Law Commons^™

How To (Not) Do Things With Judicial Opinions: Minding The Performative Power Of Facts And Dicta, Mb Beasley

University of Colorado Law Review

"Three generations of imbeciles are enough."l These words of Justice Oliver Wendell Holmes are some of the most infamous and evocative penned from behind the bench of the Supreme Court of the United States. Beyond the feelings of revulsion reading the opinion causes, the facts that Justice Holmes declared to be true and the dicta he used to bolster the Court's holding in Buck v. Bell helped to create the social world we live in today and continue to affect it. Though previous scholarship has recognized the importance of acknowledging the performative power of words in the legal field, little …

The Right To Vote Securely, Sunoo Park

University of Colorado Law Review

American elections currently run on outdated and vulnerable technology. Computer science researchers have shown that voting machines and other election equipment used in many jurisdictions are plagued by serious security flaws, or even shipped with basic safeguards disabled. Making matters worse, it is unclear whether current law requires election authorities or companies to fix even the most egregious vulnerabilities in their systems, and whether voters have any recourse if they do not.

This Article argues that election law can, does, and should ensure that the right to vote is a right to vote securely. First, it argues that constitutional voting …

Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray

University of Colorado Law Review

Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application …

Table Of Contents, Colorado Environmental Law Journal

Colorado Environmental Law Journal

No abstract provided.

America's Public Lands: What History Suggests About Their Future, John Leshy

Colorado Environmental Law Journal

No abstract provided.

Unleashing Carbon Removal Technologies, Sierra Apillanes, Alexa Penalosa

Colorado Environmental Law Journal

Mounting climate change concerns are driving unprecedented interest in carbon dioxide removal technologies. Unlike carbon capture strategies, which trap carbon dioxide at specific emission points such as power plant smokestacks, carbon removal technologies directly remove carbon dioxide from the ambient atmosphere. Fossil fuel industry stakeholders have championed carbon capture for years as a means of reducing carbon emissions while continuing the nation's heavy reliance on carbon-intensive energy sources. This focus on promoting carbon capture has delayed the development of policies specifically aimed at promoting carbon removal. As a result, humankind has yet to effectively leverage carbon removal technologies in the …

Federal Insecticide, Fungicide, And Rodenticide Act Preemption Of State Failure-To-Warn Laws, Theodore Motz

Colorado Environmental Law Journal

No abstract provided.

Grid Unlocked: How Colorado Senate Bill 72 Will Impact Wholesale Electricity Markets In Colorado And The West, Wilson Collins

Colorado Environmental Law Journal

No abstract provided.

Potential For Less Plastic Pollution: Colorado's Recycling System And Plastic Bag Ban, Robyn Smith

Colorado Environmental Law Journal

No abstract provided.

Immigration Enforcement Preemption, Pratheepan Gulasekaram

Publications

The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

Publications

The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

Redistricting’S Ultimate Antidote, Douglas M. Spencer

Publications

No abstract provided.

Judicial Review Bars In The Patent System, Medicare, And Beyond, Laura E. Dolbow

Publications

No abstract provided.

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.

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 …

Naïve Realism, Cognitive Bias, And The Benefits And Risks Of Ai, Harry Surden

Publications

In this short piece I comment on Orly Lobel's book on artificial intelligence (AI) and society "The Equality Machine." Here, I reflect on the complex topic of aI and its impact on society, and the importance of acknowledging both its positive and negative aspects. More broadly, I discuss the various cognitive biases, such as naïve realism, epistemic bubbles, negativity bias, extremity bias, and the availability heuristic, that influence individuals' perceptions of AI, often leading to polarized viewpoints. Technology can both exacerbate and ameliorate these biases, and I commend Lobel's balanced approach to AI analysis as an example to emulate.

Although …

Toward Stronger Data Protection Laws, Margot E. Kaminski

Publications

No abstract provided.

Racism Pays: How Racial Exploitation Gets Innovation Off The Ground, Daria Roithmayr

Publications

Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because …

Sexuality’S Promise For Sexual Privacy, Scott Skinner-Thompson

Publications

No abstract provided.

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 …

Tribal Air, Jonathan Skinner-Thompson

Publications

Prevailing approaches to addressing environmental justice in Indian Country are inadequate. The dual pursuits of distributive and procedural justice do not fully account for the unique factors that make Indigenous environmental justice distinct—namely, the sovereign status of tribal nations and the ongoing impacts of colonization.

This Article synthetizes interdisciplinary approaches to theorizing Indigenous environmental justice and proposes a framework to aid environmental law scholars and advocates. Specifically, by centering Indigenous environmental justice in terms of coloniality and self-determination, this framework can better critique and improve environmental governance regimes when it comes to pollution in Indian Country.

This Article tests that …

A Bold Plan For Saving The Colorado River, Mark Squillace

Publications

No abstract provided.

What Twenty-First-Century Free Speech Law Means For Securities Regulation, Helen Norton

Publications

Securities law has long regulated securities-related speech--and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court's twenty-first-century Free Speech Clause doctrine has inspired corporate speakers' increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but …

Abortion Law As Protection Narrative, Lolita Buckner Inniss

Publications

No abstract provided.

Visions For The International Decade Of Indigenous Languages 2022-2032, Kristen A. Carpenter, Andrew Cowell, Alexis Palmer

Publications

The United Nations General Assembly recently proclaimed the International Decade of Indigenous Languages ( "IDIL") from 2022-2032 to "to draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages and to take urgent steps at the national and international levels." The Decade is an opportunity to expose and address the severe loss of Indigenous Peoples' languages locally, regionally, and globally. It is a chance for the entire world community to gather together and commit to bringing Indigenous languages back from the brink of dormancy or extinction.

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 …

“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 …

Sex Exceptionalism In Criminal Law, Aya Gruber

Publications

Sex crimes are the worst crimes. People generally believe that sexual assault is graver than nonsexual assault, uninvited sexual compliments are worse than nonsexual insults, and sex work is different from work. Criminal codes typically create a dedicated category for sex offenses, uniting under its umbrella conduct ranging from violent attacks to consensual commercial transactions. This exceptionalist treatment of sex as categorically different rarely elicits discussion, much less debate. Sex exceptionalism, however, is neither natural nor neutral, and its political history should give us pause. This Article is the first to trace, catalog, and analyze sex exceptionalism in criminal law …

The Future Of Intersectionality In Employment Law, Suzette Malveaux

Publications

No abstract provided.

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

Publications

No abstract provided.