Volume 100
2022–2023
Issue 1
In Memorium
The Event-Making Michael Massey
DU alumnus Michael Massey enjoyed a storied legal career. Howard Beck chronicles Massey’s transformative influence on the Denver Law Review, his role in establishing the Professional Mentoring Program at DU Law, and his career-long dedication to mentoring students.
Articles
Pleading for Pre-Bargain Disclosure in State Legal Ethics
Plea bargains account for the vast majority of dispositions in criminal cases. Mr. Guttman explores the “shadow of trial” theory, a prevalent justification for plea bargaining, and how state ethics rules regarding disclosure of evidence undermine this theory. Mr. Guttman examines the extent to which prosecutors and criminal defense attorneys disagree about current disclosure standards and whether disclosure problems exist at all.
With Liberty and Reinsurance for All: The Deep Case for a Government Backstop in Health Care
Government-sponsored reinsurance, often referred to as “insurance for insurers,” has a long history in the United States in domains like agriculture, real estate, higher education, and banking. Professor Ho examines this concept in healthcare. Professor Ho explores reinsurance’s impact in the current healthcare system, the benefits of government-sponsored reinsurance in this sector, and how expanding reinsurance in healthcare could serve as the foundation for more comprehensive reform.
Confronting Intellectual Property Nationalism
During the COVID-19 pandemic, countries and pharmaceutical companies engaged in medical or vaccine nationalism by withholding access to vaccines and treatments from other nations. Professor Ho argues that this practice was exacerbated by the hoarding of intellectual property, a phenomenon she aptly terms "IP nationalism." The Article critiques this practice and its negative consequences, advocating for its replacement with a more utilitarian "global public goods" approach. This approach would compel companies to share essential information, thereby preventing deadly disparities in access to treatment from recurring.
[Marked Confidential]: Negative Externalities of Discovery Secrecy
Professor Ribeiro explores the layers of secrecy in civil discovery and its impact on the U.S. adversary system. Professor Ribeiro examines the negative effect of discovery secrecy on the truth-seeking function of the adversary system, the system’s aim to promote liberal democratic values, and the system’s role in upholding human dignity.
Minds Intertwined: The Cognitive Teamwork of Federal Civil Rulemaking
Amending a Federal Rule of Civil Procedure is a complex, collaborative process, where even the smallest changes can yield significant practical consequences. Professor Singer explores this process by conducting a comprehensive study of the 2020 amendment to Federal Rule of Civil Procedure 30(b)(6). Using investigative methods, including interviews with members of the Advisory Committees and observations of their deliberations, this Article offers valuable insights for legal professionals and academics alike.
Student Notes
Subjectivizing the Negligence Reasonable Person Standard for Persons with Mental Disabilities
In United States tort law, people with intellectual disabilities are legally required to exercise the same level of care as a reasonably prudent person under the circumstances. Under this objective standard, many people are held liable for failing to exercise a level of care that they may be unable to exercise. This Comment critiques the lack of consideration for mental disabilities within this standard and advocates for accommodations similar to those provided for children and individuals with physical disabilities.
The perpetual foreigner stereotype is a misguided fallacy that perceives individuals of Asian descent as permanently foreign and un-American, regardless of how long they have lived in the United States. This Comment illustrates the harmful effects of this stereotype and examines the role of the American legal system in its creation, enforcement, and ongoing perpetuation. It concludes by addressing the alarming rise in hate crimes against Asian Americans during the COVID-19 pandemic, arguing that this surge is a direct result of the perpetuated stereotype, and offers recommendations for prevention.
Issue 2
Articles
Strategic Considerations for Going En Banc in the Tenth Circuit
Bobby R. Baldock, Joel M. Carson III, & Bryston C. Gallegos
This Article provides a comprehensive guide on the en banc review process in the U.S. Court of Appeals for the Tenth Circuit, emphasizing its rarity and the strategic considerations for practitioners contemplating such a request. It begins with an overview of the governing standards for en banc proceedings, highlighting that these reviews are reserved for exceptional circumstances, such as resolving significant legal conflicts. The Article presents statistics illustrating the stark disparity between the number of en banc petitions filed and those granted, underscoring the extraordinary nature of this procedure. By offering practical insights and examples, the authors aim to equip appellate attorneys and their clients with a better understanding of when en banc review may be appropriate and how to effectively frame their petitions, ultimately guiding litigants in making informed decisions about pursuing this challenging avenue for relief.
Professor Griffin explores how judges in the Tenth Circuit select non-binding legal authorities, particularly legal treatises, in their opinions, which shed light on the unwritten social norms that guide these choices. Conducting an empirical study of published cases over three years, the Professor Griffin uncovers significant patterns in the citation of treatises, revealing that Republican judges and male judges cite them more frequently than their Democratic and female counterparts. The findings challenge the conventional belief that such citations are purely based on persuasive content, suggesting that treatises hold substantial influence in judicial decision-making. By analyzing these citation patterns, the Article aims to enhance understanding of the factors shaping judicial authority and advocates for greater transparency regarding the weight judges assign to various sources. Ultimately, it seeks to foster a more equitable legal environment for litigants while contributing to the evolving norms of judicial authority.
Purposivist Reasoning in Federal Civil Procedure
Lumen N. Mulligan & Emily Pennington
This Article examines the Tenth Circuit’s position on the circuit split regarding the necessity of repleading counterclaims in amended answers, specifically through its decision in Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., which adopted a permissive approach. The Article highlights the Tenth Circuit’s purposivist interpretation of the Federal Rules of Civil Procedure, contrasting it with the less frequent use of textualist reasoning in such cases. By analyzing 2021 Federal Rules cases from the Tenth Circuit and other circuits, the authors find a broader trend of judges favoring purposivism over textualism when interpreting the Rules.
Reflections on Critical Race Theory in a Time of Blacklash
Professor Mutua revisits critical race theory (CRT) in light of recent political backlash, which aims to suppress discussions on racial and gender justice. Professor Mutua argues that this campaign misrepresents CRT and promotes a narrative that framing racial justice as racist itself constitutes a form of racism. This backlash is contextualized as a reaction to calls for racial reckoning following George Floyd's murder, perceived as a threat to the status of whiteness in America. The Article highlights how this movement seeks to undermine educational institutions and silence voices advocating for justice, while also examining the broader implications for democracy and equity.
Student Notes
People ex rel. K.C. v. K.C.: ICWA Is for All Native Children
Katelyn Elrod examines how the Colorado Supreme Court’s ruling in People ex rel. K.C. v. K.C. undermined the Indian Child Welfare Act (ICWA). In holding that child welfare agencies are not obligated to assist Native families with enrolling their children in tribes, the Court seemingly ignored both tribal requests and legislative intent. Reform is necessary if the true purpose of the ICWA—to preserve Native cultural continuity and protect Native children—is to be effectuated.
Abolishing Peremptory Challenges: A Fair Price to Pay for Just Jury Selection
The jury selection process is controversial. Michael Kilbourn argues that peremptory challenges lack constitutional support and that Colorado should abolish them entirely. Without this reform, parties will continue abusing the peremptory challenge in order to strike jurors of color, keeping the criminal justice system mired in racial inequity.
Tenth Circuit Database Project: 2021-2022 Yearbook
Pelecanos likens Tenth Circuit courts to a high school in this unconventional yet insightful exploration of recent judicial trends. With clever comparisons to the “Principal’s Office,” the “Homecoming Game,” and other familiar evocations, the author analyzes Tenth Circuit data from April 2021 to March 2022 and offers some of their own predictions. Notably, appeals originating from federal agency decisions may be dwindling, and the Tenth Circuit may be trending toward more politically liberal-leaning benches.
Issue 3
Editor's Note
Volume 100 Editor in Chief Rebecca Glenn introduces the one hundredth volume of the Denver Law Review and reflects on Denver Law Review's most cited articles.
Articles
The New Private Law Thirty Years After
Professor Ertman revisits her 1996 article published in Denver Law Review, a commentary on the progressive uses of the private law of contract and situates it as a foundation for her subsequent research and writing on the progressive role of contract theory and doctrine. DLR’s symposia tradition of bringing together longstanding legal conundrums and contemporary disputes of great import is evergreen as Professor Ertman demonstrates how incubating legal theory can evolve into doctrine over time.
Reflections on Critical Race Theory in a Time of Blacklash
In her highly relevant and provocative analysis on the current backlash facing critical race theory (CRT), Professor Mutua addresses the climate of suppression regarding discussions of race and gender justice and argues the law is being used to compel the miseducation of the American populace. Following the police murder of George Floyd, demands for racial reckoning threatened the privilege of whiteness in American society, and in response, our legal system has sought to control and destroy the educational and other institutions that house justice voices and to remove the people representing these voices from participation in institutions and other public spaces. This agenda is only a piece of a larger, antidemocratic system designed to continue of the cycle of oppression of marginalized people while re-imposing a white-male minority rule.
