Law Commons^™

Table Of Contents, Colorado Technology Law Journal

Colorado Technology Law Journal

No abstract provided.

Why Can't We Be Friends? A Proposal For Universal Ethical Standards In Human Subject Research, Calli Schroeder

Colorado Technology Law Journal

No abstract provided.

Front Matter, Colorado Natural Resources, Energy & Environmental Law Review

Colorado Environmental Law Journal

No abstract provided.

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Colorado Technology Law Journal

No abstract provided.

Person, State, Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

University of Colorado Law Review

Business corporations are critical institutions in our democratic republican, market-based, economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply …

Racial Emotions And The Feeling Of Equality, Janine Young Kim

University of Colorado Law Review

This Article examines two distinct but related questions regarding race and emotions. The first raises the possibility that there are certain emotions that are so closely tied to racial experiences that they can be said to demonstrate and typify an emotional dimension to the construct of race. The second asks how such quintessentially racial emotions can be analyzed and evaluated, employing three theories of emotion that have developed in various disciplines within the humanities and social sciences. These theories reveal that racial emotions are not idiosyncratic and elusive, but instead relate to reason and values, to social membership and hierarchy, …

Sharing Property, Kellen Zale

University of Colorado Law Review

The sharing economy-the rapidly evolving sector of peer-topeer transactions epitomized by Airbnb and Uber-is the subject of heated debate about whether it is so novel that no laws apply, or whether the sharing economy should be subject to the same regulations as its analog counterparts. The debate has proved frustrating and controversial in large part because we lack a doctrinally cohesive and normatively satisfying way of talking about the underlying activities taking place in the sharing economy. In part, this is because property-sharing activities-renting your car out to a tourist for a day, paying to spend the weekend in a …

Legal Adaptive Capacity : How Program Goals And Processes Shape Federal Land Adaption To Climate Change, Alejandro E. Camacho, Robert L. Glicksman

University of Colorado Law Review

The degree to which statutory goals are pliable is likely to significantly affect the ability of an agency with regulatory or management responsibilities to achieve those objectives in the face of novel challenges or changing circumstances. This Article explores this dynamic by comparing the degree of 'ive" provided by the goals of the regimes governing management of the five types of federal public lands in responding to the challenges posed by climate change. A comparative analysis of federal land adaptation to climate change demonstrates that a management regime's legal adaptive capacity is influenced not only by procedural flexibility, but also …

Viewing The Supreme Court's Exactions Cases Through The Prism Of Anti-Evasion, Michael B. Kent Jr.

University of Colorado Law Review

This Article considers the U.S. Supreme Court's 2013 decision in Koontz v. St. Johns River Water Management District, which extended the application of the Court's framework for evaluating the constitutionality of land use exactions (known as the Nollan/Dolan test). The majority of the Court relied heavily on the unconstitutional conditions doctrine, explaining that this doctrine formed the basis not only for the Nollan/Dolan framework but also for the extension of that framework to Koontz's new factual setting. Four members of the Court dissented. Although the dissenting justices seemingly agreed with several of the majority's propositions, they vigorously opposed the manner …

Distributed Reliability, Amy L. Stein

University of Colorado Law Review

For the past century, electric utilities and grid operators have both owned and operated resources to maintain the reliability of the grid. This reliability has been controlled through investments in generation, transmission, and distribution assets. Today, a growing number of previously passive customers are much more involved in generating their own electricity. But this customer involvement does not stop with generation. Customers are also contributing energy storage and demand response (DR) to the grid, reliability resources that are an essential component of supporting intermittent, renewable energy. This Article draws upon economic analyses of industrial organization and principal agent theory to …

Master Limited Partnerships : A Pipeline To Renewable Energy Development, E. Cabell Massey

University of Colorado Law Review

Master Limited Partnerships (MLPs) are partnership entities that can be publicly traded on a national stock exchange if they meet certain criteria in the Internal Revenue Code. These criteria include a qualifying income test where most of the partnership's income must be derived from nonrenewable natural resources. These partnerships have become very popular since their creation in the 1980s and have allowed for cast amounts of capital to be spent on infrastructure for non-renewable natural resource extraction and transportation in the United States. First, this Comment explores the history of the MLP and how MLPs currently are structured. Second, this …

The Presidential Statutory Stretch And The Rule Of Law, Peter M. Shane

University of Colorado Law Review

No abstract provided.

Regulating Software When Everything Has Software, Paul Ohm, Blake Reid

Publications

This Article identifies a profound, ongoing shift in the modern administrative state: from the regulation of things to the regulation of code. This shift has and will continue to place previously isolated agencies in an increasing state of overlap, raising the likelihood of inconsistent regulations and putting seemingly disparate policy goals, like privacy, safety, environmental protection, and copyright enforcement, in tension. This Article explores this problem through a series of case studies and articulates a taxonomy of code regulations to help place hardware-turned-code rules in context. The Article considers the likely turf wars, regulatory thickets, and related dynamics that are …

The Forgotten Core Of The Telecommunications Act Of 1996, Philip J. Weiser

Publications

No abstract provided.

