Law Commons^™

Uncommon Carriage, Blake Reid

Publications

As states have begun regulating the carriage of speech by “Big Tech” internet platforms, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Legislators have invoked common carriage to defend social media regulations against First Amendment challenges, making arguments set to take center stage in the Supreme Court’s impending consideration of the NetChoice saga.

This Article challenges the coherence of common carriage as a field and its utility for assessing the constitutionality and policy wisdom of internet regulation. Evaluating the post-Civil War history of common carriage regimes in telecommunications law, this Article illustrates that …

Consider Buffalo, Pierre Schlag

Publications

No abstract provided.

The Structure Of U.S. Climate Policy, Michael Pappas

Publications

Urgent emission reduction and community adaptation efforts are necessary to avert catastrophic climate-change harms. To assess our nation’s progress toward such efforts, this Article develops a comprehensive structural analysis of U.S. climate policy at the federal, state, and local levels. It observes that current climate policies reflect disparate federal, state, and local strategies around emissions regulation, emission reduction subsidies, adaptation, and liability approaches. The Article then analyzes the dynamics between federal, state, and local strategies in these policy areas.

This examination leads to some surprising conclusions. Under current policy alignments, further emission regulation measures do not appear to be realistic …

Trans Animus, Scott Skinner-Thompson

Publications

No abstract provided.

Corporate Climate Targets: Between Science And Climate Washing, Nadav Orian Peer

Publications

The use of corporate climate targets has exploded in recent years. Over three thousand corporations, including the largest and most profitable in the world, have adopted corporate climate targets as commitments to align their actions with climate science and the Paris Agreement. However, the broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise “climate washing” concerns, i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets, and explores potential theories of …

The Minerals Challenge For Renewable Energy, Mark Squillace

Publications

One potential obstacle to a successful energy transition involves the critical minerals used in production of photovoltaic solar panels, wind turbines, electric vehicles, and batteries. A substantial portion of these will have to come from new and expanded mining operations around the world. But mining is controversial, in part due to the past failures of operators to protect communities and the environment. This Article considers how nations can responsibly identify, source, and process these minerals, and then deploy them in renewable energy products. Its scope is global, but U.S. laws and policies take center stage with a nod to the …

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

Publications

No abstract provided.

Machine Manipulation: Why An Ai Editor Does Not Serve First Amendment Values, Alec Peters

University of Colorado Law Review

The past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

University of Colorado Law Review

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different …

Intersectionality Matters In Food And Drug Law, Colleen Campbell

University of Colorado Law Review

Feminist scholars critique food and drug law as a site of gender bias and regulatory neglect. The historical exclusion of women from clinical trials by the FDA prioritized male bodies as the object of clinical research and therapies. Likewise, the FDA’s prior restriction on access to contraceptive birth control illustrates how patriarchal and paternalistic attitudes within the Agency can harm women’s reproductive health. However, there is little analysis of how race and gender intersect in this domain. This Article uses the regulation of skin-lightening cosmetics products to illustrate why and how intersectionality matters in food and drug law. While the …

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

Union Autonomy And Federal Intrusion, Hannah Borowski

University of Colorado Law Review

Union autonomy, a critical aspect of the health and growth of unions and employee power broadly, is weakened by (1) the Department of Justice’s (DOJ) attempts to target organized crime through civil Racketeer Influenced and Corrupt Organizations Act (RICO) litigation against unions and (2) the creation of federal trusteeships in settlement, both of which can be analyzed through litigation between the DOJ and the International Brotherhood of Teamsters (Teamsters or IBT) at the end of the 20th century. The field of compliance offers a solution to prevent these breaches of union autonomy. Relying on the Federal Sentencing Guidelines and the …

Beyond Discrimination: Market Humiliation And Private Law, Hila Keren

University of Colorado Law Review

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions …

Immigration Detention Abolition And The Violence Of Digital Cages, Sarah Sherman-Stokes

University of Colorado Law Review

The United States has a long history of pernicious immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (ICE) shackles and surveils an astounding 376,000 people under its “Alternatives to Detention” (“ATD”) program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just about 1,700 in 2005. ICE’s rapidly expanding Alternatives to Detention program is a “digital cage,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have characterized these digital cages as …

