Digital Commons Network^™

Reflections On Critical Race Theory In A Time Of Backlash, Athena D. Mutua

Denver Law Review

Reviewing my article on critical race theory (CRT), written over fifteen years ago, this Article revisits CRT and its fortunes in this moment of backlash. CRT has become a principal target for erasure in a raging political campaign that seeks to suppress discussions about racial and gender justice. It does so, in part, by using law to compel the miseducation of the American populace, including its children. The campaign suggests, in the case of race, that efforts to promote racial justice, combat racism, and employ race as an analytical lens-antiracism-is racist. That is, the rightwing argument has shifted from the …

Mapping And Mobilizing Legal Criticalities: Making The Move From Diaspora To Collective Or Legal Scholars Making A Difference As Cultural Warriors, Francisco Valdes

Denver Law Review

No abstract provided.

A Tribute From The Advisors Of The Denver Law Review In Honor Of The Law Review's One Hundredth Anniversary, Alan K. Chen, Ian Farrell, Nancy Leong, Justin Marceau, Viva R. Moffat, Eli Wald

Denver Law Review

No abstract provided.

Takings Federalization, Gerald S. Dickinson

Denver Law Review

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

Arbitrary Arbitrariness Review, Carrie Rosenbaum

Denver Law Review

The Supreme Court’s recent immigration law Administrative Procedure Act (APA) jurisprudence demonstrates the anti-democratic potential of this judicial review, which has not yet been explored in scholarly literature. Courts’ application of the arbitrary and capricious standard potentially curtails the ability of new presidents to carry out policies via agency action. Scholars have argued that when the courts employ arbitrariness review, their examination of an agency’s reasons for changing a prior Administration’s policy can stymie change and inhibit the will of the people. Further, arbitrariness review can foster volatility. The Supreme Court’s reasoned approach in the Deferred Action for Childhood Arrivals …

Uzuegbunam V. Preczewski: How The Injury-In-Fact Requirement Furthers Redressability Arguments, Allyson Beyer

Denver Law Review Forum

No abstract provided.

[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro

Denver Law Review

Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …

Pleading For Pre-Bargain Disclosure In State Legal Ethics, Anthony R. Guttman

Denver Law Review

Plea bargains dispose of over 97% of criminal matters in the United States’ criminal justice system. Proponents of plea bargaining typically justify the practice under the “shadow of trial” theory, claiming that plea bargains reflect predicted trial outcomes minus a discount for the prosecutorial resources saved. But scholars challenge this theory because other factors influence whether a defendant will enter a plea bargain. Among many are attorney competence, workloads, and legal resources. Yet a largely overlooked gap is that state ethics rules undermine the theory responsible for the legitimacy of plea bargaining. Each state has enacted a similar variation of …

The “Newest ‘Yellow Peril’”: How American Legal History Shaped The Rise In Asian American Hate Crimes In The Covid-19 Pandemic, Adam Minoru Yasui Estacio

Denver Law Review

The perpetual foreigner stereotype is the misconception that people of Asian descent are inescapably foreign and never truly “American.” This stereotype has plagued Asian Americans since the first Asian immigrants arrived in America and it continues to negatively impact Asian Americans today, regardless of the years, or even generations, that they have lived in the United States. This Comment first breaks down the perpetual foreigner stereotype into three “pillars”: First, Asian Americans, despite their best efforts to assimilate, are irreducibly foreign and therefore are unentitled to the rights and protections guaranteed to American citizens. Second, because they are unentitled to …

Minds Intertwined: The Cognitive Teamwork Of Federal Civil Rulemaking, Jordan M. Singer

Denver Law Review

Amending a Federal Rule of Civil Procedure is an act of intricate teamwork. Members of the Advisory Committee on Civil Rules must make sense of thousands of pieces of information, account for a variety of stakeholder perspectives, and anticipate the consequences of even the most modest rule change. This Article provides a unique look inside the rulemaking process, using personal interviews with Committee members, direct observations of Committee deliberations, and primary source documents to reconstruct the history of the 2020 amendment to Federal Rule of Civil Procedure 30(b)(6). It reveals a complex and deeply layered cognitive process that is likely …

Confronting Intellectual Property Nationalism, Cynthia M. Ho

Denver Law Review

Stories about nations engaging in vaccine (and medical) nationalism by hoarding limited COVID-19 vaccines and treatments are widespread, but there is a hidden phenomenon that has exacerbated vaccine nationalism and prolonged the pandemic: intellectual property nationalism or “IP nationalism.” This Article coins and explains this term and highlights its negative impacts. Essentially, some nations, primarily of the Global North, are hoarding essential knowledge protected by intellectual property (IP). This Article argues that IP nationalism has contributed to millions of unnecessary deaths and limited the growth of the global economy. Meanwhile, countries and pharmaceutical companies obscure the role of IP nationalism …

