DENVER LAW REVIEW
Volume 99
2021–2022​
Issue 1
Student Comments
Trump v. Vance: The Distraction Argument and Absolute Presidential Immunity
​This Comment dissects the “distraction argument” made by former-President Trump in Trump v. Vance, where the Court examined the bounds of presidential immunity. This Comment argues that the Vance Court properly adhered to its presidential immunity precedents in a manner consistent with the Framers’ intent of the presidency, thereby undermining former-President Trump’s argument. The Comment also provides an update on the subject matter at issue in Vance after the 2020 presidential election. ​
Addressing Labor Trafficking: The Next Step in the Anti-Trafficking Movement
​Modern human trafficking law is a new and emerging legal field across the world. This Comment begins by defining and discussing human trafficking and chronicling major developments in federal- and state-level human trafficking law. The Comment then discusses the some of the ways employer-provided housing law currently stands in the way of completely effectuating Colorado’s human trafficking law, arguing that reforms must be made for the law to effectuate its intended purpose. ​
Articles
​Under Federal Rules of Evidence 404(b), when the prosecution’s only theory is the doctrine of objective chances, the prosecution is precluded from introducing evidence that the uncharged conduct was intentional. Using the decision of the Oregon court in People v. Skillicorn, this Article argues that under Federal Rules of Evidence 403, a judge should exclude evidence of intentionality as irrelevant and prejudicial whether or not the accused asserts that all incidents were unintentional. ​
The Locale and Damages of Fatal Policing
Scott Jeffrey & W. Kip Viscusi
​This Article argues for more appropriate victim compensation in incidents involving “fatal policing” as encouragement for jurisdictions to adopt mechanisms to deter fatal policing. The Article defines the term fatal policing and reviews data on fatal policing to corroborate findings that Black people are disproportionately victims of fatal policing, making comparisons across regions. The Article proposes financial incentives as a deterrent to fatal policing arguing three damages-related proposals.
Multiservice Business and Social Mobility: Reform to Lift Community Leaders
​This Article analyzes the value of multiservice businesses through the perspective of urban law and poverty law. The Article argues that multiservice businesses are an untapped resource that could do more to support urban communities and advance social mobility with an improved regulatory framework. The Article explores how multiservice businesses have the potential to increase access to justice and enrich community economic development for both the multiservice business entrepreneur and the community in which the multiservice business operates. The Article closes by offering suggestions on what a regulatory scheme for multiservice businesses could look like as an example of how law reform can aid upward mobility.​
​This Article discusses Congress’s authority to establish statutory requirements on executive appointments, specifically asking which positions are subject to statutory requirements. The Article focuses on the statutory requirements that relate to one’s background qualifications or expertise to serve in a role and begins by identifying the different positions that impose such requirements, as well as their authorizing statutes. The Article then discusses patterns for which roles have general requirements versus which have specific requirements. The Article reasons that these expertise requirements in Executive Branch roles are inconsistently dispersed throughout the U.S. Code. The Article concludes by offering modifications to standardize these requirements. ​
Issue 2
Articles
Lessons from McGirt v. Oklahoma's Habeas Aftermath
​In McGirt v. Oklahoma, the U.S. Supreme Court recognized that the historic reservation boundaries of the Muscogee (Creek) Nation remained intact. Finding that Oklahoma lacked jurisdiction to prosecute Jimcy McGirt for crimes committed within the boundaries of the Muscogee Reservation, the decision created an avenue for claims of post-conviction relief for similarly situated prisoners. This Article surveys these claims, offers an account for the disparity of success between claims at the state and federal level, and identifies potential constitutional problems posed by the courts’ respective approaches to habeas petitions invoking McGirt and its Tenth Circuit predecessor, Murphy v. Royal. ​
COVID-19 Comes to the Colorado Supreme Court
