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Building Belonging, Meera E. Deo
Building Belonging, Meera E. Deo
Denver Law Review
Given the end of affirmative action as we know it, a decline in numeric representation of students of color in higher education seems inevitable—resulting in devastating losses for legal education, the legal profession, and American leadership. Yet those who seek to maintain diverse educational institutions cannot focus their attention solely on cultivating novel admissions strategies. We must couple recruitment with retention. Belonging, a student’s malleable sense of their connection to campus, is a critical tool for improving retention rates as well as academic outcomes and student wellness. Critical Race Theory (CRT) is instructive in this context as a framework that …
Witness-Washing Facial Recognition Technology, Nathan E. Rouse
Witness-Washing Facial Recognition Technology, Nathan E. Rouse
Denver Law Review
Law enforcement investigations are increasingly driven by hidden algorithmic tools, without disclosure of those tools to the people being prosecuted or the public at large. Facial Recognition Technology, for example, has been used by police to identify suspects in investigations since 2001. Despite the widespread and growing use of Facial Recognition Technology in police investigations, its scientific validity has never been tested in court, and its secret use has prevented it from being challenged on constitutional grounds. This Article coins the term “witness-washing” to describe the mechanism by which this immense evasion has occurred. Witness-washing occurs when law enforcement uses …
Voting Rights In Kansas After League Of Women Voters V. Schwab, Richard E. Levy
Voting Rights In Kansas After League Of Women Voters V. Schwab, Richard E. Levy
Denver Law Review
Recently, in League of Women Voters of Kansas v. Schwab (League II), the Kansas supreme court addressed the constitutionality of a Kansas statute that purported to combat election fraud. In League II, the court invalidated a provision criminalizing conduct that leads others falsely to believe the actor is an election official, rejected some challenges to a signature verification requirement but remanded for further consideration of others, and upheld a provision limiting the number of ballots that a single person could submit on behalf of others during an election. The decision has important implications not only for voting rights in Kansas …
Asynchronous Trials: A New Approach To High-Volume Civil Adjudication, Henry Z. Wang
Asynchronous Trials: A New Approach To High-Volume Civil Adjudication, Henry Z. Wang
Denver Law Review
For thousands of years, trials were held in brick-and-mortar courthouses. Then COVID-19 ravaged the world, forcing many businesses and institutions—including courts—to move their operations online. For the first time, many people experienced the benefits of online trials that are held via videoconference software such as Zoom. But Zoom fatigue is real. Now that the pandemic has lessened and courts are no longer urgently adapting to a virtual format, we must more thoughtfully consider what judicial innovations should come next. Outside of the courtroom, this revolution in communication methods has profoundly affected people’s daily lives: we have switched from almost entirely …
Using Nuisance Law To Advance Food Safety, Timothy D. Lytton
Using Nuisance Law To Advance Food Safety, Timothy D. Lytton
Denver Law Review
This Essay proposes a novel approach to the most urgent food safety problem currently facing U.S. consumers: fresh produce contaminated with virulent microbial pathogens. Despite extensive regulation, growers have been unable to rid their fields of toxic bacteria, and processors have been unsuccessful in sanitizing tainted produce before it reaches store shelves. As a result, tainted produce sickens millions of consumers every year. An emerging consensus is calling for new efforts to address one source of the problem. Nearby cattle operations produce manure that contains harmful pathogens. When this manure escapes from grazing fields or feed lots—for example, via stormwater …
Vol. 102, No. 3: Table Of Contents, Denver Law Review
Vol. 102, No. 3: Table Of Contents, Denver Law Review
Denver Law Review
No abstract provided.
Vol. 102, No. 3: Full Issue, Denver Law Review
Vol. 102, No. 3: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
Vol. 103, No.1: Table Of Contents, Denver Law Review
Vol. 103, No.1: Table Of Contents, Denver Law Review
Denver Law Review
No abstract provided.
