Law Commons^™

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 …

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 …

The Politicization Of Criminal Prosecutions, Wadie E. Said

Publications

This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy of state policies, state agencies (especially the police), or corporate interests, rendering the …

Minding Accidents, Teneille R. Brown

University of Colorado Law Review

Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct …

The Legal Stranger: Colorado's Two-Legal-Parent Limit Leaves Nontraditional Families Behind, Allison K. Dudley

University of Colorado Law Review

No abstract provided.

Foreword: Looking Back To Move Forward: Exploring The Legacy Of U.S. Slavery, Suzette Malveaux

University of Colorado Law Review

No abstract provided.

Foreword: Expanding The Boundaries Of Knowledge About Slavery And Its Legacy, Lolita Buckner Inniss

University of Colorado Law Review

No abstract provided.

Social Construction Of Race Undergirds Racism By Providing Undue Advantages To White People, Disadvantaging Black People And Other People Of Color, And Violating The Human Rights Of All People Of Color, Adjoa A. Aiyetoro

University of Colorado Law Review

No abstract provided.

Roundtable: The 1921 Tulsa Race Massacre; The Quest For Accountability, Robert Turner

University of Colorado Law Review

No abstract provided.

24/7 Clean Energy, Todd Aagaard

University of Colorado Law Review

In the face of the rapidly escalating climate crisis, the electricity sector is moving toward renewable energy. To date, policies and strategies have focused on increasing overall renewable energy generation, with little regard for timing and location. The result has been a misalignment of supply and demand in renewable energy markets. Renewable power projects produce energy when and where it is least expensive, leaving supply scarce at other times and places. Consumers, meanwhile, continue to use power when and where they need it. This mismatch increases the electricity grid’s dependence on fossil fuel–fired electricity to meet electricity demand at times …

Climate Change And Modern State Common Law Nuisance And Trespass Tort Claims, Jack Wold-Mcgimsey

University of Colorado Law Review

This Comment examines the use of state common law tort claims to address climate change. The aim of this work is not to provide an in-depth examination of these issues, but rather to provide a contextualized and comprehensive overview of some of the most important issues in this field using modern cases actively being litigated. This Comment comes to the conclusion that the future of common law nuisance and trespass claims in the context of climate change is, for now, unclear. Given the national and global implications of climate change, courts may find that isolated states cannot set binding precedents …

Producing Procedural Inequality Through The Empirical Turn, Danya Shocair Reda

University of Colorado Law Review

Procedural rulemaking and scholarship have taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one's legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for …

Trademark's Grip Over Sustainability, Daniel R. Cahoy

University of Colorado Law Review

Entrepreneurs and larger firms are waking up to the fact that there is a viable market for recycled, repaired, and even upcycled goods. There is also an increasing desire on the consumer end for more sustainable products as well as measures to reduce landfill and other product disposal harms to the environment. Although some legal barriers to this new market are being actively debated, other barriers have taken a back seat and seem primed to surge only when increased business activity exposes the liability. This is the case with trademark law, which has the potential to substantially deter the small-firm …

Oppression In American, Islamic, And Jewish Private Law, Rabea Benhalim

University of Colorado Law Review

American, Islamic, and Jewish law all limit the enforcement of private law agreements incases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic l provides justifications based on the divine vision for an equitable and just society articulated in the Quran. Jewish law argues …

Boulder Is For People: Zoning Reform And The Fight For Affordable Housing, Emma Sargent

University of Colorado Law Review

The city of Boulder and the Colorado state legislature are both examining potential housing policies to address the growing housing affordability crisis, which reflect similar discussions in other cities and states. Zoning reform must be a central aspect of these housing policy reforms because of its impact on affordability, environmental sustainability, racial desegregation, and the economic stability of cities and states. However, passing zoning reform measures is complicated by local political opposition and the potential for unintended consequences. The best approach to pass zoning reform while ensuring that cities and states truly address housing affordability is to craft zoning reform …

Loving Reparations, Eric J. Miller

University of Colorado Law Review

No abstract provided.

Humans In The Loop, Rebecca Crootof, Margot E. Kaminski, W. Nicholson Price Ii

Publications

From lethal drones to cancer diagnostics, humans are increasingly working with complex and artificially intelligent algorithms to make decisions which affect human lives, raising questions about how best to regulate these "human-in-the-loop" systems. We make four contributions to the discourse.

