DENVER LAW REVIEW
Volume 102
2024–2025​
Issue 1
Articles
Michael Mattioli
This Article explores how AI can bolster the creation and dissemination of copyrighted works within the broader copyright ecosystem. To deepen this exploration, this Article introduces the "Facilitative Fair Use” framework, arguing that courts should explicitly recognize AI’s capacity to expand public access when assessing fair use and highlighting the need for diverse training data to mitigate biases and promote equitable creativity. ​
Safeguarding Children's Voices in Child Protective Proceedings
Stephanie L. Tang
While children can have preferences in child protective proceedings through four primary avenues, judges and attorneys have the final say as to whether those avenues are actually offered to children. This Article contributes to the discussion on children’s rights in child protective proceedings by framing children’s legal rights to participate as inherent in their constitutional right to family integrity and arguing that states should adopt a multitiered framework of accountability and oversight measures to protect children’s rights in these proceedings.​
Greg Reilly
Patent invalidation has become more common in the past decade, yet invalidating patents is a cost that scholars have overlooked. This Article explores invalidation costs including reliance costs, uncertainty costs, in terrorem costs, and adjudication costs in depth, and brings these costs into mainstream patent scholarship in addition to providing the balanced analysis missing from modern patent debates.​​
Adam Fisher
This Article explores how net-zero requirements for federal oil and gas leases are challenged under the Administrative Procedure Act and West Virginia v. EPA’s major questions doctrine, after commentators have suggested that an administration could limit U.S. greenhouse gas emissions. The Article concludes that if an administration could properly structure and defend the requirements, courts would likely uphold them.​​
Rate Covenants in Municipal Bonds: Selling Away Civil Rights and Fair Housing Goals
Jade A. Craig
This Article examines how unfettered rate covenants in revenue bonds disproportionately harm low-income and minority communities in accessing vital public services. It reveals that municipalities, catering to bondholder interests, can escalate fees indefinitely, sidelining fair housing and civil rights imperatives. In response, this Article calls for statutory reforms instituting rate caps to curb inequitable pricing structures and protect vulnerable residents. ​​
Student Notes
Samia v. United States: The Ghost of Sir Raleigh Haunts Again
Rebekah S. Atnip
This Note critiques the Supreme Court’s approach in Samia v. United States, where a nontestifying codefendant’s redacted confession was admitted without triggering the Confrontation Clause. It maintains that prioritizing “judicial economy” erodes confrontation rights by allowing juries to infer the nonconfessing defendant’s identity. The discussion underscores the potential expansion of prosecutorial power at the expense of Sixth Amendment protections.
Issue 2
Foreword
In this foreword to the Tenth Circuit Issue, Volume 102's Tenth Circuit Articles Editor, Kenneth Landers, reminders readers of the purpose behind this Issue—to engage with the law in and reaffirm Denver Law Review's commitment to its immediate community. ​
Articles
Dwindling Appeals and Nonexistent En Banc Review in the Tenth Circuit
Wiley Kersh, Michael A. Kilbourn, & Justin Marceau
Critically responding to recent guidance on pursuing en banc review, this Article questions its practical utility within a circuit that seldom grants such petitions. While recognizing the procedural value of the recommendations, this Article contends that the Tenth Circuit’s exceptionally infrequent use of en banc review—averaging just over one instance every two years—renders such advice largely theoretical. It ultimately suggests that without a meaningful shift in the court’s en banc practices, efforts to refine petition strategy may have limited doctrinal or practical significance.​​
The Tenth Circuit's Blueprint for Minimizing En Banc Rehearings
Steven M. Foster, Jr. & Anthony R. Guttman
This Response aims to quell practitioner concerns regarding decreasing intracircuit uniformity, as it pertains to the Tenth Circuit's downward trend of en banc rehearings, and argues that this scarcity is not a problem, but a product of its deeply rooted collegiality. By tracing the historical function of en banc review and examining the court’s informal procedures, the Article contends that collegiality itself serves to preserve precedential uniformity—making frequent en banc review unnecessary.​​
The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims
Litigants hoping to bypass administrative exhaustion by raising constitutional claims may find an unexpectedly high bar in the Tenth Circuit. This Article examines the Circuit’s rigorous and nuanced approach, which generally requires exhaustion even for structural constitutional challenges—despite recent Supreme Court decisions questioning the propriety of agency adjudication in such contexts. Arguing that this framework remains consistent with Supreme Court precedent, this Article offers a reasoned defense of the Tenth Circuit’s position and explores its strategic implications for both agencies and litigants.​​
