University of Colorado Law Review

Volume 78, Issue 3, Summer 2007

FOREWORD

The University of Colorado Law Review is but one of three legal journals at the University of Colorado Law School.  Established in 1892, the law school has not always had three legal journals.  The Law Review premiered in 1928 as the Rocky Mountain Law Review.  It changed names in 1962 to clarify its affiliation with the University of Colorado School of Law.1  According to Volume 35’s Board of Editors, “The change of name is now believed necessary, since there appears to be much confusion throughout the nation concerning the locale of the Review.”2  In 1989, the first of the law school’s two specialty journals, the Colorado Journal of International Environmental Law and Policy (“CJIELP”), was founded.  Nearing its twenty year anniversary, CJIELP will soon change its name for the same reason the Law Review did: to clarify its affiliation with the law school—in particular its affiliation with the law school’s strong environmental law program.3  The law school’s newest specialty journal, the Journal on Telecommunications and High Technology Law (“JTHTL”) is in its fifth year of publication and has no plans for a name change.  Despite its youth, JTHTL has acquired a readership and reputation that ranks it among the country’s elite technology, communications, and intellectual property journals.4

At many law schools, specialty journals play little brother to general interest journals.  Newer, smaller, and vying for limited resources, specialty journals seem constantly pressured to prove the worth of their existence.  At the University of Colorado Law School, however, the journals are equally valued.  In the Wolf Law Building, the journals share space and resources in a configuration that fosters camaraderie and joint problem solving among the journals’ members.  Moving into the Wolf Law Building has surely enriched the discussion of perennial issues such as electronic access to journal content and funding of journal operations.  Having deepened its relationships with CJIELP and JTHTL, the Law Review better understands why each journal is a unique asset of the law school.

The Law Review is unique both in the content it can provide and in the way it can present that content.  An issue can be neatly sewn with the thread of a theme, such as the annual Natural Resources and Environmental Law issue.  Alternatively, an issue can be haphazardly fused as if in homage to the metalwork of an abstract expressionist sculptor.  This issue is of the latter kind, containing an assortment of topics that makes even the glyphs of David Smith’s Pillar of Sunday5 seem unified: criminal libel in Japan, pubic access to discovery material, attempted reckless homicide, the warranty of habitability, aiding and abetting a breach of fiduciary duty, public school textbook selection, life sentences for juveniles, and guidelines for the organizational practice of child welfare law.  As editors, we value cogency and coherency above all, but as members of a general interest journal, we also greatly value variety.

In our lead article, Post a Message and Go to Jail: Criminalizing Internet Libel in Japan and the United States, Professor Salil K. Mehra takes a comparative approach to the problem of Internet defamation.  At a time when the United States is considering regulation—perhaps even criminal regulation—of online speech, Professor Mehra provides a thorough examination of Japan’s experience with the practice.  Circumstances that explain Japan’s extension of existing criminal libel law to the Internet include: a highly “wired” population, the cultural importance of reputation, and weak civil remedies.  Still, Professor Mehra argues, criminalizing online speech is a poor choice for Japan because this type of state authority can easily slide into tyrannical regulation of political speech.  Given that police and prosecutors are more political in the United States than in Japan, Professor Mehra further contends, criminalizing online speech is an even worse choice for this country.

In our next article, Discovering Discovery: Non-Party Access to Pretrial Information in the Federal Courts, 1938–2006, Professor Seymour Moskowitz considers the legal history and case law of public access to discovery material gathered during federal litigation.  The issue of access to pretrial information turns on Rule 5 of the Federal Rules of Civil Procedure, which governs the service and filing of pleadings and other papers.  Prior to 2000, Rule 5(d) required parties to file all discovery materials the court.  By making pretrial discovery part of the judicial record, Rule 5(d) guaranteed reasonable public access to all discovered material.  A little noticed 2000 amendment, however, reversed the rule.  Now, Rule 5(d) prohibits the filing of discovery materials unless the materials are used during a court proceeding, cutting off public access to discovered material that is not used in a court proceeding.  Professor Moskowitz argues that the public, the press, researchers, and various others have legitimate interests in this information.  He concludes that access to this material, unless validly protected by a court order, is essential to the openness and transparency of the process for resolving civil disputes.

Attempt, Reckless Homicide, and the Design of Criminal Law
, by Professor Michael T. Cahill, uses attempted reckless homicide—a criminal offense that has provoked frequent legal and academic opposition—as a springboard into a larger discussion about how criminal laws are written.  Professor Cahill identifies two forms of law writing, which he calls the thin- and thick-code models.  The thin-code model involves writing relatively few rules that have broad application.  In contrast, the thick-code model involves writing more rules that have precise application.  While each model has its merits, Professor Cahill notes, indiscriminately mixing the two models creates interpretive problems.  Professor Cahill believes that this commingling of thin and thick theories—a predictable consequence of criminal codes that start thin and grow thick—is the culprit underlying the confusion caused by attempt crimes that are wrapped around offenses such as reckless homicide.  He comfortingly concludes that this confusion, while trying on the brain, does not reshape the law in a harmful or even unattractive way.

