Online Forum


Hope Griffin*

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available on equal terms.[1]

Chief Justice Earl Warren, Brown v. Board of Education


A Colorado first-grader who sang lyrics from the song “Sexy and I Know It” to a peer was suspended for sexual harassment.[2] In Grand Junction, Colorado, a third grade girl was suspended for violating the school’s dress code after shaving her head to express solidarity with a friend battling cancer.[3] A second grade Loveland student was suspended for throwing an imaginary grenade during recess while “trying to save the world from evil.”[4] In Colorado Springs, a severely disabled student was suspended after his mother accidentally packed yogurt mixed with medical marijuana in his lunchbox.[5] Troubling though these instances may be, they offer only a microcosmic glimpse into the unjust and fractured extensive use of suspensions and expulsions in Colorado’s public schools.

Unexplainable suspensions are occurring not only in Colorado. Across the country, schools are suspending students—predominantly, minority students—for minor infractions at an alarming rate.[6] Some schools suspend 50 percent of their students over the course of each school year.[7] In the 2014–2015 school year, minor misbehaviors, such as disobedience, defiance, and “repeated interference,”[8] accounted for 85 percent of the 80,526 out-of-school suspensions in Colorado.[9] Pushing students out of school for minor infractions, such as defiance, does not even serve the primary purpose of suspensions—keeping schools safe.[10] Rather, schools are using this extreme measure as a tool to address common issues of student misbehavior. Moreover, the use of school suspensions and expulsions disparately impacts minority students across the nation—including in Colorado.[11]

Black students are suspended and expelled at a rate three times greater than white students.[12] Nationally, five percent of white students are suspended compared to 16 percent of black students.[13] In Colorado, black students represent 4.6 percent of the student population; however, they account for 10.4 percent of the students disciplined.[14] These statistics are particularly disturbing in light of the fact that suspensions and expulsions have become “de facto educational death penalties.”[15] A single suspension leads to decreased academic achievement that, in turn, increases a student’s school-dropout rate.[16]

A single suspension not only increases the likelihood that a student will dropout by 16 percent,[17] but it is in fact the number-one predictor of school dropout.[18] Increasing the chances a student drops out of school places students at a higher risk of unemployment and, ultimately, incarceration.[19] The current school discipline system and lenient use of suspensions nationally and locally have encouraged a “pipeline into the prison system, increasing students’ risk of contact with the criminal justice system and directly referring students to the juvenile justice system.”[20] The school-to-prison pipeline is the result of “increases in school-based arrests, student suspensions and expulsions, the adoption of zero tolerance policies, the use of disciplinary alternative education programs, and the criminalization of students for minor schoolyard misconduct.”[21]

Colorado, particularly Denver, has been recognized as a national leader in dismantling the school-to-prison pipeline.[22] In 2013, the Denver police signed an agreement with Denver Public Schools encouraging educators to handle routine discipline issues without resorting to police assistance by defusing problems within the classroom.[23] Pursuant to the agreement, police officers may intervene only when “absolutely necessary”[24] and are trained three times a year on teenage psychology and cultural competency, all in effort to curtail school-based arrests and police involvement in student discipline.[25] Additionally, a number of Denver schools have implemented restorative justice programs that emphasize “inclusion in the school community, rather than exclusion, to address issues of school discipline . . . without a disproportionate reliance on suspensions and expulsions.”[26]

In addition to the school-police agreement and the implementation of restorative justice programs, the Colorado legislature also passed the Smart School Discipline Law in 2012.[27] This law addressed the catastrophic link between zero tolerance policies[28] and the school-to-prison pipeline, and eliminated mandatory expulsions for drugs, weapons, assaults, and robberies.[29] The Smart School Discipline Law also identified factors for schools to consider when determining disciplinary action and promoted alternative discipline practices to decrease out-of-school suspensions and expulsions.[30]

Although Colorado has made promising steps to help end the school-to-prison pipeline, the state must still address the disparate impact of discipline on minority students,[31] the extensive use of suspensions for nonviolent acts,[32] and the over 80,000 instructional days lost due to student suspensions annually.[33] Currently, Colorado law addressing school discipline requires the appropriate minimal due process protections outlined in Goss v. Lopez[34] for student suspensions lasting less than ten days.[35] Specifically, Colorado school districts must provide the following due process protections for suspensions lasting fewer than ten days: (1) the right to oral and written notice of the charges, (2) a hearing consisting of an explanation of the evidence, and (3) the opportunity to present the student’s version of the events.[36]  For more long-term suspensions and expulsions, Colorado only requires that the school district provide (a) notice, (b) a hearing in the presence of a hearing officer, and (c) the opportunity to be heard in a “meaningful manner.”[37] Additionally, the student may appeal the hearing officer’s decision.[38] The statute grants school districts broad discretion on the remaining procedures for long-term exclusions from school.[39]

To further protect students from excessive suspensions and expulsions and guard against their dire consequences, the state should amend the school discipline hearing statute to provide clear and concrete due process protections, such as the right to cross-examine witnesses and the opportunity to retain legal counsel, for suspensions lasting longer than ten days cumulatively and in expulsion hearings. In response to the improving but still troubling issues plaguing Colorado’s public school system, and the exacerbating national school-to-prison pipeline, this paper will proceed in two parts. Part I outlines the far-reaching impact of suspensions and expulsions on Colorado students and the varying degrees of due process protections implemented throughout the state. Part II argues for the need to amend Colorado’s school disciplinary hearing law to explicitly include a student’s right to cross-examination witnesses and right to counsel in formal disciplinary hearings to help combat the school-to-prison pipeline and better protect the state’s most vulnerable students.

I. Crossing the Continental Divide: Treating Students Equally in Colorado

Although Colorado has been on the forefront of school discipline reform and a key state in the battle against the national school-to-prison pipeline, Colorado school districts’ use of out-of-school suspensions and expulsions continues to disparately impact minority students.[40] Since the enactment of the Colorado Smart School Discipline Law in 2012, the statewide out-of-school suspension rate has dropped by 17 percent, the expulsion rate has declined by 36 percent, and the referral to law enforcement rate has decreased by 23 percent.[41] However, Colorado school districts continue to primarily use out-of-school suspensions to address defiant and detrimental behaviors.[42]

 While most school districts are experiencing a steady decline in out-of-school suspensions and expulsions, the suspension and expulsion rate is declining much faster for white Colorado students than black, Latino, and Native American students.[43] Furthermore, Colorado’s black students are still 4.1 times more likely to receive an out-of-school suspension than their white peers, and 3.8 times more likely to receive an expulsion.[44] Likewise, Hispanic students comprise 32.7 percent of Colorado’s student population, but account for 42.3 percent of students disciplined.[45] They are almost twice as likely to receive out-of-school suspensions or expulsions than white students.[46] Additionally, Native American students are currently 2.5 times more likely to receive a suspension and 3.8 times more likely to be expelled than a white student.[47]

The disparate use of suspensions and expulsions for minority students is particularly disconcerting when coupled with the academic performance gap between minority students and their non-Hispanic white peers, often referred to as the achievement gap.[48] Nationally, substantial gaps in National Assessment of Educational Progress (NAEP) test scores have persisted for low-income students, English language learners, students with disabilities, and minority students.[49] For example, in 2013, 34 percent of black students scored below basic on the NAEP fourth grade mathematics test whereas only 9 percent of white students scored similarly.[50] Additionally, minority students demonstrate proficiency in reading at much lower levels than their white peers.[51] The achievement gap has infected Colorado schools, as well. In 2015, black students averaged 21 points and Hispanic students 29 points less than their white peers on a NAEP fourth grade reading proficiency test.[52] Thus, the disparate removal of minority students from schools exacerbates the achievement gap.

While some Colorado districts have made drastic improvements in their out-of-school suspension and expulsion rates, others have continued to use harsh disciplinary practices. In 2013−14, sixty-one districts experienced higher suspension rates than they did in 2012−13.[53] Forty-eight districts experienced an increase in expulsions.[54] The dramatically diverse disciplinary practices used throughout the state result in the inconsistent treatment of Colorado students. For instance, on average, less than two in every 100 students were suspended across sixty-seven districts; however, some individual districts suspended ten, fifteen, or twenty students per 100 students.[55] These variations cannot be attributed to the demographic makeup of more urban school districts. Indeed, high rates of suspensions and expulsions are occurring in both Colorado’s smallest and largest school districts.[56]

II. A Colorado Student’s Due …?: The Need for Statutory Reform in Colorado

The disparate use of out-of-school suspensions and expulsions on minority students, coupled with the variability in statewide school discipline practices, is leading to the unequal treatment of Colorado’s students. To continue Colorado’s worthy effort to end the school-to-prison pipeline, the state should next identify clear due process protections to be required during suspension hearings for students whose removal lasts more than ten days. Specifically, Colorado should reform its suspension statute to explicitly provide for the right to cross-examine witnesses, or, at the very least, the opportunity to confront an accuser’s statement, and present legal counsel at long-term suspension hearings. Those involved in long-term suspension and expulsion hearings face a daunting standard of review if they choose to appeal the school district’s decision.[57] Courts will uphold a school district’s decision to expel or suspend a student absent a showing that the school district acted in an “unconstitutional, illegal, arbitrary, capricious, [or] unreasonable manner,” or in a manner “unsupported by a preponderance of the evidence.”[58] This heightened standard of review requires additional due process protections, including the right to cross-examine witnesses and the right to retain legal counsel, to help preserve the record of events and foster uniformly fair proceedings throughout the state. The singular importance of education makes it difficult to understand how such an elemental component of our society can be abridged with relative ease in the absence of procedural safeguards.

 A. Statutory Reform: A Prerequisite to Cross-Examination of Colorado’s Students

There is a split among a number of state and federal courts as to whether students have the right to cross-examine witnesses in school disciplinary hearings;[59] however, no Colorado court has ruled explicitly on the issue. In Nichols ex rel. Nichols v. Destefano,[60] the Colorado Court of Appeals held that a high school student was permitted to interview and subpoena two teachers concerning her involvement in a physical fight at school during her suspension hearing.[61] The court agreed with the school district that the statute did not explicitly provide for compulsion of witnesses in school disciplinary hearings but recognized that a school district may not “isolate potential witnesses from [a] student.”[62] The court vacated the expulsion order because, by failing to afford the student an opportunity to present voluntary witnesses to challenge the school’s anonymous statements, the school violated the student’s due process rights.[63]

In Nichols, the Colorado Court of Appeals took a step towards affording students the opportunity to cross-examine witnesses, but appeared unwilling to grant this right without clear statutory authority.[64] Even without granting this right, the court recognized its importance by overturning the expulsion decision.[65] In its decision, the court noted the significant disparity between the school and the student’s ability to present evidence.[66] Unlike the school administrators, who were able to offer numerous anonymous statements illustrating an expansive view of the situation, the student was not given an opportunity to challenge any of these statements through the presentation or cross-examination of witness testimony.[67] In order to provide equal opportunities for both parties to paint a comprehensive picture of the questionable behavior during school suspension hearings, Colorado’s legislature should provide the right to cross-examine witnesses in long-term suspension and expulsion disciplinary hearings.

