Law Commons^™

Revenge Of The Realtors: The Procompetitive Case For Consolidating Multiple Listing Services, James S. Bradbury

University of Colorado Law Review

To say residential real estate is an important part of our nation's economy is an understatement. Home ownership is either an asset or an aspiration for millions of Americans, and one needs only rewind the clock a decade for evidence of the financial ruin possible from buying and selling homes. But residential real estate transactions do not materialize out of thin air. Rather, the parties involved in a typical sale-buyers, sellers, agents, brokerages, online portals-all rely on critical infrastructure known as a multiple listing service (MLS) to get deals done. Simply put, an MLS is a platform that serves as …

Commercial Speech Protection As Consumer Protection, Felix T. Wu

University of Colorado Law Review

No abstract provided.

Electricity Competition And The Public Good: Rethinking Markets And Monopolies, Jonas J. Monast

University of Colorado Law Review

The United States electricity sector is engaged in a long-term experiment regarding the proper role of market competition. Many states that transitioned to competitive electricity markets in the early 2000s are again reconsidering the relationship between market competition and public policy goals. Low natural gas prices, falling costs of renewable energy and energy storage, and improvements in efficiency are causing early retirements of coal and nuclear power plants and thus affecting environmental policy goals and economic interests. States that continue to rely on monopoly utilities for electricity are also reconsidering the role of competition, but from a different angle. Rather …

A Likelihood Story: The Theory Of Legal Fact-Finding, Sean P. Sullivan

University of Colorado Law Review

Are racial stereotypes a proper basis for legal fact-finding? What about gender stereotypes, sincerely believed by the factfinder and informed by the fact-finder's life experience? What about population averages: if people of a certain gender, education level, and past criminal history exhibit a statistically greater incidence of violent behavior than the population overall, is this evidence that a given person within this class did act violently on a particular occasion? The intuitive answer is that none of these feel like proper bases on which fact-finders should be deciding cases. But why not? Nothing in traditional probability or belief-based theories of …

Determinants Of Patent Quality: Evidence From Inter Partes Review Proceedings, Brian J. Love, Shawn P. Miller, Shawn Ambwani

University of Colorado Law Review

We study the determinants of patent "quality"-the likelihood that an issued patent can survive a post-grant validity challenge. We do so by taking advantage of two recent developments in the United States patent system. First, rather than relying on the relatively small and highly selected set of patents scrutinized by courts, we study the larger and broader set of patents that have been subjected to inter partes review, a recently established administrative procedure for challenging the validity of issued patents. Second, in addition to analyzing characteristics observable on the face of challenged patents, we utilize datasets recently made available by …

Beyond Vawa: Protecting Native Women From Sexual Violence Within Existing Tribal Jurisdictional Structures, Jessica Allison

University of Colorado Law Review

One in three American Indian women will be raped in her lifetime. This rampant assault is only exacerbated by the fact that tribes have not been able to prosecute non- Indians for any crime, including rape, since the 1970s. The Violence Against Women Reauthorization Act of 2013 took a small step toward filling this jurisdictional hole by creating provisions under which tribes can prosecute certain non- Indian defendants for a limited set of sexual violence crimes. However, VAWA is not enough to protect Indian women from the astronomical rates of violence they experience. This Comment explores mechanisms used by tribes …

Powerful Speakers And Their Listeners, Helen Norton

University of Colorado Law Review

No abstract provided.

Press Speakers And The First Amendment Rights Of Listeners, Ronnell Anderson Jones

University of Colorado Law Review

No abstract provided.

When Audiences Object: Free Speech And Campus Speaker Protests, Gregory P. Magarian

University of Colorado Law Review

No abstract provided.

A Constitutional Call To Arms, Hon. Carlos F. Lucero

University of Colorado Law Review

No abstract provided.

