The Charter of the City of Durango, Colorado

https://scholar.law.colorado.edu/colorado-municipal-codes/1047/thumbnail.jp

Beyond Discrimination: Market Humiliation and Private Law

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions from nondiscrimination laws. This Article is the first to offer a rigorous analysis of the oral arguments of this pending case. Its troubling findings show why deciding such a critical issue based on abstract preemptive litigation—designed to eliminate those who would be humiliated from the discussion—would be utterly wrong and should be avoided. But the Article not only sounds an alarm in a moment of crisis; it also develops a novel solution. It is time to go beyond discrimination, turning to private law and utilizing its tools to fight market humiliation. The proposed shift requiresmaking more room within private law for a duty not to humiliate. This Article recommends how to do so and what legal reforms of doctrines and remedies are needed. Following these recommendations can empower people humiliated in the marketplace to take action and seek remedies from those who mistreated them. Private law has unique expressive, normative, and remedial powers that can fill the normative void created under nondiscrimination laws. When the market’s inclusiveness is under attack, one salient response is to develop additional ways to secure market citizenship for all

Corporate Climate Targets: Between Science and Climate Washing

The use of corporate climate targets has exploded in recent years. Over three thousand corporations, including the largest and most profitable in the world, have adopted corporate climate targets as commitments to align their actions with climate science and the Paris Agreement. However, the broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise “climate washing” concerns, i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets, and explores potential theories of liability when commitments turn out to be exaggerated. The Article’s analysis focuses on corporate targets issued as part of the Science Based Targets Initiative (SBTi). SBTi is a standard-setting body that provides a detailed rule framework for the setting of corporate climate targets. The nonprofit has recently experienced spectacular growth, with companies representing some $38 trillion –one third of global market capitalization—now committing to targets under its seal. The Article finds that the role of science in SBTi’s rule framework is more complex than it first appears. SBTi rules employ a scientific concept known as the global carbon budget, but scientific knowledge cannot translate that carbon budget, which is indeed global, to company-level targets. When SBTi provides that translation in its rules, it is not merely deriving targets from science, but exercising considerable discretion. That discretion, and its distributive implications, are currently under-appreciated in both academia and practice. Building on this analysis, the Article turns to the issue of potential liability for climate washing in some companies’ SBTi targets. The key, it argues, is to move beyond the instinct that a target can only amount to climate washing if it is in direct conflict with science. Because science itself cannot determine appropriate company-level targets, it is necessary to identify alternative ways in which a given corporate target is problematic or misleading. To this effect, the Article suggests three avenues through which advocates may pursue climate washing liability. These include companies in non-compliance with SBTi criteria, statements that mislead consumer perception, and SBTi criteria that depart from expert consensus

Data Controllers as Data Fiduciaries: Theory, Definitions & Burdens of Proof

As more U.S. states have begun to pass consumer privacy laws, there are growing calls for federal data privacy regulation to ease the burden of compliance with various, sometimes conflicting, state laws. However, scholars and lawmakers are divided on how best to balance robust privacy protections with privacy laws to which businesses can realistically comply. Two prominent regulatory models have emerged from scholarly debate. The Rights/Obligations Model grants consumers various rights and imposes obligations on businesses. This model has been trending in U.S. states, which have mirrored language from the European Union’s General Data Protection Regulation (GDPR) by imposing different obligations on “data controllers” and “data processors.” However, there are shortcomings to this model that limit consumer rights and their ability to vindicate those rights. The Fiduciary Model has also received attention from lawmakers and scholars as an alternative model of regulation. The Fiduciary Model addresses gaps in the Rights/Obligations Model, but prominent critics have voiced skepticism about the workability of the Fiduciary Model. This paper’s contributions are threefold. First, this paper examines the distinction between “data controllers” and “data processors” in the GDPR and whether those terms are likely to apply in a functionally similar way in new U.S. state consumer privacy laws. As companies strategize about how tocomply with laws from a multitude of jurisdictions—and as states incorporate identical language into their own laws—understanding the similarities and differences between how such laws are applied will be crucial. Second, this paper furthers the debate about the workability of the Fiduciary Model by proposing that “data controllers,” as defined in the GDPR and U.S. state laws, should be considered “data fiduciaries.” This definition offers two benefits: (1) defining data fiduciaries as data controllers provides a workable definition that corresponds with fiduciary theory, and (2) harmonizing U.S. and GDPR law. Finally, this paper will argue that companies subject to state consumer privacy laws should be considered “data controllers” by default and bear the burden of rebutting this presumption. This presumption reinforces the substantive policy behind consumer privacy law, accounts for the probability that parties violating consumer privacy laws will most likely be data controllers, and allocates the burden to the party with superior access to the evidence

