University of Colorado Law Review

Volume 74, Issue 1, Fall 2003

FOREWORD

In our lead article, Professor Spaulding explores the question whether lawyers should identify (morally, politically, intellectually, emotionally, etc.) with the clients and legal causes they represent. He argues that while the rules of professional responsibility endorse selecting and serving clients irrespective of their personal attributes or the moral worth of their legal objectives (what Spaulding calls "thin identity"), a variety of forces--including competition, specialization, "cause lawyering," and, ironically, the dominant discourse in legal ethics--push lawyers to seek stronger identification in the role. this move toward "thick identity" not only brings lawyers too close to their clients, thus impairing their independent judgement, but also re-orients the lawyer's role from an other-directed calling to a means of self-realization. The article offers the first systematic typology of identification between lawyers and clients, and demonstrates that professional misconduct and discontent are largely attributable to the rise of thick professional identity. The article also represents a significant break from prevailing scholarly discourse, which advocates abandoning thin identity and returning to the civic republican concept of morally activist lawyering said to dominate nineteenth-century American discourse in legal ethics. Spaulding, by contrast proposes reforms necessary to encourage thin identity.

In our second article, Professor Grant challenges the conventional wisdom that interstate water allocation compacts bind signatory states permanently, absent unanimous agreement to end or amend them. Professor Grant examines the three supposed sources of compact permanence--the Contract Clause of the United States Constitution, the "law of the case" doctrine, and the "law of the Union" doctrine--and argues that none of these sources should prevent a state's unilateral withdrawal from an outdated water allocation compact. Instead, Professor Grant contends that the reserved powers doctrine, which assures a state of continuing power to promote the vital interests of its citizens under changing circumstances, applies to interstate water allocation compacts and provides desirable flexibility for states that face inadequate water allocation as a result of outdated compacts. Professor Grant suggests that signatory states use this doctrine in compact renegotiations to secure more favorable water allocation.

In our third article, Professor Huss asks: What happens to pets when their owners go through significant life changes such as divorce, death, or even separation from their pets? Professor Huss discusses these issues and shows how the law in its current form does not adequately address the needs of the concerned pet owner. After an introduction that establishes the key role animals play in American society, the article proceeds to describe the impact of neoteny and anthropomorphism, which explain why animals play such an important role in the lives of so many people. Professor Huss then discusses the current legal status of animals as property, that classification's impact on planning for animals, and efforts in some jurisdictions to alter the relationship between "pet" and "owner". From there, Professor Huss analyzes voluntary and involuntary separation from pets, the custody of marital animals, and estate planning considerations for a surviving pet. In each area, the existing law proves insufficient to address the needs of the concerned pet owner who wishes to ensure the safety and security of his or her best friend should these events occur. Despite the shortcomings of the current legal system, attentive attorneys will be able to use existing laws to some extent for the benefit of both the person and the pet. With animals playing an increasingly important role in society and the law, the conscientious lawyer must be aware of these issues as he or she advises clients who consider their pets more than just another item of personal property.

Our first comment proposes strengthening consumer protection legislation for homeowners in Colorado. The author focuses on foreclosure consultants, who offer their services to homeowners facing foreclosure. Despite the apparent benefits these consultants offer to homeowners who believe they cannot protect themselves from losing their homes on their own, several documented accounts of suspect practices have recently surfaced in Colorado. Among these are: inundation with offers of assistance, late-night visits offering foreclosure services, and, in the most dramatic cases, schemes that require homeowners to quitclaim deed their home to the consultant in return for the consultant's "assistance." The author examines legislation in other states that regulate foreclosure consultants and addresses an alternative that other state use to protect homeowners from deceptive practices--the equitable mortgage. The author then turns to existing Colorado statutory protections and concludes that further protection is necessary. After reviewing California and Missouri statutory protection and determining that similar statutory protection would adequately protect Colorado homeowners, the author analyzes a proposed legislative solution and applies California's protections to a hypothetical homeowner's case.

In our second comment, the author proposes a framework by which Congress, the Federal Communications Commission and the courts can work together to ensure that telecommunications laws do not run afoul of the First Amendment. Telecommunications is an extremely dynamic industry. Both the technology and the industry have been undergoing continual evolution for the past decade. This fast-paced change presents a challenge for courts, whose methods for evaluating the constitutionality of telecommunications laws are necessarily guided by the state of the industry at the time a case is brought, and cannot evolve with technology and the industry. Thus, laws that are once considered constitutional under the courts' standards may not be so for long. The author proposes that Congress require the FCC to reexamine speech-infringing laws on a regular basis, and to make adjustments to these laws whenever they can no longer adequately be justified. This approach will ensure the constitutionality of speech-infringing laws by placing the analytical burden on the body who best understands the nature of the telecommunications industry--the expert agency.

In our third comment, the author examines the problem of asserting personal jurisdiction over non-resident defendants based solely upon Internet contacts. After a review of traditional personal jurisdiction principles from International Shoe to the present, as well as a short review of the challenges that Internet contacts present, the comment addresses Zippo Manufacturing Co. v. Zippo Dot Com, Inc., which has become the leading case on personal jurisdiction based on Internet contacts. The comment explains that while the decision itself provides a thoughtful analysis of "traditional" jurisdictional principles in light of Internet contacts, the Zippo test that has grown out of the decision has become proxy for traditional jurisdictional analysis. As a proxy, the Zippo test fails to remain true to traditional principles, because it leads courts to focus more on categorizing a Web site than on a basic tenet of jurisdictional analysis: that the defendant purposefully avail himself or herself of the forum state. Finally, the comment argues that although personal jurisdiction based on Internet contacts does pose new challenges, courts should look for analogies to pre-Internet case law when determining when it is appropriate to assert jurisdiction rather than developing an entirely new test. By using these analogies, the author argues that over time courts will develop a body of Internet case law that adheres to the principles of International Shoe and its progeny.

Finally, in our fourth comment, the author discusses the origins and application of the Private Securities Litigation Reform Act ("PSLRA"). Lawyer-driven litigation, and its resulting abuses, led Congress to enact PSLRA. The Act limits lawyer control first by allowing claimants to apply for the role of lead plaintiff based on several qualifying factors, and second by allowing the lead plaintiff to select lead counsel, subject to court approval. As enacted, however, PSLRA fails to provide courts with criteria to consider in deciding whether to approve the lead plaintiff's choice of counsel. In response, courts have implemented an auction process to make the lead counsel determination. This process is an effective method of curtailing lawyer exploitation of securities litigation because it transfers control of the litigation back to the plaintiff class. While the author acknowledges that the auction process is not perfect, she concludes that it is an effective solution to lawyer abuse of class action securities litigation. As such, the author urges Congress to pass legislation requiring use of the auction process in all class action securities litigation.

THE EDITORS