The Dialectics Of Bank Capital: Regulation And Regulatory Capital Arbitrage, Erik F. Gerding

Publications

This article outlines the reasons that banks and other financial institutions engage in regulatory capital arbitrage and the techniques they use to do so. Regulatory capital arbitrage describes transactions and structures that firms use to lower the effective regulatory “tax rate” of regulatory capital requirements. To the extent that these regulations force financial institutions to internalize the externalities created by their potential insolvency (including systemic risk externalities), the incentives to engage in regulatory capital arbitrage will persist. Financial institutions employ a range of complex transactions and structures, including securitization, to engage in regulatory capital arbitrage.

The article briefly sketches how …

"State Inaction," Equal Protection, And Religious Resistance To Lgbt Rights, James M. Oleske, Jr.

University of Colorado Law Review

Now that the Supreme Court has held that states must recognize same-sex marriages, a new issue looms on the horizon: Must states also protect against sexual-orientation discrimination in the private marketplace? This Article contends that the answer under the Equal Protection Clause is "yes" for the forty-five-plus states that protect against marketplace discrimination on the basis of race, religion, national origin, and sex.

In the course of reaching that conclusion, this Article offers much-needed clarification of the Court's unsettled "state inaction" doctrine. Under that doctrine, a state's failure to act may be immunized from challenge on the ground that the …

You Can't Choose Your Family, But You Should Choose Your Co-Tenants: Reforming The Upc To Benefit The Modest- Means Family Cabin Owner, Lisa C. Willcox

University of Colorado Law Review

No abstract provided.

Inside Safe Assets, Anna Gelpern, Erik F. Gerding

Publications

“Safe assets” is a catch-all term to describe financial contracts that market participants treat as if they were risk-free. These may include government debt, bank deposits, and asset-backed securities, among others. The International Monetary Fund estimated potential safe assets at more than $114 trillion worldwide in 2011, more than seven times the U.S. economic output that year.

To treat any contract as if it were risk-free seems delusional after apparently super-safe public and private debt markets collapsed overnight. Nonetheless, safe asset supply and demand have been invoked to explain shadow banking, financial crises, and prolonged economic stagnation. The economic literature …

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Publications

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the …

Schrodinger's Child: Non-Identity And Probabilities In Reproductive Decision-Making, Jennifer S. Hendricks

Publications

Derek Parfit's non-identity problem calls into question the claims of both the state and individuals when they purport to act for the benefit of future children. This paper discusses how adoption of the non-identity argument as a legal argument could affect reproductive and family policy, demonstrating that it undermines the child-centric approach to assigning legal parentage. The paper concludes, however, that these non-identity problems can be solved by the expected value approach, which demonstrates that efforts to benefit future people can be logically coherent even if those efforts also affect the genetic identities of the future people.

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

The Right To Regulate (Cooperatively), Alexia Brunet Marks

Publications

The growing number of new technologies in food production— such as nanotechnology, genetic modification, animal cloning, and irradiation—are garnering different regulatory responses around the world. Based on their threshold for tolerating risk, countries are asserting their national right to regulate at home using labeling, quarantine, and outright bans on foods. But domestic regulation has its limits in a free trade environment. Countries that are not mindful of treaty obligations could face legal liability, as seen in the recent litigation between Uruguay and Philip Morris International. In short, traditional models of international regulatory cooperation (IRC) are failing to provide countries with …

Guns And Drugs, Benjamin Levin

Publications

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

The President And Immigration Federalism, Pratheepan Gulasekaram, S. Karthick Ramakrishnan

Publications

This Article lays out a systematic, conceptual framework to better understand the relationship between federal executive action and statelevel legislation in immigration. Prior immigration law scholarship has focused on structural power questions between the U.S. federal government-as a unitary entity-and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal Executive and subfederal lawmaking, which is an important yet overlooked dynamic in the resurgence of immigration federalism. First, this Article explains the relationship between presidential action and state …

International Legal Structuralism: A Primer, Justin Deystone

Publications

International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well-received, perhaps in part, because it was not well-understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the ‘80s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim …

Editor's Note, Colorado Technology Law Journal

Colorado Technology Law Journal

No abstract provided.

Property Rights And Governance Strategies: How Best To Deal With Land, Water, Intellectual Property, And Spectrum, Richard A. Epstein

Colorado Technology Law Journal

No abstract provided.

From Notice-And-Takedown To Notice-And-Delist: Implementing Google Spain, Aleksandra Kuczerawy, Jef Ausloos

Colorado Technology Law Journal

No abstract provided.