  B. Different Jurisdictions, Different Rights?

Even without clear statutory authority, many Colorado school districts have voluntarily extended this right to their students. Mapleton Public Schools permits the student or his representative the right to cross-examine witnesses against him.[68] Some school districts, such as Woodland Park District Re-2, place the decision in the hands of the administrator. Woodland Park’s handbook states that an administrator “may allow a student to present witnesses or may call the accuser” for informal suspension hearings.[69] On the other hand, neither Colorado Springs School District 11[70] nor Harrison School District Two[71] permits the cross-examination of witnesses in suspension or expulsion hearings.

Many school districts across Colorado follow the approach taken by the school district in Nichols, which refused to extend the right to cross-examine witnesses absent clear statutory authority. This may be especially true in smaller districts with high suspension and expulsion rates, such as De Beque 49JT, which does not publicly disseminate any information concerning its suspension hearing processes.[72] Statutory reform of the school disciplinary hearing law to explicitly include a student’s right to cross-examine witnesses will lead to fairer results and promote the consistent use of cross-examination during formal disciplinary hearings throughout the state. The pressing consequences of suspensions and expulsions on a student’s future require the state to extend the right to cross-examine witnesses to all Colorado students subject to long-term disciplinary hearings.

 C. Safeguarding Student Witnesses

Just as pressing as the need for clear statutory language articulating the right to cross-examine is the need to include an exception in which students can opt-out of testifying under circumstances where they legitimately fear retaliation and there is a significant risk of harm.[73] To safeguard all students, schools should only exempt students from confrontation when there is an express finding of risk and the witness would be subject to retaliation.[74] In order to create safe schools and foster the equal treatment of students, the state’s concern for the well-being of students must extend beyond the student involved in the school discipline hearing. Schools walk a tightrope between creating inclusive, safe spaces while also encouraging students to report dangerous misbehaviors occurring at schools. An exception for situations that would cause undue burden on the reporting student will encourage students to inform teachers of student misconduct while also providing students in suspension and expulsion hearings the appropriate due process protection.  

  D. The Right to Legal Counsel

Colorado should also afford students the right to obtain legal counsel for school suspensions lasting more than ten days and in expulsion hearings. The presence of an attorney would ensure that the best interests of the student are represented and that the disciplinary proceeding is conducted properly. Legal counsel will help monitor local school districts by creating a “checks-and-balances system” capable of “pinpoint[ing] due process violations when they occur . . . and [highlighting] questionable discipline practices established and administered on the local level.”[75]

The presence of legal counsel at disciplinary hearings will also help reduce the disparate use of suspensions and expulsions for minority students. As mentioned earlier, minority students are suspended more frequently and often given harsher punishments for subjective behavior violations.[76] For instance, a minority student is referred more often than his or her white peers for disrespectful behavior or excessive noise.[77] During a disciplinary hearing, legal counsel can present evidence and cross-examine witnesses to thoroughly contest many of these subjective offenses that are pushing students out of school.

Furthermore, legal counsel would assist in identify racial biases manifesting in school discipline, including the unequal treatment of students who are similarly situated. The mere presence of legal counsel will also put schools on notice that they are being held accountable for providing students of all backgrounds their due process rights. Without clear statutory language instructing school districts to permit the right to legal counsel during long-term suspension and expulsion hearings, school administrators will have expansive discretionary power to decide whether to permit this due process right, if at all.

Colorado’s school discipline hearing statute is silent as to whether students are entitled to the right to counsel.[78] Consequently, Colorado’s schools have implemented diverse degrees of due process procedures. Larger and more urban school districts, such as Denver Public Schools[79] and Jefferson County Public Schools,[80] provide detailed guidance on school discipline hearings in their handbooks, including the right to legal counsel in some instances; whereas smaller more rural school districts, like Trinidad School District Number 1[81] and De Beque 49JT,[82] completely ignore the issue of due process hearings. Even more concerning, Trinidad School District, which had the second highest out-of-school suspension and expulsion rate in the state in the 2013–14 school year,[83] cites the former Colorado statute that once required mandatory expulsions for certain offenses before its 2012 revision in its most current student discipline handbook.[84] Although states should afford school districts discretion in school discipline practices, ultimately a uniform implementation of specific due process procedures, including the right to legal counsel, will help create fairer school discipline hearings. Without clear and concrete due process protections imposed on all Colorado school districts, the value of the process is ultimately diminished.[85] The divergence of school districts on the implementation of the due process right to secure legal counsel is leading to the inconsistent treatment of Colorado’s students that yields variable success in the reduction of school suspensions and expulsions.



Colorado’s overzealous implementation and reliance on zero-tolerance policies for over a decade resulted in the exclusion of thousands of students from public school classrooms.[86] Schools across the state continue to treat students differently and unequally by implementing varying degrees of due process procedures in formal disciplinary hearings. Thus, a student who faces expulsion in a Telluride, a student prohibited from cross-examining witnesses and consulting legal counsel, will be less equipped to defend herself against the school’s charges than a Denver student, who is afforded both of these procedural protections. Colorado should amend its current law governing school disciplinary hearings to include the right to cross-examine witnesses and permit legal counsel at hearings to foster fair and just disciplinary proceedings.

Many Colorado students face an uphill battle every time they walk through the schoolhouse doors. Some have not eaten much, if anything, since they left last school.[87] Others have spent the majority of their night carrying for their younger siblings.[88] But, the majority of students and their teachers recognize and value that education is truly the only equalizer. In light of this reality, Colorado students deserve to have the appropriate tools to adequately challenge a threat of school removal.

The long-term detrimental impact that suspensions and expulsions have on students requires explicit procedural protections. The due process procedures guaranteed to a student should not depend on which school district the student is enrolled in. School disciplinary hearings are usually life-altering affairs for students and “often the first stop along the [school-to-prison] pipeline.”[89] The “health and strength of our nation,” and specifically our state, “depend[s] on us rectifying the school-to-prison pipeline problem.”[90] Without granting clear statutory authority for schools to provide these particular due process procedures, students throughout Colorado will continue to receive unequal and unjust treatment during due process hearings.

* J.D. Candidate, 2017, University of Colorado Law School; Executive Editor, University of Colorado Law School.

[1] Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

[2] CNN Wire Staff, Colorado First-Grader Suspended for Singing ‘Sexy and I Know It,CNN (May 7, 2012, 8:29 PM), [].

[3] Nancy Lofholm, Girl’s Shaved Head Draws National Furor at Grand Junction School, Denver Post (Mar. 25, 2014, 10:58 AM), [].

[4] Jessica Maher, Second-Grade Loveland Student Reportedly Suspended for Imaginary Weapon, Reporter-Herald (Feb. 5, 2013, 2:37 PM), [].

[5] Kassondra Cloos, Colorado Springs Student Suspended for Bringing Medical Marijuana to School, Gazette, (last updated May 14, 2015, 3:45 PM) [].

[6] Kinjo Kiema, U.S. Students Losing 18 Million Days of Instruction Due to Suspensions, neaToday (Feb. 26, 2015, 8:41 AM), []; Tamar Lewin, Black Students Face More Discipline, Data Suggests (Mar. 6, 2012), [].

[7] Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 825 (2015).

[8] The Colorado Department of Education defines repeated interference as willful disobedience or openly and persistent defiance. Colo. Dep’t of Educ., Behavior Statutes & Clarifications: School Discipline and Attendance Data (2016), [].

[9] Colo. Dep’t of Educ., Ten-Year Trend Data: 2015-16 State Suspension and Expulsion Incident Rates and Reasons (2016), []..

[10] See Kevin P. Brady, Zero Tolerance or (In)tolerance Policies? Weaponless School Violence, Due Process, and the Law of Student Suspensions and Expulsions: An Examination of Fuller v. Decatur Public School Board of Education School District, 2002 B.Y.U. Educ. & L.J. 159, 160 (2002).

[11] Office for Civil Rights, U.S. Dep’t of Educ., Data Snapshot: School Discipline 1 (2014), []; Padres & Jóvenes Unidos, The 2nd Annual Colorado School Discipline Report Card 6 (2015), [].

[12] Office for Civil Rights, supra note 11, at 3.

[13] Id. at 1.

[14] Colo. Dep’t of Educ., Moving from Zero Tolerance to Supportive School Discipline Practices: A Comparison of Student Discipline Incidents for the 2011-12 and 2013-14 School Years (2015), [].

[15] Black, supra note 7, at 833.

[16] Thalia González, Keeping Kids in Schools: Restorative Justice, Punitive Discipline, and the School to Prison Pipeline, 41 J.L. & Educ. 281, 294 (2012).

[17] Daniel J. Losen & Tia Elena Martinez, The Civil Rights Project, Out of School & Off Track: The Overuse of Suspensions in American Middle and High Schools 1 (2013), [].

[18] Mary Ellen Flannery, The School-to-Prison Pipeline: Time to Shut it Down, neaToday (Jan. 5, 2015), [].

[19] Black, supra note 7, at 833.

[20] Id. at 834.

[21] India Geronimo, Systematic Failure: The School-To-Prison Pipeline and Discrimination Against Poor Minority Students, 13 J.L. & Soc’y 281, 282 (2011).

[22] Rebecca Klein, Denver is Leading the Way in Dismantling the School-to-Prison Pipeline. Here’s How., Huffington Post, (last updated Sept. 8, 2015) [].

[23] Sadie Gurman, Agreement Keeps Denver Police Out of Most School Discipline Problems, Denver Post (Feb. 19, 2013, 7:39 AM), [].

[24] Id.

[25] Id.

[26] Id. at 285.

[27] Rebecca Jones, Zoning Out School Zero-Tolerance Policies, Chalkbeat (Aug. 30, 2012), [].

[28] The Gun-Free School Act required public schools to implement a zero tolerance policy requiring an absolute one-year expulsion for the possession of weapons on school property. Gun Free Schools Act, 20 U.S.C. § 7961 (1994). In addition to expulsions for weapon possession, some state legislatures and school boards passed legislation that extended zero tolerance policies to include drug use, possession, and distribution actionable offenses that required automatic suspensions and expulsions. Avarita L. Hanson, Have Zero Tolerance School Discipline Policies Turned Into a Nightmare? The American Dream’s Promise of Equal Educational Opportunity Grounded in Brown v. Board of Education, 9 U.C. Davis J. Juv. L. & Pol’y 289, 307 (2005). Colorado even implemented a three-strikes mandatory expulsion policy for habitually disruptive students. John W. Suthers, Colorado School Violence Prevention and Student Discipline Manual 4 (2009), [].

[29] Id.

[30] Colo. Juvenile Def. Coal., Colorado’s 2012 School Discipline Bill (2012), [].

[31] Padres & Jóvenes Unidos, supra note 11, at 6.

[32] Office for Civil Rights, supra note 11.

[33] Id.

