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An Old View of the Cathedral: Intellectual Property Under the Colorado Uniform Partnership Act July 27, 2020 by Nathaniel T. Vasquez Issue 4, Volume 91 - The Colorado Uniform Partnership Act (“CUPA”) contains a subtle shortcoming. CUPA is a default statute that only operates in the absence of a governing agreement between two partners formed at the outset of the partnership. As with most things in this life, partnerships inevitably come to an end. When this happens, a partner is said to have “dissociated” from the partnership. Typically, this is followed by a dissolution of the partnership itself. Rather than terminating at that point, the partnership then goes into what is… {read more...}
Two Legal Mothers: Cementing Parental Rights for Lesbian Parents in Colorado July 27, 2020 by Maia Labrie Issue 4, Volume 91 - Two married couples decide to have a child via artificial reproduction. One parent in each couple will carry and give birth to the child. The other parent has no biological relationship with the child. One is an opposite-sex couple. Because they are married, they know that the father will automatically be considered the legal father. But the other couple is a lesbian couple. Leading up to the birth, the lesbian couple seeks out a lawyer and expresses concern regarding the nonbiological parent’s legal status. Because… {read more...}
Drug Conspiracy Sentencing and Social Injustice July 27, 2020 by Emilie Kurth Issue 4, Volume 91 - The D.C. Circuit in United States v. Stoddard confronted a landmine of criminal and socioeconomic justice issues when it held that mandatory minimum sentences for drug conspiracy offenses should be imposed based on the amount of drugs attributable to the individual defendant (the individualized approach) as opposed to the amount of drugs attributable to the conspiracy as a whole (the conspiracy-wide approach). This decision reflects a nationwide circuit split implicating the courts and lawmakers’ ideological balancing of the issues of justice, liberty, public safety, and… {read more...}
A Short History of the Choice-of-Law Clause July 27, 2020 by John F. Coyle Issue 4, Volume 91 - In the field of conflict of laws, private actors are generally granted the power to choose the law to govern their contracts. This is the doctrine of party autonomy. In recent years, this doctrine has been the subject of several excellent histories that draw upon judicial opinions, scholarly writings, and legislative enactments to chronicle changing attitudes toward party autonomy over time. A moment’s reflection, however, reveals that judges, scholars, and legislatures are not the most important actors in this story. The true protagonists are the… {read more...}
Dustbowl Waters: Doctrinal and Legislative Solutions to Save the Ogallala Aquifer before both Time and Water Run Out July 27, 2020 by Warigia M. Bowman Issue 4, Volume 91 - Eighty-three years after the Dust Bowl, residents of America’s High Plains face a dire threat: their primary aquifer faces depletion, and entire sections of the country are set to run out of groundwater by the end of the century or sooner. The Ogallala Aquifer provides a significant amount of America’s agricultural irrigation water and is a primary source of drinking water for Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, and Wyoming. This Article argues that policymakers should slow the Aquifer’s depletion rate by… {read more...}
Solving the Pro Bono Mismatch July 27, 2020 by Atinuke O. Adediran Issue 4, Volume 91 - The pro bono interests of law firm lawyers tend to differ from the actual legal needs of the poor. This difference results in the mismatch problem or the incongruence between the interests of firm lawyers and the needs of the poor. Today, the mismatch problem has resulted in law firm lawyers’ increased demand of immigration matters while legal needs are greatest in housing and family law. This leaves nonprofit legal services organizations scrambling to find pro bono representation for poor clients or otherwise relying on… {read more...}
Concepts, not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions, and Precedent July 24, 2020 by Howard M. Wasserman Issue 3, Volume 91 - Introduction The battle lines are drawn on the permissibility and validity of so-called “nationwide” injunctions—injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law[2] against all possible targets of that law and to protect all rights holders against enforcement, not only the parties to the action. Courts are divided—some granting,[3] with attempts at justification,[4] others rejecting, in practice if not in concept.[5] Justices Thomas and Gorsuch have weighed in against them.[6] Scholars supporting their validity[7] and scholars rejecting them as impermissible[8]… {read more...}
The Constitutionality of Nationwide Injunctions July 24, 2020 by Alan M. Trammell Issue 3, Volume 91 - Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t. This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second,… {read more...}
Preserving the Nationwide National Government Injunction to Stop Illegal Executive Branch Activity July 23, 2020 by Doug Rendleman Issue 3, Volume 91 - And some things that should not have been forgotten were lost. History became legend. Legend became myth. –Lord of the Rings[2] Introduction When someone successfully sues a federal executive branch official for violating federal law, the federal court’s remedy, which can be a nationwide national government injunction, thrusts the court into controversial territory. Critics maintain that courts grant too many broad nationwide injunctions against the executive branch. They state a myriad of reasons to oppose nationwide injunctions: The federal court, they write, lacks authority, power,… {read more...}
Toward Establishing a Pre-Extinction Definition of “Nationwide Injunctions” July 23, 2020 by Portia Pedro Issue 3, Volume 91 - Preface Then it dawned upon me with a certain suddenness that I was different from the others . . . . –W.E.B. DuBois[2] I start this piece with a personal narrative because I grew up in a family of storytellers. Even the story behind my name is part of who I am, and how I think, as a legal scholar. My parents chose my first name as a mixture of an homage to the cars that my mechanic dad worked on, loves, and has sometimes owned, and… {read more...}

Digital Media