​Christopher M. Jackson analyzes Colorado Supreme Court decisions resulting from legal challenges to the state’s public health measures implemented during the early stages of the COVID-19 pandemic. Taken together, these decisions do not clearly signal the breadth of latitude the government would be afforded to address this crisis. While the court communicated that the pandemic would not drive its decisions, a closer reading illustrates that a majority of justices believe that constitutional interpretations must avoid rendering the government impotent during a global emergency. ​
Kimberly J. Jones & Emma M. Feeney
​In the wake of an unprecedented health crisis, states grappled with what legal protections, if any, workers impacted by COVID-19 had. Kimberly J. Jones and Emma M. Feeney provide guidance for whether and in what circumstances courts in the Tenth Circuit are likely to treat COVID-19 as a “disability” entitled to protection under the Americans with Disabilities Act of 1990. ​
Doe v. School District No. 1: Strengthening Title IX Protections in the Tenth Circuit
​Igor Rakin and Michael Nolt examine how the Tenth Circuit’s decision in Doe v. School District No. 1 clarified both that retaliatory harassment is actionable under Title IX and that to avoid liability, school districts must respond with an intention to end the harassment. By examining the background and statutory language of Title IX, as well as the factual allegations and legal arguments of Doe, this Article illustrates how this decision provides greater Title IX protection from student-on-student harassment. ​
​Reminiscent of the U.S. Supreme Court’s “shadow docket,” Hayley Stillwell explains how practices of both the Oklahoma Supreme Court and Tenth Circuit Court of Appeals contravene the obligations of judges. This Article examines how the specific practices of these two courts perversely affect the justice system by leading to a lack of transparency and accountability. It concludes by proposing tailored solutions that require more explanation for their decisions and more precedential opinions, helping to eliminate these shadow docket characteristics. ​
Issue 3
Articles
Professor Erin Carroll addresses the rise in physical assaults and online violence directed at journalists, particularly targeting women of color. She emphasizes that this violence threatens not only individual journalists, but democracy as a whole. Journalists, especially women of color, often report on issues challenging social hierarchies and inequities. Violence against journalists restrains discussions on these critical topics, effectively silencing marginalized communities. In response, Professor Carroll proposes that lawmakers create a federal “obstruction of journalism” statute, modeled after existing federal obstruction of justice laws.​
Adam Cribari highlights the urgent need for a global response to climate change, emphasizing that substantial resources are necessary for mitigation and adaptation efforts. While the United Nations Framework Convention on Climate Change calls for private sector investment to fill funding gaps, access to sustainability reporting frameworks has not significantly increased contributions. Obstacles such as lack of standardized reporting and transparency hinder investment. Cribari advocates for reforms in sustainability reporting frameworks to better address investor concerns and fill data gaps, thereby encouraging greater private sector involvement in achieving international climate goals.​​
Biosimilar Basis: A Barrier to Addressing American Drug Costs
​Professor Cynthia Ho emphasizes that 40% of U.S. drug costs arise from just 2% of medications—biologic drugs—driven by complex production. As the FDA approves more biologics, treatment costs will likely rise, making them less accessible. Despite the existence of lower-cost biosimilars, their adoption is obstructed by legal obstacles, industry practices, and biases against cheaper options. Misunderstandings about biosimilars keep costs high and worsen health outcomes. Profeesor Ho calls for legal reforms, education, and financial incentives to encourage biosimilar use, potentially saving the United States $50 billion over the next decade.​
​Professor George Mader offers a textual analysis revealing that “the Laws” in the Take Care Clause do not include the Constitution, undermining arguments for presidential interpretive power. Mader also reasons that the presidential oath does not support this claim. Professor Mader's analysis suggests that judicial interpretations are superior to conflicting executive interpretations and clarifies that “the Laws” referenced in the Take Care Clause and “[t]he Laws of the Union” refer to federal statutes and treaties, not the Constitution.​
Has China's Labor Contract Law Curtailed Economic Growth?
