Law Commons^™

In The Wake Of Republic Of Austria V. Altmann: The Current Status Of Foreign Sovereign Immunity In United States Courts, David P. Vandenberg

University of Colorado Law Review

In Republic of Austria v. Altmann, the United States Supreme Court held that conduct predating the passage of the Foreign Sovereign Immunity Act of 1976 could nonetheless be grounds for a claim under the Act. This article begins with a historical survey of foreign sovereign immunity in the U.S. legal system. However, it is foremost an analysis and critique of the Supreme Court's opinion in Altmann. It argues that in the wake of the Court's decision, the floodgates will not open to a rash of foreign sovereign immunity claims based on long-ago conduct because other factors-both legal and practical will …

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

Publications

No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Foreword, Richard B. Collins

Publications

No abstract provided.

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

Publications

This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

Learning From Wal-Mart, Melissa Hart

Publications

This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women's workplace opportunities. The plaintiffs' arguments - both the narrative of discrimination their evidence set out and the legal strategies they chose - are strikingly similar to claims that have been made in many class action …

Let The People Know The Facts: Can Government Information Removed From The Internet Be Reclaimed?, Susan Nevelow Mart

Publications

Ms. Mart examines the legal bases of the public's right to access government information, reviews the types of information that have recently been removed from the Internet, and analyzes the rationales given for the removals. She suggests that the concerted use of the Freedom of Information Act by public interest groups and their constituents is a possible method of returning the information to the Internet.

Against "Academic Deference": How Recent Developments In Employment Discrimination Law Undercut An Already Dubious Doctrine, Scott A. Moss

Publications

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an "academic deference" argument. Citing the importance of their "academic freedom," defendants and sympathetic courts have asserted that federal courts should decline to "invade" higher education with "federal court supervision." Whether or not courts cite the "academic deference" doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that …

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey

Publications

The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and anti-abortion camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion …

"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson

Publications

No abstract provided.

Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur

Publications

In 1984, Congress enacted Internal Revenue Code section 132 to bring more certainty to the taxation of employee fringe benefits. This article examines the impact of the legislation from the standpoint of administrative pronouncements and taxpayer litigation. The article concludes that section 132 has produced little litigation, but primarily because it has played the role of increasing exclusions. It remains unclear whether section 132 has also contained the growth of new forms of nonstatutory fringe benefits.

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

Publications

No abstract provided.

Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya

Publications

No abstract provided.

Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

Publications

This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

The Unexpected Value Of Litigation: A Real Options Perspective, Joseph A. Grundfest, Peter H. Huang

Publications

In this Article, we suggest that litigation can be analyzed as though it is a competitive research and development project. Developing this analogy, we present a two-stage real option model of the litigation process that involves sequential information revelation and bargaining over the surplus generated by early settlement. Litigants are risk-neutral and have no private information. The model generates results that, we believe, have analytic and normative significance for the economic analysis of litigation

From an analytic perspective, we demonstrate that negative expected value (NEV) lawsuits are analogous to out of the money call options held by plaintiffs and that …

Safeguarding Colorado's Water Supply: The New Confluence Of Title Insurance And Water Rights Conveyances, Julia S. Walters

University of Colorado Law Review

As water rights transfers in Colorado increase in magnitude and frequency due to water scarcity and population growth, it is becoming increasingly necessary to have a method of protecting water rights owners against unknown risks or encumbrances. The inability to obtain reliable new water rights through appropriation has compelled many municipalities, businesses, and other water users to purchase or lease existing water rights. The emergence of water rights title insurance in Colorado has become an important development because of the greater potential for defects and ambiguities in water rights records. Despite the current limitations in water rights title insurance policies, …

Bias, "Balance," And Beyond: New Threats To Academic Freedom, Robert M. O'Neil

University of Colorado Law Review

No abstract provided.

