DLR Online Special Features

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Events & Announcements

Jan. 9, 2019 - The Denver Law Review is pleased to open registration for our 2019 Symposium, Driven by Data: Empirical Studies in Civil Litigation and Health Law. We have a top-class list of speakers for this year's symposium and we look forward to seeing you there! Register by following this link.


Apr. 4, 2018 - The Denver Law Review is currently accepting submissions for its Recent Developments in the Tenth Circuit issue. For details on the issue and submission instructions, please review this document. We look forward to reviewing all submissions!


Mar. 5, 2018 - The Denver Law Review will soon be accepting submissions for the 2018 Emerging Scholar Award. For details on the award including eligibility, award information, and submission instructions, please review this document. We look forward to reviewing all submissions!


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Thursday
Sep132018

Limits on the Word Limit Under Rule 14a-8

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Daniel Hamilton[*]

The Securities Exchange Act (Exchange Act or Act) granted the Securities and Exchange Commission (SEC or Commission) the authority to regulate the proxy process.  In exercising that authority, the Commission adopted Rule 14a-8 (Rule).  The Rule requires public companies to include shareholder proposals in their proxy materials.

The original version of the rule imposed a word limitation on supporting statements but not the actual proposal.  As a result, shareholders sometimes submitted excessively long proposals.  Eventually, the Commission imposed a cap of 500-words on the entire submission.  To enforce the requirement, the SEC developed a number of counting rules that addressed the use of numbers, web site addresses, symbols, and hyphenated words.  The counting limit also included words and numbers contained in images and charts.

This article will first review the administrative history of the word limit.  The Commission has amended the word limit on a number of occasions, at least in some instances as a result of issuer complaints.  This article will next analyze the staff’s interpretation of the limit, with a particular focus on the period after 1998.  Finally, the piece will discuss the need for changes to better serve the interests of issuers and investors.

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Thursday
Sep132018

"Good Cause" for Nonattendance at the Shareholder Meeting Under Rule 14a-8(h)

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Bryston C. Gallegos[*]

Rule 14a-8 grants shareholders of a publicly traded company the right to include their proposals in the annual proxy statements. The Rule, however, also imposes a number of procedural requirements on proponents. Specifically, subsection (h)(1) requires that either the proponent or a “representative who is qualified under state law” attend the meeting and present the proposal. A violation without “good cause” allows the company “to exclude all of [the shareholder’s] proposals from its proxy materials for any meetings held in the following two calendar years.”

The attendance requirement did not appear in the initial version of Rule 14a-8. The Rule assumed that shareholders would attend meetings and personally present their proposals. Eventually, the Commission amended the Rule to require attendance but permitted waiver upon a showing of good cause. In addition, shareholders could appoint a “qualified representative” to present proposals. Administrative interpretations have, however, effectively repealed the good cause exception. Consequently, the failure to present has become a per se ground for exclusion of a shareholder’s proposal in the following two years.

This article will review the administrative history of subsection (h) and the evolution of a procedural requirement that permitted management to omit shareholder proposals for two years following a violation. Next, this article will examine the SEC Staff’s (Staff or Division) interpretation of the requirement through no-action letters (NAL). Finally, the article will analyze the Staff’s interpretation of subsection (h) and explain how the appearance requirement and good cause excuse may be modified to benefit both shareholders and companies.

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Sunday
Aug262018

The High Cost of Discrimination: DU Pays $2.66 Million to Female Law Professors

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Shannon Warren[*]

“We never thought that an institution dedicated to teaching about justice, equality under the law, and professional ethics would discriminate against us in pay simply because we were women,” said Professor Nancy Ehrenreich in a media conference last month. Professor Ehrenreich was one of the seven female full professors at the University of Denver  Sturm College of Law (the university or the law school) who joined in the pay discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) against the university.

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Sunday
Aug262018

Tort Reform Under Constitutional Fire

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Bryston C. Gallegos[*]

Nearly fifty years ago, tort reform was born and states started capping damages for victims of medical malpractice.  In response, injured plaintiffs began challenging noneconomic damage caps on various constitutional grounds—particularly equal protection.  Although equal protection challenges involve varying state statutes and differing factual circumstances, there are common questions woven throughout.  Does a law that treats negligently injured persons differently from those who are less injured by the same negligent conduct deny the first group equal protection of the laws?  If so, does a rational basis exist for such differential treatment?

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Thursday
Aug022018

Chapman v. Bureau of Prisons: Stopping the Venue Merry-Go-Round

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Danielle C. Jefferis[*] & Nicole B. Godfrey[*]

The Federal Bureau of Prisons (BOP) is in a unique position to frustrate the federal venue statute. In contrast to most state departments of corrections, the BOP bears the unilateral power to transfer prisoners in its custody to prisons across federal judicial districts. At times, the agency exercises this power over prisoners involved in active litigation against the BOP itself. In many of these instances, once the BOP has moved the prisoner-plaintiff outside the judicial district in which the plaintiff brought his claim, the BOP seeks to transfer the claim to the prisoner’s “new” venue. Increasingly, prisoners’ rights advocates are witnessing efforts by the BOP to secure judicial sanctioning of this conduct.

This practice is problematic and should be resisted so that the BOP is not permitted to situate federal prisoners on a “venue merry-go-round” and virtually evade judicial review of claims challenging the agency’s conduct. In one such case, Chapman v. Bureau of Prisons, the BOP attempted to do just that—evade judicial review of its conduct—by moving the plaintiff from a prison in Colorado to one in Indiana. The agency then sought transfer, pursuant to 28 U.S.C. § 1404(a), of the plaintiff’s Eighth Amendment claim against it from the District of Colorado, the venue in which the plaintiff brought the claim, to the Southern District of Indiana, the venue to which the agency moved the plaintiff. The transferee court declined to sanction the practice, citing the plain language of Section 1404 and the statute’s purpose. Courts facing similar questions should reach the same conclusion.