First, contrary to the popular narrative, law is already profoundly and often problematically involved in governing human-in-the-loop systems: it regularly affects whether humans are retained in or removed from the loop. Second, we identify "the MABA-MABA trap," which occurs when policymakers attempt to address concerns about algorithmic incapacities by inserting a human into a decision-making process. Regardless of whether the …

Abortion Law As Protection Narrative, Lolita Buckner Inniss

Publications

No abstract provided.

A Deliberative Democratic Theory Of Precedent, Glen Staszewski

University of Colorado Law Review

Stare decisis is widely regarded as a vital mechanism for promoting the rule of law. Yet high courts can always overrule prior decisions with a special justification, and different justices will inevitably have different perspectives on when such a justification exists. Moreover, when courts rely on stare decisis to follow a mistaken or unjustified decision, they arguably undermine the rule of law. Stare decisis therefore does not, and probably cannot, reliably promote a formal conception of the rule of law.

While this reality might lead us to conclude that we should give up on horizontal stare decisis, presumptive deference to …

The Visible Trial: Judicial Assessment As Adjudication, Tracey E. George, Albert H. Yoon

University of Colorado Law Review

Only a small fraction of lawsuits ends in trial—a phenomenon termed the “vanishing trial.” Critics of the declining trial rate see a remote, increasingly regressive judicial system. Defenders see a system that allows parties to resolve disputes independently. Analyzing criminal and civil filings in federal district court for the forty-year period from 1980 to 2019, we confirm a steady decline in the absolute and relative number of trials. We find, however, this emphasis on trial rate obscures courts’ vital role and ignores parties’ goals. Judges adjudicate disputes directly by ruling or effectively through other assessments of the parties’ cases. Even …

Higher Education Redress Statutes: A Preliminary Analysis Of States’ Reparations In Higher Education, Christopher L. Mathis

University of Colorado Law Review

No abstract provided.

The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii

University of Colorado Law Review

No abstract provided.

Zeroing In On Net-Zero: From Soft Law To Hard Law In Corporate Climate Change Pledges, Daniel C. Esty, Nathan De Arriba-Sellier

University of Colorado Law Review

One hundred and ninety-seven nations endorsed a target of net-zero greenhouse gas (GHG) emissions by midcentury in the 2021 Glasgow Climate Pact. As countries around the world have begun to develop their plans for deep decarbonization, it has become evident that the private sector will need to deliver much of what is required for the transition to an environmentally sustainable economy. The commitment to net-zero emissions by the year 2050 has therefore cascaded to the corporate world, leading hundreds of major companies to make their own net-zero GHG pledges. What constitutes a meaningful net-zero corporate pledge, however, remains unclear—and what …

The Dark Sun Network, Frédéric Gilles Sourgens

University of Colorado Law Review

Climate scientists agree that climate change will soon require the deployment of a highly dangerous geoengineering approach known as “solar radiation management.” Solar radiation management uses chemical or physical barriers to solar energy entering the atmosphere and thereby forces global temperatures downwards almost immediately by creating “artificial shade.” Problematically, the unilateral deployment of domestic solar radiation management approaches can have different and potentially devastating effects around the world, even if they help the country deploying the approach to limit the worst climate change consequences at home. So far, there is no global governance framework that can guide the development and …

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 …

Privacy Peg, Trade Hole: Why We (Still) Shouldn’T Put Data Privacy In Trade Law, Margot E. Kaminski, Kristina Irion, Svetlana Yakovleva

Publications

No abstract provided.

Amicus (Fall 2022), University Of Colorado Law School

Amicus

Issue at a glance:

• Commemorates Colorado Law's 130th anniversary with a roundtable discussion featuring seven generations of alumni
• Highlights the latest research by Professor Margot E. Kaminski
• Celebrates the opening of the Solidarity Suite, Colorado Law's newest student lounge
• Shares stories of philanthropy
• Recognizes milestones and successes of Colorado Law alumni

Amicus (Spring 2022), University Of Colorado Law School

Amicus

Issue at a glance:

• Features Colorado Law alumni who are making their mark with careers in government
• Highlights the latest research by Professor Suzette Malveaux
• Shares Dean Inniss' fundraising priorities for Colorado Law
• Includes stories of philanthropy by alumni and faculty
• Recognizes milestones and successes of Colorado Law alumni

Is Title Vii An "Anti-Discrimination" Law?, Anuj C. Desai

University of Colorado Law Review Forum

No abstract provided.