DENVER LAW REVIEW
Volume 98
2020–2021​
Issue 1
Articles
Associate Dean Campbell explores “community trauma,” a concept which she defines as childhood trauma as it extrapolates into one’s health and community. She examines the effects of trauma on a systemic level in fields such as health, housing, and employment. Dean Campbell proposes next steps to address systemic community trauma, but ultimately states that addressing this trauma requires broad solutions grounded in social policy and unity across communities.​​
The Challenges of Forensic Genealogy: Dirty Data, Electronic Evidence, and Privacy Concerns
Divya Ramjee & Katelyn Ringrose
Ramjee and Ringrose examine the use of forensic genealogy in law enforcement and the methods by which genetic information can be used. They evaluate the limitations that may arise in developing machine algorithms in law and criminology and provide subsequent policy recommendations to promote the enhancement of investigative techniques while also safeguarding genetic information and ensuring appropriate jurisprudential protections.​​
An American's Guide to the GDPR
Meg Leta Jones & Margot E. Kaminski
​Professors Jones and Kaminski provide an overview of the European Union’s General Data Protection Regulation (GDPR), including information such as what the Regulation contains, how it should be read, and basic data protection concepts under European law. They strive to correct common misconceptions about the GDPR in order to inform future legal practice.
"Directly Adverse" Means Directly Adverse: How Courts Have Misread Rule 1.7(a)(1) and Why it Matters
​Professor Gillers explores the boundaries of the phrase “directly adverse” as it appears in the Model Rule of Professional Conduct 1.7(a)(1). Professor Gillers examines the way in which Rule 1.7(a)(1) has been interpreted by courts over time and argues that the Rule has been erroneously applied. He then provides guidance for future proper interpretations of “directly adverse.”​​
Regulatory Pathways For Minimizing the Climate Impacts of Natural Gas Production
​LaMair explores the lack of reduction in methane emissions in light of the Environmental Protection Agency’s (EPA) New Source Performance Standards (NSPS). LaMair advocates for two alternative pathways for continued regulation: (1) expanding NSPS regulation to also apply to existing sources, and (2) in the event that the NSPS is rolled back, petitioning the EPA to regulate methane through the National Ambient Air Quality Standards (NAAQS) program.​
Student Comments
​Hartley discusses the importance of gender diversity on corporate boards, then argues that California’s gender-based quota for corporate directorships is unconstitutional in light of the Internal Affairs Doctrine. Hartley then suggests that the Rational Football League’s Rooney Rule used in tandem with a comply or explain requirement is the most effective solution to mitigate a lack of gender diversity in corporate boardrooms.​
Rucho v. Common Cause: The Government Game of Hot Potato
​Nickel analyzes Rucho v. Common Cause and its decision regarding the issue of partisan gerrymandering. Nickel argues that the Court’s decision is evasive of proposing any long-term solutions, tossing the issue aside. Nickel concludes by recommending that in the future, the Court must face partisan gerrymandering directly.​
Issue 2
Articles
Risking a Contact High: The Tenth Circuit's Failure to Defer to Colorado's Marijuana Laws
​Jeffrey Boxer and Bobby Dishell evaluate federal courts’ failure to address the disparate nature of state and federal law with respect to marijuana regulation. They contend that this inconsistency within state and federal regulatory schemes contributes to the uncertainty and risk in marijuana-adjacent businesses. Boxer and Dishell challenge pertinent Tenth Circuit decisions and offer two solutions to provide states with more governing authority over this complex federalism issue. ​
Lauren E. Groth, Lucy Walker, Colleen M. Koch, & Julia Ishiyama
​After a private right of action under Title IX was established in 1992, interpretation of the doctrine has resulted in conflicting interpretations across different jurisdictions. The authors address one of these conflicts regarding what a plaintiff must sufficiently plead under Title IX. Due to a circuit split between the Tenth and Sixth Circuits on this issue, this Article advocates for the stance taken by one of them. ​
The Pandemic as a Portal: Reimagining Crime and Punishment in Colorado in the Wake of COVID-19
Kristen Nelson and Jeanne Segil challenge Colorado’s approach to mass incarceration reform efforts, especially during the COVID-19 pandemic. They argue for a more aggressive strategy that will target deeper structural issues, urge for a renewed understanding of crime and violence as an intersectional social problem.