The Misconceived Personal-Benefit Requirement Of Insider Trading Law: About The Insecurities Markets, Kenneth R. Davis
The Misconceived Personal-Benefit Requirement Of Insider Trading Law: About The Insecurities Markets, Kenneth R. Davis
Denver Law Review
In Dirks v. SEC and Salman v. United States, the Supreme Court held that, under Section 10(b) of the Securities Exchange Act, tipper/tippee liability arises only if the tippee confers a benefit on the tipper. The ostensible justification for this rule arises from a mistaken premise. The error is rooted in the so-called classical theory of insider trading. When a corporate insider trades on material, nonpublic corporate information, the Supreme Court has held that the insider faces liability because that person profited from the trade. Building on this mistaken premise, the Court has held that when a tipper receives a …
Vol. 103, No.1: Full Issue, Denver Law Review
Constitutional Dead Zones: Problematic Trends For Seizures Of Cell Phones Connected To The Recording Of Protests And Police Activity, Zachary R. Cormier
Constitutional Dead Zones: Problematic Trends For Seizures Of Cell Phones Connected To The Recording Of Protests And Police Activity, Zachary R. Cormier
Denver Law Review
Cell phones are free speech machines. They have been particularly important in recent social movements because they allow an individual to record protests or police activity and share such experiences with a world-wide audience on social media. In these circumstances, the Fourth Amendment’s protection of an individual’s unfettered property right to possess their cell phone overlaps with their First Amendment right to engage in these core free speech activities. Both rights are put to the test when there is conflict with police in connection with the recording. My survey of recent case law provides numerous examples where an individual’s cell …
"Fixing" The Classical Legal Tradition, Jamie G. Mcwilliam
"Fixing" The Classical Legal Tradition, Jamie G. Mcwilliam
Denver Law Review
A “moral turn” in jurisprudence—in which scholars and judges are making overt appeals to the classical legal tradition and its natural law principles—has been gaining steam. Originalism, with its focus on posited law, is increasingly viewed as a morally empty jurisprudence. But positive law is a necessary, though not sufficient, component of the classical tradition, providing the means for a society to advance the common good. With that in mind, this Article explains how certain core originalist theses provide a deeper understanding of the mechanics of how positive law fulfills its moral role. It, therefore, argues that these concepts should …
The Paradox Of Federal Oversight In Police Misconduct Investigations, Ilana M. Friedman
The Paradox Of Federal Oversight In Police Misconduct Investigations, Ilana M. Friedman
Denver Law Review
This Article examines the relationship between state prosecutors, federal prosecutors, and the Civil Rights Division inside the United States Department of Justice in conducting police misconduct investigations and prosecutions. While previous literature documents prosecutors’ enormous concentration of power, they remain an understudied population in the criminal legal system, particularly in how they investigate and prosecute police officers accused of crimes. To remedy this gap, I conducted over fifty interviews with prosecutors, civilian investigators, and other legal professionals working in the domain of police misconduct investigations and prosecutions in multiple field sites around the United States. This Article is one of …
The Protection Illusion: Sexual Harassment Policies And Low-Wage Workers, Sherley Cruz
The Protection Illusion: Sexual Harassment Policies And Low-Wage Workers, Sherley Cruz
Denver Law Review
“To be heard as complaining is not to be heard. To hear someone as complaining is an effective way of dismissing someone. You do not have to listen to the content of what she is saying if she is just complaining . . . .” –Sara Ahmed, Complaint! This Article reveals how workplace sexual harassment policies may appear legally compliant but actually create significant barriers to reporting. The non-reporting of harassment eviscerates the protections the policies are supposed to provide employees by creating a loophole for employers to escape liability. A critical review of these policies under procedural and testimonial …
Conduct-As-Status In Skrmetti's Gender-Affirming Care Bans, Robert Blake Watson, Neha Srinivasan
Conduct-As-Status In Skrmetti's Gender-Affirming Care Bans, Robert Blake Watson, Neha Srinivasan
Denver Law Review
With its decision in United States v. Skrmetti, the Supreme Court has permitted government prohibitions on gender-affirming care for certain transgender individuals. Although these bans construe themselves as barring medical procedures in neutral, conduct-based terms, we contend that the laws discriminate on the basis of transgender status and sex. Drawing from equal protection jurisprudence—including decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges—we contextualize the gender-affirming care bans within the Court’s history of rejecting efforts to mask status-based discrimination through ostensibly neutral restrictions on conduct. By underscoring that both cisgender and transgender individuals seek gender-affirming interventions, …
Vol. 102, No. 4: Table Of Contents, Denver Law Review
Vol. 102, No. 4: Table Of Contents, Denver Law Review
Denver Law Review
No abstract provided.
