University of Colorado Law Review

Volume 77, Issue 3, Summer 2006


In our lead article, Race, Gender, Region and Death Sentencing in Colorado, 1980-1999, Stephanie Hindson, Professor Hillary Potter, and Professor Michael L. Radelet undertake a detailed study of the death penalty in Colorado. They hypothesize that the race and gender of the victim affect the likelihood that the death penalty is sought. Through an analysis of the nearly 4,000 Colorado homicides prosecuted from 1980-1999, the authors find that the death penalty is nearly four times more likely to be sought for defendants accused of killing whites than for defendants accused of killing non-whites or Hispanics. A similarly disturbing trend exists relative to the gender of victim. Those accused of murdering females are nearly twice as likely to be prosecuted under the death penalty statute than those accused of killing males. In short, the authors find Colorado's application of the death penalty is not sought equitably across various categories of victims.

In our second article, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, Professor Anne Bowen Poulin analyzes why the issue of multiple punishment became conflated with successive prosecutions, and how the Double Jeopardy Clause of the Eighth Amendment has been misapplied to cover multiple punishment situations. She argues that this misapplication has led courts to treat multiple punishment and successive prosecution as essentially the same issue under double jeopardy analysis. In addition, Professor Poulin believes that the double jeopardy rules governing successive prosecutions should play no role in evaluating the sentences imposed after an appropriate adjudication.

Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, by Professor Derek E. Bambauer, challenges the dominant paradigm of the "Marketplace of Ideas" as it relates to government regulation of personal or public communication. Instead, Professor Bambauer suggests that state and federal regulators should make an affirmative effort to establish broadcast and non-broadcast communication standards that speak to larger societal views of the regulated content. Abandoning the laissez-faire regulatory system that has prospered relative to both personal and public communication will allow for greater public involvement and awareness of communication regulation. In fact, this approach is much more in keeping with the constituency theory of representative democracy in that those who regulate are held responsible for the decisions made and the effect those decisions have on the free exchange of ideas.

Our fourth article, Love, Money, and Justice: Restitution Between Cohabitants, by Professor Emily Sherwin, concludes that same-sex or cohabitant relationships should not rely on the theory of restitution to equitably distribute co-mingled assets. Instead, parties should enter into contractual agreements to manage a future break-up in the absence of state regulations dealing with such cases. Professor Sherwin argues that an "equitable" interpretation of restitution violates the previously rule-oriented approach to dealing with unjust enrichment situations.

In our first student comment, In the Wake of Republic of Austria v. Altmann: The Current Status of Foreign Sovereign Immunity in United States Courts, David Vandenberg charts the history of the sovereign immunity doctrine from the early nineteenth century and argues that the Supreme Court's recent holding in Altmann may alter how federal courts interpret the Foreign Sovereign Immunity Act ("FSIA"), but the effects of the interpretive shift will be reigned in by other factors, both judicial and practical. In other words, though Altmann allow FSIA jurisdiction even over claims arising before FSIA's passage, a sharp increase in FSIA claims is unlikely.

Our second student comment, Not Part of the Game Plan: School District Liability for the Creation of a Hostile Athletic Environment, by Toni Wehman, argues that an expansive reading of Title IX would protect school athletes from harassment based on sexual orientation. To date, courts have interpreted Title IX to preclude gender-related harassment, but they have stopped short of broadly applying this standard to other forms of harassment, including harassment based on sexual orientation. Such a broad application would have the effect of curbing bias against gays and lesbians early in life.

Finally, Jeanne L. Schroeder reviews Nicola Lacey's new book A Life of H.L.A. Hart: The Nightmare and the Noble Dream. Professor Schroeder celebrates Lacey's thoughtful and engaging book dissecting the personal and professional life of H.L.A. Hart, widely considered the most important legal theorist in the English-speaking world. Professor Schroeder's review expands on Lacey's book, discussing how Hart's latent homosexuality may well have colored his view of the so-called "moralism" inherent in legal formalism.