Law Commons^™

Colonizing Queerness, Jeremiah A. Ho

University of Colorado Law Review

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

The Constitution In Context: The Continuing Significance Of Racism, T. Alexander Aleinikoff

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 VII's proscription …

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Slides: Learning From Drought Crises In Federations: Principles, Indicators And Lessons Learned, Lucia De Stefano, Dustin Garrick, Daniel Connell

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenters:

Lucia De Stefano, Complutense Universidad de Madrid

Dustin Garrick, McMaster University/University of Oxford

Daniel Connell, Australia National University

27 slides

Slides: The São Francisco Water Basin - Brazil, Vanessa Empinotti

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Presenter: Vanessa Empinotti, Federal University of ABC – UFABC, Brazil

20 slides

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

The Problems Inherent In Litigating Employer Free Exercise Rights, Henry L. Chambers Jr.

University of Colorado Law Review

No abstract provided.

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

The Support Structure For Campaign Finance Litigation In The Roberts Court: A Research Agenda, Ann Southworth

University of Colorado Law Review

No abstract provided.

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Publications

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the …

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

The Need To Overrule Mapp V. Ohio, William T. Pizzi

University of Colorado Law Review

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level, …

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

Publications

This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …

Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart

Publications

The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of …

Resisting Federal Courts On Tribal Jurisdiction, Matthew L.M. Fletcher

University of Colorado Law Review

This Paper is part of a call for a paradigm-shifting reexamination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian country in the twenty-first century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second …

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

Publications

The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

The Virtues And Vices Of Sovereignty, Sarah Krakoff

Publications

American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Abdication Can Be Fun, Join The Orgy, Everyone: A Simpleton’S Perspective On Abdication Of Federal Land Management Responsibilities, George Cameron Coggins

Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13)

14 pages.

Sustainable Use Of Natural Resources: A Native American Perspective, Ted Strong

Sustainable Use of the West's Water (Summer Conference, June 12-14)

27 pages.

Contains footnotes.

Regulation Of Water Use And Takings—The Government Lawyer’S Perspective, Richard M. Frank

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

11 pages.

Contains 3 pages of references.

Management Approaches To Addressing Takings Issues: Endangered Species Protection, I. Michael Heyman

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

15 pages.

Contains footnotes.

Mining Regulation And Takings, Mark Squillace

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

10 pages.

Contains footnotes.

Mining Regulation(S) And Takings, Lawrence G. Mcbride

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

12 pages.

Contains footnotes.

Mining Regulation And Takings, L. Thomas Galloway

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

15 pages.

The Endangered Species Act And Constitutional Takings, Robert Meltz

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

18 pages.

Contains references.

City Of Tigard And Takings Law, Richard D. Lazarus

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

10 pages.

Contains 1 page of references.

Takings And Retroactivity, Jan G. Laitos

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

25 pages.

Contains references.

Background Principles Of Wetlands Law: The Early History, Fred P. Bosselman

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

15 pages.

Contains 3 pages of references.