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.
Volume 103 • Issue 2 • Spring 2026
Certification to the State Supreme Court in the Tenth Circuit
♦ Melissa Hart & N. Reid Neureiter
In this Article, Melissa Hart and N. Reird Neureiter examine how certification operates in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming--the six states that comprise the Sixth Circuit. The authors compare the states' certification rule and and explore the practical and legal considerations that influence whether federal courts certify questions to state supreme courts. Ultimately, the Article shows how certification can culminate in teamwork between federal and state courts while still allowing states to keep authority over the development of their own laws.
♦ Joni Hersch
Joni Herschel examines whether DEI training can create a hostile work environment and whether it constitutes unlawful discrimination. The Article focuses on the Tenth Circuit's decision in Young v. Colorado Department of Corrections, where one employee's hostile work environment claim suggested DEI training can become harassment. Hersch examines the development of workplace harassment law, law reviews, the objectives of anti-bias training, and studies the research regarding the overall effectiveness of these programs.
Gender Therapy False Equivalency
♦ Scott Skinner-Thompson
This Article argues that youth gender affirming care and conversion therapy may overlook critical differences in the scientific support for each practice and the harms they produce. The Author examines the Supreme Court's decision in United States v. Skrmetti, which involves a state ban on gender-affirming care for transgender minors. He concludes that the conversion practices lack effectiveness and can inflict serious psychological and emotional harm; however, gender affirming care is supported by medical research and can reduce harm since it allows patients to explore and receive care consistent with their identities.
False Equivalency: Shots are Speech and Speech is Conduct
♦ Haley Dutch
In response to Scott Skinner-Thompson's Gender Therapy False Equivalency, Haley Dutch considers how courts should distinguish between bans on gender-affirming medical treatment for minors and bans on conversion therapy. Dutch instead argues that the available research concerning both gender-affirming treatment and conversion therapy is still novel and therefore limited. She further contends that both bans restrict a parent's ability to make certain healthcare decisions for their children without violating a recognized constitutional right.
♦ Stephen A. Davis
Across the American West, nineteenth-century railroad land grants created a checkerboard of alternating public and private parcels of land, leaving millions of acres of public land accessible only at points where parcel corners meet. Stephen S. Davis examines "corner-crossing," or moving directly from one public parcel to another without touching the privately owned land between them. The Article focuses on Iron Bar Holdings, LLC. v. Cape, where the Tenth Circuit held that private landowners may not prevent members of the public from corner-crossing. Davis explores how the decision intersects with the Fifth Amendment's Takings Clause and the Supreme Court's decision in Cedar Point Nursery v. Hassid. He argues that the Tenth Circuit expanded the exception to takings liability, which can create friction between public-land access, private-property rights, and constitutional protections against uncompensated government takings.
Comstock Preemption Against State Law Abortion Protections: A Litigation-Strategy Case Study
♦ Sachin S. Pandya & Marcia McCormick
Sachin S. Pandya and Marcia McCormick examine City of Eunice v. Torrez, a New Mexico Lawsuit that focused on whether the federal Comstock Act preempted state laws protecting abortion access. Pandya and McCormick analyze the strategic decision that transpired, including the selection of the plaintiff and the defendants, the choice of state court and venue, the preemption claim asserted, and the request for declaratory relief. This Article ultimately acts as a case study that illustrates how lawyers may use local ordinances and careful litigation to challenge state abortion protections and pursue legal change.
People v. Garcia: The High Stakes of Waiving Justice and Forfeiting Fairness
♦ Hannah Carrothers
In this note, Hannah R. Carrothers uses the Colorado Supreme Court decision in People v. Garcia to analyze what happens when a defendant's former attorney later becomes the judge presiding over their criminal case. Carrothers argues that the court improperly lowered the standard for implied waiver by relying on constructive knowledge, drawing inferences in favor of waiver, and treating possible strategic motives as evidence of an intentional relinquishment. It also explores how the decision can disproportionately affect indigent defendants represented by overburdened public defenders. This Note therefore proposes that the courts utilize principles from contract law—depicting constitutional and statutory protections as a social contract—to protect the right ot a fair trial.
Volume 103 • Issue 3 • Summer 2026
Forever Free: Public Recreational Access to Inland Water
♦ John A. Lovett
Tracing back to English common law, this Article discusses the evolution of law as it relates to public access to inland waterways. Access to inland waterways jas been disputed in American courts for centuries, and the courts' resolution to these disputes has developed significantly, creating new tests such as the highway of commerce test and the "Public Recreational Servitude Approach" is judical innovation that should be celebrated, not feared.
