University of Colorado Law Review
Volume 78, Issue 1, Winter 2007
FOREWORD
This is an unconventional issue of the University of Colorado Law Review. Much of its content was selected with intent to commemorate our law school’s move into the newly constructed Wolf Law Building, named by the Wolf family—Marvin and Judi, Erving and Joyce, and Elaine, the widow of Melvin—in honor of their parents, Leon and Dora. The move into the new building was a long time coming. In fact, it is unlikely that the building would ever have been constructed if it were not for the generosity of those such as the Wolfs and the other community members who helped to fund the project. The university students—graduate and undergraduate alike—contributed as well with self-imposed tuition and fee increases. For these reasons, we feel it is an occasion worth memorializing.
For this issue, and this issue alone, we have replaced the stylized Flatirons that usually garnish our front cover with an architect’s rendering of the Wolf Law Building. Our back cover has undergone a permanent change with the addition of a University of Colorado School of Law logo. We chose to keep the general University of Colorado logo as a reminder of our connection to the larger campus.
We begin this issue not with our usual articles of general interest, but instead with six tribute pieces to the career of Professor Homer H. Clark, Jr. An avid fly fisherman and a prolific family law scholar, Professor Clark has much to teach us all about life and law. The essays by Dean David H. Getches, Professor James Boyd White, Professor Carol S. Bruch, Mr. James E. Scarboro, Professor Sanford N. Katz, and Professor Ann Laquer Estin illustrate some of those lessons. Professor Clark has been at the University of Colorado School of Law for over half a century, and it is our pleasure to finally honor his contributions in the pages of this journal.
Next, we turn to a focus on law school. During this time of transition into our new building, we feel it appropriate to reflect on several different aspects of legal education. This section opens with the remarks of United States Supreme Court Justice Stephen G. Breyer, delivered at the dedication ceremony of the Wolf Law Building.
Our first article of this section is The Emerging Importance of Law Review Rankings for Law School Rankings, 2003-2007, by Professor Alfred L. Brophy. It builds upon an empirical study of the relationship between law review and law school rankings to suggest that there is some correlation between the quality of a law school as an educational institution and the quality of its main legal journal. Because of this correlation, Professor Brophy contends that law reviews are an objective reflection of law schools’ intellectual culture and, thus, merit more attention from the schools’ faculty and administration. Professor Brophy concludes that increased faculty involvement, particularly in the realm of choosing which articles to publish, should enhance the quality of a journal’s scholarship, which, in turn, will benefit the school as a whole.
In our next article, The Relationship Between Law School and the Bar Exam: A Look at Assessment and Student Success, Dean Lorenzo A. Trujillo investigates the 1996-2006 bar passage rates at the University of Colorado. His analysis reveals that, for this period, the single most important predictor of bar passage rate was a student’s law school class rank. To better provide students with the skills they need to pass the bar exam, Dean Trujillo recommends implementing a variety of academic counseling programs—peer tutoring, for example—to address the academic issues facing the bottom ten percent of a school’s student body.
Professor Kenneth D. Chestek addresses a related question in MacCrate (In)Action: The Case for Enhancing the Upper-Level Writing Requirement in Law Schools. His article broadly asks what law schools should do to best equip law students with the writing skills necessary for the legal profession. From the results of a survey of 178 law schools, Professor Chestek analyzes how law schools have responded to a 2001 American Bar Association requirement that law students complete an upper-level writing requirement. Professor Chestek finds that nearly seventy percent of schools nationwide require only an academic paper to satisfy the upper-level writing requirement. He doubts that academic writing is what the ABA intended when it passed the 2001 requirement, and concludes that law schools can better prepare students for legal practice by requiring more practice-oriented writing across the curriculum.
Our last article of this section is In Restraint of Trade: The Judicial Law Clerk Hiring Plan, by Mark W. Pletcher and Ludovic C Ghesquire, who have both worked in the Antitrust Division of the United States Department of Justice. They consider whether the federal judicial Law Clerk Hiring Plan violates federal antitrust law. Coming to the determination that the Hiring Plan unduly restricts certain aspects of the clerkship hiring process—refusing to consider applications before the third year of law school in what amounts to a conspired boycott, for instance—Messrs. Pletcher and Ghesquire determine that the Hiring Plan is an unreasonable restraint of trade prohibited by the Sherman Act. They further predict that despite the Hiring Plan’s apparent success, free market forces will eventually break the cartel.
Finally, we present our general interest articles. In our lead article, The Effect of Risk on Legal Valuation, Professor Robert J. Rhee challenges the traditional method of valuing lawsuits by analyzing the dichotomy between treating a legal dispute as an option or treating it as an asset. Fundamentally, Professor Rhee contends, a lawsuit is an asset and, as such, should be valued from the perspective of asset pricing. He also suggests that the value of a lawsuit should be discounted for risk to reflect the quality and quantity of the lawsuit’s return, as opposed to the mere quantity variable predicted by the expected value model.
Our next article is Solving the “Initiatory Construction” Puzzle (and Improving Direct Democracy) by Appropriate Refocusing on Sponsor Intent, by Professor Glenn C. Smith. The topic of this article—judicial review of the voter initiative process—anticipates an issue that is sure to be raised at the Law Review’s upcoming symposium, The Voice of the Crowd—Colorado’s Initiative, the articles from which will be published in the fourth issue of this volume. Here, Professor Smith becomes the first scholar to synthesize and critique the reform proposals offered by scholars of judicial construction of legislation passed by voter initiative, an area of law known as “initiatory construction.” Professor Smith’s comprehensive work reveals four major facets of consensus among scholars of initiatory construction, and evaluates each for its merits and limitations. What each group overlooks, Professor Smith argues, is the detrimental effect that courts’ differential treatment of initiative sponsors has had on initiatory construction. He contends that an appropriately reconceived focus on sponsor intent would be of great benefit to this particular area of law.
In our first student piece, Beyond Agency Authority: Administrative Elimination of Statutory Eligibility for Lawful Permanent Residence, Chelsy L. Knight, explains how new immigration regulations proposed by the United States Department of Justice and the Department of Homeland Security follow in the path of previous regulations concerning parolee adjustments—namely that they carry a decidedly anti-adjustment tone. Ms. Knight argues that these agencies ought to change their course not only because the proposed regulations are inappropriate and unfair, but also because they may violate the Federal Administrative Procedure Act for failing to consider the regulations’ impact on parolees. Ms. Knight adds that parolees are a deserving class of immigrants whose hardships that result from the agencies’ current policy deserve careful consideration.
Dura Duress: The Supreme Court Mandates a More Rigorous Pleading and Proof Requirement for Loss Causation Under Rule 10b-5 Class Actions, by Jerod Neas, closes the issue with an examination of the United States Supreme Court’s decision in Dura Pharmaceuticals, Inc. v. Broudo. Mr. Neas argues that the Court in Dura further confused the pleading requirements for 10b-5 class actions by applying a new proximate cause standard to the loss causation element of such cases. Mr. Neas clarifies this requirement by exploring the magnitude of the causal link that will demonstrate proximate cause as now required by the Court. He concludes that the Court’s language implicitly suggests that plaintiffs must show their loss was a “foreseeable consequence” of a defendant’s misrepresentation or material omission.
Sarah M. Mercer
Editor-in-Chief