University of Colorado Law Review
Volume 80, Issue 3, Spring 2009
FOREWORD
Having examined the failure of the subprime lending market and its corresponding impact on an already-staggering national economy elsewhere in this Volume, it seems appropriate that we now turn our focus to a topic dearer (and unquestionably nearer) to our collective hearts—the evolution of the Colorado Bar. This issue, the third of Volume 80, begins by examining the rise and fall of many of the state’s most renowned law firms over the last century. In so doing, the cyclical nature of both the local and national financial fortune, of which today’s downturn is but the most-recent chapter, is clearly demonstrated. And so it is duly mindful of George Santayana’s adage, “Those who cannot remember the past are condemned to repeat it,” that I welcome you to this, the latest installment of The University of Colorado Law Review.
In his article, The Other Legal Profession and the Orthodox View of the Bar: The Rise of Colorado’s Elite Law Firms, Eli Wald inquires whether the “standard story” used to describe the evolution of large, predominantly East Coast law firms also applies in Colorado. To better understand this evolution, Professor Wald pays particular attention to the rise of Colorado’s largest law firms, examining the background conditions that enabled their emergence, how they came to occupy a dominant position atop the Colorado legal profession, and their organization, culture, and growth patterns. He concludes that the Colorado experience differs from the “standard story” in a variety of ways largely because our Colorado forebears rejected, either wholly or partially, many of the various discriminatory mechanisms that typically affect the manner in which firms are organized and operated.
Jared A. Goldstein argues that a nationalist conception of nature has long distorted environmental policies in Aliens in the Garden. More specifically, Professor Goldstein takes issue with environmental discourse that, in his opinion, too frequently attempts to explain natural phenomena by reference to the world of nations. One example of this nationalization of nature is the rhetoric of “invasive species,” which depicts harmful foreign plants and animals in ways that bear a striking resemblance to the demonization of foreigners by opponents of immigration. Although this metaphor can be helpful for one tasked with describing the phenomenon of introduced species, Professor Goldstein argues that overuse of this trope distorts environmental policies by projecting unrelated anxieties about national security and national identity onto nature.
Laura Spitz addresses the concept of national identity in an entirely different context in The Evolving Architecture of North American Integration. In her article, Professor Spitz attempts to theorize an integrated North American space by analyzing the United Parcel Service’s legal challenge to Canadian policies and practices in the non-monopoly courier market under NAFTA. In Professor Spitz’s view, these proceedings recognize and form part of an integration discourse capable of shaping a conceptual or ontological framework that can, in turn, plot particular notions of nationalism, regionalism, and globalization in relation to one another; naturalize a nascent body of integration law that connects and defines national, regional, and global identities; and authorize specific actors, positions, and foundational concepts that serve, in part, to constitute North America as a distinct—and distinctly integrated—region.
In our first student note, Ineffective Assistance of Counsel Under People v. Pozo: Advising Non-Citizen Criminal Defendants of Possible Immigration Consequences in Criminal Plea Agreements, Lindsay VanGilder argues that the Sixth Amendment guarantee that all criminal defendants be provided effective assistance of counsel is violated where defense counsel fails to advise non-citizen defendants of possible immigration consequences of plea agreements. In People v. Pozo, the Colorado Supreme Court ruled in favor of Ms. VanGilder’s position, holding that defense counsel does, in fact, retain a duty to advise non-citizens who are presented a plea deal. In this regard, the Pozo decision is something of an outlier. The majority of American courts have expressly rejected any attempt to apply a duty to advise upon defense counsel. This divide has not gone unnoticed. This term, the United States Supreme Court granted certiorari for a related case so that it may conclusively decide this very issue.
The final student note here published, Class Dismissed: Equal Protection, the “Class-of-One,” and Employment Discrimination After Engquist v. Oregon Department of Agriculture, presents Matthew M. Morrison’s research on a particularly pressing legal question: whether government employees should be able to assert so-called “class-of-one” claims against public employers under the Fourteenth Amendment’s Equal Protection Clause. Traditionally, equal protection claims address discriminatory government conduct that implicates group classifications. Class-of-one claims differ in that they allege only that the plaintiff was intentionally singled out from other similarly-situated individuals and subjected to unequal treatment without a legitimate reason. In a recent case, Engquist v. Oregon Department of Agriculture, the United States Supreme Court held that courts are barred from hearing class-of-one claims arising in the public employment context. Mr. Morrison determines that the Supreme Court’s asserted rationales for eliminating the class-of-one rights of public employees cannot survive close scrutiny, arguing instead that the Engquist decision reflects the Roberts Court’s skepticism with the social utility of litigation generally rather than with the propriety of class-of-one claims particularly.
Brent Jordheim
Editor-in-Chief