University of Colorado Law Review
Volume 82, Issue 1, Winter 2011
FOREWORD
The University of Colorado Law Review strives to publish the most rigorous and impactful legal scholarship. We also strive, however, to provide readers with the richness that can only be synthesized by publishing a diverse collection of articles together in a general interest issue. The articles herein span a wide array of topics—including the credit default swap market as a “commons,” the Tenth Circuit’s jurisprudence in federal criminal conspiracy cases, and the existence of a constitutional right to read. Furthermore, the articles herein cover issues of international, national, and local concern: international in the case of users’ personhood interests in intellectual property law, national when discussing the current ownership status of large swaths of former railroad rights-of-way land in the western United States, and local in analyzing a recent case’s impact on Colorado’s constitutional amendment, the Taxpayer’s Bill of Rights. With these articles, the first issue of Volume 82 provides that richness.
In the lead article, Parchment, Pixels, & Personhood: User Rights and the IP (Identity Politics) of IP (Intellectual Property), Professor John Tehranian illuminates the profound interests that users have in intellectual property. Using eclectic examples from copyright law—including flag burning as copyright infringement, the “Kookaburra” controversy, and use of the word “Olympics”—Tehranian demonstrates how intellectual property affects the formation, development, and expression of users’ personal identities. He then examines technological and legal changes that, he argues, are undermining users’ personhood interests. Tehranian’s “personhood theory of user interests” recognizes the crucial link between identity politics and intellectual property, and it provides a template for both resistance from, and reform of, what he describes as the current paradigm of “intellectual property maximalism.”
Darwin P. Roberts, in his article, The Legal History of Federally Granted Railroad Rights-of-Way and the Myth of the Congress’s “1871 Shift,” explores an imperative question that has divided the federal courts of appeals and determines the federal government’s potential multi-million dollar liability for takings claims in the West: Did the federal government retain any ownership interest in railroad rights-of-way that it granted after 1871? Roberts’s research—astonishing in its detail, integrity, and volume—leaves little doubt that the putative “1871 shift” is a “fallacy” and is “historically indefensible.” Roberts adduces powerful evidence indicating that throughout the nineteenth century, Congress always viewed railroad rights-of-way as property over which the United States retained continued ownership and control. He concludes that the federal government may reuse any federally granted right-of-way for an alternate purpose without effecting a Fifth Amendment taking, and if the Supreme Court has the opportunity to resolve the circuit split, it should overrule its erroneous prior reasoning and affirm the United States’ broad and continuing authority over all federally granted railroad rights-of-way.
In Things Fall Apart: Regulating the Credit Default Swap Commons, Professor Kristin N. Johnson tackles what many believe was one of the principle causes of the recent financial crisis: credit default swaps. Johnson insightfully analogizes the credit default swap market to “the commons,” as its described in property literature, to construct a new framework for financial market regulation. Johnson argues that the Dodd-Frank Act “lacks the comprehensiveness and agility necessary to address the more perilous risks in the credit default swap market.” To ameliorate these risks, Johnson applies lessons from the commons and proposes a community governance model to oversee credit default swap markets through the creation of a self-regulatory organization. Importantly, Johnson argues that the Dodd-Frank Act limits the application of her model.
In her student comment, Dismantling the Trojan Horse: Mesa County Board of County Commissioners v. State, Anna-Liisa Mullis examines Colorado’s landmark 2009 case, Mesa County Board of County Commissioners v. State and its effect on Colorado’s Tax Payer’s Bill of Rights (“TABOR”), a citizen initiated constitutional amendment. Mullis incisively critiques TABOR and argues that while it was sold to voters as a means to hold the state and local government revenues to reasonable levels and to vest decisions over taxes in the electorate, it has proven to be a “Trojan Horse” because it was designed to starve the government and, as a result, “is crippling Colorado governments’ ability to function.” She contends that Colorado’s best hope for addressing TABOR’s adverse effects lies with the courts. To that end, Mullis argues that Mesa County was a “crucial first step in restoring the state and local governments’ fiscal health.”She ultimately concludes, however, that further action must be taken to dismantle TABOR.
Inspired by his experience working at the Tattered Cover bookstore in Denver, Colorado, Eric Robertson’s student comment, A Fundamental Right to Read: Reader Privacy Protections in the U.S. Constitution, thoughtfully explores the existence, nature, and scope of a constitutionally protected privacy right over what one reads. Robertson argues that Tattered Cover, Inc. v. City of Thornton and constitutional jurisprudence concerning the right to information privacy “support a more general fundamental right to read.” Robertson asserts that recognizing this “right to read” would simplify the law and ensure that individuals feel comfortable, through reading, to embark upon important intellectual journeys that may be controversial or countercultural.
This issue closes with Jeff Van der Veer’s student comment, Varying Declarations of Interdependence: The Tenth Circuit’s Inconsistent Analysis of Criminal Conspiracy. He identifies that the Tenth Circuit is the only circuit requiring the prosecution to prove “interdependence” in a federal criminal conspiracy case. Van der Veer elucidates the Tenth Circuit’s inconsistent application of interdependence: its initial strict and literal standard in United States v. Dickey; followed by its relaxed standard in United States v. Horn; and its current, benchmark standard in United States v. Evans, which he argues is “almost meaningless.” Van der Veer compellingly argues that the Tenth Circuit should consistently apply its most literal definition of the term in order to safeguard defendants’ due process rights and to ensure fair and just results.
Kyle R. Blackmer
Editor-in-Chief