With Liberty And Reinsurance For All: The Deep Case For A Government Backstop In Health Care, Christina S. Ho

Denver Law Review

One long-overlooked government function is the provision of reinsurance to insurers and other private entities to help absorb catastrophic costs when losses exceed what those institutions could be expected to bear. Yet the U.S. government fails to reinsure the health plans of ordinary Americans, a step that would shield them from outlier health events. Consider, by contrast, the longstanding federal guarantee to banks and depositors against unusual liquidity risk. The lack of an explicit state-sponsored backstop for health risk is often taken to reflect a national aversion to entitlements. This Article challenges that premise by calling attention to the many …

The Environmental Contingencies, Capital Structure And Firm Performance Of Listed Firms, Sunday Amos Adeusi Dr, Oluwabunmi Akindele Olawaye

International Review of Business and Economics

Going concerns of business empires is predicated on the externality effect of environmental contingencies that influence the decisions of capital users. And the capability of capital users to circumnavigate both macro and micro environmental contingencies which cumulate to shareholders’ wealth maximization is crucial. Hence, the study aims of dissecting effect of macro and micro environmental contingences on the capital structure and firm performance. Generalized Method Moment (GMM) statistical tool is used to dissect perceived association amidst endogenous and exogenous variables. The results show that micro contingences such debt to equity, debt to assets and short-term liability have negative and statistically …

Free Trade Is Not Free: A Case For Fair Trade, Wardah Javaid Cheema

Electronic Theses and Dissertations

To this day, mainstream economists favor free trade policies as the best way to generate economic development. They do so at the expense of their unjustified romanticization of reductionist classical trade theories. This thesis seeks to comprehend the constraints of traditional trade theories and their inability to be applied to practical contemporary problems. Further, contrary to the fundamental assumption of free trade theory, there is ample evidence of government intervention in free trade agreements. These interventions solely encourage and protect large corporations and investors rather than the actual development and sustainability factors, namely labor and the environment. It all adds …

Til Valhall: The Formation Of Nordic Neopagan Identity, Religiosity, And Community At A Norwegian Heavy Metal Festival, Padraic M. Fitzgerald

Electronic Theses and Dissertations

A major draw of Nordic Neopaganism is the great degree of personal freedom practitioners have in the construction and performance of their spiritual identity. Nordic Neopaganism has no central hierarchy or unifying dogmatic system to dictate such endeavors. Instead, practitioners draw from the tradition’s body of “lore” -- the historical accounts, archaeological records, pre-Christian myths, folklore, and folk traditions from the Nordic cultural area -- to inform their religiosity. The works of visual artists, musicians, and scholar-practitioners inspired by elements of this body of lore serve to further constitute it. This lore provides the basis and inspiration for religious identity …

Queer Is Here, Hopefully To Stay: The Incorporation And Reception Of Lgbtq+ History At The History Colorado Center, Madeline Ohaus

Electronic Theses and Dissertations

Historically, the documentation of LGBTQ+ histories, struggles, and accomplishments has been absent from museum collections and exhibitions. Scholars argue that given the authoritative nature of museums and their influence on the public, exclusions of LGBTQ+ history can mount to institutional erasure of queer identities. However, in the past decade, there has been an increase in attempts to document and curate exhibitions highlighting and encouraging the public to engage with LGBTQ+ history. While this history is imperative to preserve and display, it can be met with controversy, leading some LGBTQ+ history exhibitions to be relocated or even removed. During the summer …

School District Demographic Change Through The Lens Of High School Students: A Phenomenological Case Study, Isaac S. Solano

Electronic Theses and Dissertations

Over the past two to three decades, inner-ring suburban school districts in certain areas around the United States have experienced significant demographic change. These shifts influence who lives in these communities, as well as who attends schools in these K–12 school districts. In a metropolitan area, in the Rocky Mountain West Region of the United States, numerous school districts are experiencing such shifts. Although past empirical research has examined shifts through the lens of school leaders and teachers, few studies have explored how students experience this change.

