University of Colorado Law Review
Volume 81, Issue 1, Winter 2010
FOREWORD
The articles in the first issue of Volume 81 of the University
of Colorado Law Review represent a wide range of topics,
from New Federalism to regulation of risk management in the financial sector post-financial collapse. These articles are notable
for the breadth and depth of their research, and they
promise to contribute much to the scholarly debate.
In our lead article, Federalism at the Cathedral: Property
Rules, Liability Rules, and Inalienability Rules in Tenth
Amendment Infrastructure, Erin Ryan examines the impact of
the Supreme Court’s decision in New York v. United States on
the ability of our Federal governance structure to address difficult
questions in areas where the allocation of jurisdiction between
the states and the federal government is unclear. Employing
the approach of Guido Calebresi and A. Douglas
Melamed’s famous article, Property Rules, Liability Rules and
Inalienability: One View of the Cathedral, Professor Ryan argues
that the New York decision “articulated a reasonable entitlement
to federal noninterference protected by an unreasonable
inalienability rule.” Concluding that such an
inalienability rule unduly limits the ability of states to bargain
with the federal government where cooperative federal-state
regulatory action is necessary, Professor Ryan proposes, instead,
that a property rule would best protect the federalism
values at the heart of the New York Court’s concern.
In her article, The Invisible Woman: Availability and Culpability
in Reproductive Health Jurisprudence, Beth A.
Burkstrand-Reid demonstrates that while concern for women’s
health played a central role in the development of reproductive
health case law, modern courts have used two heuristic “tools”
to minimize women’s health as a factor in deciding contraception,
abortion, and childbirth cases. First, in a manifestation of
what she terms the “availability tool,” Professor Burkstrand-
Reid argues that, when faced with determining the necessity of
procedure, courts regularly minimize the potency of women’s
health as a factor by considering whether alternative procedures
are theoretically available to the woman. Professor
Burkstrand-Reid also argues that in situations in which there
are no currently viable alternatives to the procedure in question,
judges make use of a second device—the “culpability
tool”—to cast blame on the woman for previously waiving potential
alternatives. In the end, while she notes that both tools
could be used in ways that positively value women’s health,
Professor Burkstrand-Reid questions the utility of each as currently employed and calls for greater consideration of women’s
health in reproductive health cases.
Leslie Salzman argues for a complete reconsideration of
adult guardianship in Rethinking Guardianship (Again): Substituted
Decision Making as a Violation of the Integration
Mandate of Title II of the Americans with Disabilities Act. Professor
Salzman argues that guardianship in the United States
marginalizes individuals by forcing courts to make a binary decision:
either an individual is of diminished capacity and therefore
requires a guardian to make decisions about his or her
personal affairs and property management, or the person has
full capacity to make decisions on his or her own. Utilizing the
framework set out in the Supreme Court’s decision in Olmstead
v. L.C., Professor Salzman argues that guardianship itself constitutes a violation of the integration mandate of Title II of the
Americans with Disabilities Act, which requires that states
provide services, activities, and programs in the most integrated
and least restrictive setting appropriate. In place of
guardianship, Professor Salzman proposes a supported decision-
making system, in which those who are deemed to have
diminished capacity retain their legal right to make decisions
with assistance. Thus, using Olmstead as a basis to challenge
guardianship as an unlawful form of segregation, Professor
Salzman advocates for supported decision making as a less restrictive
alternative.
In the first student comment, Douglas O. Edwards offers
some initial reactions to the recent financial crisis in An Unfortunate
“Tail”: Reconsidering Risk Management Incentives After
the Financial Crisis of 2007–2009. Like many, Edwards seeks
answers to why the collapse happened, and what can be done to
prevent future financial calamity. Edwards argues that the
best way to prevent future catastrophes is to incentivize “those
responsible for systemically critical decisions to be more cognizant
of the low-probability, high-impact events that occasionally
plague the financial system.” Relying on a recent behavioral
model designed by Karl S. Okamoto in After the Bailout: Regulating
Systemic Moral Hazard, Mr. Edwards recommends the
adoption of a new disclosure regime, which would require
greater disclosure by risk managers, and a compensation clawback
private right of action, which would place greater penalties
on those who practice substandard risk-management practices.
In the second student comment, A Second Chance at Justice:
Why States Should Adopt ABA Model Rules of Professional
Conduct 3.8(g) and (h), Michele K. Mulhausen provides a compelling
argument why states should adopt two recent additions
to the ABA’s Model Rules of Professional Conduct rule governing prosecutorial conduct. Amendments (g) and (h) to Model
Rule 3.8 place affirmative duties on prosecutors to investigate
and seek remedy for convictions called into doubt by “new,
credible and material evidence.” After reviewing the current
lack of prosecutorial obligations in this context, Mulhausen argues
that states should require their prosecutors to take steps
to rectify wrongful convictions.
ZACHARY P. MOUNTIN
Editor-in-Chief