University of Colorado Law Review
Volume 81, Issue 2, Spring 2010
FOREWORD
The second issue of Volume 81 of the University of
Colorado Law Review presents a wide variety of novel and powerful articles. With topics ranging from the interplay of local land law and globalization to an examination of the rights of artists engaged in collaborative artwork, the articles seek to bring new light to a diverse swath of subject areas.
In our lead article, Fine-Labor: The Symbiosis Between Monetary and Work Sanctions, Martin Pritikin proposes an alternative approach to incarceration, the dominant form of punishment in America. Noting that “[t]he American prison system is . . . a failure,” Professor Pritikin explores two commonly proposed alternatives: monetary and work sanctions. While both alternatives could, in theory, be better solutions than incarceration, Professor Pritikin concludes that significant practical concerns have prevented either from supplanting imprisonment as the pervasive form of punishment. Professor Pritikin proposes that a hybrid of the two systems, “fine-labor” could remedy these practical barriers, offering a superior alternative to incarceration.
Amnon Lehavi examines the interplay between the localized nature of land law and globalization in The Global Law of the Land. Because land law is rooted in the land itself, Professor Lehavi posits that it has traditionally developed as a set of locally idiosyncratic systems, each reflective of the local society, culture, and politics. Globalization, however, has brought new forces to bear on this localized flavor of land law, increasing the pressure to homogenize rules across borders. Professor Lehavi demonstrates that current economic and legal regimes are inadequate to deal with these conflicting pressures. As such, he concludes that in order for cross-border land law norms to be successful, international and national actors must build more comprehensive supranational institutions, prevent normative over-fragmentation within domestic land law, and, ultimately, pay heed to the localized nature of the law.
In Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases, Amy L. Stein explores the implications of the fact that the National Environmental Policy Act does not formally require any consideration of climate change in NEPA documentation. Professor Stein demonstrates that while case law has begun to force climate change consideration in NEPA Environmental Impact Statements, such consideration is mere lip service. As such, “the nation is left with more paperwork and more greenhouse gas emissions.” Professor Stein proposes two solutions to make consideration of climate change more meaningful under NEPA. First, she suggests that agencies should provide clear and consistent thresholds about the significance of climate change impacts. Second, she proposes that lower significance thresholds would encourage agencies to consider mitigation.
In our first student casenote, Courts’ Struggle with Infertility: The Impact of Hall v. Nalco on Infertility-Related Employment Discrimination, Kerry van der Burch examines the impact of a recent circuit court case on a developing area of Title VII litigation: infertility-related employment discrimination. In Hall, the Seventh Circuit became the first circuit court to rule that discrimination based on fertility treatments can be a form of sex discrimination. While she notes Hall as a victory for infertile employees, Ms. van der Burch argues that the case is more significant in what it failed to do: provide clear precedent as to Title VII liability, or present analysis of whether infertile employees can seek recourse under either the Americans with Disabilities Act or the Family and Medical Leave Act.
Sarah Louise Rector explores the precarious position of artists engaged in “collaborative” art in A Training Ground for Contemporary Art: Massachusetts Museum of Contemporary Art v. Büchel’s Overly Broad Exclusion of Artistic Collaborations. Ms. Rector examines the scope of moral rights—the rights that artists possess to claim and maintain the integrity of their work—under the Visual Artists Rights Act. Ms. Rector argues that Büchel, a recent District of Massachusetts case, misconstrued the Act when it refused to extend protection of moral rights to artists that are engaged in collaborative works. Ms. Rector concludes that in doing so the Büchel court failed to follow the instructions of Congress to use common sense and artistic norms in defining the statute’s scope. Ultimately, Ms. Rector sees Büchel as an exemplar of a troubling trend in moral rights jurisprudence to deny artists protection of their rights—a trend which might cause high-profile artists to avoid exhibiting their works in American museums.
Finally, in Davis v. Federal Election Commission: A Further Step Towards Campaign Finance Deregulation and the Preservation of the Millionaires’ Club, Grant Fevurly analyzes one of the Supreme Court’s most recent campaign finance cases. In Davis, the Court struck down a campaign finance provision that sought to equalize the differences in resources of self-financed and non-self financed candidates. Mr. Fevurly contends that the Supreme Court erred in its analysis when it determined that the provision would impermissibly restrict the ability of wealthy candidates to spend their own money. Finally, Mr. Fevurly argues that Davis is part of a larger trend in the Roberts Court to dismantle campaign finance regulation. Mr. Fevurly argues that this trend, which has most recently culminated in the controversial Citizens United v. Federal Election Commission decision, ultimately seeks to maintain the electoral status quo.
Zachary P. Mountin
Editor-in-Chief