[34] 419 U.S. 565 (1975) (holding the Due Process Clause of the Fourteenth Amendment requires students facing suspensions of ten days or less to be afforded written notices of the charges against him, an explanation of the evidence, and an opportunity to rebut the charge).

[35] Colo. Rev. Stat.  22-33-105(2)(c) (2016).

[36] Lopez, 419 U.S. at 581.

[37] Nichols ex rel. Nichols v. DeStefano, 70 P.3d 505, 507 (Colo. App. 2002).

[38] Colo. Rev. Stat. § 22-33-105(2)(c) (2016).

[39] Id.

[40] Padres & Jóvenes Unidos, supra note 11, at 6.

[41] Id. at 5.

[42] Juliana Rosa, Janelle Krueger & Annette Severson, Colo. Dep’t of Educ., Moving from Zero Tolerance to Supportive School Discipline Practices: A Comparison of Student Discipline Incidents for the 2011-12 and 2013-14 School Years 7 (2015), [].

[43] Padres & Jóvenes Unidos, supra note 11, at 6. 

[44] Id. 

[45] Rosa, Krueger & Severson, supra note 42, at 4.

[46] Padres & Jóvenes Unidos, supra note 11, at 6. 

[47] Id. at 5.  

[48] Susan Ansell, Achievement Gap, Education Week, (last updated July 7, 2011) [].

[49] Nat’l Educ. Ass’n, Understanding the Gaps: Who are We Leaving Behind—And How Far? 1, 4 (2013), [].

[50] Id.

[51] Id. 

[52] Nat’l Ctr. for Educ. Statistics, NAEP State Comparisons (2016), [].

[53] Id.

[54] Id.

[55] Id.

[56] De Beque 49JT, with a student population of 149 students, had the highest out-of-school suspension rate in 2013-14. Padres & Jóvenes Unidos, supra note 11, at 10. Adams-Arapahoe 28J had the fifth highest out-of-school suspension rate and has a student population of 41,797 students from 2016-17. Colo. Dep’t of Educ. Pupil Membership District Data, []; Padres & Jóvenes Unidos, supra note 11, at 10.

[57] Hanson, supra note 28, at 361.

[58] Id. at 361.

[59] Compare Colquitt v. Rich Twp. High Sch. Dist., 699 N.E.2d 1109, 1113 (Ill. App. Ct. 1998) (finding that school districts must allow the opportunity to cross-examine witnesses during long-term suspension and expulsion hearings), with Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925 (6th Cir. 1988) (holding that the need to protect student witnesses, in addition to the administrative costs associated with cross-examination, outweighed the student’s interest in the safeguard at long-term suspension and expulsion hearings).

[60] Nichols, 70 P.3d at 508.

[61] Id. at 507.

[62] Id. at 508.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Mapleton Pub. Sch. Dist., Mapleton Public Schools: Student Behavior Standards (2015), [].

[69] Woodland Park Sch. Dist. Re-2, Woodland Park High School: Parent/Student Handbook 2014-2015, at 26 (2015), [].

[70] Colo. Springs Sch. Dist. 11, Student Conduct, Discipline, and Attendance Handbook (2015),,%20Discipline%20and%20Attendance%20Handbook.pdf [].

[71] Harrison Sch. Dist. 2, Code of Conduct 2017 – 2017 (2016), [].

[72] De Beque 49JT had the highest out-of-school suspension rate in the state in 2013-14 by suspending 20.5 students per 100 students. Padres & Jóvenes Unidos, supra note 11, at 11.

[73] Colquitt v. Rich Township. High Sch. Dist., 699 N.E.2d 1109, 1116 (Ill. App. Ct. 1998). See also Stone v. Prosser Consol. Sch. Dist., 971 P.2d 125 (Wash. Ct. App. 1999) (holding that students have the right to cross-examine witnesses in school discipline hearings but if student witnesses “fear violent retaliation or ostracism” they may opt out of cross-examination).

[74] The United States Department of Education Office for Civil Rights defines retaliatory conduct as “intimidating, threatening, coercing, or in any way discriminatory against [an] individual . . . because of the individual’s complaint or participation.” Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter (2013), []. In its reform, Colorado should adopt the Department of Education’s definition for retaliation to provide guidance for administrators in defining acts considered retaliatory.

[75] Simone Marie Freeman, Upholding Students’ Due Process Rights: Why Students are in Need of Better Representation at, and Alternatives to, School Suspension Hearings, 45 Fam. Ct. Rev. 638, 642 (2007).

[76] Russell J. Skiba, Suzanne E. Eckes & Kevin Brown, African American Disproportionality in School Discipline: The Divide Between Best Evidence and Legal Remedy, 54 N.Y.L. Sch. L. Rev. 1071, 1088 (2010).

[77] Id.

[78] Colo. Rev. Stat. § 22-33-105 (2016).

[79] Denver Pub. Schs., Student Conduct and Discipline Procedures (2014), [].

[80] Jefferson Cty. Pub. Schs., Code of Acceptable Behaviors and Discipline and the Student Bill of Rights 10 (2015), [].

[81] Trinidad Sch. Dist. No. 1, Trinidad High School Parent-Student Handbook 2015-2016 (2015), [].

[82] De Beque 49JT, High School Handbook 2014/15 (2015), [].

[83] Padres & Jóvenes Unidos, supra note 11, at 11.

[84] Trinidad Sch. Dist. No. 1, supra note 81. 

[85] Ellen L. Mossman, Navigating a Legal Dilemma: A Student’s Right to Legal Counsel in Disciplinary Hearings for Criminal Misbehavior, 160 U. Pa. L. Rev. 585, 598 (2012). 

[86] Colo. Dep’t of Educ., supra note 9.

[87] “Nearly 1 in 5 Colorado kids may not know when or where they will get their next meal. . . . [And] [n]early 1 in 6 Colorado households with children report an inability to afford adequate food.” Hunger Free Colo., FACTS: Hunger & Poverty in Colorado (2017), [].

[88] See Ann Schimke, Two of Colorado’s Largest Districts Explore Later High School Start Times, Chalkbeat (Aug. 15, 2016), [].

[89] Donna Lieberman, N.Y. Civil Liberties Union, Testimony before the New York City Council Committees on Education and Civil Rights Regarding The Impact of Suspensions on Students’ Education Rights (Jan. 23, 2008), [].

[90] Jason Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. L.J.  313, 371 (2016). 


Will Hauptman*

[Editor’s note: To view a PDF version of this article, click here]


The Fourth Amendment exclusionary rule is experiencing death by a thousand cuts. Since the Supreme Court created the rule,[1] its opinions have whittled away at the rule’s application with various exceptions and limitations.[2] So it is today that the Court only finds exclusion appropriate where the benefits of suppressing evidence outweigh its costs.[3] That rarely happens, says the Court. After all, what benefit could outweigh the cost of letting the guilty go free?

Apparently not the benefit of deterring the violation of an elementary Fourth Amendment principle: that no officer may conduct an investigatory stop absent reasonable suspicion of criminal wrongdoing.[4] At least not in Utah v. Strieff.[5] In that case, decided last summer, the Court held admissible drug-related evidence that an officer obtained after a concededly unconstitutional stop.[6] Why? Because the officer, immediately after stopping Edward Strieff, discovered that Strieff had an outstanding arrest warrant, and this discovery sufficiently attenuated the connection between the unconstitutional stop and the officer’s discovery of the evidence.[7]

This Comment discusses Utah v. Strieff in the larger context of the exclusionary rule’s movement toward meaninglessness.

I. The Creation and Erosion of the Exclusionary Rule

The exclusionary rule operates by excluding from criminal trials evidence that the government obtained in an unconstitutional search.[8] It also excludes evidence obtained as an indirect result of such a search.[9] A creature of the Supreme Court’s creation, the rule first applied only against the federal government.[10] But later, reasoning that the exclusion of unconstitutionally obtained evidence is fundamental to the concept of ordered liberty and “an essential part of the right to privacy,” the Court held that the exclusionary rule applies also against the States through the Fourteenth Amendment’s Due Process Clause.[11]

The Court has offered various justifications for the rule. In the rule’s conception, the Court invoked the Fourth Amendment’s prohibition on unreasonable searches and seizures, declaring that protection to be “of no value” if courts permit the government to introduce evidence obtained in an unconstitutional search.[12] The Court has also pointed to the desirability of maintaining judicial integrity and a government that follows its laws.[13] A third justification, however, has a very practical effect: deterring police misconduct.[14]

Let’s take the Court at its word that this rule is valid, rooted in the Constitution.[15] Why, then, did the Court move so quickly from announcing its conception to limiting its application? A mere fourteen years after the Court decided Weeks, in which the rule was born, Chief Justice Taft described the decision as “striking” and its declaration “sweeping,” implicitly questioning the exclusionary rule’s constitutional origin.[16] The Court has since enunciated various exceptions to the rule that narrow its scope.

Of the various exceptions that curb the exclusionary rule’s application,[17] only one—the attenuation doctrine—is relevant to this inquiry. The attenuation doctrine looks to proximate causation, admitting evidence where the causal link between the unconstitutional search and the discovery of evidence is “so attenuated as to dissipate the taint” of the constitutional violation.[18] Determining whether an intervening occurrence has broken the causal chain between the unlawful search and the evidence requires a factual evaluation, and the Court has warned against “permit[ting] protection of the Fourth Amendment to turn on . . . a talismanic test.”[19] At bottom, the government is not to be “put in a better position than it would have been if no illegality had transpired,” but neither is it to be “put in a worse position simply because of some earlier police error.”[20]

Exceptions to the Fourth Amendment exclusionary rule aside, the Court has also expressed disfavor of judicially-created remedies for constitutional violations in other contexts. Consider the Court’s opinion in United States v. Patane,[21] authored by Justice Clarence Thomas. In that case, officers arrested Samuel Patane for violating a restraining order, and Patane admitted to (unlawfully) owning a pistol before the officers gave him a Miranda advisement.[22] The Court held that the officers’ failure to give Patane a Miranda warning did not require suppression of the pistol as evidence at Patane’s subsequent criminal trial.[23]

How the Court reached that holding sheds light as to how Justice Thomas, and perhaps a few of the other Justices, thinks about judicially-created remedies. The Court looked primarily to the Constitution’s text, finding that it counseled against expanding application of the exclusionary rule in the Miranda context in two ways. First, the Court noted that the Self-Incrimination Clause’s “core protection” prohibits a criminal defendant from testifying against himself, and therefore the mere “introduction of nontestimonial evidence obtained as a result of voluntary statements” does not violate any Fifth Amendment right.[24] Accordingly, the Court warned that the extension of any “prophylactic rules . . . [that] sweep beyond the actual protections of the Self-Incrimination Clause . . . must be justified by its necessity for the protection of the actual right.”[25] And second, the Court pointed out that the Self-Incrimination Clause has “its own exclusionary rule,” providing that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”[26] This textual protection, the Court reasoned, “supports a strong presumption against expanding the Miranda rule any further.”[27]

