Law Commons^™

Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe

Publications

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation. In this Review, we press two main arguments. …

The Law's Clock, Frederic Bloom

Publications

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 …

Food Policy And Cognitive Bias, Paul F. Campos

Publications

No abstract provided.

Lawyers And Spoiled Identity, Paul Campos

Publications

No abstract provided.

Structuralist Legal Histories, Justin Deystone

Publications

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.

Bank Regulation And Securitization: How The Law Improved Transmission Lines Between Real Estate And Banking Crises, Erik F. Gerding

Publications

This essay examines how securitization served as a new coupling rod joining cycles in real estate and banking markets and created a new pathway for financial contagion in the “subprime” financial crisis. Legal changes promoted the growth of securitization and improved this crisis transmission line. The essay examines the history of legislative and regulatory changes that facilitated bank participation in the markets for mortgage-backed securities. The essay then explains how securitization failed to mitigate the credit, liquidity, and interest rate risk associated with real estate when losses in residential markets became correlated nationwide. It then discusses how regulation contributed to …

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

Publications

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 …

A Provocative Defense, Aya Gruber

Publications

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation's problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This Article offers a (likely provocative) defense of the provocation doctrine. While …

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

Publications

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

Publications

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

Publications

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 …

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

Publications

No abstract provided.

The Government's Lies And The Constitution, Helen Norton

Publications

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 …

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Publications

No abstract provided.

"Greatest Good Of The Greatest Number In The Long Run": Tr, Pinchot, And The Origins Of Sustainability In America, Charles Wilkinson

Publications

No abstract provided.

Introduction To Big Horn General Stream Adjudication Symposium, Charles Wilkinson

Publications

No abstract provided.

Research Analysis And Planning: The Undervalued Skill In Legal Research Instruction, Robert M. Linz

Publications

This article describes a method of research analysis and planning for legal problems. It introduces the framework of research plan, log, and product and provides a detailed research plan and log that students can use as a template for learning research. The article suggests how to teach the method in legal research classes, shares some of the author's experiences in teaching the method, and addresses some possible criticisms of this approach.

Research Strategies Using Headnotes: Citators And Relevance, Susan Nevelow Mart

Publications

No abstract provided.

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

Publications

No abstract provided.

The Mcdonaldization Of Academic Libraries?, Brian Quinn

Copyright, Fair Use, Scholarly Communication, etc.

George Ritzer, a sociologist at the University of Maryland, has proposed an influential thesis that suggests that many aspects of the fast food industry are making their way into other areas of society. This article explores whether his thesis, known as the McDonaldization thesis, is applicable to academic libraries. Specifically, it seeks to determine to what extent academic libraries may be considered McDonaldized, and if so, what effect McDonaldization may be having on them. It also investigates some possible alternatives to McDonaldization, and their implications for academic libraries.

Has The Increased Cost Of Law School Improved Legal Education?, Paul F. Campos

Publications

No abstract provided.

The Conforming Effect: First Amendment Implications Of Surveillance, Beyond Chilling Speech, Margot Kaminski, Shane Witnov

Publications

No abstract provided.

Embracing A Rich Diversity: Promoting Diversity Among Patrons And Staff, Shamika Dalton

Publications

No abstract provided.

How The Other Half Banks, Daria Roithmayr

Publications

No abstract provided.

More Than A Woman: Insights Into Corporate Governance After The French Sex Quota, Daria Roithmayr

Publications

In 2011, France enacted a Corporate Board Quota to establish a forty percent floor for either sex on corporate boards. Existing literature presumes that women will change the way firms function and that their presence in upper management will improve both governance and financial returns. To assess the potential impact of the quota, we interviewed twenty-four current and former corporate board members. Our analysis of these interviews generates two findings. First, our results indicate that, at least in the view of board members, the sex quota has had an impact on the process of board decision-making, but adding women has …

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer

Faculty Publications

No abstract provided.

Let The Good Time Roll: Early Release For Good Behavior In Prison, Michael M. O'Hear

Faculty Publications

No abstract provided.

Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections For Bullied Special Education Students, Paul M. Secunda

Faculty Publications

Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individuals with Disabilities in Education Act (“IDEA”). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school …

Rolling Back The Tide: Toward An Individual Mandate For Flood Insurance, Alexander Lemann

Faculty Publications

The National Flood Insurance Program is in flux — and under attack. On March 13, 2014, Congress passed the Homeowner Flood Insurance Affordability Act, delaying and dismantling many of the reforms it had put in place just twenty months earlier, when it passed the Biggert-Waters Flood Insurance Reform Act of 2012. Today, flood insurance is both a critical part of the country’s approach to dealing with the rising flood threat posed by climate change and a beleaguered and perpetually broke symbol of governmental ineptitude, leading to calls for its elimination. By providing federally-subsidized flood insurance, critics argue, the National Flood …

The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to …