University of Colorado Law Review

Volume 82, Issue 3 & 4, Summer 2011

FOREWORD

         If one read each of the six articles in this issue of the University of Colorado Law Review in isolation, one might think they are completely disparate and disconnected.  Indeed, they discuss criminal, immigration, intellectual property, and family law, respectively, as well as the tort remedies available in Colorado for pet owners whose pets are wrongfully destroyed and the need for self-determination in the international law and development movement.  But when these six articles are joined in this issue—the last of volume 82—an important message emerges: the human element is as much a part of the law as logic, reason, and justice. This issue reminds us that the vicissitudes of one’s life both shape, and are shaped by, the law.  Within every statute, judicial decision, law review article, and legal construct, are people.  These are their stories.

         In the lead article, The Need to Overrule Mapp v. Ohio, Professor William T. Pizzi uses Mapp’s famous “exclusionary rule” to boldly challenge one of the guiding principles of criminal jurisprudence theory in the United States: imposing harsh sanctions will deter undesirable behavior.  Beginning with the exclusionary rule’s adoption in Mapp, Professor Pizzi asserts that the rule is outdated because it is difficult to reconcile with both the United States current criminal justice system and the robust body of post-Mapp neuroscience research that indicates Mapp’s epistemological assumption may be invalid.  Professor Pizzi then moves to his broader thesis, arguing that the current conception of deterrence theory in the United States—a theory on which Mapp rests—should be abandoned because it has not proven efficacious and has deleterious effects on the criminal justice system.  The article ends by examining how other countries approach the exclusionary rule and urging us to follow Canada and New Zealand’s approaches.

         Professor Maggi Carfield, in her article, Participatory Law and Development: Remapping the Locus of Authority, draws on her poignant volunteer experiences in Haiti to argue that there must be a fundamental shift in the law and international development paradigm.  Professor Carfield contends that that law and development efforts have, more often than not, failed in part because development agencies have failed to engage communities in the process of both setting agendas and instituting programs and policies.  In response to these failures, many scholars and practitioners have called for an approach that is rooted in more “bottom-up,” community-based interventions.  Professor Carfield challenges this conclusion and asserts that the much more crucial consideration is the practical and normative implications of an externally imposed law reform agenda.  To that end, she advocates for a participatory approach to law reform and development that focuses on enhancing self-determination. 

         In Rethinking Parental Incarceration, Professor Sarah Abramowicz explores a question with life-changing consequences: When sentencing parents, to what extent should criminal law courts account for how their sentencing decisions affect children?  Professor Ambramovicz approaches this question with thoughtful nuance, proposing that we reframe the problem by considering the question from the perspective of family law, specifically its insights about child development.  Using this perspective, she argues, shows that the consideration of criminal defendants’ parental status is neither collateral to criminal law nor at odds with its goals and legitimacy.  Instead, the family law perspective demonstrates that “considering children when sentencing a parent is a necessary part of any attempt to render the criminal justice system fair and legitimate.”

         Jeremiah Farrelly’s student comment, Denying Formalism’s Apologists: Reforming Immigration Law’s CIMT Analysis, potently and passionately critiques the current quagmire that is immigration law’s definition of a “crime involving moral turpitude” (“CIMT”).  Mr. Farrelly first traces the development of the traditional CIMT standard. Then, using an illustrative hypothetical based on the facts of director Roman Polanski’s 1977 statutory rape conviction, he introduces and analyzes the Ali v. Mukasey and Silva-Trevino reforms to the traditional definition.  Mr. Farrelly ultimately concludes that the two recent reforms are imperfect and offers his own CIMT standard to address CIMT’s current shortcomings.

         In his student comment, Dog Damages: The Case for Expanding the Available Remedies for the Owners of Wrongfully Killed Pets in Colorado, Logan Martin addresses an issue near and dear to many, if not most, Coloradoans’ hearts: the tort remedies available when their pet is wrongfully destroyed.  Because Colorado law does not prescribe what damages are available in these situations, Mr. Martin begins his analysis by surveying and critiquing the approaches that other states employ, which include the majority “market value of the animal” rule and the lesser used “value-to-the-owner” rule.  Mr. Martin appeals to reason and emotion in arguing that Colorado should reject the “market value” rule and allow pet owners to recover for their emotional distress caused by the wrongful destruction of their animals.

         Emily Nation closes this issue and volume with her student comment, Geographical Indications: The International Debate Over Intellectual Property Rights for Local Producers.  Using Parmigiano-Reggiano cheese, Champagne, and Florida oranges as examples, Ms. Nation introduces us to the palate whetting intellectual property right known as “geographical indications.” A geographical indication right exists where a product is named after its geographical origin and where the product has certain qualities attributable to its geography. Ms. Nation analyzes the debate about how these rightsare, and should, be protected under international law as well as under domestic laws in the United States and the European Union.  She concludes by arguing that the United States should increase its domestic protections for geographical indications.

 

 

Kyle R. Blackmer

Editor-in-Chief