DENVER LAW REVIEW
Volume 97
2019–2020​
Issue 1
Articles
​Many nations have attempted to adopt legislation similar to the United States’s Indian Child Welfare Act (ICWA). However, implementing legislation based on the ICWA has presented challenges to other countries, particularly those which do not recognize the sovereignty of their Indigenous populations. This Article explores the challenges these nations face in implementing legislation based on the ICWA and considers how necessary amendments may actually hurt the goals of the legislation. This Article concludes that nations that do not recognize the sovereignty of Indigenous populations must make significant changes to the ICWA, but these changes do not negate the benefit of the Act, and in some cases, may improve it. ​
United States v. Hodges: Developments of Treason and the Role of the Jury
​This Article explores the historical impact of United States v. Hodges, a War of 1812-era case in which the defendant was charged with treason. The Article presents this case as a historical backdrop to examine the evolving views of the crime of treason in American jurisprudence, as well as the evolving role of the jury throughout American history. ​
​This Article argues that the Twenty-Fifth Amendment permits the legislative and executive branches to work together to remove a President who has been elected despite being unsuited for the position. The Article contends that President Donald Trump demonstrated such an unfit character during his tenure in office, and that the Twenty-Fifth Amendment provided an adequate remedy to remove him, noting that the circumstances of his election were so unique to him as an individual that it is unlikely that his removal would have created a dangerous precedent. ​
Publicly Charged: A Critical Examination of Immigrant Public Benefit Restrictions
​This Article explores the impact that the Trump Administration policy expanding the definition of “public charge” had on restricting legal immigration to the United States, as well as the impact on the use of welfare benefits. In particular, the Article examines the rhetorical appeal of the Trump Administration’s efforts against “anchor babies” and whether the Administration’s policies were motivated by legitimate concerns surrounding immigration or by racist ideology. The Article concludes that the use of the public charge doctrine presents opportunities for the government to legally discriminate on the basis of race. ​
Incapacitating Errors: Sentencing and the Science of Change
​This Article argues that the widespread belief among Americans that adults are less capable of change and maturation than juveniles presents significant obstacles to the adoption of “smart on crime” sentencing reform. The Article contrasts this belief with empirical neurological and psychological data demonstrating the “science of adult change.” The Article further argues that this scientific data as applied to criminal justice reform supports the view that criminal sentencing should focus less on a pessimistic prediction of future behavior and should instead presume the possibility of reintegration with society as a norm. The Article ultimately hopes that the science of adult change will lead to a change in approach regarding the use of incarceration as a primary response to social harm. ​
The Consumer Protection Ecosystem: Law, Norms, and Technology
​This Article argues that much analysis of consumer protection law and policy does not sufficiently address technological and social developments that impact consumers. This Article develops a new model to analyze consumer protection which addresses legal, technical, and social constraints faced by consumers to explore how those constraints shape consumer behavior. This Article seeks to provide a more wholistic framework for understanding and analyzing consumer protection, recognizing that developments in technology and subsequent changes in social norms impact legislative and administrative regulatory solutions. ​
Student Comments
Issue 2
Articles
Judicial Restrictions on Voir Dire: Have We Gone Too Far?
​Colorado Court of Appeals Judge Terry Fox examines how increasing judicial restrictions on the voir dire process risk undermining defendants’ rights to a fair, impartial jury. Analyzing federal and Colorado practices, this Article argues that while courts can regulate voir dire, excessive limitations compromise a fundamental fairness requirement and threaten due process protections under the Fifth and Fourteenth Amendments, especially in criminal trials. ​
Colorado School Discipline Law: Gaps and Goals
Jacque Phillips, Elie Zwiebel, Rachel Dore, Igor Raykin, Makenzie Bogart & Michael Nolt
​In this Article, the authors explore how Colorado’s school discipline laws disproportionately impact vulnerable student groups—including students of color, students with disabilities, and LGBTQIA students—by contributing to the school-to-prison pipeline. The authors further argue that absent adequate direction from the Trump Administration, impacted students will continue to face systemic challenges. ​
Introducing the Tenth Circuit Database Project
​Professor Sassman examines a new empirical project aimed at analyzing judicial behavior by collecting comprehensive data on the U.S. Court of Appeals for the Tenth Circuit. Highlighting gaps in current databases focused on the U.S. Supreme Court and federal courts of appeals, this Article details the project’s methodology and emphasizes its potential to deepen understanding of appellate decisions, while also acknowledging its pitfalls. ​
Has the Time Come to Revise Our Pro Bono Rules?