Professor Van Wezel Stone revisits her 1996 article, Arbitration of Individual Employment Rights: The Yellow Dog Contract of the 1990s, an exploration of the then emerging trend of compulsory arbitration of employee rights and a prediction of the future of employment law arbitration. Twenty-five years later, the Supreme Court has expended the scope of the Federal Arbitration Act (FAA) and limited access to the courts for workers, consumers, debtors, small businesses, or other weaker parties in ways that go beyond Professor Van Wezel Stone’s predictions. This Article expounds upon the doctrinal developments that have hollowed out the civil justice system as a mechanism for protecting worker rights.
This Article evaluates the concept of “culture wars” in present-day American society and democracy. Professor Valdes highlights key developments since the concept of culture wars was first introduced in 1998 and focuses on the expansion of culture wars by comparing modern culture wars to the past. Further, Professor Valdes discusses the impact of the legal diaspora, a group of legal scholars dedicated to advocacy and equality in the legal community.
Professor Dickinson discusses how state courts interpret takings clause jurisprudence. This Article focuses on how state courts frequently follow the Supreme Court's decisions when interpreting federal takings clause jurisprudence and how state courts are similarly influenced by the Supreme Court when interpreting state constitutional taking clauses. Professor Dickenson concludes by articulating the observation and implications of takings federalism.
Understanding the Roles of Government in Conservation Easement Transactions
Jess Phelps explores the roles that the government plays in conservation easement transactions, shedding light on the conflicts that can arise between entities in the process of these transactions and suggesting how government roles in these transactions should be structured in order to maximize conservation benefits.
Arbitrary Arbitrariness Review
Judicial review of administrative immigration decisions has serious impacts on immigrants and their families, and the standard of review for such decisions is important. Professor Rosenbaum explores relevant standards of review and their effects on administrative immigration decisions, describing the inconsistent outcomes that different standards can result in.
Essays
Professor Leo revisits his article, The Decision to Confess Falsely: Rational Choice and Irrational Action, which he co-authored with Richard Ofshe and published in the Denver Law Review in 1997. He describes the impact it has had on research literature on the psychology of police interrogation, coercion, and confessions since its publication and looks to the future of research on the topic, as well as to the importance of prevention of wrongful convictions based on false confession evidence.
Happy 100th Anniversary and Many Happy Returns to the Denver Law Review!
Ved P. Nanda
Professor Nanda provides a tribute on the occasion of the centennial issue of the Denver Law Review. He writes about the history of the Denver Law Review and the contributions it has made to the legal profession.
Alan K. Chen, Ian Farrell, Nancy Leong, Justin Marceau, Viva R. Moffat, & Eli Wald
Professors Alan Chen, Ian Farrell, Nancy Leong, Justin Marceau, Viva Moffat, and Eli Wald honor the Denver Law Review’s 100th anniversary by reflecting on the past, present, and future of legal scholarship.
Issue 4
Articles
Depoliticizing Federal Prosecution
Bruce A. Green & Rebecca Roiphe
There is broad disagreement about how to prevent federal prosecutors from using their power to pursue partisan political parties. Professor Green and Professor Roiphe propose a system of checks and balances between the Attorney General and U.S. Attorney in prosecuting politically sensitive cases. They provide additional proposals regarding the complex relationship between the Attorney General and U.S. Attorneys and discuss a restructure of both prosecutorial and political power within the Department of Justice.
Impeachment vs. Indictment: How to Handle Criminality in the Executive Branch
There is a debate about whether a sitting president can be prosecuted while in office. Professor Murphy discusses the constitutional method of addressing criminality within the Executive Branch through an examination of the impeachment process. Professor Murphy gives an analysis of President Trump’s impeachment, whether a sitting president can be indicted, and gives a recommendation about what can override the sanctity of the Executive Branch.
Revitalizing Executive Branch Disqualification: Heeding an Imperfectly Learned Watergate Lesson
One of the several guardrails with respect to the Executive Branch is the Disqualification Clause. Recommended for attention in the House’s January 6th Committee’s January 2023 report, the Disqualification Clause precludes persons who have engaged in certain forms of seditious conduct from holding a position in the Executive Branch office. Mr. Sternstein examines this clause and the individual qualities that stand strong against assaults on the nation’s democracy and the Disqualification Clause’s purpose in assuring the qualities in office.