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Introduction to the Symposium: The Stakes for Critical Legal Theory July 29, 2021 by Elizabeth S. Anker & Justin Desautels-Stein Issue 4, Volume 92 - On September 17, 2020, Donald Trump spoke at the so-called “White House Conference on American History.”[1] The conference mission, Trump explained, was to “clear away the twisted web of lies” propagated by “the left.” As Trump saw it, the problem wasn’t only that “left-wing mobs have torn down statutes of our founders, desecrated our memorials, and carried out a campaign of violence and anarchy.”[2] The challenge for historians was deeper, since “the left has warped, distorted, and defiled the American story with deceptions, falsehoods, and… {read more...}
Reloading the Canon: Thoughts on Critical Legal Pedagogy July 29, 2021 by Chantal Thomas Issue 4, Volume 92 - On the first day of the first-year contracts class that I teach, I preview for the students both the general contours of the “blackletter law”[1] that we will be learning throughout the course, and some of the perspectives that I will incorporate in developing our critical thinking and analysis of the law. My aim is to impress upon the students that their understanding of the blackletter law––the technical training that many law students think of as constituting the bulk of their educational mission––varies positively with… {read more...}
The Critique and Praxis of Rights July 29, 2021 by Bernard E. Harcourt Issue 4, Volume 92 - The critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond—Duncan Kennedy, Christoph Menke, the contributors to this Symposium—the critique of rights has always represented an essential and inescapable step in the critique of modern Western society.[1] The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism… {read more...}
The Pure Theory of Law is a Hole in the Ozone Layer July 29, 2021 by Peter Goodrich Issue 4, Volume 92 - Star date 2‌/7‌/2020. Author’s log. I received an email from our Co-Editor, the double barrels of Desautels-Stein, relating to the now-virtual symposium, What Should Critical Legal Theory Become?[1] The electronic epistle, which lists the team of intrepid intellectuals contributing to the project begins: Friends and Colleagues, We are writing with regard to our upcoming symposium with the Colorado Law Review, What Should Legal Theory Become? PDF: Goodrich,* Hole in the Ozone Layer. Sans critique. The word “critical” omitted. Where better to start than with a slip? Undoubtedly a… {read more...}
Critique, Ideology, and Aesthetics July 29, 2021 by Richard Thompson Ford Issue 4, Volume 92 - Perhaps it is appropriate that critical legal theory—a genre of thought fascinated with contradictions and dedicated to unsettling orthodoxies—is itself in a contradictory and unsettled state today. Some of the most radical and challenging ideas advanced by critical legal theorists have become mainstream, almost mundane. For instance, the claim that legal reasoning is unavoidably ideological, that to a great extent law is politics by other means, was once a heresy so reviled it ended careers.[1] Now, in the wake of Amy Coney Barrett’s confirmation to… {read more...}
From Promise to Threat in Language and Law July 29, 2021 by Marianne Constable Issue 4, Volume 92 - An art of speaking which does not seize hold of truth, does not exist and never will. –Phaedrus (260e) I feel I have slipped into this Symposium Issue to address its original question, “What should critical legal theory become?” under false pretenses, because I have no idea what critical legal theory should become, nor would I presume to tell those who write in its name what to do. I am grateful for the invitation from the University of Colorado’s new Center for Critical Thought to… {read more...}
Critical Legal Thought: The Case for a Jurisprudence of Distribution July 29, 2021 by Paulo Barrozo Issue 4, Volume 92 - Critique is the standard model of legal scholarship. The typical article or book circumscribes an aspect of the legal order, redescribes it as policy, criticizes the policy according to efficiency or axiological criteria, and proposes some minor or moderate improvement to it.[1] This critical ethos is not surprising—the modern mind is restive. PDF: Barrozo,* Jurisprudence of Distribution. Attaining Critical Legal Thought This standard model of legal critique and improvement is politically stabilizing, practically effective, and intelligible only because it is set within a powerful paradigm of law… {read more...}
L x A=W: On the Weight of Legal Norms July 29, 2021 by Peter Gabel Issue 4, Volume 92 - The Critical Legal Studies movement and the emerging Law and Political Economy Project both emphasize the way that legal rules and doctrines help both to constitute and to legitimize an unjust social and political order. Critical Legal Studies (CLS), which I have been closest to for over forty years, started out with many tendencies—Marxist and neo-Marxist, legal realist with a more leftist political bite, antiformalist with both progressive policy-oriented and deconstruction-based wings, and also with a critique of social alienation that emphasized the distortions in… {read more...}
From the Crisis of Critique to the Critique of Crisis July 29, 2021 by Ben Golder Issue 4, Volume 92 - As I write these words, the East Coast of New South Wales (the most populous State in Australia) is being assailed with torrential rain that is likely to last for another week. From the South Coast, through Sydney (many parts of which now lie submerged), to the far North Coast of the State, sheets of long overdue rain are dousing the fire-ravaged coast, replenishing drought-affected water catchments, splaying trees, roofs, and fences throughout urban and suburban areas, and generally sowing disorder. Albeit not in this… {read more...}
Making the Critical Moves: A Top Ten in Progressive Legal Scholarship July 29, 2021 by Jorge L. Esquirol Issue 4, Volume 92 - Good people say that we must not flee, that to escape is not good, that it isn’t effective, and that one must work for reforms. But the revolutionary knows that escape is revolutionary—withdrawal, freaks—provided one sweeps away the social cover on leaving, or causes a piece of the system to get lost in the shuffle. – Gilles Deleuze & Felix Guattari (1977)[1] PDF: Esquirol,* Making the Critical Moves.  Introduction If comparative law has any one thing to say to legal theory, it is that legal constructs are… {read more...}