The Court also looked to whether expanding the exclusionary rule to evidence obtained after a failure to provide Miranda warnings would create a deterrent effect. Noting that the Self-Incrimination Clause protects a trial right, and that an officer’s failure to provide Miranda warnings itself does not violate a suspect’s constitutional rights, the Court reasoned that a constitutional violation occurs only if the government introduces “unwarned statements into evidence at trial.”[28] The Court therefore concluded that there is nothing to deter with respect to failures to provide Miranda warnings.[29]

II. The Case

And then along came Edward Strieff, whose case pitted the eroding exclusionary rule against a Court that has recently evinced a wariness of judicially-created remedies for constitutional violations. His story begins when Officer Fackrell, a Salt Lake City Policeman, was surveilling a home that an anonymous tipster connected with “narcotics activity.”[30] The officer watched visitors enter and exit the home, and he became suspicious that its occupants were indeed dealing drugs.[31] So when Strieff exited the home, Officer Fackrell followed him to a nearby convenience store, where he detained Strieff, identified himself, asked Strieff what he had been doing at the home, and requested Strieff’s identification.[32] After relaying Strieff’s information to a dispatcher, Officer Fackrell learned “that Strieff had an outstanding arrest warrant for a traffic violation.”[33] Officer Fackrell arrested Strieff, searched him, and discovered a bag of methamphetamine and drug paraphernalia.[34]

At a suppression hearing in Strieff’s criminal trial,[35] the State “conceded that Officer Fackrell lacked reasonable suspicion for the stop” but argued that his discovery of the warrant “attenuated the connection between the unlawful stop and the discovery of the contraband.”[36] The trial court agreed, and the Utah Court of Appeals affirmed.[37] But the Utah Supreme Court reversed, reasoning that only “a voluntary act of a defendant’s free will (as in a confession or consent to search)” may break the causal link between an unconstitutional search and the discovery of evidence.[38]

The United States Supreme Court reversed, holding that the officer’s discovery of Strieff’s warrant sufficiently attenuated the connection between the unlawful stop and the officer’s discovery of the drugs.[39] But before the Court even applied the attenuation doctrine, it noted that prior to the exclusionary rule “individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits or self-help.”[40] Then, after rejecting the Utah Supreme Court’s conclusion that the attenuation doctrine applies only where a defendant independently and freely confesses a crime or consents to a search,[41] the Court turned to the Brown v. Illinois[42] factors to determine whether the attenuation doctrine applied.[43]

The Court concluded that the Brown factors favored admitting the evidence.[44] Looking to the first Brown factor, the temporal proximity between the unlawful stop and the search, the Court reasoned that the short amount of time—“only minutes”—between Officer Fackrell’s stop and finding the drug contraband favored suppression.[45] But the Court reasoned that the second and third Brown factors, the presence of intervening circumstances and the purpose and flagrancy of the misconduct, favored admitting the evidence. The intervening circumstance, said the Court, was the pre-existing warrant, which authorized the officer to arrest Strieff and search him incident to arrest.[46] And the officer’s conduct was only negligent; he merely made “two good-faith mistakes” in stopping Strieff without reasonable suspicion of criminal activity and failing to instead engage in a consensual encounter.[47] This “isolated instance of negligence,” the Court reasoned, did not amount to “any systemic or recurrent police misconduct.”[48]

The Court’s opinion elicited two dissents, one from Justice Sotomayor and the other from Justice Kagan. Justice Sotomayor first observed that the Court’s opinion allowed the officer to exploit his own illegal conduct—precisely what the exclusionary rule aimed to prevent.[49] She then challenged the Court’s application of Segura, distinguishing that case by noting that the officer’s illegal stop of Strieff “was essential to his discovery of an arrest warrant.”[50] She also challenged the majority’s conclusion that the officer’s mistakes were negligent and made in good faith, noting that the officer’s “sole purpose was to fish for evidence.”[51] If the Fourth Amendment permits these negligent and isolated constitutional violations, Justice Sotomayor mused, what would happen in places where extraordinary numbers of citizens have outstanding warrants?[52] Finally, and writing only for herself,[53] Justice Sotomayor highlighted the consequences of diminished constitutional requirements in the Fourth Amendment context—stops for almost any reason, searches, arrest, invasive post-arrest searches, and civil death by arrest record—and questioned the vitality of our justice system today.[54]

Justice Kagan applied the Brown factors, and through her reasoning argued that suppression was appropriate. Although she reached the same conclusion as did the majority with respect to the first factor,[55] her conclusions as to the second and third factors differed. The officer’s discovery of a warrant hardly constituted an intervening circumstance, Justice Kagan reasoned, because, as with the doctrine of proximate causation, “a circumstance counts as intervening only when it is unforeseeable—not when it can be seen coming from miles away.”[56] Because officers routinely check for warrants, and because so many people have outstanding warrants, it is hardly unforeseeable that an officer would discover a warrant after a stop.[57] And the officer’s conduct was hardly mistaken—the officer’s seizure “was a calculated decision, taken with so little justification that the State has never tried to defend its legality” and was admittedly without constitutional basis.[58] Like Justice Sotomayor, Justice Kagan feared that the majority’s opinion would incentivize officers to stop people without reasonable suspicion, “exactly the temptation the exclusionary rule is supposed to remove.”[59]

III. From A Constitutional Necessity to an Afterthought

How did that happen? The Court in Mapp found the exclusionary rule to be part and parcel of the Fourth Amendment and so necessary to ordered liberty that it made the rule applicable against the states through the Fourteenth Amendment.[60] But today the Court finds that exclusion is appropriate only where the benefits of deterrence outweigh exclusion’s substantial costs.[61] It used to be that the Court cited bringing effect to the Constitution’s protections and judicial integrity in defense of excluding evidence.[62] Yet now the Court permits the government to benefit from an officer’s indefensible constitutional violation, so long as his conduct isn’t flagrant.[63]

The Court in Utah v. Strieff got it wrong. In part because the Court strayed too far from its attenuation doctrine precedent, and perhaps also in part because at least some Justices wish to narrowly tailor—if not entirely eliminate—judicially-created remedies, the Court has again weakened the exclusionary rule, perhaps creating an open invitation for officers to violate constitutional rights in their searches for evidence.[64]

Recall that the attenuation doctrine aims to prevent police from reaping the benefits of a constitutional violation without punishing lawful policing because of an earlier error.[65] That balance weighs against suppression where the causal link between an officer’s constitutional violation and his subsequent acquisition of evidence is weak enough to render the violation effectively harmless.[66] Such a determination is necessarily fact intensive. But the Court seems to overlook the fact that “but for” the officer’s constitutional violation, he would never have discovered the evidence of Strieff’s drug paraphernalia. And by avoiding a serious inquiry into proximate causation and instead applying the Brown factors like a scientific formula, the Court in Utah v. Strieff did exactly what the Brown Court warned against: it “permit[ted] protection of the Fourth Amendment to turn on . . . a talismanic test.”[67]

Perhaps the Court’s reasoning in Patane justifies this treatment of the exclusionary rule.[68] If courts should only enforce this judicially-created remedy to the extent that it narrowly fits with the Fourth Amendment’s text and creates a deterrent to violations thereof,[69] the exclusionary rule does not warrant much enforcement. After all, the Fourth Amendment prohibits only “unreasonable searches and seizures,” not introducing at trial evidence obtained from an unlawful search or seizure.[70] And the extent to which the exclusionary rule deters unreasonable searches is questionable, especially given that searches are often distant from suppression hearings and trial.[71]

But if that is so, the justifications underlying the exclusionary rule in its inception are now meaningless, and bringing effect to the Fourth Amendment and maintaining judicial integrity have fallen to the cost-benefit analysis and, in cases implicating the attenuation doctrine, the rigid application of the Brown factors.



Utah v. Strieff is an example of a particularly egregious constitutional violation that did not result in suppression. It’s also a notable point on the exclusionary rule’s trend from bedrock Fourth Amendment doctrine to a disfavored remedy. Regardless of whether the Court in Strieff rightfully interpreted the Fourth Amendment to allow such police conduct without requiring suppression as a remedy, the case raises a troublesome question: What would require suppression?


* J.D. Candidate 2017, University of Colorado Law School.

[1] The Court first established the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914). See Olmstead v. United States, 277 U.S. 438, 462 (1928); William C. Heffernan, The Fourth Amendment Exclusionary Rule as a Constitutional Remedy, 88 Geo. L.J. 799, 799 (2000). Yet the remedy applied only against the federal government. Weeks, 232 U.S. at 398. The Court later expanded the scope of the exclusionary rule, reasoning that the Fourteenth Amendment’s Due Process Clause made the Fourth Amendment privacy right enforceable against the states. Mapp v. Ohio, 367 U.S. 643, 654–55 (1961).

[2] See Orin S. Kerr, Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Geo. L.J. 1077, 1080 (listing exceptions and limitations); Lyle Denniston, Opinion Analysis: The Fading “Exclusionary Rule”, SCOTUSblog (Jun. 25, 2011, 8:58 AM), [] (“A constitutional concept that increasingly seems to contradict its own label, the ‘exclusionary rule,’ is fading further as a restraint on police evidence-gathering.”).

[3] Davis v. United States, 564 U.S. 229, 237 (2011).

[4] Terry v. Ohio, 392 U.S. 1, 21–22 (1968).

[5] 136 S. Ct. 2056 (2016).

[6] Id. at 2064.

[7] Id.

[8] Weeks v. United States, 232 U.S. 383, 398 (1914).

[9] Wong Sun v. United States, 371 U.S. 471, 484–85 (1963) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)).

[10] Weeks, 232 U.S. at 398.

[11] Mapp v. Ohio, 367 U.S. 643, 654–56 (1961).

[12] Weeks, 232 U.S. at 393. The Court also balanced the interests of criminal justice and constitutional liberties, finding that the former outweighed by the latter. See id. (“The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”).

[13] Mapp, 367 U.S. at 659; see also Melanie D. Wilson, Improbable Cause: A Case for Judging Police by a More Majestic Standard, 15 Berkeley J. Crim. L. 259, 266 (2010) (“As currently applied by the majority [of Court Justices], the exclusionary rule focuses on ensuring prosecution of seemingly guilty defendants to the exclusion of other equally important interests, such as police integrity, judicial impartiality, and respect for the rule of law.”).

[14] See United States v. Calandra, 414 U.S. 338, 348 (1974) (“In sum, the [exclusionary] rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”).

[15] See Mapp, 367 U.S. at 649 (“But the plain and unequivocal language of Weeks . . . to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed.” (citation corrected)). But see Akhil Amar, The Court after Scalia: The Despicable and Dispensable Exclusionary Rule (Corrected), SCOTUSblog (Sept. 16, 2016, 1:57 PM, [] (arguing that the exclusionary rule has no basis in the Constitution).

[16] See Olmstead v. United States, 277 U.S. 438, 462 (1928) (noting that Weeks’s holding that the Fourth Amendment, “although not referring to or limiting the use of evidence in court, really forbade its introduction, if obtained by government officers through a violation of the amendment”).