How to Search The Colorado House and Senate Journals Collection In Colorado Law’s Scholarly Commons

Directions for how to search the Colorado House and Senate Journals digital collection.https://scholar.law.colorado.edu/colorado-house-and-senate-journals/1580/thumbnail.jp

Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property

Pay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or have formerly been incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation. Pay-to-stay laws have survived constitutional challenges thus far, but some state legislatures have recently faced public pressure to abolish or limit the scope of their pay-to-stay regimes. This Article criticizes pay-to-stay statutes generally while addressing the special concerns arising when states use these laws to take inherited property as reimbursement. In particular, when states seize inherited property to satisfy the costs of incarceration, the states interfere with the decedent’s freedom to choose their beneficiaries as well as the beneficiary’s freedom to inherit. As a practical matter, these statutes apply inequitably by disparately impacting people without substantial wealth and people from communities that have historically been systemically excluded from intergenerational wealth. More broadly, this Article considers the implications of this practice on America’s carceral state. First, authorizing the government to seek reimbursement for incarceration costs from a broad range of sources reduces the government’s sense of urgency to decarcerate. Put simply, if incarceration is “user-funded” rather than taxpayer-funded, lawmakers are disincentivized from meaningfully addressing mass incarceration. Second, when private prisons administer the incarceration, a for-profit entity yields a profit beyond the costs of incarceration. This is unconscionable generally but is especially so when the assets seized are inherited property. Third, pay-to-stay perpetuates a cycle of poverty that is known to be counterproductively criminogenic. The families and communities of the affected persons experience the harms of this poverty cycle. This Article concludes by proposing the abolition of pay-to-stay statutes generally. At the very least, these statutes should not permit the state to intercept inheritances

Creative Jurisprudence: The Paradox of Free Speech Absolutism

Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it sidesteps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of free speech, then shuns any form of judicial scrutiny or balancing test, instead ruling categorically in favor of speechclaimants. Such a shift represents a departure from traditional First Amendment jurisprudence, effectively ignoring tests that weigh the right to free expression against other critical constitutional values, including equality, equal protection, and nondiscrimination. This Article critically examines the choices by the judiciary, specifically the United States Supreme Court in 303 Creative v. Elenis, to adopt this free speech absolutist position. It documents the evolution of this trend, critiques its underpinnings, and proposes refinements that, if implemented, would help ensure the Court’s approach to content-based speech regulation is principled, sighted for valid government interests, and attuned to a necessary consideration of the broader spectrum of constitutional values. By doing so, it seeks to reinvigorate a more balanced and comprehensive judicial methodology that recognizes the multifaceted nature of constitutional rights and the importance of their equitable application

It’s Past Time: Unionization and Self-Determination in Minor League Baseball

For more than a century, labor disputes have tormented the relationship between American professional baseball players and management. Although Major League Baseball players unionized in the 1960s, disagreements over workplace conditions and ever-growing profit allocations endured for decades. The first thirty years of collective bargaining between players and League post-unionization fostered notable improvements in players’ labor conditions. However, those years were also plagued by acrimonious negotiations, grievances, lawsuits, lockouts, strikes, and eventually, the cancellation of the 1994 World Series. The story in Minor League Baseball is altogether different. Its players, despite their close nexus with the Major League game, did not unionize alongside their Major League counterparts sixty years ago, and the workforce has suffered the consequences. Further frustrating MiLB labor progress is the sport’s long-standing exemption from antitrust law and its exclusion from minimum wage and overtime requirements at both the federal and state level. These harms perpetuated severe working conditions, including long hours, grueling travel schedules, minimal job security, and fixed wages, placing Minor League players squarely in the throes of poverty