Denver Law Review Volume 70 Issue 1 Article 12 January 2021 Vol. 70, no. 1: Full Issue Denver University Law Review Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation 70 Denv. U. L. Rev. (1992). This Full Issue is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. DENVER UNIVERSITY LAW REVIEW VOLUME 70 1992-1993 Published by the University of Denver DENVER College of Law UNIVERSITY LAW 1992 Volume 70 Issue 1 REVIEW TABLE OF CONTENTS Foreword Editor's Note ARTICLES Restraint of Controversial Musical Expression After Skyywalker Records, Inc. v. Navarro and Barnes v. Glen Theater, Inc. : Can the Band Play On? Blake D. Morant Imminent Threat to America's Last Great Wilderness Anthony R. Chase Nexus: The Next Test of RICO's Text Melissa Harrison BOOK REVIEW Protecting Trade Secrets, Patents, Copyrights and Trademarks Thomas G. Field,Jr. 111 NOTES True Equality for Battered Women: The Use of Self-Defense in Colorado Joan L. Cordutsky 117 The Colorado Consumer Protection Act: Panacea or Pandora's Box? David Benjamin Lee 141 COMMENT The Immutable Command Meets the Unknowable Mind: Deific Decree Claims and the Insanity Defense After People v. Serravo Margaret E. Clark 161 FOREWORD INTRODUCTION This year, the University of Denver College of Law celebrates its centennial. We were unaware when we began law school that we would be honored to graduate in the 100th class. But as members of this year's Executive Board of Editors, we are now publishing the Review during the law school's centennial celebrations. As part of the celebrations, the Re- view promises to publish not only two general issues, a symposium and the Tenth Circuit Survey, but also a commemorative, centennial issue. All issues will be special-incorporating ideas or editorial comments from past Denver University Law Reviews, publishing lectures presented during the various centennial events and expanding or changing the ex- isting law review format to reflect past or future trends. For instance, in 1982 the Review published profiles of the Colorado Supreme CourtJus- tices, authored by their colleagues, prominent attorneys and judges. During this centennial year, we will publish biographical sketches of the Colorado federal and state appellate judges who graduated from the University of Denver College of Law (formerly Westminster Law School). Another special feature borrowed from a past law review is a series of editorial comments, similar to those previously written by Lowell Noteboom, Editor-in-Chief of the Review in 1963. These editorials dis- cuss the value of (1) law reviews and law review membership, (2) stu- dent-written case comments and notes and (3) symposiums. Modelled after Mr. Noteboom's, our Editorials provide a new estimation of the value of these endeavors as well as an historical perspective. THE ARTICLES Choosing articles for a general issue requires specific, if not some- what arbitrary, standards. This Issue contains pieces to advance the dis- cussion of issues currently on the forefront of the law. The topics selected for this Issue include (1) a discussion of the prior restraint doc- trine pertaining to obscenity cases with a special focus on the rap group 2 Live Crew's confrontation with Florida courts, (2) an analysis of the Secretary of the Interior's current study into the development of the Alaska Wilderness Refuge (3) an interpretation of the "manage or oper- ate" language in the civil Racketeering Influenced and Corruption Or- ganizations Act (RICO), which the United States Supreme Court analyzes this term in Reves v. Ernst & Young, and (4) a review of a book for practitioners, co-authored by Professor Emeritus Christopher Munch of the University of Denver College of Law, in the areas of pat- ent, copyright and trademark law. This Issue also includes three student pieces, all concerning differ- DENVER UNIVERSITY LA W REVIEW [Vol. 70:1 ent aspects of Colorado law. These articles offer practical information regarding issues pertinent to our home state. In one piece, the author compares the Colorado and Texas deceptive trade practice statutes and suggests how the Colorado statute can be used more effectively without resorting to the draconian measures of the Texas statute. The other two student pieces discuss compelling issues in the criminal defense arena- battered spouses who kill their abusers and deific decree claims in in- sanity pleas. The two criminal defense articles discuss the current state of Colo- rado law in defenses to murder accusations and provide insight into practical application of the existing law. The first piece, a Note on bat- tered spouses, advocates the use of the Colorado self-defense statute and expert testimony regarding the Battered Spouse Syndrome in cases where battered spouses, accused