Law Commons^™

Ninth Update To Colorado Water Law: An Historical Perspective, Gregory J. Hobbs

Water Law Review

No abstract provided.

Unruly Waters: A Social And Environmental History Of The Brazos River, Robert Montgomery

Water Law Review

No abstract provided.

Capital Ideas: Public. Private. Partnerships., Devon Bell

Water Law Review

No abstract provided.

American Whitewater V. Tidwell, 770 F.3d 1108 (4th Cir. 2014), R. J. Colwell

Water Law Review

No abstract provided.

The Public Trust Doctrine And Its Groundwater Application In California, Adam Bowling

Water Law Review

No abstract provided.

Keynote Address, Katy Rankin

Water Law Review

No abstract provided.

Water Law And The History Of Developing The West, Devon Bell

Water Law Review

No abstract provided.

The Hobbs Opinion, Lauren Collins

Water Law Review

No abstract provided.

Access To Justice & Tribal Water Rights, James Tilton

Water Law Review

No abstract provided.

Conditional Water Rights And The Problem Of Speculation, Aaron Pettis

Water Law Review

No abstract provided.

Brief For Amici Curiae Scholars Of The Constitutional Rights Of Children In Support Of Respondent Edith Windsor Addressing The Merits And Supporting Affirmance, J. Robert Brown Jr., Catherine E. Smith, Kyle C. Velte, Susannah William Pollvogt, Tanya Washington

Sturm College of Law: Faculty Scholarship

This amicus brief filed by Scholars of the Constitutional Rights of Children turns the spotlight on children in same-sex families. The brief enumerates the ways Section 3 of DOMA impairs children's interests by denying federal recognition of their parents' marriages.

Staying In The Delaware Corporate Governance Lane: Fee Shifting Bylaws And A Legislative Reaffirmation Of The Rules Of The Road, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

The Delaware legislature has taken steps towards the adoption of amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee shifting provisions in the articles and bylaws. The language in the legislative proposal, however, addresses fee shifting provisions only in the context of "internal corporate claims." Some have raised concerns that this language would allow for fee shifting provisions that applied to other types of actions, including at least some cases brought under the securities laws.

This piece suggests that in fact the Delaware General Corporation Law already prohibits the adoption of bylaws and certificate provisions that apply …

Causation And Harm In A Multicomponent World, Bernard Chao

Sturm College of Law: Faculty Scholarship

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the "causal nexus" requirement. This requirement had emerged as a response to patent litigations involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm …

Sustainable Development And Its Discontents, Federico Cheever, John C. Dernbach

Sturm College of Law: Faculty Scholarship

Sustainable development (or sustainability) is a decision-making framework for maintaining and achieving human well-being, both in the present and into the future. The framework requires both consideration and achievement of environmental protection, social justice and economic development. In that framework, environmental protection must be integrated into decisions about social and economic development, and social justice and economic viability must be integrated into decisions about environmental quality.

First endorsed by the world’s nations in 1992, this framework is intended to provide an effective response to the twin global challenges of growing environmental degradation and widespread extreme poverty. Sustainability provides a framework …

Legislative Proposals To Modernize Business Development Companies And Expand Investment Opportunities, Testimony Before The House Subcommittee On Capital Markets And Government Sponsored Enterprises, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

This testimony discusses proposed legislation to amend the definition of accredited investor. It also discusses proposed legislation designed to reform the regulatory framework for business development companies. Among other things, the regulatory regime for BDCs would change to allow these companies to invest a greater portion of their assets in financial companies, potentially reducing the percentage of assets invested in operating companies.

Secularism, Sharia, And The Turkish Financial Markets, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

The financial markets in Turkey provide a laboratory to help resolve these competing views. Islamic law or Sharia contains a number of proscriptions that directly affect financial practices. The payment and receipt of interest is prohibited; so are most kinds of commercial insurance. These interpretations provided the impetus in the Islamic world for the creation of a class of banks that sought to offer Sharia compliant services.

The first Islamic Banks in Turkey began operations in the 1980s. Their entry was initially tepid, in no small part because of secularist principles. Islamic financial institutions could not overtly advertise their religious …

Comment Letter: The Nyse And The End Of The Structural Separation Between Regulatory And Commercial Interests Of The Exchange, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

The NYSE transformed into a for profit entity in 2006. As part of the approval process, the NYSE agreed to structurally separate the regulatory function from the business function. In doing so, the NYSE created NYSE Regulation, a non-profit with an independent board, to handle most regulatory matters. During the comment period, a spirited debate arose over the ability of a for profit company to carry out a regulatory mission. Some suggested that the regulatory function was incompatible with a "for profit" motive and that NYSE Regulation should be spun off. Others accepted the proposed structure but called for additional …

Comment On Rule 14a-8(I)(9), Securities And Exchange Commission, June 30, 2015, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

The Securities and Exchange Commission has been analyzing its interpretation under Subsection (i)(9) of Rule 14a-8. This provision allows for the exclusion of shareholder proposals that conflict with those submitted by management. The staff has been examining its interpretation since instructed to do so by the chair of the SEC following a no action appeal in a case involving Whole Foods. A number of letters and memos submitted in connection with the review have analyzed the issue. At least one asserted that any change in interpretation required the Commission to go through the process of notice and comment. This letter …

Comment Letter On Rule 14a-8(I)(10), Securities & Exchange Commission, June 18, 2015, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