​Professors WenWen Ding and J.H. Verkerke discuss how China's economic reforms resulted in nearly 10% GDP growth from 1978 to 2018, but slowed to just under 7% in 2018, prompting debate about the reasons for the decrease. One factor under scrutiny is the 2008 Labor Contract Law (LCL), which protects workers' rights against firings. Critics claim it limits employers' ability to adapt their workforce, hindering growth. However, this Article presents a comparative study showing that the LCL's constraints are similar to those in other countries. It challenges the notion that the LCL has significantly harmed growth or labor markets. Given these regulations' limited enforcement, this Article advises the Chinese government to be cautious about claims that reducing employment protections will reignite economic growth.​
Issue 4
Foreword
Foreword: Mapping Critical Geographies in Virtual Space
Shelley Cavalieri, Saru M. Matambanadzo, & Lua Kamál Yuille
In this foreword to the Latina and Latino Critical Legal Theory, Inc. (“LatCrit”) Symposium, Professors Cavalieri, Matambanadzo, and Yuille introduce the work of the 2021 LatCrit Biennial Meeting while discussing the underpinnings of the theoretical movement. The authors frame the movement as one of critical importance, particularly at a time amidst growing resistance to anti-subordination efforts, and highlight the many variations of Critical Legal Studies included within the LatCrit community. The authors introduce and contextualize four Articles written by the LatCrit community and conclude by challenging their fellow critical community members to be more introspective about persisting issues regarding the denial of access and how status is derived. ​​
Articles
Artificial Intelligence Subordination: Consequence of the Failure to Govern
​Professor Loza de Siles contributes to the discourse on law, privacy, and technology by examining the role of artificial intelligence within governance. The author argues that privacy law is a critical area where artificial intelligence can lead to subordination, and, when used by the government, has the potential to deprive individuals of fundamental rights including life, liberty, property, and home. The author highlights the regulatory gaps affecting the unregulated realm of artificial intelligence and argues that this lack of regulation implicates social justice concerns, as artificial intelligence may harm individuals without their knowledge or consent. As a contribution to LatCrit scholarship, the Article emphasizes the need to examine and challenge forms of subordination in contemporary society. ​
The Black–White Paradigm's Continuing Erasure of Latinas: See Women Law Deans of Color
​Professor Padilla critically reflects on the rise of women law deans of color, noting that this era is largely characterized by the overrepresentation of Black women in academia and the legal profession when compared to other women of color. The author notes that while the shift away from white male dominance is commendable, there remains a concerning lack of representation for non-Black women of color. Professor Padilla emphasizes the need for a broader examination of privilege and oppression among non-white groups, raises significant issues about the representation and contributions of Latina law deans, and challenges the LatCrit community to reconsider the goals of anti-subordination work.​
Yoga as Property: A Century of United States Yoga Copyrights, 1937–2021
Professor Singh documents the appropriation of yoga practices in the United States and examines how U.S. copyright law is used to commodify this historically collective knowledge. Through careful analysis of the U.S. Copyright Archives, Professor Singh illustrates the common practice of cultural outsiders appropriating traditional cultural practices, subsequently rendering these practices inaccessible to their rightful cultural devisees. The author argues that this appropriation not only constitutes a theft of knowledge but also involves the racialization of that knowledge as it was being stolen, highlighting a broader U.S. history of stealing traditional and Indigenous property that supports a capitalist system predicated on wealth extraction. Professor Singh emphasizes that people of color are disproportionately affected by this exploitation, underscoring the intersection of racism and economic vulnerability.
White Vigilantism and the Racism of Race-Neutrality
​Professor Sundquist critiques the concept of “race-neutrality,” arguing that it serves both as a response to crises and as a tool for perpetuating white supremacy. The author explores how racism fulfills structural and psychological roles during cyclical crises that aim to maintain the status quo, despite lawmakers’ rhetoric of equality and diversity. Professor Sundquist roots this critique of race-neutrality in examinations of the law’s response to instances of white vigilantism in the much-publicized criminal trials of Kyle Rittenhouse and that of Ahmaud Arbery’s assailants, arguing that self-defense laws operate as technologies of white supremacy, which rely upon racist tropes and stereotypes. ​
Francisco Valdes, Steven W. Bender, & Jennifer J. Hill
​Professor Valdes, Dean Bender, and Professor Hill commemorate the twenty-fifth anniversary of Latina and Latino Critical Legal Theory, Inc. as an organization that has evolved into an entity with a portfolio of projects, supported by an intentional and engaged community, that is rooted in the highly-theorized critical intellectual endeavor of knowledge production. The authors reflect on the LatCrit community’s journey and the future directions amid significant global challenges, including the pandemic, climate crisis, disinformation, and threats to democracy. The authors argue that the LatCrit community’s responses to these issues must become more democratic, decentralized, coordinated, and coalition-based in order to achieve the tactical, operational, and structural advancements that have been long sought by the community. The authors call for collective action that embraces innovation and collaboration to effectively navigate the current landscape and pursue meaningful change for the future. ​