Tortured Legal Ethics: The Role Of The Government Advisor In The War On Terror, Jessica Radack

University of Colorado Law Review

The so-called "torture memos" beg for a re-examination of government lawyers' ethical obligations, especially when acting as advisors, not advocates. This article explores the two major models of government lawyers' ethics: the "agency" approach, which stresses the duties of loyalty, zeal and confidentiality and disfavors attorney interference with client goals, and the "public interest" approach, which places greater weight on fairness and justice, and wants lawyers to weigh in on the wisdom and morality of what their clients are considering. This article argues that an Eighth Amendment analysis should be employed to determine what constitutes a "morally perilous question. " …

Appellate Review Of A "Strong Basis In Evidence" In Public Contracting Cases, Nicki Herbert

University of Colorado Law Review

In the context of state and local affirmative action programs in public contracting, federal circuit courts have split on the appropriate standard of appellate review of a district court's finding of a "strong basis in evidence, " a finding necessary to uphold the constitutionality of such programs. Using as a backdrop the premise that Rule 52(a) establishes a critical procedural requirement to which federal circuit courts should consistently adhere, the author discusses the history of the "strong basis in evidence" standard, appellate review in the federal court system generally, and the analysis used by federal appellate courts to resolve the …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

University of Colorado Law Review

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one-and even extended it to abandoned women who killed their unfaithful …

Forensic Linguistics: An Introduction To Language In The Justice System, By John Gibbons, Drury Stevenson

University of Colorado Law Review

John Gibbons's book Forensic Linguistics provides an excellent introduction to the different areas of interdisciplinary studies involving linguistics and law. Gibbons explores many of the unique linguistic features of legal writing and courtroom speech, and discusses legal regulation of inappropriate uses of language (threats, lies, etc). This review surveys each of these sections of Gibbons's work, and adds in depth critique on issues related to "audience design " in legal documents and the linguistic pitfalls of relying on trial transcripts.

The Roadless Rule That Never Was: Why Roadless Areas Should Be Protected Through National Forest Planning Instead Ofagency Rulemaking, Heather S. Ferdriksen

University of Colorado Law Review

The 2001 Roadless Rule would have barred construction of new roads on 58.5 million acres of national forest land. Within months of its inception, however, a barrage of legal challenges and reversal of policy under the Bush Administration precluded its implementation. Regardless of its ecological merits, the backlash against the Roadless Rule suggests that agency rulemaking may not be the best way to achieve roadless area protection. This comment argues that the traditional process, forest planning under the National Forest Management Act of 1976 ("NFMA "), offers a preferable alternative to agency rulemaking in this context. It also offers recommended …

Is Cost-Benefit Analysis Neutral, David M. Driesen

University of Colorado Law Review

Cost-benefit analysis (CBA) owes much of its appeal to its image as a neutral principle for deciding upon the appropriate stringency of environmental, health, and safety regulation. This Article examines whether CBA is neutral in effect-i.e. whether it sometimes makes regulations more stringent or regularly leads to weaker environmental, health, and safety protection. Using a representative data set from recent Office of Management and Budget (OMB) reviews, an examination of OMB prompt letters, and a literature review, this Article shows that CBA has almost always proven anti-environmental in practice. It also shows that the most common approaches to CBA are …

Shopping Badly: Cognitive Biases, Communications, And The Fallacy Of The Marketplace Of Ideas, Derek E. Bambauer

University of Colorado Law Review

The model of the "marketplace of ideas" governs critical decisions in American jurisprudence on regulating communications. This theory holds that, over time, we collectively process ideas and information to separate truth from falsehood. State intervention is therefore unnecessary and undesirable, for it may prevent us from discovering inelegant but useful ideas. However, research in cognitive psychology and behavioral economics shows that we operate with significant, persistent perceptual biases that undercut this model's assumptions. The marketplace model errs in describing how we interact with information; accordingly, it cannot reliably assess when regulation is desirable. We should discard the marketplace of ideas …

Beautiful Dreamer: Review Of A Life Of H.L.A. Hart: The Nightmare And The Noble Dream, By Nicola Lacey, Jeanne L. Schroeder

University of Colorado Law Review

H.L.A. Hart is probably the most important legal theorist in the modern English-speaking world. The intriguing subtitle of Nicola Lacey's intimate biography, "The Nightmare and the Noble Dream, " echoes the name of Hart's 1997 Georgia Law Review paper, in which he identifies two warring, equally inadequate, visions of law in American jurisprudence: the "nightmare" of complete indeterminacy and unbridled judicial discretion and the "noble dream " of a closed, deterministic legal system of judicial restraint. Lacey implies that Hart's life itself was both a nightmare and a noble dream. This book review expands on Lacey's work and suggests how …

In Memoriam: Professor Edward J. Gac, Norton L. Steuben, Michael J. Waggoner, Wayne M. Gazur, Susan Morley, John T. (Jay) Ballantine

University of Colorado Law Review

No abstract provided.