The Legal Stranger: Colorado’s Two-Legal-Parent Limit Leaves Nontraditional Families Behind

Introduction Within the last century, and even the last fifty years, concepts of parenthood in the United States have increasingly moved beyond the nuclear family[1] model. Take, for example, family comedy television series from two generations whose themes portray the decline in the importance of the nuclear family in American Society: I Love Lucy and Modern Family.[2] I Love Lucy, which aired in 1951, portrays the problem-free life of a middle-class, suburban family while expressly reenforcing the society values at the time of subordinate women Continue reading →

Keeping It Real: Property Analogies For Graffiti Infringement

Introduction On a stroll through downtown, something in your peripheral vision strikes your eye. It is a graffiti wall: a colorful work of uninhibited creativity, simultaneously random and cohesive, deeply moving and yet somehow incomprehensible.[1] An anonymous creator put this here just so you could enjoy this moment, with neither admission fees nor physical barriers. It is there for you to visit on your own volition, or to happen upon in a moment of serendipity, to infuse a bit of life in an otherwise mundane Continue reading →

The Visible Trial: Judicial Assessment as Adjudication

Only a small fraction of lawsuits ends in trial—a phenomenon termed the “vanishing trial.” Critics of the declining trial rate see a remote, increasingly regressive judicial system. Defenders see a system that allows parties to resolve disputes independently. Analyzing criminal and civil filings in federal district court for the forty-year period from 1980 to 2019, we confirm a steady decline in the absolute and relative number of trials. We find, however, this emphasis on trial rate obscures courts’ vital role and ignores parties’ goals. Judges Continue reading →

Oppression in American, Islamic, and Jewish Private Law

American, Islamic, and Jewish law all limit the enforcement of private law agreements in cases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic law provides justifications based on Continue reading →

Minding Accidents

Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a Continue reading →

A Deliberative Democratic Theory of Precedent

Stare decisis is widely regarded as a vital mechanism for promoting the rule of law. Yet high courts can always overrule prior decisions with a special justification, and different justices will inevitably have different perspectives on when such a justification exists. Moreover, when courts rely on stare decisis to follow a mistaken or unjustified decision, they arguably undermine the rule of law. Stare decisis therefore does not, and probably cannot, reliably promote a formal conception of the rule of law. While this reality might lead Continue reading →

Civil Procedure and the New Bar Exam

Introduction In 2022 the National Conference of Bar Examiners (NCBE) issued its “Content Scope Outlines” for public comment,[1] soliciting input on “significant oversights.”[2] The outlines were designed to inform the public “of the scope of the topics to be assessed in the eight Foundational Concepts and Principles (FCP) and the scope of the lawyering tasks to be assessed in the seven Foundational Skills (FS) on the next generation of the bar exam.”[3] One of the eight FCP was “Civil Procedure,” including constitutional protections and proceedings Continue reading →

The Immigration Court: Zigzagging on the Road to Judicial Independence

Introduction The U.S. Immigration Court system is no stranger to criticism, and the past five years have been blistering. Concerns about hearing delays,[1] judicial professionalism,[2] case management failures,[3] pandemic health and safety procedures,[4] and politically motivated judicial hiring[5] have raised serious questions about whether the Immigration Courts can deliver access to justice and whether Immigration Judges (IJs) are judicially independent.[6] A major source of the criticisms stems from the basic structure of the court system itself.[7] The Immigration Courts are housed within the U.S. Department Continue reading →

Decitizenizing Asian Pacific American Women

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Continue reading →

The Failures of Good Moral Character Determinations for Naturalization

This Article examines the effects of the good-moral-character requirement in naturalization proceedings. Specifically, it looks to such character requirements as a method by which a citizen polity screens out undesirable noncitizens from those who are deserving of inclusion in the “in” group of citizenship. The Article discusses historical methods of good-moral-character adjudication, and especially how such methods carried an undercurrent of forgiveness and redemption—an undercurrent lacking in the current method of statutory bars to showings of good moral character. By looking at specific examples of Continue reading →