[17] See Kerr, supra note 2, at 1080 (listing “retroactivity, the fruit of the poisonous tree, inevitable discovery, independent source, and the good faith exception” as doctrines limiting the exclusionary rule’s application).

[18] Nardone v. United States, 308 U.S. 338, 341 (1939). See also Wong Sun v. United States, 371 U.S. 471, 488 (1963) (noting that the question in exclusion cases is “whether, granting establishment of the primary illegality, the evidence [as] to which instant objection is made has been come at by exploitation of [the unconstitutional search] or instead by means sufficiently distinguishable to be purged of the primary taint”) (citation omitted). One scholar defined the attenuation doctrine as marking “the point of diminishing returns of the deterrence principle.” Anthony G. Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 390 (1964).

[19] Brown v. Illinois, 422 U.S. 590, 603 (1975). The Brown Court rejected the argument that by giving Miranda warnings, officers sufficiently attenuated the causal chain between an unconstitutional arrest and the suspect’s subsequent confession. Id. at 602. But it did provide some factors to consider. They include the temporal proximity between the constitutional violation and the government’s acquisition of evidence, “the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 603–04 (internal citations omitted).

[20] Nix v. Williams, 467 U.S. 431, 443 (1984).

[21] 542 U.S. 630 (2004).

[22] Id. at 635. Patane was then charged with felon in possession of a firearm. Id.

[23] Id. at 637.

[24] Id.

[25] Id. at 639.

[26] Id. at 640 (quoting U.S. Const. amend. V). The Court distinguished this so-called exclusionary rule, which is “self-executing,” from “the Fourth Amendment’s bar on unreasonable searches.” Id.

[27] Id.

[28] Id. at 641.

[29] Id. at 642. When discussing deterrence, the Court further distinguished failures to warn from “unreasonable searches under the Fourth Amendment.” Id.

[30] Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016).

[31] Id.

[32] Id. at 2060.

[33] Id.

[34] Id.

[35] The State charged Strieff with a possession offense. Id.

[36] Id.

[37] Id.

[38] State v. Strieff, 357 P.3d 532, 536 (Utah 2015).

[39] Strieff, 136 S. Ct. at 2063.

[40] Id. at 2061 (citing Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 625 (1999)). For a discussion on how the Court has limited the availability of these historic remedies, see Justin F. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L. Rev. 687 (2011).

[41] Strieff, 136 S. Ct. at 2061.

[42] 422 U.S. 590, 603–04 (1975).

[43] Strieff, 136 S. Ct. at 2061.

[44] Id. at 2063.

[45] Id. at 2062.

[46] Id. The Court relied on Segura v. United States, in which officers awaiting a warrant that had not yet issued entered a home to conduct a search and found evidence of drug activity while conducting a protective sweep inside. 468 U.S. 796, 800–01 (1984). About nineteen hours after the initial search, the warrant issued and the officers again searched the home, finding additional evidence of unlawful activity. Id. at 801. Applying the independent source exception to the exclusionary rule, the Court held that the evidence was admissible because the information supporting the search warrant was “wholly unconnected with the [initial] entry and was known to the agents well before the initial entry.” Id. at 814. And the Court noted that “evidence will not be excluded as ‘fruit’ [of an illegal search] unless the illegality is at least the ‘but for’ cause of the discovery of the evidence.” Id. at 815. Interestingly, the Court has since stated that “but for” causation is a necessary, but not sufficient, condition for suppression. Hudson v. Michigan, 547 U.S. 586, 592 (2006).

[47] Strieff, 136 S. Ct. at 2063.

[48] Id.

[49] Id. at 2066.

[50] Id. at 2067.

[51] Id.

[52] Id. at 2068.

[53] Justice Ginsburg joined the previous parts of Justice Sotomayor’s dissent. Id. at 2064.

[54] Id. at 2069–71.

[55] Id. at 2072.

[56] Id. at 2073.

[57] Id.

[58] Id. at 2072.

[59] Id. at 2074.

[60] Mapp v. Ohio, 367 U.S. 643, 654–56 (1961)

[61] Hudson v. Michigan, 547 U.S. 586, 594 (2006).

[62] Weeks v. United States, 232 U.S. 383, 393 (1914); Mapp, 367 U.S. at 659.

[63] Strieff, 136 S. Ct. at 2063.

[64] Id. at 2074 (Kagan, J., dissenting). See also Orin Kerr, Opinion Analysis: The Exclusionary Rule is Weakened but it Still Lives, SCOTUSblog (Jun. 20, 2016, 9:35 PM), [] (agreeing with Justice Kagan’s assessment and predicting that “[a]t the margins . . . officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop”).

[65] See supra text accompanying note 20.

[66] See Wong Sun v. United States, 371 U.S. 471, 491 (1963) (holding admissible a statement given to police after an unlawful arrest where the declarant voluntarily returned to the police station days after the arrest to provide his statement).

[67] Brown v. Illinois, 422 U.S. 590, 603 (1975).

[68] As a reminder, the Court in Patane suggested that judicially-created remedies for constitutional violations should be narrowly tailored to the Constitution’s text and apply only where they deter violations of the Constitution’s express protections. United States v. Patane, 542 U.S. 630, 639, 642 (2004).

[69] See id. at 637, 639, 642.

[70] U.S. Const. amend IV.

[71] See generally L. Timothy Perrin et al., If It’s Broken, Fix It: Moving Beyond the Exclusionary Rule—A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule, 83 Iowa L. Rev. 669 (1998) (questioning the deterrent value of the exclusionary rule).

More Collaboration, Less Litigation:[1] Analyzing Craft Beer Within Intellectual Property’s Negative Space

Gabrielle L. Palanca*

[Editor’s note: To view a PDF version of this article, click here]

Once upon a time, two brewers, despite working for competing craft breweries, were good friends.[2] This friendship led to the realization that each brewery had a beer named “Salvation” in its lineup.[3] Being friends, perhaps it is not surprising that neither brewer, nor their respective breweries, pursued legal action in order to determine which brewery was legally entitled to the “Salvation” trademark and, in turn, which brewery should cease to use the name.[4] What may be surprising, however, is that beyond resolving the dispute amicably, the two breweries swapped their “Salvation” beer recipes with one another, and then collaborated in creating “an even more complex and rich libation” that merged the best qualities of each beer.[5] Two years later, this exchange among friendly brewers resulted in a new beer for distribution, amusingly named “Collaboration, not Litigation” ale.[6]

This is not just a trademark bedtime story, but the true story of a trademark dispute resolution between Avery Brewing of Boulder, Colorado, and Russian River Brewery of Santa Rosa, California.[7] Both breweries are well known and successful—each boasts beers that rank in the top 150 according to BeerAdvocate, a popular online community and compiler of beer ratings powered by beer enthusiasts and professionals from around the world.[8]

Since the emergence of the modern craft beer industry in the 1970s and 80s, craft brewers have often chosen to solve trademark disputes amicably, rather than through litigation.[9] Such disputes actually arise fairly frequently: there are “only so many words and names that make sense with beer” that it’s not surprising that craft brewers “come up with the same ideas.”[10]

However, the recent economic growth of the craft beer industry has paralleled an increase in craft brewers taking adversarial approaches to trademark disputes, including expensive trademark litigation,[11] harming competitors’ reputations on social media,[12] or trademark bullying.[13] Thus, the threat of losing market share may mean that craft brewers (and their legal counsel) are being increasingly drawn to the adversarial strategy[14] of “protect first and ask questions later.”[15]

Even though the financial stakes are higher,[16] open communication, collaboration, and collegial dispute resolution remain key values of the modern craft beer industry.[17] We see this when craft brewers make their recipes available to the public,[18] when craft beer consumers cease to buy from litigious craft breweries,[19] and when brewers reach collegial dispute resolutions, like that between Avery and Russian River.[20]

The friction between the collegial culture of the craft beer industry and adversarial trademark enforcement tactics is analogous to that experienced by industries in intellectual property’s “negative space.”[21] Industries in intellectual property’s negative space are those in which creation and innovation thrive without significant legal protection,[22] either because the “law excludes them from protection or because creators opt out of protection or enforcement.”[23] Negative space industries may rely on community norms to regulate intellectual property[24] or forego intellectual property regulation entirely.[25] Although “[n]egative spaces do not undermine the justifications for formal intellectual property protection, . . . they do shed light on when such protection is—or is not—called for.”[26]

This Article examines the craft beer industry within intellectual property’s negative space. In doing so, it demonstrates that the craft beer industry’s over-enforcement of trademark rights may be unnecessary and undesirable given the industry’s unique motivations and unique qualities. That said, this Article does not urge craft brewers to cease enforcing their trademark rights altogether. Rather, in demonstrating how and when the pursuit of formal trademark protection may be at odds with the industry’s unique motivations and unique qualities, this Article hopes to embolden craft brewers already striving to solve trademark disputes outside of the legal system, and inspire others to do the same.

I. Trademark Law in a Nutshell

The purpose of trademark law is twofold.[27] First, trademark law protects consumers by ensuring that when they purchase a certain trademarked product, they are purchasing the product that they intended to receive.[28] Second, providing a means for legal exclusivity of a trademark protects the mark owner, who has invested significant resources into establishing a certain reputation of a product, from misappropriation by others.[29] In other words, sellers use trademark rights to protect their investment in creating high quality products by pursuing legal remedies against competitors that may place the seller’s trademark on the competitor’s inferior goods.[30] If competitors were otherwise allowed to use another’s rightful trademark on their own goods, consumers may get confused or disappointed, and ultimately stop buying both the actual trademark owner’s quality good and the competitor’s phony good.[31]

 Today, trademark law advances these purposes primarily through the Lanham Act of 1946,[32] a federal statute that defines a trademark as any word, name, symbol, or device—or any combination of these—which a trademark mark owner uses to distinguish a good or service and identify its source. In order to register a trademark under the Lanham Act, a trademark owner files the appropriate application with the United States Patent and Trademark Office.[33] A trademark examiner then processes the application, and if granted, lists the mark on Register.[34] The trademark owner then has the exclusive right to use the mark in connection with its product.[35]

The Lanham Act prohibits a person who, without the consent of the mark owner, “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation” of the mark owner’s mark “in connection with the sale . . . [of] goods . . . with which such use is likely to cause confusion.”[36] Interpreting this provision, the Supreme Court has held that infringement occurs where one’s use of a particular mark is (1) likely to cause confusion (2) among members of the buying public (3) with a trademark owner’s valid mark.[37]

Whether the public is likely to be confused is a question of fact for a jury to decide.[38] The United States Courts of Appeals have developed multi-factor tests “to assist in the difficult determination of whether [there] is or is not a likelihood (probability) of confusion. Such a multi-factor test is not a checklist that must be satisfied for each and every factor, but is a guideline whose application will vary with each different factual pattern.”[39]

It is the trademark owner’s responsibility to defend her ownership of the trademark.[40] Among other ways, a trademark owner may enforce her mark by informally working out a resolution with the alleged infringer,[41] by sending one or multiple cease-and-desist letters to the alleged infringer,[42] or by initiating litigation to prove a likelihood of confusion to a jury.[43] The following section demonstrates why the first option—informally working out a resolution with an alleged infringer—may often be the best option for craft brewers who find themselves faced with a trademark dispute.