Our first student comment, Colorado HB 1061 and Advocating for the End of Caveat Emptor in Residential Leases, by David I. Blower, is a call to action for tenant protections.  Colorado is one of few states still clinging to the antiquated doctrine of caveat emptor in residential leases and, as a result, has a population of powerless tenants living in deplorable housing conditions.  Mr. Blower easily identifies the remedy: the warranty of habitability.  After explaining the history and development of the warranty of habitability, Mr. Blower explores the ways in which the Colorado Supreme Court, legislature, and Governor have all stymied better protection of the state’s tenants.  Mr. Blower concludes by asking the Colorado legislature to consider creating an implied warranty of habitability similar to that found in the Uniform Residential Landlord Tenant Act.  If the legislature fails to do so, or if the Governor vetoes such a measure, Mr. Blower asks the Colorado Supreme Court to discard the doctrine of caveat emptor as it applies to residential leases.

Our first student casenote, Colorado Lawyers Beware: Anstine v. Alexander and the Attorney’s New Duty to Non-Clients, by Michael David Delcour, considers the thorny question of whether an attorney can be liable for aiding and abetting a breach of fiduciary duty to a non-client.  The Colorado Court of Appeals, in Anstine v. Alexander, found a corporation’s attorneys liable for aiding and abetting the company president’s breach of fiduciary duty to the company’s creditors.  The Colorado Supreme Court overturned Anstine on other grounds, but specifically left open for review the question of attorney liability in such cases.  Because the Colorado Supreme Court will likely revisit the question, Mr. Delcour offers a critique of the appellate court’s reasoning for creating a way for third-party adversaries to impose additional duties upon attorneys that might compromise the attorney-client relationship and zealous advocacy.  Mr. Delcour does not wholly oppose this type of liability.  Instead, he argues for a rule that would impose liability for the aiding and abetting of a client’s breach of fiduciary duty to a non-client only where there is evidence that the attorney acted either fraudulently or maliciously in dispensing advice to the client.

Local Decisions, National Impact: Why the Public School Textbook Selection Process Should Be Viewpoint Neutral
, by Rebecca Tanglen, explores how the Supreme Court’s decision that government restriction on speech must be related to “legitimate pedagogical concerns” relates to the public school textbook selection process.  She contends that in order to resolve the question of whether school administrators may stray from the viewpoint neutral doctrine set forth in Hazelwood School District v. Kuhlmeier, the Supreme Court must do two things.  First, the Court must develop a test for determining what constitutes government speech, particularly within the school environment.  Second, the Court must determine whether Hazelwood requires viewpoint neutrality.  Despite the circuit split, Ms. Tanglen concludes that the process should be viewpoint neutral.

In our last student comment, Arrested Development: An Alternative to Juveniles Serving Life without Parole in Colorado, Gail B. Goodman takes a critical look at Colorado’s juvenile justice system.  In particular, Ms. Goodman questions whether the system is meeting its original goal of rehabilitating adolescent offenders when it allows juvenile offenders to be sentenced to life without parole.  She argues that this practice conflicts with the system’s original purpose, in a way that violates the Eighth Amendment.  For this reason, she recommends that the Colorado legislature change the way Colorado courts handle these cases.

Finally, we present the Child Welfare Law Office Guidebook: Best Practice Guidelines for Organizational Legal Representation of Children in Abuse, Neglect, and Dependency Cases, compiled by the National Association of Counsel for Children (NACC) and edited by Colene Flynn Robinson, a Clinical Professor of Law at the University of Colorado Law School.  The Guidebook is the product of the NACC’s Children’s Law Office Project, which culminated in a symposium—believed to be the first of its kind—at the University of Colorado Law School earlier this year.  There are unique challenges to providing legal services to children.  For instance, child clients are vulnerable because of their inability to assess the adequacy of their legal representation and because so much of their future is shaped by the result of that representation.  As such, the Children’s Law Office Project hopes the Guidebook will encourage the proliferation of model children’s law offices that provide a seamless continuum of legal and related services to children around the country.  

Sarah M. Mercer
Editor-in-Chief

1.   Recently, the law school, too, changed its name from the University of Colorado School of Law to the University of Colorado Law School—a small, but syntactically significant, change.

2.   Editorial, 35 U. COLO. L. REV. 1 (prefatory material) (1962).

3.   E-mail from Christopher Fry, Editor-in-Chief, Vol. 19, Colo. J. Int’l Envtl. L. & Pol’y, to Sarah M. Mercer, Editor-in-Chief, Vol. 78, U. Colo. L. Rev. (May 26, 2007) (on file with the Law Review).

4.   For example, in 2006, JTHTL was ranked seventeenth among all technology law journals, sixth among all communications law journals, and twenty-fifth among all intellectual property journals.  Law Journals, Submissions and Rankings, Washington and Lee Law School, http://lawlib.wlu.edu/LJ/index.aspx, select the appropriate subject from the “Subjects” list, check the box for “Comb. 2006” rankings, then click submit.

5.   David Smith, Pillar of Sunday (1945) (in the collection of the Indiana University Art Museum, Bloomington).  This painted steel sculpture is tree-like, with pictorial objects attached like leaves to a branchy centerline.  See generally Guggenheim Museum, Arts Curriculum Online, David Smith: A Centennial, Personal Symbols, http://www.guggenheim.org/artscurriculum/lessons/smith_L1.php (discussing the work’s history and possible meaning).