University of Colorado Law Review
Volume 76, Issue 3, Summer 2005
FOREWORD
In our lead article, Navigating Dangerous Constitutional Straits: A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities, Ronald J. Krotoszynski, Jr., and E. Gary Spitko critique several versions of the proposed Federal Marriage Amendment in light of the United States Supreme Court's historical approach to incorporating new amendments into the existing constitutional text. Professors Krotoszynski and Spitko argue that given the Supreme Court's consistently narrow reading of new amendments to preserve per-existing constitutional rights, a Federal Marriage Amendment, to be effective, must be broadly written to expressly override due process and equal protection guarantees against not only sexual orientation discrimination but also sexual discrimination. In the the authors' view, however, if a proposed Federal Marriage Amendment were sufficiently broad to preclude effectively any constitutional protection for same-sex couples, it almost certainly would be incapable of securing ratification. The article also considers prudential objections to the Federal Marriage Amendment, including concerns rooted in respect for state sovereignty, the history of amending the Constitution to expand the sphere of guaranteed personal liberty, and the dangerous precedent of amending the Constitution to achieve a specific substantive outcome on a very particularized policy question. Professors Krotoszynski and Spitko contend that, beyond the substantive problems associated with drafting an effective Federal Marriage Amendment, these prudential objections argue strongly against congressional passage and state ratification of such an amendment.
In our second article, P2P and the Future of Private Copying, Peter K. Yu notes that since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. None of these discussions, however, have presented a big picture of the P2P controversy or explained how it fits within the larger debate. Professor Yu takes a holistic approach to bring together existing scholarship while offering some thoughts on the future of private copying. Instead of advancing a new theory or model, which could quickly become obsolete, the article provides guidelines to help policymakers craft an effective solution to the unauthorized copying problem. The article begins by examining the major developments in copyright law in 2003, in particular the recording industry's enforcement tactics, and explores the challenges that the industry will face in the next few years. It then evaluates eight categories of proposals that commentators have put forward to solve the unauthorized copying problem: mass licensing, compulsory licensing, voluntary collective licensing, voluntary contribution, technological protection, copyright law revision, administrative dispute resolution proceeding, and alternative compensation. Acknowledging the provisional nature of these proposals, the article contends that policymakers need to adopt a range of solutions that meet the needs of consumers while taking into account the Internet's structural resistance to change, its immutable characteristics as a network, and the changing social norms in the digital copyright world. The article concludes by offering three thought experiments that challenge policymakers and commentators to step outside their mental boundaries to rethink the P2P file-sharing debate.
In our third article, Judicial Modesty and the Jury, Suja A. Thomas addresses the issue of how the judiciary should interpret its own power in relationship to the competing power of other constitutional actors. Professor Thomas begins by examining the judiciary's limitations on its own power under the doctrines of separation of powers and federalism. She then argues that the judiciary has not developed a similar doctrine with respect to another constitutional actor—the jury. Upon an examination of the special characteristics of the relationship between the judiciary and the jury under the Sixth and Seventh Amendments and a comparison of these characteristics to the principles underlying the separation of powers and federalism, Professor Thomas proposes a new model for judicial behavior—that of judicial modesty, a narrow construction of the judiciary's power—to be applied by the judiciary in the review of its own power versus that of the jury's power. She also states that in the future this model for judicial behavior may be found to apply to the judiciary's interpretation of its own power versus the competing power of other constitutional actors.
In our first student comment, Warning Bell: The Inherent Difficulties of Responding to Student-on-Student Sexual Harassment in Colorado Middle Schools, M. Brent Case examines the volatile middle school social environment and the difficulties Colorado middle school administrators have in classifying and responding to inappropriate student sexual behavior. Mr. Case considers the psychological development of the adolescent and the group dynamics that influence middle school students. Further, he explores a number of factors that affect the middle school administrator's response to inappropriate sexual behavior: the development of Title IX legislation, United States Supreme Court and Tenth Circuit precedent, Colorado state law, and school district policies. Mr. Case concludes with several recommendations to protect students from harassment and administrators from liability in Colorado, including making legislative changes, adding school resource officers, and enacting systems of student training.
In our second student comment, The Dilemma of Expressive Punishment, William DeFord considers punishment regimes that are justified by the messages they send to criminals and to society. Lawmakers and others often argue in favor of a punishment regime by saying that the punishment will "send a message." These expressive punishments, though, lead to a dilemma. On one hand, punishments must try to express public feelings about punishment because the public demands it; on the other hand, expressive punishments fail to convey messages that are coherent and unambiguous. This is because the messages that punishments send are multifarious, complex, even contradictory, and do not possess the elements of ordinary language that help us interpret messages. The audiences of these messages are undefined and confused; the speakers of these messages are complex, institutional speakers, obscuring the intents of the messages; and the messages themselves are ambiguous, inconsistent, and sometimes contradictory. Because policy makers have little control over the kinds of messages received by punishment's various audiences, they should be cautious about justifying a punishment by the message it sends.
In our final comment, Begging to Defer: Lessons in Judicial Federalism from Colorado Search-and-Seizure Jurisprudence, Richard C. Miller looks at Colorado Supreme Court decisions that have determined that Article II, Section 7 of the Colorado Constitution affords broader protection against government intrusions on personal security than the Fourth Amendment of the United States Constitution as interpreted by the United States Supreme Court. The dissents in cases finding state constitutional protection against the installation of a pen register and the use of a narcotics-sniffing dog argued that absent evidence in the language or history of Article II, Section 7 that its drafters intended to grant broader protection, the Colorado Supreme Court should defer to the United States Supreme Court's understanding of the scope of constitutional search-and-seizure protection. The majority opinions conceded that the two constitutional texts are "substantially similar" and professed to apply the federal Katz test of reasonable expectations of privacy to reach different results. This comment seeks to move independent and adequate interpretation of Article II, Section 7 forward by scrutinizing these platitudes about doctrine, language, history, and intent. It shows that the doctrine underpinning Colorado search-and-seizure law is no longer the federal Katz test but a target theory of expectations that the government will not pry without a lawful reason. It also uncovers substantial differences in the language of the two constitutional provisions and considers what they may betoken. Mr. Miller concludes that the drafting history and textual distinctiveness of Article II, Section 7 demonstrate the clear and deliberate intent of the Colorado Constitution's framers that its search-and-seizure provision be different from the Fourth Amendment, and that this intent not only supports but requires vigorous independent development of state constitutional doctrine.