Law Commons^™

Foreword: Theorizing Contemporary Legal Thought, Justin Desautels-Stein, Duncan Kennedy

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This is a co-authored foreword to a symposium in Law & Contemporary Problems titled "Theorizing Contemporary Legal Thought." It includes a discussion of the background of the project, a brief summary of the articles included in the issue, and a very short statement from Desautels-Stein and Kennedy on the "loss of faith" indicative of Contemporary Legal Thought.

Did Multicultural America Result From A Mistake? The 1965 Immigration Act And Evidence From Roll Call Votes, Gabriel J. Chin, Douglas M. Spencer

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Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade the United States; education, employment, housing, politics, and the population itself have irreversibly changed.

Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a "majority minority" nation. In …

They Had Nothing, Charles Wilkinson

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No abstract provided.

Administering Section 2 Of The Voting Rights Act After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

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Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article argues that the courts, in partnership with the Department of Justice, could reform section 2 so that it fills much of the gap left by the Supreme Court's evisceration of section …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The Republic Of The Congo, S. James Anaya

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No abstract provided.

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In Canada, S. James Anaya

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No abstract provided.

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

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Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

The Government's Lies And The Constitution, Helen Norton

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Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political …

Revisiting The Mansions And Gatehouses Of Criminal Procedure: Reflections On Yale Kamisar's Famous Essay, William T. Pizzi

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In 1965, Yale Kamisar published a now-famous essay entitled, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure: From Powell to Gideon, from Escobedo to... to make his case that the Court needed to take action to protect citizens in interrogation rooms, Kamisar used the powerful metaphors of the gatehouse and the mansion to contrast the treatment received in interrogation rooms in the back of police stations with the way defendants were treated when they arrived at courthouses where the power of the state was restricted and they had strong constitutional protections.

On its 50th anniversary since publication, …

Plenary Energy, Carla F. Fredericks

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An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending …

The Nonfinancial Returns Of Crowdfunding, Andrew A. Schwartz

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Securities crowdfunding — the sale of unregistered securities to the public over the Internet — has come under attack before it has even begun. Legal scholars in particular have expressed concern that investors will lose any money they invest in crowdfunding companies. Even assuming that this may be true from a purely financial perspective, these critics are missing an important point: Crowdfund investors with negative returns will not simply have lost their money, but rather they will have spent it (at least in part) on nonpecuniary benefits, including entertainment, political expression and community building. These nonfinancial returns of crowdfunding are …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On Extractive Industries And Indigenous Peoples, S. James Anaya

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No abstract provided.

Private And Public Ordering In Safe Asset Markets, Anna Gelpern, Erik F. Gerding

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An influential literature in economics explores the phenomenon of “safe assets” – when participants across financial markets act “as if” certain debt is risk free – as well as its role in the global financial crisis and its implications for post-crisis reform.

We highlight the role of private ordering in constructing safe assets. Private ordering, including contractual devices and transaction structures, contributes to the creation of these debt contracts, to their collective treatment in financial markets as low risk investments, and to the making of deep and liquid markets in them. These contracts and transaction structures also provide a template …

Toward A Structural Theory Of Implicit Racial And Ethnic Bias In Health Care, Dayna Bowen Matthew

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No abstract provided.

Equity And Corporate Law, Mark J. Loewenstein

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The article explores the continuing relevance of the 1991 Delaware Supreme Court decision in Schnell v. Chris-Craft Industries, Inc., in particular the extent to which evolving concepts of good faith have, or should, displace the free-wheeling equity doctrine of Schnell.

Quarterback By Committee: A Response In Memory Of Dan Markel, Andrew A. Schwartz

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In Catalyzing Fans, Dan Markel, Michael McCann and Howard Wasserman propose so-called “Fan Action Committees” (“FACs”), whereby fans would crowdfund a sum of money and then spend it to influence the personnel decisions of their favorite teams. This Response — dedicated to the memory of Dan Markel — suggests that an effective FAC could upset a team’s overall hiring and compensation system, thereby risking a downturn in team performance to the detriment of all concerned.

Outing Privacy, Scott Skinner-Thompson

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The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

Report Of The Special Rapporteur On The Rights Of Indigenous Peoples On The Situation Of Indigenous Peoples In The United States Of America, S. James Anaya

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No abstract provided.

The More Things Change . . . : Exploring Solutions To Persisting Discrimination In Legal Academia, Melissa Hart

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No abstract provided.

Cu Law Library Launches New Resource For Historical Colorado Statutory Research, Robert M. Linz

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No abstract provided.

The Digital Shareholder, Andrew A. Schwartz

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Crowdfunding, a new Internet-based securities market, was recently authorized by federal and state law in order to create a vibrant, diverse, and inclusive system of entrepreneurial finance. But will people really send their money to strangers on the Internet in exchange for unregistered securities in speculative startups? Many are doubtful, but this Article looks to first principles and finds reason for optimism.

Well-established theory teaches that all forms of startup finance must confront and overcome three fundamental challenges: uncertainty, information asymmetry, and agency costs. This Article systematically examines this “trio of problems” and potential solutions in the context of crowdfunding. …

Cyberharassment And Workplace Law, Helen Norton

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No abstract provided.

The Law's Clock, Frederic Bloom

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Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type--the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our …

Lawyers And Spoiled Identity, Paul Campos

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No abstract provided.

Structuralist Legal Histories, Justin Desautels-Stein

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This is a contribution to a symposium titled "Theorizing Contemporary Legal Thought." The central theme of the piece is the relation between legal structuralism and legal historiography.

Anti-Rape Culture, Aya Gruber

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No abstract provided.

When Theory Met Practice: Distributional Analysis In Critical Criminal Law Theorizing, Aya Gruber

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Progressive (critical race and feminist) theorizing on criminal law exists within an overarching American criminal law culture in which the U.S penal system has become a "peculiar institution" and a defining governance structure. Much of criminal law discourse is subject to a type of ideological capture in which it is natural to assume that criminalization is a valid, if not preferred, solution to social dysfunction. Accordingly, progressives’ primary concerns about harms to minority victims takes place in a political-legal context in which criminalization is the technique of addressing harm. In turn, progressive criminal law theorizing manifests some deep internal tensions. …

Reflections On Teaching Business Associations: The Case For Teaching More Agency And Unincorporated Business Entity Law, Mark J. Loewenstein

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This paper argues for increased coverage of the law of agency and alternative entities in business associations courses.

The Risks We Are Willing To Eat: Food Imports And Safety, Alexia Brunet Marks

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Recent efforts to regulate the safety of U.S. food imports have not kept up with the complexity of global trade and the risks that accompany globalization. Congress drafted the Food Safety Modernization Act of 2011 ("FSMA") in response to heightened food safety risks, surging imports, and an outdated food import safety system. While the FSMA provides the Food and Drug Administration ("FDA") additional authority to regulate food facilities, establish standards for safe produce, recall contaminated foods, and oversee imported foods, vulnerabilities still exist.

This article exposes problems with the old system of food import rules and significant challenges facing the …

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

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This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …