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DENVER LAW REVIEW
Volume 101
2023–2024
Issue 1
Articles
The Shape of Consumer Contracts
Andrea J. Boyack
​Professor Boyack critiques traditional consumer contract law, underscoring its failure to account for the modern, hierarchical relationship between consumers and companies. She proposes a new framework that distinguishes between a consumer’s consent to engage in a transaction and their assent to be bound by a company’s online terms. This approach would separate the choice of making a transaction a commitment bound by boilerplate terms while rendering terms that aim to limit consumers’ rights legally unenforceable. ​​​
Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study
G. Ben Cohen, Justin D. Levinson, & Koichi Hioki
​Professors Cohen, Levinson, and Hioki examine the felony murder rule and accomplice liability doctrine, arguing the tools disproportionately impact Black and Latino men through racial bias. The authors’ national empirical study demonstrates how racial bias leads to automatic individualization of white men in group crimes, while Black and Latino men are deindividualized, increasing their criminal liability. The Article calls for the abolition of the felony murder rule in cases of group liability against its disconcerting historical backdrop.​
John Parsi
​Professor Parsi critiques the Ninth Circuit’s decision in Edmo v. Corizon through the lens of Eighth Amendment jurisprudence, examining the legal, medical, and scientific consensus surrounding gender-affirming care. Professor Parsi confronts Edmo’s dissentals, exposing faults, flaws, and misstatements throughout. Ultimately, the Article recontextualizes the scientific and medical consensus on gender-affirming care within the framework of the Eighth Amendment. ​
Student Comments
Austin Hoenig
​​In analyzing anti-transgender legislation in Arizona, Alabama, and Arkansas, this Comment argues these laws, disguised as child protection, are facially discriminatory. In examining the ineffectiveness of the laws, the Comment advocates for an expansion of the social definition of gender affirmation to not only combat anti-transgender sentiment but to also provide needed legal safeguards.​
NY State Rifle & Pistol Ass'n v. Bruen: The Supreme Court's Insensitivity to Sensitive Places
Catherine O'Toole
​In New York State Rifle & Pistol Association v. Bruen, the Supreme Court effectively undermined states’ abilities to regulate concealed carry in public places. By rejecting a well-established two-step analysis used by lower courts and relying heavily on historical analogies, this Comment argues the Court misapplied precedent from District of Columbia v. Heller and McDonald v. Chicago.​
Issue 2
In Memoriam
A Fond Farewell from the Denver Law Review
Rachel G​ärlick
​This issue is dedicated to the memory of Professor Ved Nanda. Professor Nanda had great impact on the Denver Law Review, serving as a faculty advisor and writing tributes in honor of the 50th and 100th anniversaries of the journal. Professor Nanda is remembered for his accomplishments in international law and the personal impact he had on his students. ​
The Legacy of Professor Ved Nanda
Celia Taylor
Professor Celia Taylor writes a heartfelt message about her friendship with late Professor Ved Nanda and the profound impact he had on both students and colleagues at the Sturm College of Law through his selfless approach to teaching and mentoring.
My Friend, Ved
Robert Hardaway
Professor Hardaway pays tribute to his close friend and colleague, Professor Ved Nanda. Professor Hardaway recounts Professor Nanda’s journey around the world and his career in international law.
Hello! So Nice to See You!
Amanda Spitzenberner & Sophia Vander Kooy
Amanda Spitzenberger and Sophia Vander Kooy discuss the late Professor Ved Nanda’s incredible legacy and his monumental contributions to the Sturm College of Law both through his fierce advocation for protecting human rights and his sincere approach to his relationships with students.
Articles
Passing the Buck: The Perils of Oklahoma v. Castro-Huerta
Adam Crepelle, Timothy Purdon, & Brendan Johnson
​Oklahoma v. Castro-Huerta created concurrent jurisdiction over Indian country crimes involving non-Indians, by allowing states to prosecute crimes committed by Indians on Indian land. There is little to indicate that expanding state authority will benefit Indians; on the contrary, this decision may lead to decreased public safety in Indian country, and the infringement on tribal sovereignty may exacerbate conflicts between tribes and the state.
Judicial Diversity in Colorado: Increasing Representation Through Innovation
Honorable Monica M. Márquez & Sumi Lee
Research documents that diversity on the bench improves judicial decision-making, increases access to justice, and strengthens the rule of law. Five years after Colorado enacted legislation establishing an innovative, full-time judicial diversity outreach program, its state court bench is more diverse than ever. Honorable Monica M. Márquez and Sumi Lee discuss the development of the Judicial Diversity Program in Colorado and best practices for other states that are interested in implementing similar programs. ​
States as Laboratories: Colorado Constitution (Reactants) + Independent State Constitutionalism (Catalyst) = Constitutional LGBTQ+ Protections (Products)
Pelecanos
Pelecanos discusses the theory of states as laboratories, with Colorado as a case study, for LBGTQ+ rights. Pelecanos argues that the federal equal protection framework should not be applied to LBGTQ+ issues and, instead, advocates for a specific test for LBGTQ+ protections under the Colorado Constitution and proposes the theory that LBGTQ+ people have a fundamental right to self-determination and expression of sexual orientation and gender identity.
Haaland v. Brackeen: The Indian Child Welfare Act, States' Rights, and the Survival of America's First Peoples and Nations
Andrew B. Reid
The United States Supreme Court issued a decision on the Indian Child Welfare Act at the end of its 2023 term in Haaland v. Brackeen. Professor Reid examines the Court’s majority and dissenting opinions, the parties’ arguments, and the dispute’s backstory before concluding with a discussion of the significant underlying issues not raised and the arguments not made which have bearing on the human rights and future survival of the Native peoples and nations within the claimed territory and colonial rule of the United States.​​
Student Comments
Immigration Enigma: Intersections Between Immigration Status and Minimum Mandatory Sentences in Home Rule Municipalities
Dylan Fair
When non-citizens are convicted of a misdemeanor crime, two significant possible consequences are inadmissibility and deportation. Criminal defense attorneys must properly inform non-citizen clients of these potential immigration consequences. This Comment argues that Colorado and the United States have an obligation to protect non-citizens and that any municipal ordinance that could affect immigration status should be preempted by state statutes, ensuring consistency in the practice of criminal and immigration law.
Re-Writing Precedent: An Exploration of the Negative Impact on Native Rights in the Wake of Oklahoma v. Castro-Huerta
Brooke Hare
In Oklahoma v. Castro-Huerta, the majority decided that states now have authority to prosecute crimes traditionally reserved for the federal government. Brooke Hare analyzes the majority opinion’s legal reasoning by evaluating the clear line of case law that was impliedly overruled without proper justification before maintaining that that this ruling fundamentally ignores the principle of tribal sovereignty, exploring the negative impact it will have on Native rights, and finally proposing that states should invest resources into tribal communities rather than encroaching on their sovereignty.
Issue 3
Editor's Note
Editor's Note
Rachel Gärlick
The Denver Law Review dedicates this issue to the Rocky Mountain Collective on Race, Place, and Law (RPL). To celebrate the 10th anniversary of RPL, this issue features six essays by RPL members. These essays cover topics such as RPL’s mission to build community in the legal field, the development of RPL’s guiding principles, RPL’s efforts toward fostering belonging in legal education, RPL’s role in promoting a safe environment for learning Critical Race Theory and social justice, and the necessity of RPL in opposing inequity in higher education.
Essays
The RPL Effect
Rashmi Goel
RPL is a unique law school organization centered around a framework of social justice principles and values. Professor Goel discusses what RPL is, how it began, what makes it unique, and the difference it makes for faculty members and administrators to belong to such a group.
From Whiteboard to Statement of Principles: The Development of the Rocky Mountain Collective on Race, Place & Law's Principles
Katherine Steefel
Professor Steefel explores the origins of the RPL's guiding principles in a thoughtful analysis of the meaning and intention behind RPL’s commitment to social justice and educational reform. Through a series of interviews with founding members of RPL, the essay details the group’s early discussions, how its principles were influenced by Critical Race Theory (CRT) and Latina & Latino Critical Legal Theory (LatCrit), and the founding members’ efforts to create a more inclusive law school environment.
The Staying Power of RPL: Fostering Belonging Among Students
Alexi Freeman
Within the last several years, there has been an influx of social events, policies, and administrative changes that negatively impact DEI efforts. There is a growing risk of students and faculty in higher education becoming hesitant to share their diverse perspectives and seek support. Dean Freeman discusses what belonging is, why it matters, and shares examples of how RPL promotes a sense of belonging.
From a RPL in the Classroom to a Wave in the World: Coursework Focused on Race, Place & Law
Lindsey Webb
Professor Webb reflects on RPL's impact in allowing students to learn how law can serve as a “source of oppression and as a pathway to liberation.” The essay highlights the courses designed by RPL members that focus on race, law, and intersectionality, including seminars like Critical Race Reading and Lawyering for Racial Justice. These classes aim to equip law students with the analytical tools to address systemic discrimination and contribute to racial justice, fostering legal competence and community responsibility.
RPL, CRT, & LatCrit: "Finding the 'Me' in the Legal Academy"
Roberto L. Corrada
Professor Corrada discusses the influence of Critical Race Theory (CRT) and Latina/o Critical Legal Theory (LatCrit) on RPL's creation. Professor Corrada then discusses how the theory of “colorblindness” regarding race led to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, how that decision will impact diversity in higher education, and how organizations like RPL can mitigate loss of diversity in such spaces.​
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
Professor Romero reflects on the creation of the RPL as a necessity to oppose institutional and systemic forms of inequity in higher education, describing himself and fellow members of RPL as “Brown Buffalo.” Through personal reflections and critical analysis, Professor Romero examines how RPL seeks to challenge systemic racism in legal education and responds to racial inequities heightened by recent political and legal developments.
Articles
The Supreme Court, the First Amendment, and the Erosion of Public Employer Managerial Authority
Anne Marie Lofaso & Martin H. Malin
Dr. Lofaso and Professor Malin trace historical developments from the United States’ inception to the Court’s most recent jurisprudence with an eye toward public employee speech. They then use the framework developed in Janus v. American Federation of State, County, and Municipal Employees, Council 31 and Kennedy v. Bremerton School District to assess several hypotheticals regarding employee speech and speculate the overall impact of the new framework on employee free speech rights.​​
Borderline Ambiguity: Major Questions and Immigration Law
Peter Margulies
Professor Margulies examines the implications of the major questions doctrine for U.S. immigration law. The Article explores the recent use of traditional statutory interpretation methods of text, structure, history, and implementation, which Professor Margulies describes as the “congruence canon.” Professor Margulies explains that this approach can clarify current immigration issues, including the legality of policies like President Biden's border rule, DACA, and the expansion of student visas.
The Politics of Proportionality in State Civil Rulemaking
Miyoko T. Pettit-Toledo
Through the lens of a developing “Critical Procedure” framework, Professor Pettit-Toledo provides a balanced assessment of concerns regarding the 2015 amendments to the Federal Rules of Civil Procedure, particularly the perceived constriction of discovery through the revised federal proportionality standard in Rule 26(b)(1). Professor Pettit-Toledo explores previously overlooked benefits of proportionality, with the goal of informing ongoing and future conversations among state rulemakers contemplating adoption of the 2015 federal proportionality standard.
Issue 4
Foreword
Foreword
Emily Sexton
In April 2024, the Denver Law Review hosted its annual symposium, entitled "Debt and Financial Insecurity in the Modern Economy." Throughout the event, students, attorneys, and scholars explored the social, legal, and financial implications of America’s debt-laden society across several disciplines and practices of law.
Articles​
How Traditional Legal Rhetoric's Myth of Neutrality Sustains Capitalism
Elizabeth E. Berenguer
Through the lens of critical and comparative rhetoric, Professor Berenguer 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. Two cases, Bank of America v. Caulkett and Citizens United v. FEC, illustrate how the Court uses these frameworks to reach outcomes that align with market values at the expense of the individual.
The Social Cost of Unpaid Student Loans
Brook E. Gotberg & Evan Miller
Federal student loans represent a significant investment by taxpayers. While many borrowers manage to repay them, a substantial number struggle, especially when the education obtained using the loans does not translate into higher earning potential. To address this issue effectively, policymakers should consider the interests of taxpayers when discussing forgiveness and implement targeted and efficient solutions.
Monopoly Capital, Militarism, and Environmental Degradation
Daniel Auerbach & Brett Clark
Economic growth is leading to significant ecological destruction. Professor Auerbach and Mr. Clark explore the rise of the military-industrial complex, its relationship to economic growth and monopoly capital, and its significant role in the ecological crisis.
When the Entrepreneurial Subject Fails: The Neoliberal Governance of Consumer Debtors
Michael D. Sousa
Professor Sousa explores the effects that neoliberalism has on everyday consumers struggling with debt on a microlevel. Professor Sousa uses a governmentality framework to explain the harmful effects that neoliberal discourses have on individuals, ultimately describing the role that technologies of neoliberal governance have on people struggling with debt.
Financial Identity in the American Credit System: The Habitus of the Debtor
Linda Coco
The credit system is central to American society. Professor Coco explores the origin of the system and its effects on Americans today. Her Article uses the theoretical tools of French theorist Pierre Bourdieu to understand this.
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