Protesting, Cash Bail, And (Un)Equal Protection: Using Empirical Data To Prove Equal Protection Violations, Alireza Nourani-Dargiri
Protesting, Cash Bail, And (Un)Equal Protection: Using Empirical Data To Prove Equal Protection Violations, Alireza Nourani-Dargiri
Denver Law Review
Despite considerable data demonstrating disparate government treatment of racially minoritized groups, recent race-based equal protection cases have met only measured success because courts often find statistical evidence of racial bias to be too attenuated. Without an explicitly racist statement, policy, or law made by government officials, many courts will not intervene in systems that have long, consistent histories of racially discriminatory impacts. But this contradicts the purpose of the Equal Protection Clause: to prevent people of color—particularly Black people—from being discriminated against and kept in a functional caste system. Courts and scholars have consistently identified this purpose, and throughout equal …
Islands Of Inequality: The Fourteenth Amendment's Reach After Vaello Madero, Sigrid Vendrell-Polanco
Islands Of Inequality: The Fourteenth Amendment's Reach After Vaello Madero, Sigrid Vendrell-Polanco
Denver Law Review
The Supreme Court’s 2022 decision in United States v. Vaello Madero has reignited discussions about the application of the Fourteenth Amendment’s Equal Protection Clause to residents of U.S. territories. This Article examines how the ruling, which upheld the exclusion of Puerto Rico residents from the Supplemental Security Income (SSI) program, reflects and reshapes the constitutional relationship between the federal government and territorial inhabitants. Although the Court said it was not “irrational” for Congress to exclude Puerto Rico (applying only “rational basis” review), that very ruling underscored a longstanding tension: U.S. citizens in the territories do not receive the same constitutional …
Vol. 102, No. 4: Full Issue, Denver Law Review
Vol. 102, No. 4: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
Revisiting Section 2 And The Electors Clause: On The Right Of The People To Choose Presidential Electors, Mark Bohnhorst
Revisiting Section 2 And The Electors Clause: On The Right Of The People To Choose Presidential Electors, Mark Bohnhorst
Denver Law Review
Recent scholarship argues that Section 2 of the Fourteenth Amendment protects the people’s right to elect presidential electors. This Article offers fresh perspectives both on Section 2 scholarship and on the underlying history of the Electors Clause. It begins with a review of modern interpretations of the Fourteenth Amendment. It then summarizes the author's recent research into the text and structure of the Electors Clause and its ratification. It also offers new perspectives on consequential debates over the constitutionality of legislative election that began in 1800 and ended in 1826. When Section 2 was drafted in June 1866, the popular …
Equality And Protection: The Forgotten Meaning Of The Fourteenth Amendment, David H. Gans
Equality And Protection: The Forgotten Meaning Of The Fourteenth Amendment, David H. Gans
Denver Law Review
At the heart of the Fourteenth Amendment’s Equal Protection Clause are two fundamental principles: equality and protection. Tragically, the Supreme Court has read one of these two principles—protection—out of our foundational charter. While the Justices repeatedly invoke the textual promise of equal protection, their precedent turns a blind eye to the constitutional command of protection and the idea that, in return for allegiance, the government owes its citizenry protection. Until the Supreme Court takes seriously the right to protection embedded in the Fourteenth Amendment, its jurisprudence will continue to be deeply flawed. As the text and history laid out in …
Negating Democratic Consent: How The Colorado Supreme Court Has Nullified Colorado Constitutional Limits On Taxes, Debt, And Corporate Privilege, David B. Kopel
Negating Democratic Consent: How The Colorado Supreme Court Has Nullified Colorado Constitutional Limits On Taxes, Debt, And Corporate Privilege, David B. Kopel
Denver Law Review
The Constitution of the State of Colorado strictly limits the Colorado government’s power to impose taxes and incur debt, including by requiring voter approval of higher taxes and new debt. Government debt must be approved by taxpayers and is subject to a debt cap, with a time limit of fifteen years for construction debt. The Colorado constitution also forbids governments to grant special privileges to businesses. For example, governments may not pledge their credit to benefit corporations, may not otherwise go into business with corporations, may not enact special laws for the benefit of a particular business, may not give …
Vol. 102, No. 2: Table Of Contents, Denver Law Review
Vol. 102, No. 2: Table Of Contents, Denver Law Review
Denver Law Review
No abstract provided.