II. Craft Beer in Intellectual Property’s Negative Space

A. Intellectual Property’s Negative Space

Some industries innovate and create quality goods without fully utilizing the legal exclusivity provided for in intellectual property (IP) law.[44] Industries such as fashion,[45] stand-up comedy,[46] and tattooing[47] operate effectively without utilizing the formal protection of IP law and thus are appropriately placed within IP’s negative space.[48] But opting out of formal IP protections, even in part, theoretically leaves such industries vulnerable to copying and lost income.[49] Why would an industry make such a choice?

For one, negative space industries choosing to forego IP protections feel that they benefit in some way from doing so.[50] This does not mean that operating in the absence of IP protections maximizes or even increases creation, but rather that increased utilization of IP protection “would impose a cost on [negative-space] creators that would exceed the benefit of exclusivity to those creators.”[51] Maximized utilization of IP protections is a cost for negative-space industries because these “creators are not primarily motivated by the prospect of IP protection.”[52] They may be more motivated by sharing and collaboration,[53] by promoting distributive justice,[54] or by a simple desire to create.[55]

Further, community and culture norms often operate at a high level in IP’s negative space. For example, stand-up comedians overwhelming choose to rely on community norms to protect their intellectual property, because copyright law does not protect their ideas, just their expressions.[56] Likewise, those who participate in roller derby could rely on trademark law to protect their pseudonyms, but this community chooses instead to enforce trademarks in its own way.[57] Roller derby players search an official database and use a detailed system for deciding when two pseudonyms are too similar to coexist, to avoid taking a pseudonym already used by another.[58] These informal enforcement mechanisms work because parties are not only incentivized to carry contracts by the risk of legal sanctions for their not doing so, but are also partly or wholly induced to carry out contracts to protect their reputations, because of social or industry custom,[59] or out of “concern for relationships, trust, honor, and decency.”[60]

In negative space, then, innovation and creation is motivated by incentives not based on pure profits as well as community and culture norms.[61] Indeed, these two motivators underlie Professor Elizabeth Rosenblatt’s four commonalities of negative space industries.[62] Specifically, Rosenblatt posits that an industry is well suited for IP’s negative space when it consistently experiences one or more of the following:

  1. Rewards besides exclusivity motivate creation
  2. Exclusivity [over a type of intellectual property] would hinder creation
  3. There is a high public interest in free access
  4. Creators prefer to spend limited time, money, and other resources on further creation, rather than seeking, protecting, or enforcing intellectual property rights.[63]

With regard to three of four of Rosenblatt’s factors, the next section demonstrates that over-enforcement of trademark rights may be undesirable, because (1) craft brewers are motivated to create by rewards besides exclusivity, (2) exclusivity over beer trademarks can hinder creation, and (3) craft brewers prefer to spend limited time, money, and other resources on further creation, rather than enforcing trademark rights. It also demonstrates that over-enforcement of trademark rights may also be unnecessary, given that craft brewers participate in an extraordinarily collegial culture, enjoy a sophisticated consumer base, and distribute their products in varying ways.

B. Craft Beer’s Fit in Negative Space                             

 1. Rewards Besides Exclusivity Motivate Creation

Where a good has low production costs and fulfills a consumer need, obtaining exclusivity over a trademark, and thus over the good, allows one to sell it for a profit.[64] For example, the owner of a small gluten-free bakery based in Boulder, Colorado, may find that she can charge the most for her trademarked bread among her fellow gluten-free bakers because she is the exclusive owner of the coveted gluten-free bread recipe.[65] Unsurprisingly, a main goal of most American for-profit businesses can thus be simplified as exclusivity over a desirable product,[66] and trademark law helps advance this goal.[67] However, negative space industries may be motivated by rewards besides this profitable exclusivity.[68]

Like negative space industries, craft brewers are incentivized to create new and innovative beers for rewards besides those based on pure profits.[69] For one, craft brewers are often motivated to enter the industry with an overwhelming desire to make, share, and enjoy good beer.[70] Brewers who have been experimenting with brewing beer for some time come to enjoy the craft beer making process, and craft beer culture in general, so much so that they try to make a living out of brewing beer.[71] Thus, craft brewers often do not enter the craft beer industry motivated by the primary goal of creating a beer conglomerate to rival Anheuser-Busch or Miller.[72]

This is not to say that craft brewers do not employ sustainable business plans: “Fifty percent of all brewpubs ever started, and seventy percent of production breweries, are still in business, whereas the majority of other small businesses don’t make it past their first year.”[73] Thus, craft breweries have “certainly shown staying power.”[74] Still, the craft beer industry trends towards staying small and sustainable, rather than high-profit and national in size.[75] Unlike previous generations of brewers, many members of today’s generation of craft brewers are content running a single brewpub.[76] This is what one craft beer historian has termed the “‘back to the future’ dream. It recalls a time when all brewing was local.”[77]

Craft brewers are further motivated to create by another goal not based on pure profits: connecting with each other and their communities.[78] Besides defining craft beer as small, independent, and traditional,[79] the Brewers Association also notes that craft brewers are highly “involved in their communities through philanthropy, product donations, volunteerism, and sponsorship of events.”[80] They find creative and individualistic ways to connect with their customers.[81] Craft brewers are further motivated to collaborate with one another to create innovative beers,[82] garner positive publicity, and reinforce community bonds.[83]

 2. Exclusivity Would Hinder Creation

Craft brewers use a variety of channels[84] to make their beer available to customers and exclusivity puts considerable strain on this widespread industry practice. For example, craft brewers may do any of the following: sell a limited edition[85] or a seasonal beer[86] for a set period of time, sell certain beers on tap in a brewpub location only,[87] or distribute a particularly successful craft beer nationally—or any mixture or variation on those options.[88]

For example, craft beer consumers are not likely to confuse one brewery’s limited edition craft beer, offered in its brewpub only during the holiday season, with a second brewery’s beer that is distributed nationally on a regular basis.[89] Thus, even though the first brewery’s limited edition beer might be named “Hoppy Holidays,” and the second brewery’s regularly distributed beer might be named “Hoppy Days,” not much consumer confusion would result because of the vastly different channels in which the beers are distributed.[90]

Forcing a brewery with inferior legal rights to a trademark to stop using that trademark, even though there is no likelihood of consumer confusion over the use, hinders creation. This is because brewers may have to divert resources to exhaustive trademark searches or expensive legal advice to come up with trademarks that are almost guaranteed not to infringe on another craft brewer’s trademark. This, in turn, diverts resources from creating new and unique beers.

3. Creators Prefer to Spend Limited Time, Money, and Other Resources on Further Creation, Rather Than Seeking, Protecting, or Enforcing Intellectual Property Rights

Craft brewers prefer to spend limited resources on further creation than legal enforcement of their intellectual property rights for at least three reasons. First, craft brewers value helping those genuinely interested in starting breweries to do so—thus, not only do they value further creation of their own craft beers, but they also value the further creation of their competitors’ craft beers.[91] Craft brewers honestly believe that the more successful breweries there are, the more great beers will be created, and the faster the market will grow, sowing success for all.[92] This attitude “engenders a cooperative spirit among craft brewers that buoys the sector. Brewers consciously reach out to help their competitors make better beer, believing that across-the-board quality is vital to the success of the sector. Even with the blizzard of new brands coming to market, craft brewers maintain their one-for-all-and-all-for-one attitude.”[93]

Even large craft breweries are not as confrontational as one might expect, and demonstrate a decreased emphasis on profits in favor of other goals.[94] For example, Samuel Adams is “committed to . . . making sure other breweries have access to the same great ingredients it does at a fair price,” and even offers micro-loans program to budding small breweries.[95]

Second, many craft brewers aim to spend limited resources on creating new ways to connect with their customers. Because craft brewers are independent, local, and traditional, [96] when just starting out they market their products primarily within their local communities.[97] They also spend resources conducting charitable work, sponsoring local events, and donating their products for worthy causes.[98] Accordingly, some small craft brewers balk at spending their resources enforcing trademark rights.[99]

Third, craft brewers enjoy a high level of consumer sophistication such that their resources are better-spent delivering new and innovative beers, rather than over-enforcing their trademark rights.[100] Craft beer consumers are very discerning,[101] and thus are not at as high of a risk of confusing products as originating from the same brewer as consumers of other products lining supermarket shelves.[102] Indeed, craft beer customers will often cease to patronize craft breweries that aggressively enforce their trademark rights.[103]



When the founder of Avery Brewing, Adam Avery, was asked whether he would still choose to collaborate instead of litigate with Russian River[104] in this “new era of trademark battles,” he said his attitude was changing.[105] He noted that trademark disputes were a bigger issue in the industry than they used to be, and that he’d now be more likely to pursue legal protection of his beer names.[106]

Avery’s response unfortunately suggests that the industry is conforming to a legal regime that may not have its best interests in mind. Certainly, craft brewers should be diligent in selecting names that aren’t likely to cause confusion among their consumers,[107] and when confusion does result, craft brewers should legally protect their beer names when a collegial resolution is not possible.[108] Yet the point is that defaulting to formal trademark protection may be undesirable and unnecessary given that the craft beer industry’s motivations and qualities are similar to those of industries in intellectual property’s negative space.[109] Hopefully, the insights contained in this Article will provide even more encouragement to craft brewers and their lawyers to collaborate—not litigate[110]—where at all possible.


[1] Collaboration not Litigation Ale,, (last visited Mar. 8, 2016) [].

* J.D. Candidate 2017, University of Colorado Law School.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Top 250 Beers, as Rated by Our Users,, (last visited Nov. 12, 2015) [] (Russian River’s Pliny the Younger imperial IPA beer is ranked number four).

[9] See Brian Sorenson, Apple Blossom Collaborates with Local Beer Personality, Fayetteville (Aug. 26, 2015), [] (describing how collaboration brewing has likely always been a part of craft beer culture, and became even more common after Avery and Russian River teamed up to create Collaboration, not Litigation Ale); Jane Lothrop, Legal Experts Weigh in on Craft Trademark Disputes in 2015, (Dec. 31, 2015, 2:35 PM), [] (attorneys describing that the craft brewery industry is and continues to be a collegial industry where many trademark issues are informally worked out rather than litigated); Samantha Drake, Craft Beer’s Recent Spate of Lawsuits has Beer Drinkers Hopping Mad, (Jan. 13, 2016), []. (“Negotiation is always preferable to litigation . . . . [P]lenty of craft brewers resolve their differences quietly and out of the public eye. Approaching another brewer about a potential trademark conflict may not be easy, but it doesn’t have to be contentious” and can usually be done though a simple phone call. “Sometimes this means one party agrees to change the name of a beer or even its brewery.”); Interview with Andrew Riedel, Founder, Open Door Brewing Company, in Boulder, Colo. (Oct. 30, 2015) (recording on file with author) (arguing that before sending cease and desist letters, diligent attempts at a phone call or a meeting between brewers to resolve a dispute amicably is more appropriate given the camaraderie of the industry).