​Judge Daniel M. Taubman explores the history, obscurities, and limitations of Rule 6.1 of the Colorado Rules of Professional Conduct in meeting pro bono needs for low-income persons. Judge Taubman contends voluntary pro bono work falls short and proposes mandatory annual service or financial contributions to enhance access to justice for those in need. ​
Issue 3
Articles
Contractual Symmetry: A Doctrinal & Economic Analysis
​Professor Jens Dammann investigates the symmetry criterion that courts use when discussing the fairness of boilerplate consumer contracts. The symmetry criterion looks at whether a contract provision applies equally to both parties. In many states, boilerplate contracts that apply solely to consumers but not to the merchants are more likely to be unconscionable than contracts that apply to both equally. Professor Dammann concludes that the symmetry of criterion is unlikely to promote fair or efficient contracts. ​
(Carbon) Farming Our Way Out of Climate Change
​Professor Alexia Brunet Marks discusses carbon farming, a Carbon Smart Agricultural strategy that uses plants to capture carbon in our atmosphere. Professor Brunet Marks argues for a new Carbon Farming certification that state and local governments can use to demonstrate compliance with international law and treaty targets, as well as national and local climate policies. Further, Professor Brunet Marks identifies barriers that hinder the scale-up of promising carbon farming strategies. Professor Brunet Marks also shares case studies highlighting novel collaborations between nations, private parties, NGOs, and international institutions.​
Corporations, Property, & Personhood
​Professor Lua Kamál Yuille provides an economic exploration of the disconnect between how the law views corporations and how they exist practically. Grounded in property theory, Professor Kamál Yuille suggests a new explanation for the phenomena of corporate malfeasance, altruism, and deontology. Professor Kamál Yuille suggests that the identity-affirming capacity of the pursuit of property through corporations is important to understanding the behavior of corporations and their constituents.​
Student Comments
Madison v. Alabama: The Unfulfilled Promise of Ford
​Quinn Carlson discusses the established standard from Ford v. Wainwright regarding executing a defendant suffering from a mental illness and how the decision in Madison v. Alabama is not consistent with the Court’s previous holding. Carlson argues that the Court should adopt a categorical rule based on diagnoses of mental illnesses that impair one or more cognitive domains, such as dementia, so that courts will be better equipped to comply with the Ford and the Eighth Amendment.​
Air & Liquid Systems Corporation v. DeVries: Barely Afloat
​Tod Duncan discusses the decision in Air & Liquid Systems Corporations v. DeVries. In this case, the Supreme Court held that a bare-metal manufacturer had a duty to warn of harms that its equipment might cause when a third party later adds a harmful component to a product with otherwise adequate warnings. Duncan argues that the U.S. Supreme Court’s reasoning is wrong for three reason: (1) the court overapplied the special solicitude for sailors doctrine; (2) that defaulting liability to a solvent manufacturer is inconsistent with common law tort principles; and (3) a bare-metal manufacturer should have no duty to warn when an organization, such as the U.S. Navy, voluntarily adopts other means, such as training, to mitigate the risk of harm to users of a product to which it adds a harmful component. ​
Issue 4
Articles
Citizenship Denied: Implications of the Naturalization Backlog for Noncitizens in the Military
Professor Chen describes the delays for asylum seekers, naturalizations, and military naturalizations and explores the consequences of these delays that extend into citizenship, democracy, and the United States military.
Language Access and Due Process in Asylum Interviews
​The Department of Homeland Security does not provide interpreters during asylum proceedings. Professor Dadhania explores the question of whether lack of language access is a due process violation and argues that lack of language access is a weaponization of language used to disadvantage certain groups.​
Immigrants in Shifting Times on Long Island, NY: The Stakes of Losing Temporary Status
Kati L. Griffith, Shannon Gleeson, & Vivian Vázquez
The Temporary Protected Status program provides temporary legal immigration status to thousands of people in the United States. The program’s future is uncertain, following President Trump’s decision to end the program. This Article explores the stories of people who will be affected by the termination of the program, through analysis of interviews with people who currently have temporary protected status.
​This Article describes and analyzes refugee distancing polices, using an example of Haitian and Central American claimants to demonstrate the potential consequences of current policies. This Article then describes the Migrant Protection Protocol utilized by the Trump Administration and future implications under this policy.​
The Historical Origins of the World's Largest Immigration Detention System
​Professor Lindskoog describes the origin and development of the United States’ immigration detention system and how the United States has moved toward a mass incarceration immigration policy. ​
Anti-Democratic Immigration Law
This Article describes the historical racialization and inequality underlying the United States’ legal system, from the settler colonial state through modern immigration law. Professor Rosenbaum explores plenary power as a means of racialized oppression.