The Save America's Pastime Act: Special-Interest Legislation Epitomized, Nathaniel Grow

University of Colorado Law Review

Buried deep within the 2,232-page omnibus federal spending bill passed by Congress in March 2018 was an obscure, halfpage provision entitled the "Save America's Pastime Act" (SAPA). The SAPA was inserted into the spending bill at the last minute at the behest of Major League Baseball (MLB) following several years-and several million dollars' worthof lobbying efforts. MLB pursued the legislation to insulate its minor league pay practices from legal challenge after they had become the subject of a federal class action lawsuit alleging that the league's teams failed to pay minor league players in accordance with the Fair Labor Standards …

From Aspirational To Prescriptive Capacity Building: Post-Conflict States, Rule Of Law, And Hybrid International Justice, Daimeon Dean Shanks

University of Colorado Law Review

Mass-atrocity crimes present unique accountability challenges, challenges that are often exacerbated by the social and political conditions that facilitated the commitment of the crimes in the first place. International accountability mechanisms were developed to address these obstacles by providing a means of holding individuals accountable for international crimes when their host states were incapable of doing so or unwilling to do so. The first iteration of these tribunals, the international military tribunals, gained prominence following World War II, and a second-generation of non-military international tribunals were created in response to the mass atrocities committed in the former Yugoslavia and Rwanda. …

Listeners' Choices, James Grimmelmann

University of Colorado Law Review

Speech is a matching problem. Speakers choose listeners, and listeners choose speakers. When their choices conflict, law often decides who speaks to whom. The pattern is clear: First Amendment doctrine consistently honors listeners' choices for speech. When willing and unwilling listeners' choices conflict, willing listeners win. And when competing speakers' choices conflict, listeners'choices break the tie. This Essay provides a theoretical framework for analyzing speech problems in terms of speakers' and listeners' choices, an argument for the centrality of listener choice to any coherent theory of free speech, and supporting examples from First Amendment caselaw.

Limiting The Right To Buy Silence: A Hearer-Centered Approach, Burt Neuborne

University of Colorado Law Review

No abstract provided.

The Macguffin And The Net: Taking Internet Listeners Seriously, Derek E. Bambauer

University of Colorado Law Review

To date, listeners and readers play little more than bit parts in First Amendment jurisprudence. The advent of digital networked communication over the Internet supports moving these interests to center stage in free speech doctrine and offers new empirical data to evaluate the regulation of online information. Such a shift will have important and unexpected consequences for other areas, including ones seemingly orthogonal to First Amendment concerns. This Essay explores likely shifts in areas that include intellectual property, tort, and civil procedure, all of which have been able to neglect certain free speech issues because of the lack of listener …

Environmental Gentrification, Sarah Fox

University of Colorado Law Review

Gentrification is a term often used, much maligned, and difficult to define. A few general principles can nonetheless be distilled regarding the concept. First, gentrification is spurred by rising desirability of an area for housing or commercial purposes. Second, this rising desirability, following basic supply-and-demand principles, leads to higher property values and rents in an uncontrolled market. Third, gentrification leads to a shift in the demographics of a neighborhood. This shift can change not only the socioeconomic and racial composition of the area but also the community's character, as residential and commercial options begin to reflect the preferences of the …

Mine Reclamation's Reliance On King Coal: Meeting Legacy Environmental Obligations With A Declining Industry, Claire Jarrell

University of Colorado Law Review

Coal mines throughout Appalachia have left the land scarred and the water damaged. Although mine reclamation programs are the only major system of recourse for addressing environmental degradation caused by mining, the downturn of the coal market has put reclamation programs in a precarious position for achieving that end. Funds for coal mine reclamation are derived from the current coal industry's profits. As coal profits continue to atrophy, so too does the pot of money designated for reclamation efforts. These dwindling financial resources are particularly problematic because there is still significant need for reclamation funding throughout Appalachia.