[10] Alastair Bland, Craft Brewers are Running Out of Names, and into Legal Spats, (Jan. 5, 2015, 9:08 AM),–brewers–are–running–out–of–names–and–into–legal–spats [] (“A frequently recurring issue . . . is different breweries thinking they’ve coined the same hopcentric puns and catchphrases for their beers. A quick Google search reveals multiple beers named ‘Hopscotch,’ and at least three India Pale Ales with the name ‘Bitter End.’”).

[11] Sara Randazzo, As Hop Puns Run Dry, Craft Beer Trademark Litigation Heats Up, Wall Street J. (June 11, 2016), [].

[12] See Bland, supra note 10 (describing the demands of Atlanta-based brewery, SweetWater Brewing Co., that Northern California-based Lagunitas Brewing Company stop using the “marijuana code ‘420’ in the cryptic artwork and messaging found on many Lagunitas beer labels,” as well as Lagunitas’ response to SweetWater’s demands in the form of a “volley of Twitter jabs at SweetWater”).

[13] Drake, supra note 9.

[14] See Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9 (suggesting that former small craft brewers that have become large and successful are being increasingly persuaded by their legal teams to first initiate legal action to enforce trademark rights before attempting an amicable compromise); Tony Kiss, Bell’s Brewery: Name Dispute Not About Bullying, (Mar. 13, 2015), [] (describing the zeal of Michigan-based craft brewery Bell’s in “taking the appropriate steps to protect its brand” against North Carolina’s Innovation Brewing. Bell’s brews 310,000 barrels of beer a year; Innovation brews about 500).

[15] Elizabeth L. Rosenblatt, Intellectual Property’s Negative Space: Beyond the Utilitarian, 40 Fla. St. U. L. Rev. 441, 482 (2013).

[16] See Andy Crouch, The Great Beer Trademark Wars, All About Beer (Nov. 12, 2015), (suggesting that there is an inevitable increase of trademark disputes as the craft brewery industry becomes more crowded); Jonathan Shikes, In an Era of Trademark Battles, Would Avery and Russian River Still Collaborate, Not Litigate? (Feb. 5, 2014), [].

[17] Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9 (describing that Colorado craft brewers are collegial and often even willing to mentor a friend in starting his or her own craft brewery, despite the risk of increased competition).

[18] DIY Dog: Giving Back, BrewDog, (last visited Mar. 8, 2016) [] (“So here it is. The keys to our kingdom. Every single BrewDog recipe, ever. So copy them, tear them to pieces, bastardise them, adapt them, but most of all, enjoy them. They are well travelled but with plenty of miles still left on the clock. Just remember to share your brews, and share your results. Sharing is caring.”); Nancy Stiles, Attention Home Brewers: Earthbound Brewing Sponsoring Open-Source Beer Competition, St. Louis (Apr. 13, 2015, 4:41 PM), [] (profiling an open-source brewing competition sponsored by Earthbound Brewery, in which Earthbound reveals its brown ale recipe and invites home brewers to come up with their own variations).

[19] Drake, supra note 9 (profiling one craft brewer who “heard from hundreds of Craft Beer Enthusiasts who were outraged that we needed to sue anyone let alone another Craft Brewery,” and another whose trademark enforcement activities resulted in a customer petition to boycott the brewery until the trademark suit was dropped).

[20] See Michael Kanach et al., The Brewhaha: Working with Craft Breweries for Trademark, Brand Protection, and Other Issues, The American Bar Association (Mar. 27, 2015), [] (noting that many trademark disputes are “amicably settled” and that the “[i]ndustry is collaborative”).

[21] Rosenblatt, supra note 15, at 447.

[22] Id. at 442.

[23] Id.

[24] For example, the tattooing industry has “nearly uniformly reject[ed] formal legal mechanisms for adjudicating claims over ownership and copying” in favor of community policing, whereby members of the tattooing industry themselves informally discourage and resolve unauthorized copying. Aaron Perzanowski, Tattoos & IP Norms, 98 Minn. L. Rev. 511, 549–54 (2013).

[25] Unrestricted copying is permitted in the area of open-source software. What is Open Source?, (last visited Mar. 5, 2016) [] (“Open source software is software whose source code is available for modification or enhancement by anyone.”).

[26] Rosenblatt, supra note 15, at 447. Yet even in intellectual property’s negative space, litigious outliers can disrupt informal systems of intellectual property protection, sometimes causing problems for these industries. Id. at 448–50.

[27] 1 McCarthy on Trademarks and Unfair Competition § 2:1 (4th ed. 2016).

[28] Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 782, n.15 (1992) (Stevens J., concurring) (quoting S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946)). Cf. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 158 (1989) (“The law of unfair competition has its roots in the common-law tort of deceit: its general concern is with protecting consumers from confusion as to source. While that concern may result in the creation of ‘quasi-property rights’ in communicative symbols, the focus is on the protection of consumers, not the protection of producers as an incentive to product innovation.”).

[29] McCarthy, supra note 27, § 2:1.

[30] Id. § 3:10.

[31] Id. § 2:4.

[32] The Lanham Act, 15 U.S.C. § 1127 (2012). See also, U.S. Patent Trademark Office, Protecting Your Trademark 2, [] (last visited Mar. 8, 2017) (defining a trademark). Trademark rights may also be conferred pursuant to state law. McCarthy, supra note 27, § 2:1. However, seeking protection under the Lanham Act is paramount for businesses participating in interstate commerce because trademark rights conferred by one state may not be enforced in another state. Indeed, use of, or a bona fide intent to use, a mark in national commerce is required for a federal trademark registration. U.S. Patent Trademark Office, supra note 32, at 18. However, craft brewers in planning, or small craft brewers just starting out, may not anticipate national distribution of their beers, and thus adopt a name before securing federal rights to that name by using it in interstate commerce. See Crouch, supra note 16 (“Most of the companies are too small to actually go out and trademark their brand.”).

[33] The Lanham Act, 15 U.S.C. § 1051 (2012).

[34] U.S. Patent Trademark Office, supra note 32, at 1–3.

[35] Id. at 11.

[36] The Lanham Act, 15 U.S.C. § 1125(a)(1)(A) (2012) (“Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”) (emphasis added).

[37] KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., et al., 543 U.S. 111, 117 (2004). See also, Restatement (Third) of Unfair Competition § 21 cmt. a (Am. Law Inst. 1995) (“The test for infringement is whether the actor’s use of a designation as a trademark, trade name, collective mark, or certification mark creates a likelihood of confusion.”); McCarthy, supra note 27, § 2:8 (“[T]he keystone of that portion of unfair competition law which relates to trademarks is the avoidance of a likelihood of confusion in the minds of the buying public.”).

[38] KP Permanent Make-up, 543 U.S. at 114.

[39] 4 McCarthy on Trademarks and Unfair Competition § 24:28 (4th ed. 2016). For example, the Tenth Circuit determines whether the defendant’s use of a mark creates a likelihood of consumer confusion with the mark owner’s mark by analyzing six factors:

1) the degree of similarity between the marks, 2) the intent of the perceived infringer

in adopting its mark, 3) evidence of actual confusion, 4) the relation in use and manner

of marketing between the goods or services marketed by the competing parties, 5) the

degree of care likely to be exercised by purchasers, and 6) the strength or weakness of

the marks.

King of the Mt. Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089–90 (10th Cir. 1999). In comparison, the Second Circuit adopts eight, albeit similar, factors:

(1) the strength of the mark; (2) the degree of similarity between the marks;

(3) the proximity of the products; (4) the likelihood of direct competition between

the marks; (5) actual confusion; (6) the defendant’s good faith in adopting its mark;

(7) the quality of the defendant’s product; and (8) the sophistication of the buyers.

Arrow Fastener Co. v. Stanley Works, 59 F.3d 384, 391 (2d Cir. 1995).

[40] See McCarthy, supra note 27, § 23:76 (“Only the registrant and owner of record of the registration (not a licensee) has standing to sue under Lanham Act” for infringement of its federally registered mark.); 2 McCarthy on Trademarks and Unfair Competition § 11:91 (4th ed. 2016) (“The law imposes on trademark owners the duty to be pro-active and to police the relevant market for infringers.”).

[41] Kanach et al., supra note 20 (identifying the option of calling an perceived infringer first to see if an amicable agreement can be reached, preventing litigation).

[42] Cease-and-Desist Letter, Black’s Law Dictionary (10th ed. 2014) (“A cautionary notice sent to an alleged wrongdoer, describing the offensive activity and the complainant’s remedies and demanding that the activity stop. A cease-and-desist letter is commonly used to stop or block the suspected or actual infringement of an intellectual-property right before litigation.”).

[43] U. S. Patent and Trademark Office, About Trademark Infringement (last visited Mar. 8, 2017) [] (describing that trademark owners able to prove a likelihood of confusion, and thus infringement, may utilize the following remedies:

a court order that the infringer stop using the mark; a court order requiring the

destruction or forfeiture of infringing articles; monetary relief; including the

infringer’s profits, damages sustained by the trademark owner, and the costs of

the action; and in some cases, a court order that the infringer pay the trademark

owner’s attorney’s fees).

[44] Elizabeth L Rosenblatt, A Theory of IP’s Negative Space, 34 Colum. J.L. & Arts 317, 319 (2011).

[45] See Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and intellectual Property in Fashion Design, 92 Va. L. Rev. 1687, 1717–18 (2006) (arguing that copying in the fashion industry drives rather than chills innovation).

[46] See Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand–Up Comedy, 94 Va. L. Rev. 1787, 1789–90 (2008) (arguing that stand–up comedians continue to create because social norms substitute for IP protections).

[47] Perzanowski, supra note 24, at 512–13 (2013) (describing how tattoo artists “uniformly reject formal legal mechanisms for adjudicating claims over ownership. Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry”).

[48] Rosenblatt, supra note 44;, at 319.

[49] See Rosenblatt, supra note 15, at 453 (describing that exclusivity over intellectual property enables creators to economically profit off their creations (assuming that copying costs less than initial creation), and that “without laws preventing copying, consumers would copy works and inventions rather than purchasing them, which would deny creators the resources they need to engage in further creation”); Rosenblatt, supra note 44, at 336 (“Although copying may deprive individual creators of licensing income, [creators in negative space] persist in creating without the reward of legally enforced exclusivity.”).

[50] Rosenblatt, supra note 44, at 336.

[51] Id.

[52] Id.

[53] As in the case of open-source software. Rosenblatt, supra note 44, at 339. Likewise, in the area of creative cuisine, members discourage creators from pursuing infringers to promote a “culture of hospitality.” Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable? 24 Cardozo Arts & Ent. L.J. 1121, 1151-52 (2007).