Tenth Circuit Database Project: An Update and Preview
​The Tenth Circuit Database Project collects data on the decisions of the U.S. Court of Appeals for the Tenth Circuit. Professor Sassman discusses the updates within the Project specifically regarding methods and capacity. Professor Sassman then provides a preview of the regular tables that the project provides annually. The preview takes data from the Tenth Circuit’s decision in May 2020 and explains how the Project contributes to a larger study. ​
Using Country Conditions Evidence to Improve Appellate Review of Convention Against Torture Cases
Phillip Takhar, Michael J.P. Hazel, & Mairead K. Dolan
​During the enactment of the Trump Administration’s transit ban, asylum seekers sought withholding of removal under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The authors challenge the Tenth Circuit’s denial of CAT applications and urge them to clarify the standard for such applications, in hopes to provide more consistency among determinations. The Article proceeds to suggest that certain factors should hold more weight in conducting these CAT determinations. ​​
Issue 3
Articles
Are There Stories Prosecutors Shouldn't Tell?: The Duty to Avoid Racialized Trial Narratives
​The purportedly race-neutral actions of courts and prosecutors protect and perpetuate the myth of colorblindness and the legacy of white supremacy that defines the American criminal system. In a moment that demands transformative proposals that call on prosecutors to adopt a race-conscious approach to criminal prosecution, there is a need to generate new frameworks to change the culture of prosecution. Professor Owen Conway seeks to provide one specific and innovative framework. He examines the ethical duties of American prosecutors and argues that a race-neutral or “colorblind” approach to prosecution ignores the ethical violations inherent in racialized prosecutorial storytelling, while a color-conscious approach offers prosecutors a path to address the systemic racism rampant in the American criminal system. ​
Home Equity: Rethinking Race and Federal Housing Policy
Rachel D. Godsil & Sarah E. Waldeck
​Neighborhoods shape every element of our lives, and home inequity—both financial and racial—is not accidental. Federal government programs have armed white people with agency to construct “white” spaces while stigmatizing “Black” spaces. Professors Rachel D. Godsil and Sarah E. Waldeck explore the historical and present-day harms that need to be rectified using philosopher Tommy Shelbie’s theory of corrective justice, before offering a path forward through concrete changes to federal housing policy intended to address systemic racism. ​
Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms
​For decades, large law firms have expressed their commitment to diversity, equity and inclusion. However, breakthrough progress has been elusive. Women, and especially women of color, continue to be severely underrepresented in partnership ranks in many large law firms. Professor Katrina Lee argues that an ethical reset is needed to drive true systemic change in large law firms, and proposes a framework requiring (1) transparency of process and pay; (2) regular self-assessment addressing milestones; and (3) a financial incentive for compliance, that can be used to address consequences of systemic discrimination in law firms. ​
​David Maxted makes the case that police violence and its unequal impact on Black lives and other people of color is rooted in the invention and application of qualified immunity by the courts and the legal profession. He then offers several contributions to our understanding of qualified immunity including: (1) arguing that qualified immunity is a racist policy that should be abolished; (2) identifying the absurdity at the heart of the qualified immunity doctrine; and (3) demonstrating through analysis of the Tenth Circuit qualified immunity appeals the weaponization of interlocutory appeal to delay and frustrate justice. Mr. Maxted finally calls for the reinvigoration of American courts as forums for enforcement of rights by American juries and argues that the judges are the ones who ultimately will decide whether to permit courts to enforce civil rights through jury trials. ​
​As algorithms have become more complex, privacy and ethics scholars have urged artificial intelligence (AI) transparency for purposes of ensuring safety and preventing discrimination. While U.S. scholars continue to call for transparency in automated decision-making, modern AI technology does not function like traditional human-designed algorithms, which creates a “black box.” The black box makes these algorithms secret by definition: even their creators cannot easily explain how they work. Professor Tschider explains how AI differs from historically defined software, explores the scholarship calling for opening the black box and the reciprocal pushback from organizations that are likely to rely on trade secret protection, and finally proposes an alternative for promoting disclosure while balancing organizational interests. ​
