University of Colorado Law Review
Volume 74, Issue 3, Summer 2003
FOREWORD
In our lead article, Professor Michael L. Radelet provides and analyzes data on all legally mandated executions in Colorado from the earliest days of settlement by Euro-Americans in 1859 to 1972 when the Supreme Court effectively invalidated all death penalty statutes in the United States. The analysis relies on data contained in the article's Appendix, which presents case-by-case summaries of every execution in Colorado before 1972. Radelet reviews the debates and controversies that shaped capital punishment in Colorado, such as those that moved executions from counties to a central location in Cañon city in 1890, the abolition of the death penalty in 1897 and its return in 1901, and the replacement of hanging with the gas chamber in 1933. Attempts to abolish the death penalty again flourished in the ten years after 1955, but shortly after several highly publicized murders in 1966, a referendum that would have eliminated executions failed by a wide margin. Nonetheless, spirited opposition to the death penalty has always been found Colorado, and it is likely to continue until capital punishment is permanently abolished.
In our second article, Professor Barrett explores the question whether the Due Process Clause imposes any limit on the use of stare decisis to decide cases in the federal courts. The federal courts, particularly the courts of appeals, often explicitly use stare decisis as a doctrine of preclusion. The courts have not reflected, however, on the implications of this preclusive effect for individual litigants. In the context of issue preclusion, courts have translated the due-process guarantees of notice and hearing into the general rule that judicial determinations can bind only the parties to a dispute. Historically, precedent has evaded this limit only because of the assumption that stare decisis permits error-correction; the conventional explanation is that nonparties are not truly bound by precedent because they can challenge it. By erecting nearly insurmountable barriers to error-correction, however, current stare decisis doctrine does bind nonparties to precedent. Professor Barrett considers possible justifications for the modern rigid approach to stare decisis, including the possibility that the Due Process Clause does not apply to the court's resolution of legal, as opposed to factual, disputes. After concluding that due process does apply, Professor Barrett argues that it requires courts to take a flexible approach to stare decisis. Flexibility does not require the courts to correct every error. When precedent clearly contravenes a statutory or constitutional provision, however, due process requires a court to take error-correction seriously.
In our essay, Professor Robert H. Mnookin analyzes the limits of negotiation. Although many legal and negotiation scholars presume that negotiation can solve virtually any conflict, Mnookin creates an analytical framework to determine when refusing to negotiate is justified. Although Mnookin concludes that a strong presumption in of negotiation should remain, he argues that the presumption must be rebuttable when the costs of negotiating outweigh potential benefits. He than applies the analysis to the Bush Administration's refusals to negotiate (1) with Afghanistan's ruling Taliban following the September 11, 2001 terrorist attacks on the U.S. and (2) with North Korea over its nuclear weapons program. Mnookin concludes that the refusal to negotiate with the Taliban was rationally justified but that the rejection of bilateral talks with North Korea is not.
In our first comment, the author examines the use of direct democracy by the animal protection movement and discusses the future of direct democracy as a vehicle for change. Increasingly, animal advocates turn to the initiative process to bypass state legislatures they perceive as unsympathetic to animals or beholden to anti-animal interests. Despite attempts to portray animal protection measures as the work of radical fringe groups, these proposals have been largely successful at the polls. Nonetheless, as the measures have both become more ambitious and come closer to extending actual rights to animals, they have met with stern opposition, often in the form of competing referenda meant to curb future animal protection legislation. As a result, one must question the ability of the initiative process to advance animal interests in the future. By first examining the principles underlying both the initiative process and animal protection thought, it becomes easier to understand the true aims of recent pro-animal proposals. The comment closes by proposing a new theory of animal protection geared specifically to use with the initiative.
In our second comment, the author examines the effects of the 1990 Judicial Improvements Act on the general federal venue statute, 28 U.S.C. § 1391. Although Congress's express intent in enacting these amendments to § 1391 was to decrease litigation over venue, the article discusses recent decisions from the federal Courts of Appeal that demonstrate that the 1990 amendment weakened the venue statute's ability to protect a defendant from litigating a claim in an unfair or inconvenient district. Moreover, the amended language of § 1391 affords plaintiffs greater choice in laying venue, and also allows plaintiffs in diversity cases greater choice over the substantive law applicable to their claims. Finally, the 1990 amendment facilitates a "file-and-transfer" practice, whereby plaintiffs in diversity cases strategically file in one federal district so as to obtain the substantive law of that district and then transfer the case to another district, with the substantive law of the transferring district still governing the claim. In light of these apparently unintended results, the article concludes that federal judges should construe § 1391 in favor of defendants by emphasizing the "substantial" component of the statutory language.
In our third comment, after examining the legal profession's response to its so-called civility crisis, the author proposes an aspirational Model Rule of Professional Conduct on civility. Although the Ethics 2000 Commission recently completed a comprehensive review and revision of the Model Rules of Professional Conduct, the author argues that the Commission missed an opportunity to adopt a Model Rule on civility. For over a decade, members of the legal profession have debated the law's so-called civility crisis, which refers to the perception that incivility in the legal profession has risen to epidemic proportions. The legal system has heretofore relied on a patchwork of civility codes and litigation sanctions to rein in the problem of incivility resulting from discovery abuse. This comment characterizes the legal profession's current piecemeal approach to lawyer incivility as "procedural" because it operates through technical, context-specific rules that discourage ethical reflection. In contract, the "ethical" approach to civility proposed in this comment would encourage ethical reflection and respect through the existing framework of the Model Rules. The Model Rules already provide a mechanism for handling extreme cases of incivility. The adoption of a Model Rule on civility would go further by creating a general duty requiring lawyers to treat others with respect in litigation and in other professional contexts.
Finally, in our casenote, the author addresses the future of private claims for money damages under Title II of the Americans with Disabilities Act (ADA) following the U.S. Supreme Court decision in University of Alabama v. Garrett. In Garrett the Court ruled that the private damages remedy available against state employers under Title I of the ADA was unconstitutional. Specifically, the Court held that under its "congruence and proportionality" test, set forth in City of Boerne v. Flores, the damages portion of Title I violated the state's sovereign immunity. The Garrett decision left open the question whether Title II of the ADA, which also permits private plaintiffs to recover money damages from the states, is unconstitutional. The author first details the precedent leading up to Garrett and analyzes the decision itself. He then argues that Title II differs in important respects from Title I and should not be declared unconstitutional under the "congruence and proportionality" test. The author also analyzes the three very different results reached by the various Federal Courts of Appeal that have addressed the validity of private remedies under Title II, and details the alternative remedies available under the ADA that would not be barred by the Court's sovereign immunity jurisprudence. The author concludes that private remedies under Title II should not be found unconstitutional based solely on the reasoning of Garrett. However, because of the Supreme Court's trend toward protecting state sovereignty, as represented by its recent sovereign immunity cases, there is the distinct possibility that the Supreme Court may also hold the private remedies under Title II unconstitutional.
THE EDITORS