This letter focuses on SEC interpretations of Rule 14a-8(i)(10). The provision allows issuers to exclude shareholder proposals that have been “substantially implemented.” This has traditionally been used to allow for the exclusion of proposals rendered “moot” by the company’s actions. Companies, however, need not implement the shareholder proposal “exactly.” As a result, the staff is often asked to determine whether changes made by the company are substantial. The comment letter discusses positions taken by the staff where the company adopts a proposal asking that shareholders with a specified percentage of shares have the right to call a special meeting but …

Disquieting Discretion: Race, Geography & The Colorado Death Penalty In The First Decade Of The Twenty-First Century, Meg Beardsley, Sam Kamin, Justin F. Marceau, Scott Phillips

Sturm College of Law: Faculty Scholarship

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state. Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the …

The Work Of The Task Force To Implement Amendment 64: A Case Study, Sam Kamin

Sturm College of Law: Faculty Scholarship

This short essay – taken from a keynote address given at the University of Denver’s Marijuana at the Crossroads Conference – describes the dynamics of marijuana law and policy in the United States with a particular eye toward the federalism implications of marijuana legalization in the states. The essay discusses the history of marijuana regulation in the United States, sets forth a number of possible scenarios going forward, and makes a few, tentative predictions about the future.

Remember Not To Forget Furman: A Response To Professor Smith, Sam Kamin, Justin F. Marceau

Sturm College of Law: Faculty Scholarship

Professor Robert J. Smith encourages readers, lawyers, and courts to forget Furman v. Georgia and to focus instead on death penalty challenges grounded in the diminished culpability of nearly all capital defendants. We applaud Professor Smith’s call to focus on the mental and emotional characteristics that reduce the blameworthiness of so many of those charged with capital crimes; recognizing diminished culpability as the rule rather than the exception among capital defendants conveys a reality that rarely finds its way into reported cases. We are troubled, however, by Professor Smith’s call to “forget Furman.” We believe the title and the …

The Limits Of Marijuana Legalization In The States, Sam Kamin

Sturm College of Law: Faculty Scholarship

Although some ingenious solutions have been proposed to the problems posed by Section 280E pf the federal tax code, the situation remains untenable. The only solution to this current conundrum is a change in federal law; so long as marijuana remains illegal under the Controlled Substances Act, state marijuana policy will inevitably be frustrated. This brief response to an article by Professor Leff identifies some of these frustrations and proposes a few modest federal solutions

The Battle Of The Bulge: The Surprising Last Stand Against State Marijuana Legalization, Sam Kamin

Sturm College of Law: Faculty Scholarship

Although marijuana possession remains a federal crime, twenty-three states now allow use of marijuana for medical purposes and four states have adopted tax-and-regulate policies permitting use and possession by those twenty-one and over. In this article, I examine recent developments regarding marijuana regulation. I show that the Obama administration, after initially sending mixed signals, has taken several steps indicating an increasingly accepting position toward marijuana law reform in states; however the current situation regarding the dual legal status of marijuana is at best an unstable equilibrium. I also focus on what might be deemed the last stand of marijuana-legalization opponents, …

Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Part I and Part II of this article discuss the consequences of Crawford v. Washington for domestic violence victims and detail the problem of domestic violence in America, including the current prosecution strategies and challenges in domestic violence cases. Part III reviews the evolution of confrontation law jurisprudence. Part IV sets forth a proposed Crawford-compliant procedure that also protects domestic violence victims. Part V addresses anticipated objections to the prompt-post arrest confrontation hearing.

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin F. Marceau

Sturm College of Law: Faculty Scholarship

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the …

The Life Of Crimmigration Law, César Cuauhtémoc García Hernández

Sturm College of Law: Faculty Scholarship

This short essay introduces a collection of articles that arose from the Denver University Law Review’s symposium Crimmigration: Crossing the Border Between Criminal Law and Immigration Law, held in February 2015 at the University ofDenver Sturm College of Law. The essay borrows heavily from the Epilogue to my book Crimmigration Law.

An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Federico Cheever, Nancy A. Mclaughlin

Sturm College of Law: Faculty Scholarship

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by …

Immigration Law By Proxy: The Case Of Colorado’S Human Smuggling Crime, César Cuauhtémoc García Hernández

Sturm College of Law: Faculty Scholarship

Despite the federal government’s well known expansive reach in creating and enforcing immigration law, the states retain substantial authority to play an important role in migrants’ lives. Through their traditional powers to adopt criminal statutes and police their communities, states can indirectly — but intentionally — inject themselves into the incidents of ordinary life as a migrant. Colorado’s human smuggling statute, currently being challenged before the state supreme court, illustrates this type of state regulation of migration. This essay addresses the statute’s reach, its shaky constitutional footing, and places it in a broader context in which states criminalize immigration-related activity.

The Future Direction Of Delaware Law (Including A Brief Exegesis On Fee Shifting Bylaws), J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

Delaware sets the governance standards for most public companies. The ability to attract corporations could not be explained solely by the existence of a favorable statutory regime. Delaware was not invariably the first or the only state to implement management friendly provisions. Given the interpretive gaps in the statute and the critical importance of the common law in the governance process, courts played an outsized role in setting legal standards. The management friendly nature of the Delaware courts contributed significantly to the state’s attraction to public corporations.

A current example of a management friendly trend in the case law had …