DENVER LAW REVIEW
The Denver Law Review is the flagship journal of the University of Denver Sturm College of Law and strives to publish articles of the highest quality in all areas of the law. The Denver Law Review is one of the oldest legal journals in the United States, dating back to 1923. We have proudly featured such distinguished authors as U.S. Supreme Court Justices Sandra Day O’Connor, William O. Douglas, and Byron White, noted constitutional law scholar Erwin Chemerinsky, and consumer advocate Ralph Nader. ​The Tenth Circuit issue has featured pieces from Judges Timothy Tymkovich, Michael W. McConnell, and Marcia Krieger, as well as prominent scholars such as Dave Kopel and Marc Falkoff.
In this foreword to the Tenth Circuit Issue, Volume 102's Tenth Circuit Articles Editor, Kenneth Landers, reminders readers of the purpose behind this Issue—to engage with the law in and reaffirm Denver Law Review's commitment to its immediate community. ​​
Volume 102 • Issue 2 • Winter 2025
Critically responding to recent guidance on pursuing en banc review, this Article questions its practical utility within a circuit that seldom grants such petitions. While recognizing the procedural value of the recommendations, this Article contends that the Tenth Circuit’s exceptionally infrequent use of en banc review—averaging just over one instance every two years—renders such advice largely theoretical. It ultimately suggests that without a meaningful shift in the court’s en banc practices, efforts to refine petition strategy may have limited doctrinal or practical significance.​​
Litigants hoping to bypass administrative exhaustion by raising constitutional claims may find an unexpectedly high bar in the Tenth Circuit. This Article examines the Circuit’s rigorous and nuanced approach, which generally requires exhaustion even for structural constitutional challenges—despite recent Supreme Court decisions questioning the propriety of agency adjudication in such contexts. Arguing that this framework remains consistent with Supreme Court precedent, this Article offers a reasoned defense of the Tenth Circuit’s position and explores its strategic implications for both agencies and litigants.​​
The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims ♦ Yonatan Gelblum
The Tenth Circuit's Blueprint for Minimizing En Banc Rehearings ♦
Steven M. Foster, Jr. & Anthony R. Guttman
This Response aims to quell practitioner concerns regarding decreasing intracircuit uniformity, as it pertains to the Tenth Circuit's downward trend of en banc rehearings, and argues that this scarcity is not a problem, but a product of its deeply rooted collegiality. By tracing the historical function of en banc review and examining the court’s informal procedures, the Article contends that collegiality itself serves to preserve precedential uniformity—making frequent en banc review unnecessary.​​
Negating Democratic Consent: How the Colorado Supreme Court has Nullified Colorado Constitutional Limits on Taxes, Debt, and Corporate Privilege ♦ David B. Kopel
​This Article contends that the Colorado Supreme Court has eroded critical constitutional constraints on taxation, public debt, and corporate favoritism. Provisions such as the Taxpayer’s Bill of Rights and restrictions on public-private entanglements—designed to ensure fiscal restraint and democratic accountability—have been effectively nullified through judicial reinterpretation. As a result, Colorado’s constitutional framework has been subverted, enabling governance that prioritizes entrenched political interests over voter consent.​
Student Note ♦ Victim Impact Statements in Mass Tort Bankruptcy Cases: Balancing Chapter 11's Proceduralism with Tort Law's Commitment to Nonmonetary Recovery ♦ Julia Boccagno
​This Note argues that bankruptcy, increasingly used to resolve mass tort claims, fails to account for the nonmonetary and dignitary aims of tort law. Using Harrington v. Purdue Pharma as a case study, it proposes a right for mass tort victims to submit victim impact statements in bankruptcy proceedings, drawing from victims’ rights in criminal law, to better reconcile the aims of tort and bankruptcy and shed light on the often-overlooked issues with litigating mass tort claims in bankruptcy court.​​​
Public Health Emergencies and the Second Amendment ♦ Amy Swearer & Paul J. Larkin
This Article critiques New Mexico’s attempt to restrict the right of ordinary citizens to bear arms in public in the state’s most populous county under the guise of a public health emergency, arguing that such executive action is incompatible with the Second Amendment. It contends that loose applications of Bruen’s history-based test might offer governments in times of acute crisis a fair—but not unlimited—amount of authority to impose temporary, albeit severe, restrictions on core aspects of the right to bear arms in public. The Article concludes that even under a flexible application of Bruen’s historical test, the New Mexico order cannot withstand constitutional scrutiny, offering a cautionary case study in the limits of emergency powers in the context of gun regulation.