of murdering their abusers, claim self- defense. This Note offers a resolution to the dilemma of allowing the Battered Spouse Syndrome as an independent defense. The Note ar- gues that current Colorado law allows this expert testimony and a self- defense instruction should be given when the jury, not the judge, finds the battered defendant's actions are reasonable. The second piece, a Comment on the recent Colorado Supreme Court decision of People v. Serravo, criticizes the decision for not recognizing the deific decree doc- trine as an insanity defense. The Comment argues that a deific decree claim should be an independent defense rather than a separate element in the insanity defense. The Review hopes to facilitate the College of Law's centennial cele- bration by offering a volume of useful scholarship to benefit the legal community and, ultimately, society at large. Finally, we extend special thanks to the members of the Review who began work on this Issue dur- ing the summer in order to successfully publish prior to the United States Supreme Court decision in the RICO case of Reves v. Ernst & Young. Eileen A. Bonnet Diana A. Cachey EDITOR'S NOTE: THE LAW REVIEW-WHAT VALUE? Over the years, the institution known as "the Law Review" main- tained a prestigious post in the law school environment. An often sought-after position, membership on a law review also maintained its fortunate dominance as a law firm interview drawing card, which job placement advertisements repeatedly confirm. But despite the law re- view's unchanging position, the question of "what value is there in law reviews and law review membership?" remains a viable debate on the law school campus-as it was in 1966, when Lowell Noteboom ad- dressed this question in the Denver University Law Review. Any editor of a symposium issue will recount that the reactions of practitioners, solicited for publication in a law review, range from luke- warm to immediate affirmative. Why then do some attorneys eagerly present their legal analysis and criticisms in law reviews or bar associa- tion journals, while others "would rather be just trying cases" instead? In 1966, Mr. Noteboom highlighted the academic and lawyering skills advantages of law review membership or publication, but omitted a sig- nificant consideration of the modern day lawyer-one not overlooked by law firms in hiring interviews-rainmaking. Rainmaking, or the power to develop a lucrative client base, may be an unseemly topic to some, expecting more than just dollars and cents from a law review editor. But the demands of law school and clerking on students certainly make the economic analysis of whether to participate in law review a reality. And rainmaking is an important and necessary skill, such that some law firms, whose attorneys publish often, realize the marketing power behind the written-word. Naysayers frequently ques- tion the authoritativeness of a law review citation in a brief or opinion. Yet citations to law reviews are common because the written-word influ- ences. As professionals very aware of (and good at) the art of persua- sion, lawyers routinely present their persuasion via the written-word. Publishing in a law review is another way a lawyer persuades. And in this competitive global marketplace, clients look for experts. Publishing says "you are the expert." Yet Mr. Noteboom was astute for his day and the skills that he noted were acquired through law review membership remain extremely impor- tant today. In today's economy, these skills-precision, attention to de- tail, editing, research and scholarly analysis-intensify as ingredients for success in a difficult market. No one can deny that the economy and joblessness are major concerns to the modern lawyer-this year's presi- dential elections themselves show the economy ranks as the number one issue! This economic concern makes bringing the best skills to thejob a more urgent concern than perhaps it was in 1966. Furthermore, law 4 DENVER UNIVERSITY LAW REVIEW [Vol. 70:1 review articles make excellent research tools, evidenced by the fact that they are offered on both Westlaw and Lexis databases. "The law review man gains much from his experience to be sure," claimed a previous Editor-in-Chief. But one thing that certainly has changed since then is law school demographics. In 1966, it is not un- likely that the phrase "the law review man" was completely accurate be- cause no women were members of the Review. This year, half of the 100th graduating class will be women, the Editor of this Issue is a wo- man, and, last year, an outgoing Board of Editors elected a woman to the position of Editor-in-Chief for the first time in seventy years. To that I am compelled to add and end with: "We've come a long way!" Diana A.