This Comment explores …

The Quasi-Parent Conundrum, Michael J. Higdon

University of Colorado Law Review

Although family law is very much concerned with legal parentage and its attendant rights, children are much more concerned with maintaining relationships with those who care for them, regardless of whether that person is a legal parent or someone functioning as one. What happens though if the child's legal parent attempts to banish the quasi-parent from the child's life? Doing so can be extremely damaging to the child. Nonetheless, parents do possess a constitutional right to make decisions about how to rear their children, including who may have access to the child.

Trying to strike a balance between protecting the …

Medical Records And Privacy Rights: The Unintended Consequences Of Aggregated Data In Electronic Health Records, Andrea C. Maciejewski

University of Colorado Law Review

In an era of rapid-pace technological innovation and political focus on healthcare, the federal government is pushing for nationwide interoperability of electronic health records. While there are many benefits from such a program, the lack of federal or state privacy regulations for patients' personal data opens up the possibility of widespread dissemination of private and sensitive information. This inattention to privacy will cause major problems if exploited.

Currently, there are no federal or Colorado laws that protect against potential privacy violations and provide recourse for a patient if a medical professional decides to insert nonmedical information, such as information about …

Redefining What It Means To "Furnish Items In Excess Of A Patient's Needs": A Federal Tool To Guide Physician Prescribing Behavior And Combat The Opioid Crisis, Carson Schneider

University of Colorado Law Review

The United States is in the midst of one of the deadliest drug epidemics in its history: the opioid crisis. The relevant players- prominent physicians, federal investigators, and multiple presidents, to name a few-have demonstrated a desire to combat the crisis, but they have not always focused on addressing one of the crisis's most prominent causes. This Comment starts by identifying a major cause of the opioid crisis-physician-prescribed opioid painkillers-and then advocates for federal regulation and monitoring through the Department of Health and Human Services (HHS) as a remedy.

Under the current statutory regime, HHS has the power to control …

A Purpose-And-Effect Test To Limit The Expansion Of The Government Speech Doctrine, Will Soper

University of Colorado Law Review

The First Amendment of the Constitution prohibits the government from passing any law that limits the freedom of private speech. However, in order to effectively govern, the state must communicate its policies and messages in ways that may not leave room for competing views. Since the early 1990s, the Supreme Court has articulated and developed the doctrine of government speech: when the government speaks, it is exempt from the First Amendment. The doctrine's use and expansion has its detractors. Many are worried that government speech should only be protected when it would be clear to a reasonable listener that the …

Who Guards The Guardians? Simplifying The Discovery Of Electronic Medical Records, Joseph Deangelis

University of Colorado Law Review

As medical errors reign as a leading cause of death and injury in the United States, the efficient and effective resolution of medical negligence disputes becomes increasingly necessary, albeit uncommon. Despite the frequency of medical errors, the quality of medical care in the United States has increased over the last several decades. This improvement has been due in no small part to the widespread adoption of Electronic Medical Records (EMRs) by healthcare providers across the country. While EMR systems have done their part to improve patient care, they are not designed for litigation. Indeed, the widespread use of EMR technology …

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 …

Reviving The Environmental Justice Potential Of Title Vi Through Heightened Judicial Review, Rachel Calvert

University of Colorado Law Review

Title VI of the Civil Rights Act has unrealized potential to correct the racialized distribution of environmental hazards. The disparate impact regulations implementing this sweeping statute target the institutional discrimination that characterizes environmental injustice. Agency decisions routinely deny claims that federal funds are contributing to projects that disproportionately pollute minority communities, allegedly in violation of Title VI disparate impact regulations. These dismissals are effectively final, as trends in civil rights jurisprudence have essentially foreclosed would-be litigants' opportunities for meaningful judicial review. Their last remaining avenue for recourse is to trigger an arbitrary and capricious review of agency actions, but the …

Data Subjects' Privacy Rights: Regulation Of Personal Data Retention And Erasure, Alexander Tsesis...

University of Colorado Law Review

No abstract provided.