Telehealth and Telework Accessibility in a Pandemic-Induced Virtual World November 9, 2020 by Blake E. Reid, Christian Vogler, and Zainab Alkebsi Digital - During the spring of 2020, the COVID-19 crisis began to unfold in the U.S. Legal scholars exploring the impact of the pandemic on people with disabilities focused much of their attention on triage protocols. These scholars debated the legality and ethics of using patient disability as a basis for rationing ventilators in the face of then-looming ventilator shortages at hospitals.[2] At least initially, stay-at-home orders across the country were successful in “flattening the curve” and reducing the demand for ventilators.[3] However, the pandemic’s widespread disruption… {read more...}
Democracy and the Fourth Seat: Kagan’s Jurisprudence, Stevens’s Legacy October 25, 2020 by Lauren DiMartino Digital - On October 22, 2019, Justice Elena Kagan sat down with Professor Suzette Malveaux, director of the Byron White Center for the Study of Constitutional Law, for the Eighth Annual John Paul Stevens Lecture. (Text of the full lecture can be found here.) What made Justice Kagan’s visit to Colorado Law particularly special was the opportunity for her to honor her predecessor on the bench—the namesake of the lecture series—only three months after the country lost him at the age of ninety-nine. In 2011, Justice John… {read more...}
Project Protect Food Systems’ Colorado Coronavirus Crisis Essential Food System Worker Policy Response Agenda August 20, 2020 by Alexia Brunet Marks, Hunter Knapp, Nicole Civita Digital - PROJECT PROTECT FOOD SYSTEMS: The Colorado Food System Workers Rapid Response Team is composed of immigrants, farmers, scholars, activists, unions, and workers across Colorado working to identify, elevate and address the needs of the people who contribute their labor to all parts of the food system. Federal relief directed toward the agriculture sector prioritized the needs of business owners, but largely ignored the specific vulnerabilities and needs of Food System Workers. Inattention to the plight and the health of food system workers is unsurprising but… {read more...}
Criminal Law in Crisis August 16, 2020 by Benjamin Levin Digital - On April 5, 2020, Michael Tyson, a 53-year old man arrested for a technical parole-violation, became the first reported person on Rikers Island to die from COVID-19.[2] By April 20, over two-thirds of the people incarcerated in Ohio’s Mario Correctional Institution had tested positive for the novel coronavirus, and over twenty percent of Ohio’s 12,919 confirmed cases had been traced to the state’s prison system.[3] By April 30, prisons or jails had been identified as the source of eight out of ten of largest viral… {read more...}
Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country. March 6, 2020 by Kristen Carpenter, Edyael Casaperalta, and Danielle Lazore-Thompson Digital - In 2007, following decades of advocacy by indigenous peoples, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (Declaration). This is a standard-setting document supported by the 148 member nations, including the United States, committing to the individual and collective rights of indigenous peoples. These rights include the right to self-determination, equality, property, culture, and economic well-being.[1] John Echohawk, Executive Director of the Native American Rights Fund (NARF), has said that the Declaration affirms many of the rights for which… {read more...}
Banning Facebook: Sex Offenders, Probation, and Social Media Under Colorado Law July 3, 2019 by Marty E. Whalen Brown Digital - Colorado judges have substantial discretion to determine the terms of probation for each offender. Trial courts, however, frequently rely on standard terms and conditions for quicker sentencing, and these forms include a general prohibition against internet access for sex offenders. The Supreme Court recently considered the constitutionality of a ban on social media use by sex offenders in the case Packingham v. North Carolina. This Comment considers whether Colorado’s pro­bation practices are constitutional given the Court’s holdings in Packingham. Introduction Sex offenses come with vastly… {read more...}
Not Just Air Pollution: How the Clean Air Act Can Fix Zoning, Transportation, and Affordable Housing April 4, 2019 by Nicholas D. Monck Digital - The Clean Air Act of 1970 produced a revolution in envi­ronmental law. From its unique approach to federalism to its technology forcing provisions, it remains an innovative statute to this day. In light of the growing threat posed by climate change, federal administrators have worked to adapt its text to deal with greenhouse gasses and carbon emissions. Global warming, though, is not the only context in which the Clean Air Act (CAA) can be used in ways not originally intended. Although not meant as an… {read more...}
The Law Review Article June 16, 2017 by Pierre Schlag Digital, Issue 4, Volume 88 - What is a law review article? Does America know? How might we help America in this regard? Here, we approach the first question on the bias: As we have found, a growing body of learning and empirical evidence shows that genres are not merely forms, but forms that anticipate their substance. In this Article, then, we try to capture this action by undertaking the first and only comprehensive “performative study” of the genre of the law review article. Continue reading here. {read more...}
What Remains of the Exclusionary Rule? May 31, 2017 by Will Hauptman Digital - The Fourth Amendment exclusionary rule is experiencing death by a thousand cuts. Since the Supreme Court created the rule,[1] its opinions have whittled away at the rule’s application with various exceptions and limitations.[2] So it is today that the Court only finds exclusion appropriate where the benefits of suppressing evidence outweigh its costs.[3] That rarely happens, says the Court. After all, what benefit could outweigh the cost of letting the guilty go free? Apparently not the benefit of deterring the violation of an elementary Fourth… {read more...}
Bob Nagel and the Emptiness of Supreme Court Standards of Review March 12, 2017 by Larry Alexander Digital, Issue 2, Volume 88 - Bob Nagel is a well-known and persistent critic of Supreme Court decision making—and in particular, the Court’s stated formulae for how those decisions are reached. Bob’s neologism, “the formulaic Constitution,” was not coined to be an honorific term. For Bob, the Court’s announced rationales often seem hollow and thus quite manipulable, disguising whatever might have been the Court’s real reasons for reaching a decision and perhaps even blinding the Court itself to those reasons. Those of us who are unfortunately tapped by our deans to… {read more...}