​This Article contends that the Colorado Supreme Court has eroded critical constitutional constraints on taxation, public debt, and corporate favoritism. Provisions such as the Taxpayer’s Bill of Rights and restrictions on public-private entanglements—designed to ensure fiscal restraint and democratic accountability—have been effectively nullified through judicial reinterpretation. As a result, Colorado’s constitutional framework has been subverted, enabling governance that prioritizes entrenched political interests over voter consent.​
Public Health Emergencies and the Second Amendment
Amy Swearer & Paul J. Larkin
This Article critiques New Mexico’s attempt to restrict the right of ordinary citizens to bear arms in public in the state’s most populous county under the guise of a public health emergency, arguing that such executive action is incompatible with the Second Amendment. It contends that loose applications of Bruen’s history-based test might offer governments in times of acute crisis a fair—but not unlimited—amount of authority to impose temporary, albeit severe, restrictions on core aspects of the right to bear arms in public. The Article concludes that even under a flexible application of Bruen’s historical test, the New Mexico order cannot withstand constitutional scrutiny, offering a cautionary case study in the limits of emergency powers in the context of gun regulation.​
Student Notes
​This Note argues that bankruptcy, increasingly used to resolve mass tort claims, fails to account for the nonmonetary and dignitary aims of tort law. Using Harrington v. Purdue Pharma as a case study, it proposes a right for mass tort victims to submit victim impact statements in bankruptcy proceedings, drawing from victims’ rights in criminal law, to better reconcile the aims of tort and bankruptcy and shed light on the often-overlooked issues with litigating mass tort claims in bankruptcy court.​
"Recognize Me As Who I Am": Names, Pronouns, and the Intersection of Title VII and Title IX
​This Note argues that Title IX, properly interpreted in light of Bostock v. Clayton County, prohibits discrimination on the basis of gender identity. It calls for resolution of the current circuit split to ensure that public school teachers are not permitted to intentionally misgender transgender and nonbinary students under the guise of religious accommodation. ​
Issue 3
Articles
Using Nuisance Law to Advance Food Safety
Professor Lytton’s Article argues that contaminated fresh produce, which is largely caused by manure runoff from nearby cattle operations, remains a major food safety issue despite existing regulations. He proposes using nuisance lawsuits to hold cattle operations accountable and incentivize better manure management, cattle vaccination, and feed additives. This legal strategy would complement weak regulatory enforcement and shift responsibility upstream to pollution sources.​
Voter Rights in Kansas After League of Women Voters v. Schwab
Richard E. Levy
This Article critically examines the Kansas Supreme Court’s decision in League II, which upheld certain voting restrictions despite evidence that they may disenfranchise voters. Professor Levy argues that the court misinterpreted the Kansas constitution by failing to robustly protect the right to vote, especially regarding signature verification requirements for absentee ballots. He warns that this ruling may signal a retreat from earlier Kansas decisions that offered stronger rights protections than federal law, potentially limiting future voting rights challenges.​
Asynchronous Trials: A New Approach to High-Volume Adjudication
Professor Wang proposes a new approach to resolving low-complexity civil cases: asynchronous, where participants communicate through written or recorded submissions at different times. Drawing on post-COVID virtual court innovations and international pilot programs, Professor Wang argues that asynchronous trials could increase access to justice, reduce costs, and enhance court efficiency, especially for pro se litigants. He also outlines the procedural and evidentiary frameworks needed to implement these trials effectively while acknowledging potential challenges like reduced solemnity and difficulties with real-time confrontation.​​
Witness-Washing Facial Recognition Technology
This Article examines how police use Facial Recognition Technology (FRT) in secret to avoid legal scrutiny by hiding it behind human eyewitness identifications. Professor Rouse coins the term “witness-washing” to describe this process. In witness-washing, algorithmic outputs are incorporated into investigations, but only human testimony is presented in court, masking the use of the flawed and untested technology. He argues that this practice undermines constitutional protections, prevents meaningful review of FRT’s accuracy and legality, and enables a hidden, algorithm-driven criminal justice system.​​
Meera E. Deo
Professor Deo argues that in the wake of the Supreme Court’s SFFA decision limiting affirmative action, legal education must focus on student retention through fostering a sense of belonging, especially for students of color. Using a Critical Race Theory (CRT) lens and empirical data, Deo shows that belonging is vital for student success, yet many marginalized students feel isolated in law school. She proposes targeted interventions for faculty, students, and administrators to cultivate inclusion and community, thereby supporting the retention and wellbeing of underrepresented law students.​
