University of Colorado Law Review
Volume 75, Issue 1, Winter 2004
FOREWORD
In our lead article, The Divergence of Constitutional and Statutory Interpretation, Kevin Stack explores the peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this article, Professor Stack challenges this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. Professor Stack argues that the democratic and rule-of-law values that these theories evoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. He contends, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct democratic foundations of these two forms of enacted law, and provide reasons for interpreting them differently. He next argues that the rule-of-law virtue of stability developed in Professor Eskridge's theory pushes constitutional and statutory interpretation apart because, on Professor Eskridge's view, predictive judgments about how other institutions will respond to a decision are central to the Court's interpretive exercise, and those predictive judgments will differ depending on the interpretive domain at issue. Finally, Professor Stack defends this interpretive particularism by suggesting reasons why interpretive approaches should vary depending on the theory of legal authority applicable to the type or class of law in question.
Our second article, Constructing Good Aliens and Good Citizens: Legitimizing the War on Terror(ism), by Karen Engle, analyzes the post-September 11 war on terrorism by conceptualizing it within the history of United States immigration law and policy. Professor Engle identifies and describes the semiotic dynamic within which United States immigration law has distinguished between good and bad aliens in different historical periods, and then demonstrates its continuance as an organizing structure in the contemporary war on terrorism. She argues that this dynamic functions to legitimize the war on terrorism by constructing, through a series of disciplining moves long used in immigration law, citizen and alien soldiers in the war on terrorism. In contrast to what many left and liberal critics of the war on terrorism have argued, Professor Engle maintains that the war on terrorism in not simply a war on Muslims. United States law and discourse, she argues, oscillate between profiling and insistence that Muslim citizens and residents are an important and respectable part of the United States polity. That oscillation is crucial to the legitimization project. Although the war on terrorism is in an ongoing state of flux, Professor Engle identifies and analyzes broad structures of immigration law and its disciplining processes that are likely to resonate for some time.
In our third article, Subverting the Rule of Law: The Judiciary's Role in Fostering Unethical Behavior, Richard Levoie examines research in the field of social psychology indicating that individuals lack well-defined character traits. He concludes that unethical behavior stems from situational factors, not individual personality. Professor Levoie argues that the judiciary's move toward strict statutory interpretation is unintentionally eliminating a key situational constraint on unethical behavior. Professor Levoie shows that heightened levels of unethical activity, such as corporate tax avoidance, weaken the public's faith in the legal system and harm the rule of law. Additionally, the increasing popularity of Justice Scalia's brand of strict statutory interpretation is undermining the rule of law, according to Professor Levoie, rather than promoting it as Justice Scalia claims. To effectively combat corporate tax shelters, Professor Levoie argues that judicial attitudes toward strict interpretation must change.
Fourth, we are pleased to present a short essay by Robert Harry, Byron White: The Practicing Lawyer. Mr. Harry, Senior Of Counsel at Davis, Graham & Stubbs in Denver, writes in response to the Byron R. White Center for the Study of American Constitutional Law symposium in January 2003. The symposium, titled Justice White and the Exercise of Judicial Power and published in the University of Colorado Law Review Volume 74, Issue 4, examined many facets of Justice White's jurisprudence. Mr. Harry was a colleague of Byron White's during his practice of law in Denver at Davis, Graham & Stubbs. In his essay, Mr. Harry looks back at his time spent practicing law with Byron White. He pays tribute to the characteristics which made White a valuable lawyer and friend.
In our first student article, Functional Families and Dysfunctional Laws: Committed Partners and Intestate Succession, Jennifer Seidman analyzes the notable absence of Uniform Probate Code intestacy provisions for the surviving, unmarried partners of committed relationships. Ms. Seidman describes current trends in family composition and challenges the assumed correlation between marital status and substantial commitment. Highlighting the UPC's recognized intent - to fulfill the donative intentions of intestate decedents - Ms. Seidman argues that excluding provisions for committed but unmarried partners frustrates that intent. Ms. Seidman suggests that the UPC should adopt a functional definition of partnership that mirrors modern legal and social trends, including in her comment several suggested amendments to effectuate her suggestion.
Next, in Trusted Computing Or Big Brother? Putting The Rights Back In Digital Rights Management, Chad Woodford examines new developments in the intersection between copyright law and technology; namely, the emerging trend in digital rights management (DRM) technology to eliminate fair use for digital works (books, songs, movies, and software). In the article, Mr. Woodford explores the history of copyright law and the doctrine of fair use to show that the "public good" aspect of copyright law - a healthy marketplace of ideas and a (limited) right to access and copy protected works - has always been a key feature of copyright law. Next, he discusses emerging DRM technology called "trusted computing", its legal and policy implications for traditional fair use rights, and its effects on the limited copyright term. Finally, in light of these developments, Mr. Woodford recommends that Congress pass a new law authorizing the Federal Communications Commission (FCC) to regulate digital devices to ensure that the consumers' traditional fair use rights are protected.
Finally, in Should a Lawyer Ever Be Allowed to Lie? People v. Pautler and a Proposed Duress Exception, Livingston Keithley considers whether a duress exception should be added to Rule 8.4(c) of the Model Rules of Professional Conduct. Mr. Keithley considers People v. Pautler, a recent Colorado case in which an attorney was sanctioned for lying under highly charged conditions. First, he identifies the historical background and reasoning behind Rule 8.4(c) and examines the debate surrounding the inclusion of Rule 8.4(c) during the American Bar Association's revision process. Mr. Keithley then proposes the idea of a duress exception to Rule 8.4(c) and identifies elements necessary for the defense, as well as how those elements should be analyzed. Next, he contrasts this new duress exception with the more general defense of justification, and analyzes why justification is not a successful defense against prosecutions for Rule 8.4(c) violations. Finally, Mr. Keithley briefly speculates on what Pautler might have done differently, with an eye toward helping a practitioner understand the applicability of a duress defense.
THE EDITORS