Law Commons^™

Immigration Detention Abolition And The Violence Of Digital Cages, Sarah Sherman-Stokes

University of Colorado Law Review

The United States has a long history of pernicious immigration enforcement and surveillance. Today, in addition to more than 34,000 people held in immigration detention, Immigration and Customs Enforcement (ICE) shackles and surveils an astounding 376,000 people under its “Alternatives to Detention” (“ATD”) program. The number of people subjected to this surveillance has grown dramatically in the last two decades, from just about 1,700 in 2005. ICE’s rapidly expanding Alternatives to Detention program is a “digital cage,” consisting of GPS-outfitted ankle shackles and invasive phone and location tracking. Government officials and some immigrant advocates have characterized these digital cages as …

Union Autonomy And Federal Intrusion, Hannah Borowski

University of Colorado Law Review

Union autonomy, a critical aspect of the health and growth of unions and employee power broadly, is weakened by (1) the Department of Justice’s (DOJ) attempts to target organized crime through civil Racketeer Influenced and Corrupt Organizations Act (RICO) litigation against unions and (2) the creation of federal trusteeships in settlement, both of which can be analyzed through litigation between the DOJ and the International Brotherhood of Teamsters (Teamsters or IBT) at the end of the 20th century. The field of compliance offers a solution to prevent these breaches of union autonomy. Relying on the Federal Sentencing Guidelines and the …

Machine Manipulation: Why An Ai Editor Does Not Serve First Amendment Values, Alec Peters

University of Colorado Law Review

The past few years have seen increasing calls for regulation of large social media platforms, and several states have recently enacted laws regulating their content moderation, promotion, and recommendation practices. But if those platforms are exercising editorial discretion when carrying out these tasks, many of the regulations will run into constitutional concerns: the First Amendment protects the “exercise of editorial control and judgment” by publishers over their choice of content and how it is presented. However, the editorial operation of social media platforms differs significantly from traditional media, most importantly in the use of artificial intelligence (AI) for editorial decision-making. …

Federal Indian Law As Method, Matthew L.M. Fletcher

University of Colorado Law Review

No abstract provided.

Facts On Trial: Alliance For Hippocratic Medicine V. Fda And The Battle Over Mailed Medication Abortion, Rachel Rebouché .

University of Colorado Law Review

No abstract provided.

Facing The Music: How The Face Act Harms, Rather Than Helps, The Post-Dobbs Abortion Movement, Kyriaki "Kiki" Council

University of Colorado Law Review

No abstract provided.

The Voluntary Carbon Market: Market Failures And Policy Implications, Vittoria Battocletti, Luca Enriques, Alessandro Romano

University of Colorado Law Review

Many companies have made environmental pledges and launched products that claim to be carbon neutral. In most of these instances, corporations rely on carbon offsets. In this Article, we investigate the functioning of the market on which these offsets are created and exchanged, namely the voluntary carbon market, and look into the question of whether and, if so, how it should be subject to regulation. We start by shedding light on the mechanics of this market and then explain why a well-functioning voluntary carbon market is necessary to fight global warming and can also help developing countries build less carbon-intensive …

Legal Asynchrony: Constitutional “Bridges” Inverting Elemental U.S. Technology, Steven Ferrey

University of Colorado Law Review

The 2022 Biden Inflation Reduction Act (“IRA”) and the 2021 Infrastructure Investment and Jobs Act (“IIJA”), together providing for an unprecedented $1.7 trillion in spending, were enacted to construct a sustainable legal U.S. exit ramp from what the Secretary-General of the United Nations recently described as a “highway to climate hell with our foot still on the accelerator.” This Article analyzes a critical legal missing link in these Acts that is now causing the U.S. economy to do the opposite of its intended climate change mitigation, given: • A necessary eight-fold increase in current renewable electric power, requiring adding the …

Carbon Pricing For A Just Transition, Jeff Todd

University of Colorado Law Review

The legal tools to avoid the potential disasters of climate change are already available, at least according to economists. Economists overwhelmingly prefer carbon pricing tools like carbon taxes and cap-and-trade programs to combat climate change and guide the energy transition. Carbon pricing is more cost effective at lowering carbon and other greenhouse gases (GHGs) than other legal options such as efficiency standards, renewable portfolio standards, subsidies, and tax credits and deductions. Unlike those other options, carbon pricing targets both the supply of and the demand for GHG-emitting products and services; moreover, it gives firms and consumers flexibility in how best …