Student Note ♦ "Recognize Me As Who I Am": Names, Pronouns, and the Intersection of Tittle VII and Title IX ♦ Ariell Bachman
​​This Note argues that Title IX, properly interpreted in light of Bostock v. Clayton County, prohibits discrimination on the basis of gender identity. It calls for resolution of the current circuit split to ensure that public school teachers are not permitted to intentionally misgender transgender and nonbinary students under the guise of religious accommodation. ​
Denver Law Review Forum
The Devil's Dictionary of Criminal Procedure ♦ Michael Cicchini
Michael Cicchini exposes the "cold reality that lurks in the courtroom" by using cynical dictionary definitions for various criminal procedure terms in this unconventional, well-supported piece. Inspired by Ambrose Bierce's Devil's Dictionary, Mr. Cicchini, a longtime criminal defense attorney, aims to educate aspiring defense attorneys so they may be prepared for what awaits in the real world.
Tabrez Ebrahim explores how digital platforms for legal services can increase access to justice while recognizing the need for adapting the lawyer ethical code in the face of these technological advancements. Professor Ebrahim ultimately argues for a co-regulation approach to balance the needs of consumers with professional responsibility.
Student Note ♦ Speech First, Inc. v. Sands: Speech, Antidiscrimination, and the Open Question of Equity in Education ♦ Sean LaLiberte
Sean LaLiberte reviews the controversy over bias response policies on higher education campuses, exploring the tension between First Amendment and antidiscrimination values in the context of campus speech. The Note assesses a now-vacated 2023 case, Speech First v. Sands, positing that the opinion’s minority position in an emerging circuit split better serves the educational marketplace of ideas by upholding modest, non-punitive measures that enable universities to advance both speech and equity principles.
Holly Barrass reviews the history of the Navajo Nation's water rights, articulating the difference between their right to water in theory versus the infrastructure needed to actually access such water. The Note dissects the Court's reasoning in the 2023 case, Arizona v. Navajo Nation, opining that the majority misinterpreted applicable precedent and reinforced a pattern of government policy to disregard tribal water rights.
United We Fall? The Change Healthcare Cyberattack and the Danger of a Too-Big-To-Fail Health Insurer ♦ Brendan Williams
Brendan Williams examines the implications of the outsized footprint that UnitedHealth Group (UHG) has on our healthcare system, and whether the February 21, 2024 cyberattack on UHG’s patient records will prompt policymakers to enact more regulations.
Solving the Causation Problem in Colorado Medical Malpractice Law ♦ Charles R. Mendez & Karman J. Reed
Charles R. Mendez and Karman J. Reed confront two central problems to the element of causation in medical malpractice law. They address how it has created a discrepancy between the legal standard of causation and its practical application.​​
Denver Law Review Podcast
Denver Law Review Podcast is joined by Professor Johnna Montgomerie and Professor Michael Sousa to explore the themes of capitalism and how it touches on every aspect of our lives. Listen & Learn about debt, the household, and our current capitalist system.
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Stanford Professor Dan Ho joins the Denver Law Review Podcast to discuss evaluating the accuracy of facial recognition technology and how greater algorithm transparency and testing must be essential elements of future efforts to regulate the use of facial recognition technology by private companies and law enforcement.
Denver Law Review Podcast is joined by University of Illinois Professor Meicen Sun to discuss digital trade. This episode covers the barriers to regulating big-data on a global scale, why users are willing to share their data, and TikTok’s role as part of China’s digital Silk Road.
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