Law Commons^™

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

The Right To Contest Ai, Margot E. Kaminski, Jennifer M. Urban

Publications

Artificial intelligence (AI) is increasingly used to make important decisions, from university admissions selections to loan determinations to the distribution of COVID-19 vaccines. These uses of AI raise a host of concerns about discrimination, accuracy, fairness, and accountability.

In the United States, recent proposals for regulating AI focus largely on ex ante and systemic governance. This Article argues instead—or really, in addition—for an individual right to contest AI decisions, modeled on due process but adapted for the digital age. The European Union, in fact, recognizes such a right, and a growing number of institutions around the world now call for …

Making Litigating Citizenship More Fair, Ming H. Chen

Publications

No abstract provided.

Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

Publications

No abstract provided.

Reforming Service Of Process: An Access-To-Justice Framework, Andrew C. Budzinski

University of Colorado Law Review

Over the past few decades, the number of pro se litigants in state civil courts has risen exponentially-between 75 percent and 90 percent of litigants in family law cases, landlordtenant disputes, and small claims actions did not have a lawyer in 2015. Procedural rules governing those proceedings, however, often impose requirements that disproportionately burden unrepresented litigants, fail to optimally protect the due process rights of those parties, and thereby deny them access to justice. Rules governing service of process illustrate this problem by requiring litigants to find a third party to hand-deliver court papers to a defendant directly or to …

The Gdpr’S Version Of Algorithmic Accountability, Margot Kaminski

Publications

No abstract provided.

Semantic Hygiene For The Law Of Regulatory Takings, Due Process, And Unconstitutional Conditions -- Making Use Of A Muddy Supreme Court Exactions Case, Zygmunt J.B. Plater, Michael O'Loughlin

University of Colorado Law Review

An unfortunate amount of semantic confusion currently burdens the constitutional process of balancing private property rights and governmental public welfare protections. The Fifth Amendment contains both a general requirement of "due process," and a corollary protection against unconstitutional "taking" of property. These are two separate protections, not just one. More than a century after the Takings Clause was drafted, an enigmatic decision, Pennsylvania Coal, expanded the clause to say that government regulations could cause such a diminution of private property value that they could unconstitutionally take that property, even with no physical appropriation (which is how the Framers had understood …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

The Government's Lies And The Constitution, Helen Norton

Publications

Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political …

Revisiting The Mansions And Gatehouses Of Criminal Procedure: Reflections On Yale Kamisar's Famous Essay, William T. Pizzi

Publications

In 1965, Yale Kamisar published a now-famous essay entitled, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to... to make his case that the Court needed to take action to protect citizens in interrogation rooms, Kamisar used the powerful metaphors of the gatehouse and the mansion to contrast the treatment received in interrogation rooms in the back of police stations with the way defendants were treated when they arrived at courthouses where the power of the state was restricted and they had strong constitutional protections.

On its 50th anniversary since publication, …

Outing Privacy, Scott Skinner-Thompson

Publications

The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Publications

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …

Constitutional Contours For The Design And Implementation Of Multistate Renewable Energy Programs And Projects, Robin Kundis Craig

University of Colorado Law Review

States are increasingly considering multistate efforts to promote the production, sale, and use of renewable energy. For example, in August 2009, policymakers and stakeholders gathered to consider joint renewable energy (specifically, wind energy) transmission projects among Colorado, New Mexico, Utah, and Wyoming. This Article explores a number of constitutional issues that multistate efforts to encourage, market, transmit, or distribute renewable energy could raise. It reflects the reality that for energy, as for many other issues, multistate creativity in establishing new governance regimes or in implementing interstate projects often creates constitutional ambiguities. Many of these ambiguities center on the constitutional status-private …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

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.

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

Publications

No abstract provided.

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 …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

A Moving Violation? Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, L. Buckner Inniss

Publications

No abstract provided.

California's Sexually Violent Predator Act: The Role Of Psychiatrists, Courts, And Medical Determinations In Confining Sex Offenders, Carolyn B. Ramsey

Publications

No abstract provided.

Avoiding Error In Closing Argument, H. Patrick Furman

Publications

No abstract provided.

Public Programs, Private Deciders: The Constitutionality Of Arbitration In Federal Programs, Harold H. Bruff

Publications

No abstract provided.

Conflicts Between Water Rights Administration And Water Quality Protection, Jan D. Laitos

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

43 pages.

The National Park System And Development On Private Lands: Opportunities And Tools To Protect Park Resources, Michael Mantell

External Development Affecting the National Parks: Preserving "The Best Idea We Ever Had" (September 14-16)

34 pages.

Contains footnotes.

Do Government Rights Prevail, Or Are Shoshone Indians Trespassers In Their Own Country?, Richard B. Collins

Publications

No abstract provided.

A Comment On The Burger Court And "Judicial Activism", Robert F. Nagel

Publications

No abstract provided.

Congressional Control Of Administrative Regulation: A Study Of Legislative Vetoes, Harold H. Bruff, Ernest Gellhorn

Publications

Several administrative programs contain provisions allowing Congress to veto agency rules, and there is now a bill before Congress to extend this veto power to all agency rulemaking. In this Article, Professor Bruff and Dean Gellhorn analyze the histories of five federal programs subject to the legislative veto to determine the effect of the veto on the rulemaking process and on the relationships between the branches of government. Extrapolating from this practical experience, they suggest that a general legislative veto is unlikely to increase the overall efficiency of the administrative process, may impede the achievement of reasoned decisionmaking based on …

Competency To Stand Trial In Federal Courts: Conceptual And Constitutional Problems, William T. Pizzi

Publications

No abstract provided.

Judicial Review In Local Government Law: A Reappraisal, Harold H. Bruff

Publications

No abstract provided.