Force Majeure And The Law Of The Colorado River: The Confluence Of Climate Change, Contracts, And The Constitution, Mary Slosson

University of Colorado Law Review

Climate change is causing significant, permanent changes to the natural world. In the Colorado River Basin, experts forecast that rising temperatures will cause the spread of a drier, more arid climate across the region. The effects of this desertification are already being felt: less rainfall, the loss of deciduous forests, wildfires that engulf urban areas, and a projected 20 to 30 percent reduction in flows on the Colorado River by mid-century. The net effect is an existential crisis for the forty million people that reside in the Colorado River’s watershed. Mitigating the effects of climate change requires swift action. However, …

A First Amendment Failure: Surrendering To Science Misinformation For Bioengineered Foods, Casey J. Nelson

University of Colorado Law Review

Government-compelled commercial disclosures are not unfamiliar to consumers. Common labels include nutrition facts and ingredient information. The National Bioengineered Food Disclosure Standard, which took full force at the start of 2022, is of a different nature. The new law requires all manufacturers, all importers, and certain retailers of bioengineered foods to disclose on the food’s packaging that it has been produced with bioengineering technology. Even so, a large swath of the public is ignorant of “bioengineering’s” true meaning and bioengineering technology’s true quality. The politically charged and fact-lacking debate on bioengineered foods renders this standard an impermissible coercion of speech …

Estate To State: Pay-To-Stay Statutes And The Problematic Seizure Of Inherited Property, Brittany L. Deitch

University of Colorado Law Review

Pay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or have formerly been incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation. Pay-to-stay laws have survived constitutional challenges thus far, but some state legislatures …

Colonizing Queerness, Jeremiah A. Ho

University of Colorado Law Review

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

University of Colorado Law Review

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

It’S Past Time: Unionization And Self-Determination In Minor League Baseball, Chris Rowley

University of Colorado Law Review

For more than a century, labor disputes have tormented the relationship between American professional baseball players and management. Although Major League Baseball players unionized in the 1960s, disagreements over workplace conditions and ever-growing profit allocations endured for decades. The first thirty years of collective bargaining between players and League post-unionization fostered notable improvements in players’ labor conditions. However, those years were also plagued by acrimonious negotiations, grievances, lawsuits, lockouts, strikes, and eventually, the cancellation of the 1994 World Series. The story in Minor League Baseball is altogether different. Its players, despite their close nexus with the Major League game, did …

Lexisnexis’S Contract With Ice As Unjust Enrichment, Lizzie Bird

University of Colorado Law Review

For $22.1 million, LexisNexis is currently helping Immigration and Customs Enforcement (ICE) surveil, detain, and deport noncitizens. Like other data brokers, LexisNexis’s role in the collection and sale of personal information has largely been ignored by regulators, judges, and the public. A recent lawsuit against LexisNexis in Illinois includes, among other claims, a claim of unjust enrichment. This often misunderstood and unpopular claim has a complex history which presents both a barrier to relief and an opportunity for advocates to push courts to clarify the doctrine. This Note examines the history of the theory of unjust enrichment, surveys its recent …

Police Vigilantism, Nadia Banteka

Scholarly Publications

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, Jeffrey H. Kahn, John E. Lopatka

Scholarly Publications

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 1 0 0th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions. Proponents of a rule that awards should reflect …

Cognitive Content Moderation: Freedom Of Thought And The First Amendment Right To Receive Subconscious Information, Mason Marks

Scholarly Publications

In the television series Severance, employees of Lumon Industries receive brain implants that divide their memories of work and home life. When employees arrive at work, implants block access to memories of the outside world and unlock memories formed on the job. By manipulating the flow of information in employees' brains, Lumon engages in what this Article calls cognitive content moderation. Though Severance is science fiction, emerging technologies, including drugs and electronic devices, promote cognitive content moderation by influencing thought, memory, and perception. Constitutional law is unprepared. To clarify freedom of thought and make it more useful, this Article presents …

Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg

Scholarly Publications

Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution-making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters' behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile's constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the abstract, …

The Very Idea Of Tradition In The Law, Marc O. Degirolami

Scholarly Articles

This lecture was delivered in connection with the St. John Henry Newman Chair in Law at The Catholic University of America, Columbus School of Law, and as part of a conference on "St. John Henry Newman, Tradition, and Law." It reflects on the worth of the idea of tradition in life, law, and Christianity.