[54] Rosenblatt, supra note 15, at 457–58. (positing that the specific goals of promoting distributive justice through IP might include “consumer welfare (i.e., happiness); creation of a cornucopia of ideas (including creative incentive and access to ideas); creation of a rich artistic tradition; distributive justice; semiotic democracy (i.e., the creation of meaning by everyone); sociability (community); and respect”).

[55] Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 Wm. & Mary L. Rev. 513, 514 (2009) (characterizing creators of fanworks (unauthorized derivative works) as motivated primarily by a desire to create).

[56] Rosenblatt, supra note 15, at 468. The community surrounding stand–up comedy discourages copying of both ideas and expressions by way of professional sanctions and sometimes, physical violence. Id. For example, comedian George Lopez accused Mencia of incorporating thirteen minutes of his material into one of Mencia’s HBO comedy specials, later boasting that he grabbed Mencia at a comedy club, slammed him against a wall, and punched him. Olia & Sprigman, supra note 46, at 1796–97.

[57] Rosenblatt, supra note 15, at 469.

[58] Id.

[59] Id. at 467.

[60] Jay M. Feinman, Relational Contract and Default Rules, 3 S. Cal. Interdisc. L.J.. 43, 53 (1993). See also, Lisa Bernstein, Social Norms and Default Rules Analysis, 3 S. Cal. Interdisc. L.J. 59, 60 (1993) (recognizing the “centrality of social norms in many transactional settings and acknowledging that not all transactions are ‘discrete’ and that not all transactors appear to act as ‘steely–eyed utility maximizers’”).

[61] See Rosenblatt, supra note 44, at 336 (describing that strong community norms and rewards not tied to incentives based on pure profits characterize IP’s negative space); Rosenblatt, supra note 15, at 461, 468–72 (suggesting that either “unrestricted copying or community norms that govern the circumstances of copying” operate in IP’s negative spaces and that community norms do much to protect one’s intellectual property in some communities).

[62] Rosenblatt, supra note 44, at 342.

[63] Id.

[64] John Burgstone & Bill Murphy Jr., How to Create a Profitable Business, (Feb. 16, 2012), [] (explaining that where a company enjoys low production costs of a high utility product, that company is in the best position to capture value and make a profit).

[65] Kim and Jake’s Gluten Free Bakery in Boulder, Colorado, sells a four-pack of gluten-free buns for $6.00 and has the third highest rating on in the category of gluten free bakeries. Products: Breads, Kim and Jakes, (last visited Jan. 30, 2016) []. Conversely, a popular brand of gluten-free bread sold in supermarkets, Udi’s, sells an eight-pack of gluten-free buns for $4.50. Hamburger Buns, Udi’, (last visited Mar. 8, 2016) [].

[66] Indeed, courts have held that corporations exist to make a profit for shareholders. See Dodge v. Ford Motor Co., 170 N.W. 668, 681–82 (Mich. 1919).  

[67] McCarthy, supra note 27, § 2:7 (conveying that one of the purposes of trademark law is to provide a means for legal exclusivity of a trademark in order to protect the trademark owner, who has invested significant resources into establishing a certain reputation of the product, from misappropriation by others).

[68] See discussion supra Section III.A.

[69] See Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9 (commenting on how he decided to start a brewery not for the money but because he realized he could, and enjoyed, making his own craft beers); Steve Nicastro, Starting a Craft Brewery Requires Passion, Patience, and Deep Pockets, (April 8, 2015), [] (describing how entering the craft beer business is not a “get-rich-quick scheme,” requires a lot of start of capital, but is worth the work if you have passion and patience).

[70] Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9.

[71] Steve Hindy, The Craft Beer Revolution 219 (2014) (describing that most getting into craft “brewing not expecting great wealth,” and that only a few of today’s craft brewers are concentrating on building national breweries).

[72] See id.; Joe+, 61 Brewers Speak Out: What I Wish I’d Known Before Starting a Brewery, (Feb. 9, 2014), [].

(describing many examples of craft breweries who thought “too small” in starting their business and underestimating how fast they would grow: “I assumed I would be able to grow at a slow comfortable pace”).

[73] Hindy, supra note 71, at 210.

[74] Id.

[75] Id. at 210–13 (noting that the modern generation of craft brewers are employing different strategies to stay in business, and “[t]he first is to stay small”).

[76] Id. at 209–10

[77] Id. at 210.

[78] A study conducted by the University of Colorado Leeds School of Business provides one such example of the value the craft beer industry places on giving back to local communities. Craft Brewers Industry Overview and Economic Impact 2013 and 2014, University of Colorado Leeds School of Business 2 (2015), []. The study found that Colorado craft brewers are active philanthropists in their communities. Id. For example, 90 percent of brewers surveyed reported participating in fundraising and charitable events. Id.

[79] Craft Brewer Defined, Brewers Association, (last visited Mar. 8, 2017) [].

[80] Id.

[81] Id.

[82] Collaboration not Litigation Ale, supra note 1.

[83] See Jay Brooks, Brewing Togetherness, All About Beer (Jan. 1, 2009), [] (describing the phenomenon of craft brewers collaborating to create a beer that incorporates the strengths of both brewers, speculating that it may be partly for publicity but noting that one brewer praised the practice for its “spiritual” as well as educational benefits).

[84] Stan Hieronymus, Brewpubs and Distribution,, (last visited Jan. 30, 2016) [] (describing some breweries sell on-site at brewpubs, some package and distribute their beer in bottles or kegs for direct sale to the customer or a retail store, and others do both).

[85] Also known as a “one-off.” Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9.

[86] See Beers, Great Divide Brewing, (last visited Mar. 9, 2016) [] (offering both seasonal and year round beers).

[87] See Tom Wilmes, Mountain Sun Adding Capacity with New Brewery, The Boulder Daily (Apr. 18, 2012), []. According to a brewer of Mountain Sun, a Boulder, Colorado based craft brewery: “We’re basically a production brewery that distributes to our own restaurants.” All of the beer it brews is kegged and housed in a large cold storage area before it is distributed to its three brewpubs. Id.

[88] See Brad Hargrave, 10 Questions with the Brewer, Mile High Wine and (June 23, 2010), [] (Wynkoop Brewery was founded in part by Governor John Hickenlooper of Colorado, and sold its beers only within the confines of its downtown Denver brewpub for almost twenty years); Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9 (describing that the channel of distribution of either brewery involved in a trademark dispute—for example, whether one beer is only available on tap in a small brewpub while the other is a nationally-distributed beer—informs how craft brewers determine whether infringement has actually caused harm such that a legal remedy is warranted).

[89] See Nick Breedlove, Local Brewery Trademark Dispute is ‘David vs. Goliath,’ The Sylva (March 11, 2015, 2:00 PM), [] (describing a petition of craft brewers and customers calling for Kalamazoo, Michigan-based Bell’s Brewery to drop its “baseless lawsuit” against North Carolina’s Innovation Brewing because Innovation, a “family” brewery in Sylva, North Carolina, “will not be a competitor to Bell’s”).

[90] See id.

[91] Corie Brown, So You Want to Start a Craft Brewery, (June 2, 2015); Interview with Andrew Riedel, Founder, Open Door Brewing Company, supra note 9. Cf. Robert Tuchman, 5 Reasons You Need to Work with Your Competitors, (April 27, 2015), [] (recognizing that “[i]t seems counterintuitive in any walk of life to help a competitor).

[92] Brown, supra note 91 (“Craft brewers have been united in their faith that the craft beer market will grow faster with more successful craft breweries.”).

[93] Id.

[94] Darren Dahl, Kim Jordan on Why Employee-Owned New Belgium Brewing isn’t Worried About a Craft Beer Bubble, (May 5, 2015), [] (describing the business motivations of Kim Jordan, CEO of New Belgium Brewing Company of Fort Collins, Colorado: “I also studied social work in school and worked as a social worker for many years before we started New Belgium. I guess it came naturally to me, therefore, to think differently about how to run a business. I saw an opportunity to use New Belgium as a learning lab where we could experiment with choices about sharing equity broadly, making collaborations inside our industry and using profits to promote learning about the environment.”).

[95] Thierry Godard, The Economics of Craft Beer, (Jan. 7, 2016), [].

[96] See Craft Brewer Defined, Brewers Association, supra note 79 (“Craft brewers have distinctive, individualistic approaches to connecting with their customers.”).

[97] See id. (craft brewers are local); Hindy, supra note 71, at 209–19 (profiling today’s large population of small craft brewers that primarily operate within their local communities, including one brewer whose “most distant customer is a bar ten miles from the brewery”).

[98] Craft Brewer Defined, Brewers Association, supra note 79.

[99] See Chris Lang, Hop Head: Breweries Launch Trademark Wars, The (April 22, 2015), [] (describing that one brewery chose to change its name to avoid legal issues with another craft brewery, because the brewery “clearly understood the limitations this would place on the business” and “also thought such a restriction would be unfair to both current and future fans of [its] products”).

[100] See Beth Kaiserman, Beer…The New Sophisticated Spirit, Highbrow (Aug. 12, 2012),–beerthe–new–sophisticated–spirit#sthash.XhJmRoNA.dpuf [] (documenting the view of craft beer as becoming more sophisticated and suggesting that it is the new “wine”).

[101] Corie Brown, Craft Brewers: This is What your Customers Want, (July 14, 2015), [] (describing craft beer consumers as “highly individualized and independent,” sophisticated, educated, willing to pay more for “something they believe is special to shift the whole market,” “knowing what they are looking for,” snobbish about beer quality, and “wanting to feel a connection to what’s in their glass”).  

[102] The Downside of Too Many Product Choices on Store Shelves, Consumer (Jan. 2014),–many–product–choices–in–supermarkets/index.htm [] (describing that consumers are increasingly facing confusion and frustration at the supermarket and select a product not based on reason, but on the product that is easiest to evaluate).

[103] Drake, supra note 9 (profiling one craft brewer who “heard from hundreds of Craft Beer Enthusiasts who were outraged that we needed to sue anyone let alone another Craft Brewery,” and another whose trademark enforcement activities resulted in a customer petition to boycott the brewery until the trademark suit was dropped); Josh Noel, Lagunitas Drops Lawsuit Against Sierra Nevada after Twitter Backlash, (Jan. 14, 2015), []; Hindy, supra note 71, at 211 (“People want local. . . . I am taken aback [with] how educated and informed the customer is about beer.”).

[104] See supra Introduction.

[105] Crouch, supra note 16.

[106] Id. (“We’re not just five people anymore . . . . I have to think about the livelihoods of 92 people and their families.”).

[107] The Lanham Act, 15 U.S.C. § 1125(a)(1)(A) (2012).

[108] McCarthy, supra note 27, § 2:1 (describing that trademark law protects the mark owner, who has invested significant resources into establishing a certain reputation of a product, from misappropriation by others).

[109] See supra Part II.

[110] Collaboration not Litigation Ale, supra note 1.