This qualitative hermeneutic phenomenological case study examines how high school students experience these …

Virtual Reality Influence On Moral Reasoning Through Compassion, Dennis W. Dunivan

Electronic Theses and Dissertations

This study investigates quantifiable links between virtual reality, moral reasoning, and compassion, contributing to the development of improved pedagogy for moral leadership development through experiential learning. It is the first empirical study to determine how specific virtual reality experiences potentially influence moral reasoning as measured by the DIT-2 (Rest et al., 1999), as well as the possible mediation effects of compassion on this relationship as measured by the Compassion Scale (Pommier et al., 2019). Although pedagogical implications are discussed, including the integration of virtual reality experiences into curriculum, the boundaries of this study are controlled to measure the direct influence …

Sense Of Community And (Third) Place Among Young Adults In Permanent Supportive Housing: A Mixed-Methods Inquiry, Danielle Maude Littman

Electronic Theses and Dissertations

Unhoused young people have often endured co-occurring experiences of marginalization, including long-term abuse and neglect from systems which have failed to support them. Permanent Supportive Housing (PSH) is a formal intervention which seeks to offer stability and support to young people. This three-manuscript dissertation uses community-engaged mixed methods to understand sense of community, sense of place, and third places among young adults in PSH in Grand Junction, Colorado.

The first manuscript used longitudinal mixed methods to understand how PSH residents’ (N = 27) sense of community shifts over 1.5 years of living in PSH. We found that residents’ sense …

A Participatory Drone Mapping And Critical Physical Geography Of Water Security For Irrigation In Northern Ghana, Dinko Hanaan Dinko

Electronic Theses and Dissertations

Dam discourse frequently incorrectly assumes that their emergence unilinearly translates to an expansion of economic opportunities while not considering how dams become sites for the reproduction of inequality and injustice. This dissertation investigates how the politics of irrigation water access are nested in a complex web of physical materialities of the 'natural' environment and power relations, with lived consequences on differentiated social identities in semiarid Ghana. The research draws on transdisciplinary perspectives from political ecology, embodiment, critical physical geography, and mixed methods, including interviews, focus group discussions, surveys, participatory drone mapping, and laboratory analysis of soil biochemical properties. The study …

Black Quarterback, White Masks: A Critical Analysis Of The Nfl Anthem Protests, Cody Walizer

Electronic Theses and Dissertations

The NFL anthem protests were and are an important cultural moment and social movement. The widespread emulation of the protest, and the adoption of the kneel as a symbol of unity, reverence, and silent objection demonstrates the protests’ continued relevance. This dissertation critically analyzes Colin Kaepernick’s protest through the lens of racial rhetorical criticism (Flores, 2016) and Fanonian communication studies (Towns, 2020). Through the case studies of David Brooks, Lee Siegel, and Colin Fleming, and their New York Times opinion pieces on Kaepernick from 2016-17, this study argues that the common discourses surrounding the protest exist within the strategic rhetoric …

Identifying The Role Of Phospholipase D1 And Phosphatidic Acid In Exocytosis, Broderick L. Bills

Electronic Theses and Dissertations

Exocytosis is an essential process for intercellular communication in eukaryotic cells. This process involves significant changes in membrane curvature, and lipids and curvature-sensing proteins can assist these processes. One protein in particular, phospholipase D1 (PLD1), and its product, the lipid phosphatidic acid (PA), are involved in multiple exocytic processes. However, PLD1 and PA’s role in this process has remained unclear. In this work, PLD1 and the production of PA were visualized during exocytosis, and PA localization to regions of membrane curvature was established. Together, these results support the hypothesis that PLD1 production of PA stabilizes negative curvature during membrane fusion. …

Universal Basic Income (Ubi): A Cure-All Or Band-Aid?, Madison Beckner

Electronic Theses and Dissertations

With the triple crisis of capitalism looming and, in the U.S., a poorly performing welfare state, Universal Basic Income (UBI) has returned to popular attention. To assess whether this is warranted and, more importantly, to provide answer on the extent to which a UBI can or should be considered a cure-all, this work, first, examines the historical development of UBI proposals including those stemming from European Social Democrats and Libertarians. Next, pilot programs at the local, state, and national level are critically examined for their methodologies and empirical results. Turning, then, to theory on de-commodification, unpaid labor, and the equality-jobs …

Reviving Heritage In A Historic Gem City: Examining The Management Of History At The Colonial Quarter In St. Augustine, Florida, Madeline Bonner

Electronic Theses and Dissertations

The Colonial Quarter is a living history venue of Spanish and British colonial heritage in St. Augustine, Florida. Since 1966, the site has housed interpretive structures and programming related to St. Augustine’s colonial history. Over time, management of the site has fallen under the purview of the state of Florida, the city of St. Augustine, and the University of Florida Historic St. Augustine (UFHSA) Direct Support Organization, which functions as a managing agency for the state. In 2013, the UFHSA Board entered into a public-private partnership with the Colonial Quarter, LLC. This marks the first instance of private sector involvement …