Cocoa Crisis: Cartelizing West African Cocoa In Response To The Persistent Use Of Child Labor, Matthew Trevisani

Chicago Journal of International Law

The lack of resources that afflicts Ghanian and Ivorian enforcement of child labor prohibitions has allowed for the continued use of child labor in the cocoa industry. The current enforcement bodies not only suffer from serious coordination problems, but also fall victim to the harsh reality of cocoa farming, which pays pitiful daily wages to farmers. Child labor serves as a cheap, and perhaps even cost-free, option that allows farmers to maximize their profits. Many cocoa plantations are family-run, and thus the inclusion of children in the workforce is often a natural step, even where educational opportunities are available. To …

International Administrative Tribunals And Cross-Fertilization: Evidence Of A Nascent Common Jurisprudence?, Jason Morgan-Foster

Chicago Journal of International Law

The present work concerns International Administrative Tribunals (IATs), the dispute-resolution bodies between staff members and the administration of international organizations, existing at the cross-roads of international law, institutional law, and administrative law. It argues that, contrary to popular belief, the some twenty-five different IATs currently in existence are no longer functioning individually but rather citing to each other with increasing frequency and, in so doing, developing a common jurisprudence of international administrative law.

Over fifty years ago, when only a handful of IATs existed, M.B. Akehurst, a commentator in the field, made the observation that “[i]nternational administrative tribunals behave as …

Brexit Backslide: How The United Kingdom’S Break From The European Union Could Erode Female Labor Rights, Katherine Ryan

Chicago Journal of International Law

Britain’s retreat from the E.U. has demonstrated the deep connection between its domestic law and E.U. law and the dangers that can arise when a country attempts to disentangle the two. With the recent passage of the Retained E.U. Law (Revocation and Reform) Act, the resulting absence of E.U. law in British domestic law may create legal holes that leave women in the workforce without protection from discrimination. International organizations and treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women and the International Labor Organization, may be used to patch these holes. Moreover, Britain …

Marijuana And The Tyrannies Of Scheduling, Robert A. Mikos

Fordham Law Review

No abstract provided.

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

Rational Investing Or Speculative Fever?: Spacs, Robinhood, And Digital Assets—Securities Markets Or Casinos?, Thomas Lee Hazen

Faculty Publications

This Article focuses on one of the recurring themes, not only in Professor Markham’s most recent volume but also in the earlier ones as well—speculation in the financial markets. The 2010–2020 decade set the stage for a new round of speculative activity starting in 2021. In the Article that follows, I reflect on a new wave of speculation and three current examples of speculative activity. The Article concludes that regulators should be cautious about over-regulation of special-purpose acquisition companies (“SPACs”) and gamified trading. The article also supports the regulation of digital assets (cryptocurrencies and NFTs) as securities.

The Innocence Standard: Supreme Court Nominees And Sexual Misconduct, Lisa Avalos

Journal Articles

Should the United States Senate allow judicial nominees who have been credibly accused of sexual misconduct to be seated on the Supreme Court? How should we handle these allegations when they arise during the vetting process? Despite the importance of these questions, lawmakers have failed to address them.

The contentious Clarence Thomas hearings in 1991 featured testimony from Professor Anita Hill and did much to raise Americans' awareness about the prevalence of sexual misconduct in the workplace. Although ProfessorHill subsequently calledfor the Senate to implement aprocess for addressing future sexual misconduct allegations against Supreme Court nominees, her calls have gone …

Style, Substance, And Process: An Elegant Trio, Justin Iverson

Scholarly Works

No abstract provided.

From Briefs To Bytes: How Generative Ai Is Transforming Legal Writing And Practice, Joseph Regalia

Scholarly Works

ChatGPT is having a moment in the legal field. And for good reason: Generative artificial intelligence (“AI”) was already disrupting the practice of law before OpenAI’s new chatbot came on the scene. But ChatGPT marks a new era. The brain behind OpenAI’s latest AI contains up to a trillion artificial neurons and was trained on hundreds of billions of pieces of text gathered on the web. All that data makes for the smartest AI ever.

But what’s more important is that all that computational muscle is aimed at things lawyers do every day: (1) Understanding complex concepts, (2) analyzing convoluted …