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 →