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Organizing a Business Law Department Within a Law School May 14, 2021 by William J. Carney Digital - This article argues that legal education needs to get its act together by getting organized. Unlike the rest of the university, law schools are over a century behind in recognizing the need for the greater organization that departments can provide. Specialization, which did not exist many years ago, has become so universal that some members of any faculty either cannot understand or care about, much less govern wisely, what goes on around them. Ignorance is compounded by non-professional agendas driven by ideologies and interdisciplinary interests.… {read more...}
Bucklew v. Precythe and the Resurgence of the Method of Execution Challenge May 13, 2021 by Hannah York Digital - On October 1, 2019, Missouri began the execution of death row inmate Russell Bucklew.[1] Those present for the execution reported seeing Mr. Bucklew strapped to a gurney, the IV inserted, and a white sheet up to his chest.[2] The elevated gurney was the only sign that Missouri had attempted to accommodate his cavernous hemangioma, a rare condition resulting in the growth of blood-filled tumors in his head, neck, and throat.[3] His face, notable for the sizeable blackish-purple tumor protruding from his upper lip, was turned… {read more...}
Access to Justice for Immigrants: A Lecture Presented in Memory of Breanna Boss May 10, 2021 by Ingrid Eagly Digital - Ingrid Eagly,[1] Address to Colorado Law School on Monday, February 22, 2021 at 5:00-6:30 p.m.   The topic of today’s lecture, which was selected in Breanna Boss’s memory, is access to justice for immigrants. We gather here today at the start of a new presidential administration, but following four years that have significantly threatened access to justice for immigrants. Under President Donald Trump, a series of executive orders fundamentally restructured the immigration system and made all undocumented immigrants a priority for deportation.[2] Meanwhile, growing backlogs… {read more...}
Unclear and Unestablished: Exploring the Supreme Court/Tenth Circuit Disconnect in Qualified Immunity Jurisprudence April 17, 2021 by Josiah Cohen Digital - Since the founding, Americans have sought a perfectly calibrated government that vigorously protects, but never violates, citizens’ individual rights.[2] To accomplish this, government must balance orderly security and individual liberty. This liberty-or-security dilemma is significant to the study of the United States Constitution. Since at least the 1960s, the Supreme Court has repeatedly confronted this dilemma in the context of police use-of-force cases.[3] In these cases, the Supreme Court routinely grants summary judgment to police officers based on qualified immunity, thereby denying relief to aggrieved… {read more...}
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...}
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...}

 

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