DENVER LAW REVIEW
Volume 103
2025–2026
Articles
Forever Free: Public Recreational Access to Inland Water
John A. Lovett
Tracing back to English common law, this Article discusses the evolution of law as it relates to public access to inland waterways. Access to inland waterways has been disputed in American courts for centuries, and the courts' resolution to these disputes has developed significantly, creating new tests, such as the highway of commerce test and the "Public Recreational Servitude Approach" is judcicial innovation that should be celebrated, not feared.
J. Jacob Foor
Exploring the intersection of Title VI and the importance of American life, this Article finds that Title VI is facing a legitimate crisis. The deficient enforcement and inadequate protection of victims plague Title IV, undercutting its original goals. But, as this article suggests, all is not lost for Title VI, as this crisis can be resolved with a unique application of procedural justice and moral credibility principles.
Jeff Sovern
In consumer finance, the development of a new business product, such as the buy now, pay later model, is often accompanied by a new risk to consumers. Normally, such a risk would be quelled when Congress reaches into its consumer protection toolbox and establishes guardrails for the new business model. This path to applicable protections can often take years, and this Article suggests a new approach. Congress should enact a statute granting the Consumer Financial Protection Bureau the authority to use the existing consumer protection toolbox to regulate new products as needed.
Elizabeth Lee Thompson
Recognizing the lack of scholarship related to state court proceedings, this Article puts the spotlight on the writ of mandamus. Specifically, it examines mandamus petitions commanding action by public officers with an empirical study of 497 cases spanning the last two centuries. In all, the Article concludes that mandamus is valuable, accessible, and a powerful tool for citizens to use.
Student Notes
The Ambiguity of Muldrow v. City of St. Louis's Some-Harm Requirements
Hayley Stephany
In Muldrow v. City of St. Louis, the Court replaced the "significant harm" standard with the Title VII disparate treatment claims, requiring claimants to instead prove only "some harm." This Note argues that this decision, while seeking to benefit employees by reducing the burden of proof, ultimately complicated the standard for claimants. Lower courts have struggled to interpret the new, ambiguous standard, leading to inconsistency in Title VII claims. As a resolution to this struggle, this note advocates for the implementation of a more established judicial test, one that specifically explores the objective and subjective standards and the reasonable standards.
Issue 1
Articles
The Paradox of Federal Oversight in Police Misconduct Investigations
Ilana M. Friedman
Drawing on over fifty interviews with state and federal prosecutors, this Article examines how police misconduct cases are investigated and prosecuted across jurisdictions. While the federal Civil Rights Division's involvement is intended to strengthen accountability, the study reveals that experienced police misconduct prosecutors may view exogenous oversight as intrusive to their autonomy.
The Misconceived Personal-Benefit Requirement of Insider Trading Law: About the Insecurities Markets
Kenneth R. Davis
Analyzing Dirks v. SEC and Salman v. United States, this Article identifies a mistaken premise embedded in the classical theory of insider trading and its personal-benefit requirement for tipper/tippee liability. This Article argues that the Supreme Court has misconceived the nature of insider trading, contending that the wrong act is unauthorized trade itself, not the benefit of the trade itself.
Zachary R. Cormier
Through an examination of recent cases involving warrantless seizures of cell phones during protests or police activity, this Article identifies three problematic trends that undermine First and Fourth Amendment rights: overt reliance on exigent circumstances, confusion over probable cause standards, and a circuit split regarding extended seizures. This Article explores these trends and offers an approach for future courts to ensure First and Fourth Amendment protections.
The Protection Illusion: Sexual Harassment Policies and Low-Wage Workers
Sherley Cruz
This Article argues that workplace sexual harassment policies provide only illusory protection while actively creating significant barriers to sexual harassment reporting. This review of reporting protocols demonstrates how limited accessibility, burdensome procedures, and "good faith" reporting requirements deter rather than encourage employees from coming forward. It calls for courts to more rigorously review workplace policy before granting an employer's affirmative defense.
Student Notes
"Fixing" the Classical Legal Tradition
Jamie G. McWilliam
Recognizing the criticisms of originalism as being morally empty jurisprudence, this Article argues that certain core originalist theses can deepen the classical legal tradition's understanding of how positive law fulfills its moral role. It contends that discrete commitments such as fixation, constraints, and lawful change should be accepted by classical legalists and viewed as part of the jurisprudential framework that is grounded in reason and common good.
Issue 2
Articles
Certification to the State Supreme Court in the Tenth Circuit
Melissa Hart & N. Reid Neureiter
In this Article, Melissa Hart and N. Reid Neureiter examine how certification operates in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming— the six states that comprise the Sixth Circuit. The authors compare the states' certification rules and explore the practical and legal considerations that influence whether federal courts certify questions to supreme courts. Ultimately, the Article shows how certification can culminate in teamwork between federal and state courts while still allowing states to keep authority over the development of their own laws.
Joni Hersch
Joni Hersch examines whether DEI training can create a hostile work environment and whether it constitutes unlawful discrimination. The Article focuses on the Tenth Circuit's decision in Young v. Colorado Department of Corrections, where one employee's hostile work environment claim suggested DEI training can become harassment. Hersch examines the development of workplace harassment law, law reviews, the objectives of anti-bias training, and studies the research regarding the overall effectiveness of these programs.