The Tenth Circuit's Blueprint For Minimizing En Banc Rehearings, Steven M. Foster Jr., Anthony R. Guttman
The Tenth Circuit's Blueprint For Minimizing En Banc Rehearings, Steven M. Foster Jr., Anthony R. Guttman
Denver Law Review
The Tenth Circuit is known for two things: its collegiality and its downward trend of en banc rehearings. Recognizing this trend, two Tenth Circuit judges recently outlined in the Denver Law Review “best practices” for submitting en banc petitions. In response, some scholars propose that this practitioner’s guide is not worth the read because of the larger problem at hand. Namely, they predict that even with better petitions, the Tenth Circuit will remain unwilling to rehear cases en banc, thereby decreasing intracircuit uniformity. But this prediction overlooks key factors driving the trend. This Response accounts for one contributing factor—collegiality—causing the …
The Tenth Circuit's Nuanced Approach To Administrative Exhaustion Of Constitutional Claims, Yonatan Gelblum
The Tenth Circuit's Nuanced Approach To Administrative Exhaustion Of Constitutional Claims, Yonatan Gelblum
Denver Law Review
The Tenth Circuit is typically more reluctant than most other courts of appeals to treat constitutional claims differently from nonconstitutional claims for purposes of administrative exhaustion. Consequently, the Tenth Circuit is less likely to exempt constitutional claims from exhaustion mandates. The Tenth Circuit usually requires litigants to raise these claims before a responsible agency prior to seeking relief in court, absent a particularized showing of undue burden or futility. Notably, despite the Supreme Court’s recent disparagement of administrative exhaustion of constitutional challenges to agency structure in Axon v. FTC and Carr v. Saul, the Tenth Circuit recently reaffirmed the continuing …
"Recognize Me As Who I Am": Names, Pronouns, And The Intersection Of Title Vii And Title Ix, Ariell Bachman
"Recognize Me As Who I Am": Names, Pronouns, And The Intersection Of Title Vii And Title Ix, Ariell Bachman
Denver Law Review
In 2020, the Supreme Court decided Bostock v. Clayton County, a case about Title VII of the Civil Rights Act of 1964. Bostock interpreted Title VII to prohibit employers from using an employee’s sexual orientation or gender identity in adverse employment decisions. Many federal circuit courts and the U.S. Department of Education (DOE) have used Bostock’s reasoning to conclude that Title IX of the Educational Amendments of 1972 prohibits schools from treating a student adversely based on that student’s sexual orientation or gender identity. However, many states and school districts have mandated the intentional use of the incorrect name and …
Public Health Emergencies And The Second Amendment, Amy Swearer, Paul J. Larkin
Public Health Emergencies And The Second Amendment, Amy Swearer, Paul J. Larkin
Denver Law Review
For many decades, gun control advocates, hoping to shift the terms of the debate to more favorable terrain, have argued that gun violence should be viewed primarily through the lens of public health. In September 2023, New Mexico Governor Michelle Lujan Grisham and New Mexico Secretary of Health Patrick Allen pushed that rationale to its extreme and beyond. Under the auspices of the state’s public health emergency laws, they issued an executive order and agency directive that effectively eliminated the right of ordinary citizens to bear arms in public in the state’s most populous county. That attempt to circumvent the …
Vol. 102, No. 2: Full Issue, Denver Law Review
Vol. 102, No. 2: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
Victim Impact Statements In Mass Tort Bankruptcy Cases: Balancing Chapter 11'S Proceduralism With Tort Law's Commitment To Nonmonetary Recovery, Julia Boccagno
Victim Impact Statements In Mass Tort Bankruptcy Cases: Balancing Chapter 11'S Proceduralism With Tort Law's Commitment To Nonmonetary Recovery, Julia Boccagno
Denver Law Review
Bankruptcy has evolved into tortfeasors’ choice of law for resolving mass tort litigation. The United States Bankruptcy Code is equipped with procedural devices designed to maximize litigants’ financial recovery and enhance judicial efficiency. Although bankruptcy procedures aim to resolve widespread liability and open the courthouse doors to litigants who may not otherwise recover, they simultaneously overlook the nonmonetary and dignitary objectives underlying tort law. This Note uses the Supreme Court’s recent decision in Harrington v. Purdue Pharma—a high-profile example of mass tort litigation resolved through bankruptcy—to examine the extent to which bankruptcy procedures are unable to fulfill the nonmonetary objectives …
Samia V. United States: The Ghost Of Sir Walter Raleigh Haunts Again, Rebekah S. Atnip
Samia V. United States: The Ghost Of Sir Walter Raleigh Haunts Again, Rebekah S. Atnip
Denver Law Review
In Samia v. United States, the United States Supreme Court grappled with whether the admission of a nontestifying codefendant’s redacted confession that implicates a nonconfessing codefendant violates that nonconfessing defendant’s right to confront opposing witnesses. The Court’s majority framed this issue as a conflict between defendants’ rights and judicial economy and then declared judicial economy the winner. This resolution threatens to elevate governmental interests over defendants’ rights to face their accuser and to test opposing witnesses’ memory and sincerity. Moreover, and perhaps more importantly, in holding that introducing such a confession does not violate the Confrontation Clause, the Court endangers …