Did The Superbowl Ad Curse Heighten Defined Contribution Plan Fiduciary Duties?: Deciphering The Legal And Ethical Landscape Of Cryptocurrency Options In 401(K)S, Lauren K. Valastro

Sturm College of Law: Faculty Scholarship

Regulating cryptocurrency’s place in America’s most popular retirement savings vehicle generates thorny legal, ethical, and social justice dilemmas. Too little regulation could hurt those at highest risk of underfunded retirement. Too much could exacerbate existing racial, ethnic, and gender inequities.

Though recent regulatory efforts suggest 401(k) administrators violate their fiduciary duty of care by offering cryptocurrency investment options to plan participants, the established fiduciary regime protects 401(k) plan participants from cryptocurrency risk while respecting their savings preferences. Yet, the current framework falls short of ethically and equitably serving all plan participants, particularly members of underserved communities — a problem largely …

The Not-So-Silent Period: Testimonios Of Recently Arrived Latinx Students, Teri M. Hutchinson

Electronic Theses and Dissertations

The purpose of this study was to explore and amplify the experiences of recently arrived Latinx¹ students as interpreted through their testimonios in educational borderlands. Through increasingly xenophobic discourses around immigrants and their children (Pérez Huber, 2015), U.S. public schools have become entrenched borderland spaces wherein the humanity of recently arrived students is voided through silencing them with labels of linguistic deficiency and cramming them into one-size-fits-all educational programming (Fine et al., 2007; Flores & Rosa, 2015). There is demand for research that explores the experiences of these children, especially in light of their continued marginalization through neoliberal programming …

Tactical Allocation Through The Lens Of Correlational Time-Variance, Determinants, And Regimes, T.H. Williams

Electronic Theses and Dissertations

We investigate correlations among six primary asset classes from January 1982 to December 2022. Our analysis extends existing literature, on the well-researched stock-bond correlation (SBC), by encompassing 14 supplementary asset class dyads and four correlational regimes. We challenge the archetype of correlational time-invariance that underlies buy-and-hold asset allocation strategies by implementing structural break tests and an innovative Wavelet Coherence (WC) methodology, where our findings reveal temporal instability. Through a multi-method statistical approach, we present robust and persuasive evidence of macroeconomic factors as determinants of temporal change. Leveraging time-varying Granger causality, we unearth elusive yet significant relationships. Our research pivots to …

Pass For Some, Fail For Others: An Empirical Analysis Of Law School Grading Changes In The Early Covid-19 Pandemic, David Sandomierski, John Bliss, Tayzia Collesso

Sturm College of Law: Faculty Scholarship

Legal education has a long and shameful history of excluding women, people of colour, and people from working-class backgrounds.1 Quantitative diversity measures have shown gradual improvement, recently reaching parity on gender, while racial diversity continues to lag behind. Beneath the surface of this numerical story, a large body of literature has illuminated systemic inequalities in students’ lived experiences of law school.2 This article asks how historically under-represented groups experience one of the key features of legal education: grading. We examine this issue by exploring the singular moment in the history of the modern JD program when law schools across North …

The Free Exercise Of Copyright Behind Bars, Viva R. Moffat

Sturm College of Law: Faculty Scholarship

Incarcerated people produce vast amounts of creative and expressive work – from paintings and sculptures to essays, novels, music, and NFTs – but they are rarely described as artists and their work is often not described as 'art'. Incarcerated people also do not regularly take advantage of copyright law, the primary form of protection for creative works, but they should. Copyright provides a strong set of rights that combines strains of free expression values with property rights elements. Copyright confers dignitary and expressive benefits, and for some creators, financial rewards. As such, copyright can be a tool to help incarcerated …

Mother Nature On The Run: The Sec, Climate Change Disclosure, And The Major Questions Doctrine, J. Robert Brown Jr.

Sturm College of Law: Faculty Scholarship

The Securities and Exchange Commission (SEC or Commission) has proposed a rule that addresses the disclosure needs of investors with respect to climate change. The proposal would require that public companies tell investors about the risks to their business associated with climate change and explain the system and strategy of governance for monitoring those risks. In addition, the proposal would mandate the disclosure of certain greenhouse gas emissions.

The SEC’s proposal arrived contemporaneously with the Supreme Court’s announcement of the “major questions” doctrine. A deliberate attempt to limit the authority of the executive branch, the doctrine would restrict agencies from …