Gender Therapy False Equivalency
Scott Skinner-Thompson
This Article argues that youth gender affirming care and conversion therapy may overlook critical differences in the scientific support for each practice and the harms they produce. The Author examines the Supreme Court's decision in United States v. Skrmetti, which involves a state ban on gender-affirming care for transgender minors. He concludes that the conversion practices lack effectiveness and can inflict serious psychological and emotional harm; however, gender-affirming care is supported by medical research and can reduce harm since it allows patients to explore and receive care consistent with their identities.
False Equivalency: Shots are Speech and Speech is Conduct
Haley Dutch
In response to Scott Skinner-Thompson's Gender Therapy False Equivalency, Haley Dutch considers how courts should distinguish between bans on gender-affirming medical treatment for minors and bans on conversion therapy. Dutch instead argues that the available research concerning both gender-affirming treatment and conversion therapy is still novel and therefore limited. She further contends that both bans restrict a parent's ability to make certain healthcare decisions for their children without violating a recognized constitutional right.
Stephen S. Davis
Across the American West, nineteenth-century railroad land grants created a checkerboard of alternating public and private parcels, leaving millions of acres of public land accessible only at points where parcel corners meet. Stephen S. Davis examines "corner-crossing," or moving directly from one public parcel to another without touching the privately owned land between them. The Article focuses on Iron Bar Holdings, LLC. v. Cape, where the Tenth Circuit held that private landowners may not prevent members of the public from corner-crossing. Davis explores how the decision intersects with the Fifth Amendment's Takings Clause and the Supreme Court's decision in Cedar Point Nursery v. Hassid. He argues that the Tenth Circuit expanded the exception to takings liability, which can create friction between public-land access, private-property rights, and the constitutional protections against uncompensated government takings.
Comstock Preemption Against State Law Abortion Protections: a Litigaion-Stategy Case Study
Sachin S. Pandya & Marcia McCormick
Sachin S. Pandya and Marcia McCormick examine City of Eunice v. Torrez, a New Mexico Lawsuit that focused on whether the federal Comstock Act preempted state laws protecting abortion access. Pandya and McCormick analyze the strategic decision that transpired, including the selection of the plaintiff and the defendants, the choice of the state court and venue, the preemption claim asserted, and the request for declaratory relief. This Article ultimately acts as a case study that illustrates how lawyers may use local ordinances and careful litigation to challenge state abortion protections and pursue legal change.
Student Notes
People v. Garcia: The High Stakes of Waiving Justice and Forfeiting Fairness
Hannah R. Carrothers
In this Note, Hannah R. Carrothers uses the Colorado Supreme Court decision People v. Garcia to analyze what happens when a defendant's former attorney later becomes the judge presiding over their criminal case. Carrothers argues that the court improperly lowered the standard for implied waiver by relying on constructive knowledge, drawing inferences in favor of waiver, and treating possible strategic motives as evidence of an intentional relinquishment. It also explores how the decision can disproportionately affect indigent defendants represented by overburdened public defenders. This Note therefore proposes that the courts utilize principles from contract law—depicting constitutional and statutory protections as social contracts—to protect the right to a fair trial.
Issue 3
Articles
Forever Free: Public Recreational Access to Inland Water
John A. Lovett
Tracing back to English common law, this Article discusses the evolution of law as it relates to public access to inland waterways. Access to inland waterways has been disputed in American courts for centuries, and the courts' resolution to these disputes has developed significantly, creating new tests, such as the highway of commerce test and the "Public Recreational Servitude Approach" is judcicial innovation that should be celebrated, not feared.
J. Jacob Foor
Exploring the intersection of Title VI and the importance of American life, this Article finds that Title VI is facing a legitimate crisis. The deficient enforcement and inadequate protection of victims plague Title IV, undercutting its original goals. But, as this article suggests, all is not lost for Title VI, as this crisis can be resolved with a unique application of procedural justice and moral credibility principles.
Jeff Sovern
In consumer finance, the development of a new business product, such as the buy now, pay later model, is often accompanied by a new risk to consumers. Normally, such a risk would be quelled when Congress reaches into its consumer protection toolbox and establishes guardrails for the new business model. This path to applicable protections can often take years, and this Article suggests a new approach. Congress should enact a statute granting the Consumer Financial Protection Bureau the authority to use the existing consumer protection toolbox to regulate new products as needed.
Elizabeth Lee Thompson
Recognizing the lack of scholarship related to state court proceedings, this Article puts the spotlight on the writ of mandamus. Specifically, it examines mandamus petitions commanding action by public officers with an empirical study of 497 cases spanning the last two centuries. In all, the Article concludes that mandamus is valuable, accessible, and a powerful tool for citizens to use.
Student Notes
The Ambiguity of Muldrow v. City of St. Louis's Some-Harm Requirements
Hayley Stephany
In Muldrow v. City of St. Louis, the Court replaced the "significant harm" standard with the Title VII disparate treatment claims, requiring claimants to instead prove only "some harm." This Note argues that this decision, while seeking to benefit employees by reducing the burden of proof, ultimately complicated the standard for claimants. Lower courts have struggled to interpret the new, ambiguous standard, leading to inconsistency in Title VII claims. As a resolution to this struggle, this note advocates for the implementation of a more established judicial test, one that specifically explores the objective and subjective standards and the reasonable standards.
The Inaccessible Courtrooms for Individuals with Non-Apparent Disabilities
Abigail Willis
Despite ADA protections, individuals with non-apparent disabilities encounter significant participation barriers in the American legal system. In recognition of this and the lack of empirical scholarship in disability and courtroom access, this Note offers a look into how courts inadequately serve individuals with non-apparent disabilities. To address these inadequacies, the Note proposes several reforms to improve accessibility to Colorado courtrooms.
