmark Booker decision, federal sentencing policy has been in a state of suspended animation. This Article urges federal sentencing reform advocates to look to an unlikely source for realistic goals and ideological support-the experiences of Republican judicial appointees in the Guidelines Era. Its findings are based upon a long-term research project into cases in which Republican appointees stated their disagreement with the sentences required by law from the bench. The Article discusses the primary product of my research, forty comprehensive case profiles and their policy implications. Specifically, the Article demonstrates how the lessons of …

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation, And The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

University of Colorado Law Review

How do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. With special attention paid to how courts implement the Chevron doctrine, this Article empirically and doctrinally analyzes environmental law cases decided in the United States Courts of Appeals over a threeyear period (2003-05) to investigate what factors, including ideological, legal, …

Retaliatory Discharge And The Ethical Rules Governing Attorneys, Alex B. Long

University of Colorado Law Review

In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney who, as part of his job duties, raised concerns with his superiors about possibly unlawful activity and was allegedly fired in response had no First Amendment retaliation claim. In support of its conclusion, the Court suggested that adequate checks already existed at the state and federal level to curb the behavior of employers who engage in unlawful activity and to protect the employees who seek to prevent or expose such activity. In addition to state and federal whistleblower statutes, the Court singled out the rules of professional …

A Chain Of Inferences Proving Discrimination, Michael J. Zimmer

University of Colorado Law Review

There are three elements in a plaintiff's prima facie case of individual disparate treatment discrimination: (1) the plaintiff suffered an adverse employment action, (2) the action was linked to the defendant, and (3) the defendant's action was motivated by a protected characteristic of the plaintiff. The third element-the defendant's intent to discriminateis the most challenging to prove. Thus, most individual disparate treatment discrimination cases, and this Article, focus on this inquiry. Part of the difficulty is that the second element-the level of linkage between the plaintiff's harm and the defendant's action-has been tied up in the discussion of intent. After …

Accommodating The Female Body: A Disability Paradigm Of Sex Discriminatio, Jessica L. Roberts

University of Colorado Law Review

This Article presents a novel approach for understanding sex discrimination in the workplace by integrating three distinct areas of scholarship: disability studies, employment law, and architectural design. Borrowing from disabilities studies, I argue that the built environment serves as a situs of sex discrimination. In the first Part, I explain how the concept of disability has progressed from a problem located within the body of an individual with a disability to the failings of the built environment in which that person functions. Using this paradigm, in the next Part, I reframe workplaces constructed for male workers as instruments of sex …

Title Vii: What's Hair (And Other Race-Based Characteristics)G Ot To Do With It?, D. Wendy Greene

University of Colorado Law Review

Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex. Many Title VII cases have arisen when an applicant's or employee's non-conformity with an employer's policy barring certain hairstyles or clothing has resulted in an adverse employment action, such as a denial or termination of employment. Generally, courts have not deemed an adverse employment action resulting from an applicant's or employee's non-conformity with an employment policy banning the display of mutable characteristics commonly associated with a particular racial or ethnic group a violation of Title VIis proscription …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

What Happened To "Paul's Law"?: Insights On Advocating For Better Training And Better Outcomes In Encounters Between Law Enforcement And Persons With Autism Spectrum Disorders, Elizabeth Harvey Osborn

University of Colorado Law Review

No abstract provided.

An End To Federal Funding Of For-Profit Charter Schools?, Mark D. Evans

University of Colorado Law Review

In Arizona State Board for Charter Schools v. U.S. Department of Education, the Ninth Circuit validated a U.S. Department of Education policy that for-profit charter schools are ineligible for federal funding under the Individuals with Disabilities Education Act and Title I of the Elementary and Secondary Education Act. That policy now threatens to chill the growth of charter schools in states that would have otherwise encouraged their expansion. This Note examines the details of the Ninth Circuit's decision, its effect on states that allow for-profit charter schools, and its impact on the charter school movement.

Protecting Whistleblowers By Contract, Richard Moberly

University of Colorado Law Review

Numerous statutes and the tort of wrongful discharge pur-port to prohibit companies from retaliating against employee whistleblowers. However, whistleblowers often lose retaliation lawsuits because these statutory and common law tort protections depend upon a variety of nuanced factors, such as the employer for whom the whistleblower works, the kind of wrongdoing reported, the way in which the employee blew the whistle, and, under some laws, the willingness of an administrative agency to investigate the whistleblower's claim. Given these difficulties, this Article explores an alternate route for whistleblower protection: enforcing the existing contract protections that private employers currently provide employees when …