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Saturday
Jun302018

A Small but Significant Reform that Could Have Put the Cap Back on Misdemeanor Sentencing for Colorado’s Noncitizens

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Mark Taylor Feero[*]

A power struggle between the states and the federal government has reached a heightened tension in the past year with the United States even filing a lawsuit against the State of California. This heightened tension has been brought on by the conflict between the current administration’s intensified efforts at deporting removable noncitizens and local law enforcement agencies that have instituted various policies to limit their cooperation with federal immigration enforcement agents, more commonly known as “sanctuary cities” or “sanctuary states.” The debate over the permissibility of these policies has largely focused on the intersection between the supremacy of federal immigration law to preempt state laws that “create an obstacle to the full purposes and objectives of Congress” and the federal government’s inability to commandeer state officers to carry out federal commands. Importantly, the states maintain a key power free from potential federal interference, which comes in the form of the power to establish state criminal laws and appropriate sentencing outside of the immigration context. Federal immigration authorities frequently depend on the elements of these state criminal laws and their sentences to determine whether a specific conviction qualifies as a deportable offense.

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Thursday
Jun072018

Accommodations for All - The Importance of Meaningful Access to Courts for Pro Se Litigants with Mental Disabilities

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Chelsea Marx[*]

The Americans with Disabilities Act (ADA) requires all public entities, including courts, to provide reasonable accommodations to individuals with disabilities to ensure equal access to programs and to prevent discrimination. Unfortunately, there has been little attention paid to reasonable accommodations for mental disabilities under the ADA because “after the ADA passed . . . the statute as applied to physical disabilities received the most attention.” However, the percentage of complaints filed under the ADA alleging discrimination based on mental disabilities is steadily increasing. Currently, the National Alliance on Mental Illness estimates that “approximately 1 in 25 adults in the U.S.–-9.8 million, or 4.0%–experiences a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.” Thus, these individuals qualify for protection under the ADA. Due to the increasing prevalence of mental disabilities in America, it is imperative for the Colorado court system to consider how to accommodate these individuals like other public entities have, especially when individuals with mental disabilities are representing themselves pro se in civil proceedings.

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Saturday
May122018

Bears Ears: National Monument or National Controversy?

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Laura Martinez

In 2016, a national monument designation set in motion a series of events leading to compelling legal and policy questions. It is undeniable that parts of the United States, particularly in the western states, are unparalleled in their desolate beauty, but many Americans often struggle with how much governmental actors should interfere to maintain these lands. In the twilight of his presidency, President Barrack Obama designated 1.35 million acres of land in Utah as Bears Ears National Monument. The Monument was designed to be run jointly by both the U.S. Forest Service and Bureau of Land Management (BLM). Unlike national parks, which are set apart by Congress for the use of the people of the United States because of scenery or natural peculiarity, national monuments are reserved by the government because “they contain objects of historic, prehistoric or scientific interest.” In his signing statement, President Obama referred to extensive archeological and tribal interests as reasons to designate the monument. Bears Ears National Monument contains approximately 100,000 Native American archaeological and ancestral sites, and members of the Hopi, Navajo, Ute, and Zuni tribes petitioned the federal government to act to protect this area.

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Thursday
Apr262018

Arguments for a Balance: Martinez v. Colorado Oil and Gas Conservation Commission

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Joseph Kmetz

Colorado is a state of diverse industries including finance, real estate, agriculture, tourism, and natural resources. Alongside vital industries such as tourism, oil and natural gas development contributes to Colorado’s economy to a substantial degree. In a study in 2014, researchers at the University of Colorado’s Leeds School of Business estimated that oil and gas contributed $31.7 billion to the Colorado economy and supported 102,700 jobs. Growth in both population and in oil and gas development along the Colorado Front Range has ripened the ground for conflict. One source of conflict is that many surface owners do not own the minerals underlying their land; mineral owners have an implied easement over the surface owners’ land to explore, produce, and develop the mineral estate. Although many oil and gas companies in Colorado compensate surface owners for drilling on their land, it is not a statutory requirement. Other conflicts arise from the temporary noise, light, and odor associated with oil and natural gas development. The Colorado Oil and Gas Conservation Commission (COGCC) regulates oil and gas operations “to the extent necessary to protect public health, safety, and welfare . . . taking into consideration cost-effectiveness and technical feasibility.” In Martinez v. Colorado Oil and Gas Conservation Commission, the Colorado Supreme Court will consider whether the state interest in oil and gas development should be balanced with the “protection of public health, safety, and welfare,” or whether these must be protected as a prerequisite to oil and gas development in the state. This Article will suggest a standard that balances oil and gas development with these important public values is workable, preserves the integrity of the judicial system, and respects the role of natural resource development in Colorado’s economy.

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Monday
Apr232018

Denver's Green Roof Initiative: Is it Susceptible to Developer Challenge?

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Kate Madden

Denver citizens passed the Green Roof Initiative on November 7, 2017, as part of a growing worldwide trend toward greater environmental consciousness in city planning. The Initiative compels builders to install plant material or a combination of plant materials and solar energy collection on a portion of the building’s roof. Buildings over 25,000 square feet of floor area must have a minimum of 20% of their roofs covered in green material. This ratio increases in proportion with the size of the project, with a peak of 60% required for buildings over 200,000 square feet. The Initiative reaches all new construction and remodels or additions undertaken after January 1, 2018.

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