♦ J. Jacob Foor
Exploring the intersection of Title VI and the importance of American life, this Article finds that Title VI is facing a legitimate crisis. The deficient enforcement and inadequate protection of victims plague Title IV, undercutting its original goals. But all is not lost for Title VI, this Article suggests, as this crisis can be resolved with a unique application of procedural justice and moral credibility principles.
♦ Jeff Sovern
In consumer finance, the development of a new business product, such as the buy now, pay later model, is often accompanied by a new risk to consumers. Normally, such risk would be quelled when Congress reaches into its consumer protection toolbox and establishes guardrails for the new business model. This path to applicable protections can often take years, and this Article suggests a new approach. Congress should enact a statute granting the Consumer Financial Protections Bureau the authority to use the existing consumer protection toolbox to regulate new products as needed.
♦ Elizabeth Lee Thompson
Recognizing the lack of scholarship related to state court proceedings, this Article puts the spotlight on the writ of mandamus. Specifically, it examines mandamus petitions commanding action by public officers with an empirical study of 497 cases spanning the last two centuries. In all, the Artcile concludes that mandamus is a valuable, accessible, and powerful tool for citizens to use.
The Ambiguity of Muldrow v. City of St. Louis's Some-Harm Requirement
♦ Hailey Stephany
In Muldrow v. City of St. Louis, the Court replaced the "significant harm" standard for Title VII disparate treatment claims, requiring claimants to instead prove only "some harm." This Article argues that this decision, while seeking to benefit employees by reducing the burden of proof, ultimately complicated the standard for claimants. Lower courts have struggled to interpret the new, ambiguous standard, leading to inconsistency in Title VII claims. As a resolution to this struggle, this Article advocates for the implementation of a more establishes juducial test, one that specifically explores the objective and subjective standard and the reasonable standard.
Inaccessible Courtrooms for Individuals with Non-Apparent Disabilities
♦ Abigail Willis
Despite ADA protections, individuals with non-apparent disabilities encounter significant participation barriers in the American legal system. In recognition of this and the lack of empirical scholarship in disability and courtroom access, this Article offers a look into how courts inadequately serve individuals with non-apparent disabilities. To address these inadequacies, the Article proposes several reforms to improve accessibility to Colorado courtrooms.
Denver Law Review Forum
Repealing Colorado's Digital Token Act: A Regulatory Analysis ♦ Dr. Alvin Hoi-Chun Hung
In 2024, Colorado repealed its 2019 Colorado Digital Token Act. By examining the Act's original objectives, this Article evaluates the implications of the repeal for state and national-level regulatory strategies. Dr. Hoi-Chun Hung analyzes the repeal within legal and technological frameworks, offering insights into its impact on blockchain enterprises, investor confidence, and Colorado's position as a hub for digital innovation. The Article concludes by recommending a stronger, clearer collaboration between state and federal authorities to to support the responsible growth of cryptocurrency markets in Colorado and beyond.
Following the emergence of nitrogen hypoxia as a new method of execution, Reem Haikal examines the development of the method, its scientific basis, its implementation in Alabama, Oklahoma, and Mississippi, and the risks it poses under the Eight Amendment. The Article then draws on expert critiques and execution cases to challenge nitrogen hypoxia's reliability and humanity. As an alternative, Professor Haikal evaluates the firing squad as a contender to satisfy the constitutional and ethical standards required for the death penalty.
The Supreme Court's Rewriting of the Fourteenth Amendment Disqualification Clause: Trump v. Anderson and the Greenlighting of Insurrection ♦ Mark S. Brodin
Mark S. Brodin traces the history of Section Three and its virtual disappearance from the Constitution following the Court's decision in Trump v. Anderson. The Article discusses the leadup to Anderson, highlighting the events of January 6th, the eventual case brought in Colorado, and the ultimate decision of the Colorado Supreme Court. Professor Brodin then spotlights the consequences of the Anderson decision, both present and future.
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 ♦ Bradford v. U.S. DOL: Rough Water Ahead ♦ Conor Burns
This Article uses Bradford v. U.S. Department of Labor to explore Congress's ability to delegate authority to the Executive Branch. The author argues that the Federal Property and Administrative Service Act (FPASA) grants the President broad regulatory authority without providing meaningful limiting principles. Agreeing with the Bradford dissent, it alleges that this broad delegation is a violation of the nondelegation doctrine. Furthermore, it suggests that the end of the Chevron deference creates a new administrative law landscape where courts may scrutinize the broad delegations of legislative authority.
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.
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.