Chatgpt, Ai Large Language Models, And Law, Harry Surden

Publications

This Essay explores Artificial Intelligence (AI) Large Language Models (LLMs) like ChatGPT/GPT-4, detailing the advances and challenges in applying AI to law. It first explains how these AI technologies work at an understandable level. It then examines the significant evolution of LLMs since 2022 and their improved capabilities in understanding and generating complex documents, such as legal texts. Finally, this Essay discusses the limitations of these technologies, offering a balanced view of their potential role in legal work.

Protecting Water, Sustaining Communities: Transforming Groundwater Management Entities Into Sources Of Power During And After Environmental Crises, Sarah Matsumoto

Publications

No abstract provided.

Amicus (Fall 2023), University Of Colorado Law School

Amicus

Issue at a glance:

• Reflects on the 44-year career of Professor Mark Loewenstein
• Highlights the latest books by Colorado Law faculty
• Introduces new Colorado Law faculty
• Korey Wise Innocence Project Clients Wins Freedom
• Shares stories of philanthropy
• Recognizes milestones and successes of Colorado Law alumni

Biden, Bennet, And Bipartisan Federal Judicial Selection, Carl Tobias

University of Colorado Law Review Forum

No abstract provided.

The Bankruptcy Of Purdue Pharma In The Wake Of Big Tobacco, Jacob Hedgpeth

University of Colorado Law Review Forum

Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money made from OxyContin for Purdue’s owners, the Sackler family.

These four tobacco giants and Purdue …

Policies Regulating Gender In Schools: Companion To Identity By Committee (2022), Scott Skinner-Thompson

Research Data

This document, Policies Regulating Gender in Schools: Companion to Identity by Committee (2022), https://docs.google.com/spreadsheets/d/1K6iUkLnmDfaSVykyRaZ3Yqt7XNM9leGO-MQA6p2VbV4/edit?usp=Sharing, was published as an electronic supplement to the article, Scott Skinner-Thompson, Identity by Committee, 57 Harv. C.R.-C.L. L. Rev. 657 (2022), available at https://scholar.law.colorado.edu/faculty-articles/1586.

Civil Procedure And The New Bar Exam, Jeffrey A. Parness

University of Colorado Law Review Forum

No abstract provided.

Toward Stronger Data Protection Laws, Margot E. Kaminski

Publications

No abstract provided.

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

Publications

No abstract provided.

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 …

Getting To Trustworthiness (But Not Necessarily To Trust), Helen L. Norton

Publications

As ethicist and political scientist Russell Hardin observed, our willingness to trust an actor generally turns on our own experience with, and thus our own perceptions of, that actor’s motives and that actor’s competence. Changes over time and technology can alter our experience with a particular actor and thus our willingness to trust or distrust that actor.

This symposium essay focuses not on how to encourage the public to trust the media, but instead on how the media’ can behave in trustworthy ways--in other words, how its choices can demonstrate its trustworthy motives and competence. Examples include refusing to amplify …

“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 …

Shades Of Justice: Racial Profiling Then And Now, F. Michael Higginbotham

University of Colorado Law Review

No abstract provided.

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 …

Glow Up Your Youtube Playlist Video Bangers, Branding & More Educational Technologies, Aamir S. Abdullah, Havilah Joy-Steinmen Bakken, Rachel Evans, Valerie Horton, Jason Tobinis

Publications

Tips for creating, growing, and maintaining your institution’s YouTube channel and presence.

The Private Enforcement Of National Security, Maryam Jamshidi

Publications

The private enforcement of public law is a central feature of the American administrative state. As various scholars have argued, the federal government depends upon private parties to enforce public laws through litigation in order to achieve the government’s regulatory objectives. This scholarship has, however, largely overlooked the phenomenon of private enforcement in the national security arena. This Article seeks to describe and analyze national security’s private enforcement for the first time. In doing so, it explores what national security’s private enforcement reveals about the costs of private enforcement more broadly. In particular, this Article identifies an important downside to …