University of Colorado Law Review
Volume 72, Issue 2, Spring 2001
FOREWORD
In our lead article, John Leshy, former Solicitor of the Department of the Interior, evaluates the strong tradition of executive leadership in setting aside public lands for conservation purposes. He argues that throughout our Nation's history, it has been the executive-not Congress as many would believe-that has taken the lead in preserving our public lands and the vast beauty they harbor. We owe the enjoyment of many of our national treasures to the remarkably prescient actions of the executive branch. Furthermore, this tradition has been charted by chief executives of both political parties-regardless of which party controlled the Congress. Presidents have often faced great opposition when they have taken decisive, unilateral action to preserve public lands. As a result, some have argued that only Congress should have the power to set aside public lands. Mr. Leshy, however, insists that the executive is indeed the proper branch of government to take the helm in guiding public land policy. Once the initial controversies subside, these bold executive actions have gained widespread acceptance in the courts, the Congress, and the public at large-in the West and elsewhere-demonstrating that the executive power has not been abused. Mr. Leshy concludes that executive leadership in such matters has been "one of the great success stories of American government," and he advocates that it be celebrated, and that the bipartisan tradition marking such actions be restored.
In our second article, Professor Eric Yamamoto and co-author Jen-L Wong Lyman address a recent and important development at the intersection of two hotly debated areas of the law. Frontline civil rights advocates, environmental practitioners, and scholars across the country are engaged in intense legal and political struggles over "environmental justice"-the merging of race and environment through law. In Racializing Environmental Justice, Professor Yamamoto and Ms. Lyman perform an in-depth critique of the benefits and limitations of both the established environmental justice framework and an alternative Native American framework. Employing analytical tools of critical race theory, the authors then offer a more complex and particularized approach to understanding and acting on environmental justice controversies. This approach opens new meanings to "environmental racism." The article concludes by employing this new approach to assess an actual controversy involving water rights and indigenous peoples in Hawai'i and to evaluate community and court responses to African American claims of discriminatory distribution of environmental burdens.
In our third article, Professor Holly Doremus examines how burgeoning population growth in the West is affecting the region's water resources and the species that depend on that water for survival. Professor Doremus predicts that the Endangered Species Act will play an ever-increasing role in decisions about water allocation in the West, aggravating existing tensions between municipal and agricultural water users, and driving state water and land use law toward more environmentally sensitive doctrines. Water, Population Growth, and Endangered Species in the West begins by describing several current conflicts between municipal water demands and aquatic species as examples of problems the West will continue to face for the foreseeable future. The article then discusses the relevant provisions of the Endangered Species Act, and their applicability to these conflicts. Although it is still too soon to predict how these conflicts will be resolved, Professor Doremus draws several lessons from the attempts made to address them to date. She predicts that pressures will grow more acute in the future. How these conflicts are addressed will significantly affect the future of both natural and human communities in the West.
Our casenote considers the repercussions of the Trademark Trial and Appeals Board decision in Harjo v. Pro-Football, Inc. In this case, the Board held that the marks REDSKINS and REDSKINETTES were disparaging to American Indians within the meaning of section 2(a) of the Lanham Act, and that the marks were no longer entitled to the benefits of federal registration. The author discusses the importance of federal trademark registration and the benefits it provides. He examines the history of the word "redskin(s)" and argues that the use of American Indian mascots and team names causes real and immediate damage to American Indian individuals and communities. The author explores the Harjo case in detail, focusing on the substantive doctrine surrounding section 2(a) of the Lanham Act. He considers Harjo's case history, as the courts applied section 2(a), and argues that the Board decided this case in accordance with previously established doctrine. The author then addresses the constitutional issues that the Federal Circuit is likely to address when this case is appealed, contending that each of these constitutional challenges should fail. He examines whether it is appropriate for a handful of people to challenge a trademark on behalf of a society that does not seem to share their abhorrence with the mark. He argues that it is an appropriate function of government to protect minorities from disparaging trademarks. Finally, the author predicts how this decision is likely to affect the Washington Redskins, and other sports teams, if Harjo v. Pro-Football, Inc. is upheld.
In our comment, the author examines the Colorado legal community's debate over the proper means of delivering legal services to low-income individuals. The comment begins by detailing the inequities found in the current legal system. The author then proposes expanding the role of nonlawyers in the representation of low-income Coloradans to provide them with access to the justice system. The author analyzes two recent attempts made by the Colorado legal community-mandatory pro bono and the unbundling of legal services-to rectify the inequities of the current delivery system. This analysis leads the author to two conclusions. First, the Colorado legal community's principal reasons for rejecting mandatory pro bono implicitly support expanding nonlawyer roles. Second, the Colorado Supreme Court's relatively uncontroversial adoption of the new limited representation rules also supports increasing the permissible scope of lay representation in Colorado. The author concludes the comment by examining the current status of nonlawyer representation in Colorado-including the amorphous concept of the unauthorized practice of law-and suggests that the Colorado Supreme Court's interpretation of this doctrine would permit an expansion in lay representation.
THE EDITORS