Student Comments
Hernández v. Mesa: Ringing in a Fourth Decade of Judicial Over-Restraint
​The U.S. Supreme Court’s decision in the 1971 case Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics created a federal cause of action which individuals could bring claims for constitutional violations by federal officers. Since 1980, the Court has refused to extend Bivens, despite several opportunities to do so, including in Hernández v. Mesa. Nicholas Moskevich argues that the Supreme Court has erroneously justified its decades of Bivens over-restraint by (1) adopting and incomplete account of the historical development of remedies for constitutional violations by federal officials and (2) by disregarding Congress’s implicit ratification of the Bivens cause of action. Moskevich goes on to analyze the special factors implicated in the Bivens context which he argues constituted extension instead of hesitation, before finally arguing that Hernández warranted extension because it was the quintessential Bivens case and should have been interpreted as such. ​
Issue 4
Articles
Evaluating Facial Recognition Technology: A Protocol for Performance Assessment in New Domains
Daniel E. Ho, Emily Black, Maneesh Agrawala, & Li Fei-Fei
Facial recognition technology (FRT) is widely used today, including to unlock smartphones, to identify travelers at airports, and to monitor retail stores for shoplifting. Professor Ho, Emily Black, Professor Agrawala, and Professor Fei-Fei recommend how to test the accuracy of FRT to properly inform high-stakes legislative action and oversight. They characterize the gulf between the contexts in which FRT is created and the contexts in which FRT is deployed as stemming from two sources: domain shifts stemming from data differences across domains and institutional shifts in how humans incorporate FRT output in decisions. ​​
Screened Out Onscreen: Disability Discrimination, Hiring Bias, and Artificial Intelligence
Haley Moss argues that employers use of artificial intelligence (AI) to make hiring decisions discriminates against those with disabilities, which violates the Americans with Disabilities Act and raises ethical concerns. Moss recommends how employers can positively use AI to help disability hiring improve, should AI developers and engineers work to mitigate the risks of bias. This Article also explores the concerns and unique challenges that federal agencies and subcontractors face under Section 503 of the Rehabilitation Act of 1973 in addition to ADA compliance.
​Riyad A. Omar proposes how artificial intelligence (AI) algorithms contain societal biases when used for healthcare decision-making, which leaves healthcare providers with the risk of perpetuating biases against protected classes when making diagnoses. Omar argues that healthcare organizations may be in a better position to address the inherent risks of algorithmic bias because of they often have domain expertise in assessing the strengths and weaknesses of algorithms and devices used in healthcare delivery, they often have greater awareness of the benefits of the scientific method’s requirements for transparency, and because most health-care organizations have adopted risk-management processes governing the utilization of patient-health information. ​
​Professor Zenor proposes that in the future, artificial intelligence (AI) in one’s home will go beyond a small speaker and evolve into devices that appear more human than robot. This Article evaluates how AI is used in predicting and preventing private violence, examines the laws of privacy, confidentiality, and mandatory reporting, and analyzes the role of in-home AI, how it could be used to report risks and acts of violence, and the ethical issues it creates. ​
Student Comments
Kahler v. Kansas: A Defense Denied
​In Kahler v. Kansas, the Supreme Court once again refused to draw constitutional lines delineating the insanity defense in criminal cases. Specifically, the Court ruled that the moral incapacity test (which asks not whether defendants knew what they were doing, but whether they knew their acts were morally wrong) could not be ranked as a fundamental constitutional right under U.S. common law tradition. In this case comment, Elizabeth Poche argues that the constitutional threshold of the insanity defense, at the very least, should be that defendants possess the ability to discern between right and wrong at the time of the committed crime. ​
