Jurisprudence Commons^™

Re-Problematizing Anger In Domestic Violence Advocacy, Deborah Cantrell

Publications

Feminist advocacy commits wholeheartedly to a woman’s autonomous choices about how to respond to domestic violence, prioritizing a woman’s own lived experiences and her own assessments of her needs and goals over other supposedly “objective” assessments. Feminists robustly privilege individual choices of women in part as a way of revealing anti-woman bias in the dominant, patriarchal legal system as well to reject male constructions of feminine behavior. In feminist domestic violence advocacy, scholars and advocates have argued that a woman’s autonomous choices include capacious choices about the kinds of emotions that a woman might express about being subjected to abuse. …

Development And Dissemination Of Clean Cookstoves: A Model Law For Developing Countries, Lakshman Guruswamy Ed.

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

24 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado." Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 331 (2013).

Development And Dissemination Of Clean Cookstoves: A Model Law For Developed Countries, Scott Miller

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

21 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 355 (2013).

"Scott Miller ed."

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Agenda: A Life Of Contributions For All Time: Symposium In Honor Of David H. Getches, University Of Colorado Boulder. School Of Law, University Of Colorado Law Review

A Life of Contributions for All Time: Symposium in Honor of David H. Getches (April 26-27)

On April 26-27, 2012, Colorado Law honored David H. Getches with a symposium to celebrate his life and legacy of trailblazing scholarship. “A Life of Contributions for All Time” featured a keynote address by Distinguished Professor Charles Wilkinson entitled, “Hero for the People, Hero for the Land and Water: Reflections on the Enduring Contributions of David Getches.” Top scholars in the fields of natural resources, water, and American Indian law reflected on Dean Getches’ contributions and their own insights into these fields, including Professor John Leshy, John Echohawk, Professor Carole Goldberg, Professor Joe Sax, Professor Rebecca Tsosie, Justice Greg Hobbs, …

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Publications

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Publications

No abstract provided.

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Publications

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in legal …

Race As A Legal Concept, Justin Deystone

Publications

Race is a legal concept, and like all legal concepts, it is a matrix of rules. Although the legal conception of race has shifted over time, up from slavery and to the present, one element in the matrix has remained the same: the background rules of race have always taken a view of racial identity as a natural aspect of human biology. To be sure, characterizations of the rule have oftentimes kept pace with developments in race science, and the original invention of race as a rationale for the subordination of certain human populations is now a rationale with little …

Why We Need A Progressive Account Of Violence, Aya Gruber

Publications

No abstract provided.

The Market As A Legal Concept, Justin Deystone

Publications

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images …

Renegotiating The Social Contract, Jennifer S. Hendricks

Publications

This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.

Economic Development And The Problem With The Problem-Solving Approach, Justin Deystone

Publications

Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new …

Experimental Pragmatism In The Third Globalization, Justin Deystone

Publications

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the pragmatisms, and …

The Faculty Workshop, Pierre Schlag

Publications

This essay explores the ubiquitous law school institution, “The Faculty Workshop,” as an entrée into and manifestation of contemporary American legal thought. The Faculty Workshop is examined both as a regulator and expression of legal thought - at once governance system and symptom. We close by discussing “Stage 4.”

A "Neo-Feminist" Assessment Of Rape And Domestic Violence Law Reform, Aya Gruber

Publications

No abstract provided.

The Variable Determinacy Thesis, Harry Surden

Publications

This Article proposes a novel technique for characterizing the relative determinacy of legal decision-making. I begin with the observation that the determinacy of legal outcomes varies from context to context within the law. To augment this intuition, I develop a theoretical model of determinate legal decision-making. This model aims to capture the essential features that are typically associated with the concept of legal determinacy. I then argue that we can use such an idealized model as a standard for expressing the relative determinacy or indeterminacy of decision-making in actual, observed legal contexts. From a legal theory standpoint, this approach - …

Efficient Uncertainty In Patent Interpretation, Harry Surden

Publications

Research suggests that widespread uncertainty over the scopes of issued patents creates significant costs for third-party firms and may decrease innovation. This Article addresses the scope uncertainty issue from a theoretical perspective by creating a model of patent claim scope uncertainty.

It is often difficult for third parties to determine the legal coverage of issued patents. Scope underdetermination exists when the words of a patent claim are capable of a broad range of plausible scopes ex ante in light of the procedures for interpreting patents. Underdetermination creates uncertainty about claim coverage because a lay interpreter cannot know which interpretation will …

Teaching Values, Teaching Stereotypes: Sex Education And Indoctrination In Public Schools, Jennifer S. Hendricks, Dawn Marie Howerton

Publications

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: "If You Don't Aim to Please, Don't Dress to Tease," and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer, Jennifer L. Greenblatt, 14 Tex.J. on CL. & CR. 1 (2008). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands. …

Not Of Woman Born: A Scientific Fantasy, Jennifer S. Hendricks

Publications

This Article explores the legal implications of a scientific fantasy: building artificial wombs that could gestate a human child from conception to birth. Because claims about the technological possibility of artificial wombs in the foreseeable future are likely overstated, the focus of the Article is the effect that the fantasy of artificial gestation has on the legal discourse about pregnancy and reproduction today.

The Article first places the fantasy of artificial gestation in the context of theories about reproduction that western science has propounded. The history of scientific theorizing about reproduction is a history of scientists emphasizing the male contribution …

A Distributive Theory Of Criminal Law, Aya Gruber

Publications

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

Publications

This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Publications

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …

It's The Hard Luck Life: Women's Moral Luck And Eucatastrophe In Child Custody Allocation, Lolita Buckner Inniss

Publications

No abstract provided.

Energy Justice And Sustainable Development, Lakshman Guruswamy

Publications

Sustainable Development ("SD")--an expression of distributive justice--is the foundational premise of international energy and environmental law. It posits that international answers to environmental and energy problems cannot be pursued as independent and autonomous objectives but must be addressed within the framework of economic and social development. SD has been politically institutionalized in the Millennium Development Goals and a plethora of significant international instruments. Perhaps more importantly from a legal standpoint, SD is unequivocally codified, in the most widely accepted international energy and environmental treaties. This Article affirms the importance and continuing applicability of SD to the "other" third of the …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.

Legal Transitions And The Problem Of Reliance, David M. Hasen

Publications

This Article analyzes the literature on legal transitions. The principal focus is taxation, but the analysis generalizes to other areas. I argue that the theoretical apparatus developed by scholars active in the legal transitions area suffers from significant conceptual shortcomings. These shortcomings include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the disregard of the distinction between making law and finding it. As a consequence, the recent literature offers an analysis that is unable either to explain actual transitions or to provide an adequate theory of how legal change should take place. In the …

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford, Lolita Buckner Inniss

Publications

In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …