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Patent Invalidation Costs, Greg Reilly
Patent Invalidation Costs, Greg Reilly
Denver Law Review
Over the past decade, patent invalidation has become easier and more common. Because invalid patents fail the statutory requirements, should not have issued, and impose significant costs, many observers have celebrated this development. Yet an undercurrent of concern exists among scholars, patent system participants, and even Supreme Court Justices. Though sometimes motivated by the self-interest of patent owners, this concern partially reflects a legitimate problem: even properly invalidating a patent years after its issuance imposes costs on patent owners, costs that would not exist if the Patent Office had rejected the patent during examination. The costs of invalid patents are …
Facilitative Fair Use, Michael Mattioli
Facilitative Fair Use, Michael Mattioli
Denver Law Review
Recent generative artificial intelligence (AI) copyright lawsuits have ignited a crucial debate about the future of intellectual property. The technology involved is complex, but the essential conflict is simple: creators are trying to stop machines that are capable of imitating them from doing just that. These are familiar battle lines. From the loom to the first camera, inventions have long triggered anxieties about technology’s potential to displace artistry. Much of the commentary today focuses on AI’s potential to mimic creators, echoing these earlier concerns. However, this framing misses a key insight: AI is a powerful tool for widely facilitating the …
Safeguarding Children's Voices In Child Protective Proceedings, Stephanie L. Tang
Safeguarding Children's Voices In Child Protective Proceedings, Stephanie L. Tang
Denver Law Review
In child protective proceedings, courts face the difficult task of determining the permanent placement of a child that promotes their well-being and safety, even if it means terminating their parents’ rights. Every year, authorities wrongfully and forcibly remove thousands of children from their families and homes. It is imperative that courts and attorneys adopt steps to provide children a voice and to guarantee children’s rights in these proceedings. Courts hear children’s preferences in child protective proceedings through four primary avenues: (1) appointment of a representative for the child, (2) direct in-court testimony, (3) in camera judicial interviews, and (4) admission …
Vol. 102, No. 1: Full Issue, Denver Law Review
Vol. 102, No. 1: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
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 …
Vol. 101, No. 4: Table Of Contents, Denver Law Review
Vol. 101, No. 4: Table Of Contents, Denver Law Review
Denver Law Review
No abstract provided.
Vol. 101, No. 4: Full Issue, Denver Law Review
Vol. 101, No. 4: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
How Traditional Legal Rhetoric's Myth Of Neutrality Sustains Capitalism, Elizabeth E. Berenguer
How Traditional Legal Rhetoric's Myth Of Neutrality Sustains Capitalism, Elizabeth E. Berenguer
Denver Law Review
Through the lens of critical and comparative rhetoric, this Article examines how traditional legal rhetoric—the dominant analytical framework employed in the United States legal system—sustains capitalism and preserves inequities, such as financial precarity. This Article identifies the features that traditional legal rhetoric shares with the free capitalist market and then uses those features as an analytical framework to examine two cases that align with the theme of this Symposium on financial precarity and late capitalism: Bank of America v. Caulkett and Citizens United v. FEC. Comparing these two cases, the Court uses the same analytical tools of traditional legal rhetoric, …
Monopoly Capital, Militarism, And Environmental Degradation, Daniel Auerbach, Brett Clark
Monopoly Capital, Militarism, And Environmental Degradation, Daniel Auerbach, Brett Clark
Denver Law Review
Research within the natural and social sciences increasingly concludes that business as usual—economic growth—is leading to significant ecological disruption. Additionally, scholars have identified militaries as a significant driver of environmental degradation. Typically, these two social institutions are understood as being separate, but operating in relation, to each other. In this article, we focus on the interrelation and integration of the military and the economy through the rise of the military-industrial complex in order to illuminate the underlying logic that amplifies the environmental impacts of these institutions. More specifically, we assess how monopoly capital’s dynamics influence the development of military weapons …
The Rpl Effect, Rashmi Goel
The Supreme Court, The First Amendment, And The Erosion Of Public Employer Managerial Authority, Anne Marie Lofaso, Martin H. Malin
The Supreme Court, The First Amendment, And The Erosion Of Public Employer Managerial Authority, Anne Marie Lofaso, Martin H. Malin
Denver Law Review
For nearly two centuries, public sector employment in the United States was governed by the privilege doctrine, also known as the right-privilege distinction, which stripped public employees of their citizenship rights by denying them protection against adverse employment actions retaliating against their exercise of those rights. In 1967, in Garrity v. New Jersey, the U.S. Supreme Court reversed course and found, in the context of a government investigation of state police officers who allegedly fixed traffic tickets, that the state could not coerce those officers to waive their constitutional right to remain silent during the investigation by threatening to fire …
A Rpl In Time: A Brown Buffalo's Observations On The Ongoing Struggle Of Civic And Racial Nationalism In Higher Education - Circa 2023, Tom I. Romero Ii
A Rpl In Time: A Brown Buffalo's Observations On The Ongoing Struggle Of Civic And Racial Nationalism In Higher Education - Circa 2023, Tom I. Romero Ii
Denver Law Review
No abstract provided.
From Whiteboard To Statement Of Principles: The Development Of The Rocky Mountain Collective On Race, Place & Law's Principles, Katherine Steefel
From Whiteboard To Statement Of Principles: The Development Of The Rocky Mountain Collective On Race, Place & Law's Principles, Katherine Steefel
Denver Law Review
No abstract provided.
The Politics Of Proportionality In State Civil Rulemaking, Miyoko T. Pettit-Toledo
The Politics Of Proportionality In State Civil Rulemaking, Miyoko T. Pettit-Toledo
Denver Law Review
In the wake of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP)—particularly with the perceived constriction of discovery through the revised federal proportionality standard in Rule 26(b)(1)—a wave of critics quickly emerged. Some commentators highlighted how procedural reforms heightened barriers to accessing federal courts, sharply limited claim development through discovery, and impeded opportunities for trial. Others detailed well-founded concerns about federal rulemakers’ potentially nefarious motivations, given their mostly conservative, Republican, pro-corporate defense backgrounds. Still others rightly worried that the federal proportionality standard (with its six factors), when applied by certain federal judges, would potentially stifle discovery, thereby …
Rpl, Crt, & Latcrit: "Finding The 'Me' In The Legal Academy", Roberto L. Corrada
Rpl, Crt, & Latcrit: "Finding The 'Me' In The Legal Academy", Roberto L. Corrada
Denver Law Review
No abstract provided.
From A Rpl In The Classroom To A Wave In The World: Coursework Focused On Race, Place & Law, Lindsey Webb
From A Rpl In The Classroom To A Wave In The World: Coursework Focused On Race, Place & Law, Lindsey Webb
Denver Law Review
No abstract provided.
States As Laboratories: Colorado Constitution (Reactants) + Independent State Constitutionalism (Catalyst) = Constitutional Lgbtq+ Protections (Products), Pelecanos
Denver Law Review
This Article began as a research project on the current state of LGBTQ+ rights under the Constitution of the State of Colorado during an internship at the American Civil Liberties Union of Colorado. It quickly became an extensive examination of state constitutionalism, Colorado history, and queer theory. Ultimately, this Article imagines how the Colorado Supreme Court might interpret Colorado constitutional provisions to create more protections for LGBTQ+ people.
Passing The Buck: The Perils Of Oklahoma V. Castro-Huerta, Adam Crepelle, Timothy Purdon, Brendan Johnson
Passing The Buck: The Perils Of Oklahoma V. Castro-Huerta, Adam Crepelle, Timothy Purdon, Brendan Johnson
Denver Law Review
The Supreme Court’s 2022 decision in Oklahoma v. Castro-Huerta upended federal Indian law by allowing states to prosecute crimes involving Indians committed in Indian country. Castro-Huerta created a concurrent jurisdiction over Indian country crimes involving non-Indians. While concurrent jurisdiction increases the number of law enforcement agents with jurisdiction, it also creates opportunities for those law enforcement agents to shirk responsibility. Neither state nor federal law enforcement is accountable to tribes, so Castro-Huerta is likely to create a pass the buck mentality among non-Indian law enforcement. Moreover, there is little to indicate expanding state authority over tribes will benefit Indians. In …
Haaland V. Brackeen: The Indian Child Welfare Act, States' Rights, And The Survival Of America's First Peoples And Nations, Andrew B. Reid
Haaland V. Brackeen: The Indian Child Welfare Act, States' Rights, And The Survival Of America's First Peoples And Nations, Andrew B. Reid
Denver Law Review
At the end of its 2023 term, the United States Supreme Court issued a long-awaited decision on the Indian Child Welfare Act, Haaland v. Brackeen. The Court was presented with the direct conflict between three well-established bodies of constitutional law: (1) the right of individuals against racial discrimination, (2) the rights reserved by the states under Tenth Amendment federalism, and (3) federal supremacy over the states in matters concerning Native peoples and nations. These conflicts risk the survival of Native families, communities, and culture as well as the collective rights of Native peoples to their survival as inherently sovereign nations …
Vol. 101, No. 2: Table Of Contents, Denver Law Review
Vol. 101, No. 2: Table Of Contents, Denver Law Review
Denver Law Review
No abstract provided.
Vol. 101, No. 2: Full Issue, Denver Law Review
Vol. 101, No. 2: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
My Friend, Ved, Robert Hardaway
Judicial Diversity In Colorado: Increasing Representation Through Innovation, Monica M. Marquez Honorable, Sumi Lee
Judicial Diversity In Colorado: Increasing Representation Through Innovation, Monica M. Marquez Honorable, Sumi Lee
Denver Law Review
Research documents that diversity on the bench improves judicial decision-making, improves access to justice, and strengthens the rule of law. However, until 2019, no formal programs to increase judicial diversity existed within the Colorado Judicial Branch. In 2019, Colorado enacted legislation establishing an innovative, full-time judicial diversity outreach program that utilizes data and research to develop pipeline programs and amplify its impact through increased community engagement. Now, five years later, Colorado’s state court bench is more diverse than ever before. This Article discusses the development of the Judicial Diversity Program in Colorado and best practices for other states interested in …
Immigration Enigma: Intersections Between Immigration Status And Minimum Mandatory Sentences In Home Rule Municipalities, Dylan Fair
Denver Law Review
Immigration law is a complicated and constantly evolving legal landscape. When non-citizens are accused or convicted of a misdemeanor crime the two most important potential consequences are inadmissibility or deportation. This Comment will look at two major triggers for deportation and inadmissibility. First, “significant misdemeanors,” or crimes that carry a potential jail time of 365-days or higher, immediately initiate inadmissibility or deportation proceedings. Second, crimes that are classified as Crimes Involving Moral Turpitude also automatically trigger immigration consequences. Because these immigration charges are litigated in criminal courts, to be effective counsel criminal defense lawyers need to take certain steps to …
Re-Writing Precedent: An Exploration Of The Negative Impact On Native Rights In The Wake Of Oklahoma V. Castro-Huerta, Brooke Hare
Re-Writing Precedent: An Exploration Of The Negative Impact On Native Rights In The Wake Of Oklahoma V. Castro-Huerta, Brooke Hare
Denver Law Review
The word “sovereignty” implies “freedom from external control” and is synonymous with the terms autonomy, self-determination, and independence. That is, at least, how Merriam-Webster defines the term and how the Supreme Court treated Native Americans through the careful development of over 200 years of case law. The current bench of the Supreme Court, however, had a different perception of how the relationship between federal, state, and tribal governments should function. In its decision in Oklahoma v. Castro-Huerta, the majority decided the state now has authority to prosecute crimes traditionally reserved for the federal government. This decision incorrectly frames the jurisdictional …
Racial Bias, Accomplice Liability, And The Felony Murder Rule: A National Empirical Study, G. Ben Cohen, Justin D. Levinson, Koichi Hioki
Racial Bias, Accomplice Liability, And The Felony Murder Rule: A National Empirical Study, G. Ben Cohen, Justin D. Levinson, Koichi Hioki
Denver Law Review
Two long criticized prosecutorial tools—the felony murder rule and the accomplice liability doctrine—play an outsized role in the operation of American homicide law. Though each of these tools have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy is also defined by the way they function symbiotically and specifically to heighten racialized punishment. This Article addresses the weighty combined reach of the accomplice liability doctrine and felony murder rule, and proposes that racial bias has fueled the operation and survival of these tools. Specifically, it suggests that implicit racial …
The Shape Of Consumer Contracts, Andrea J. Boyack
The Shape Of Consumer Contracts, Andrea J. Boyack
Denver Law Review
Modern consumer contracts are the bane of contract law and theory. Freedom of contract justifications are premised on party autonomy and transactional efficiency, but theories justifying contract enforcement fail to explain why the law should treat company-crafted terms as presumptively binding on consumers. Consumer protection advocates point out that lower thresholds for manifesting assent endorsed by the recent Restatement of the Law of Consumer Contracts may result in consumers being bound to terms of which they were reasonably unaware. Other scholars point out that mere knowledge of company terms and conditions does almost nothing to protect consumers in any case …
Vol. 101, No. 1: Full Issue, Denver Law Review
Vol. 101, No. 1: Full Issue, Denver Law Review
Denver Law Review
No abstract provided.
The Eighth Amendment And Medical Consensus On Gender Affirming Care: Reexamining The Dissentals In Edmo V. Corizon, John Parsi
Denver Law Review
Medical and scientific organizations widely adopt the World Professional Association of Transgender Health Standards of Care as the authority on gender affirming care. Despite this consensus, the legal, political, and policy environments often see only controversy. For example, the Ninth Circuit Court opinion in Edmo v. Corizon held that denying an incarcerated transgender person suffering from severe gender dysphoria—resulting in two attempts at self-castration, cutting to reduce genital distress, and suicidal ideations—violated the Eighth Amendment. The majority denied the State of Idaho’s petition for a rehearing en banc, but ten judges joined in three separate dissents to the denial of …
Anti-Transgender Legislation In Arizona, Alabama, And Arkansas: Arbitrary Moral Discrimination Masquerading As Child Protection, Austin Hoenig
Anti-Transgender Legislation In Arizona, Alabama, And Arkansas: Arbitrary Moral Discrimination Masquerading As Child Protection, Austin Hoenig
Denver Law Review
The twenty-first century saw rapid positive changes in the perception of the LGBTQIA+ community. However, an onslaught of anti-transgender legislation seeking to criminalize various aspects of transgender existence continues to sweep across the United States. This Comment analyzes laws in Arizona, Alabama, and Arkansas that target transgender children. The Comment posits that these laws are not effective as to their stated purposes of child protection. It also argues that the laws are facially discriminatory because they inexplicably consider transgender regret but ignore cisgender regret and disallow transgender affirmation but allow cisgender affirmation. The Comment goes on to argue that the …