Law Commons^™

A Decarceral Cadence: Neurologic Music Therapy As An Abolitionist Project, Mallori D. Thompson, Richard A. Kirby

Connecticut Law Review

Because police and prison abolition must be approached while simultaneously improving quality of life, and thus reducing harm, abolitionist discourse should include health policies that regard the (de)regulation, use, and culture of addictive substances. This Essay calls for research into neurologic music therapy as a response to addiction, improving quality of life and paving the way for police and prison abolition.

Replacement Of The Transfer Act: The Impact Of Connecticut's Effort To Expedite Contaminated Site Remediation, Avery Bikerman

Honors Scholar Theses

The scope of this thesis is to analyze the legal framework established by House Bill 7001 and Public Act 20-9, which revise provisions of the CT Transfer Act, and establish a release-based reporting program which will be administered upon the sunset of the original act. While any release that occurred prior to the Release Based Remediation Program adoption (regardless of discovery date) is still regulated by the original Transfer Act, any release that occurs subsequent to the adoption of the new program will be regulated by the Release Based Remediation Program. This study investigates the scope of the new release-reporting …

Explaining Reproductive Health Disparities: Violence In The “Colorblind” Institution Of Medicine, Chineze Osakwe

Honors Scholar Theses

Medical policies have resulted in violence that has a formal role in regulating the reproductive rights of women of African descent in the United States from the Jim Crow era (circa 1965) to present day (2021), resulting in significantly racialized reproductive health disparities regardless of social or economic influences. This thesis explores why reproductive violence against African-American women persists, regardless of women’s own class and educational background. I have focused on the potential impact of two structural components that I hypothesized contributed to the perpetuation of reproductive violence against Black women and persistent health disparities. The two factors explored in …

Untold Stories Of The African Diaspora: The Lived Experiences Of Black Caribbean Immigrants In The Greater Hartford Area, Shanelle A. Jones

University Scholar Projects

The African Diaspora represents vastly complex migratory patterns. This project studies the journeys of English-speaking Afro-Caribbeans who immigrated to the US for economic reasons between the 1980s-present day. While some researchers emphasize the success of West Indian immigrants, others highlight the issue of downward assimilation many face upon arrival in the US. This paper explores the prospect of economic incorporation into American society for West Indian immigrants. I conducted and analyzed data from an online survey and 10 oral histories of West Indian economic migrants residing in the Greater Hartford Area to gain a broader perspective on the economic attainment …

To Err Is Human, To Apologize Is Hard: The Role Of Apologies In Lawyer Discipline, Leslie Levin, Jennifer K. Robbennolt

Faculty Articles and Papers

The lawyer discipline system is often the only recourse for complainants when lawyers misbehave. Yet it is also deeply unsatisfying. Most grievances are dismissed and even when a sanction is imposed, the complainant receives no monetary compensation. Lawyers rarely even apologize for the harm they caused. Yet apologies can repair relationships and trust, decrease distress, restore the victim’s standing, and affirm important values. In this article, we explore whether and how apologies might be more systematically incorporated into the lawyer discipline system to address lawyer mistakes and misconduct. We detail how apologies are currently sporadically used and evaluated by disciplinary …

Connecticut 1818: From Theocracy To Toleration, Mark Weston Janis

Faculty Articles and Papers

What accounts for the "new" 1818 Connecticut Constitution that repudiated the theocracy of the state and disestablished the Congregationalist Church? The answer is proof positive of Professor Richard Kay's proposition that a constitution, representing the foundation of legal system, is not based on law, but rather on politics, economics, and morality.

Connecticut was one of the last American states to separate church and state, and to provide for religious toleration. The 1818 religiously-tolerant Constitution resulted from three causes. First was the collapse of the political mainstay of the Congregational Church, the Federalist Party, which never recovered public support after sponsoring …

Obscured By 'Willful Blindness': States' Preventive Obligations And The Meaning Of Acquiescence Under The Convention Against Torture, Jon Bauer

Faculty Articles and Papers

As U.S. asylum law becomes more restrictive, relief under the U.N. Convention Against Torture (CAT) has become the last hope for safety for many asylum seekers. But for those who face torture at the hands of non-State actors, CAT relief has proven extraordinarily hard to win. The CAT’s torture definition encompasses privately-inflicted harm only when it occurs with the consent or acquiescence of a public official. Agency decisions initially took this to mean that officials must willfully accept or tacitly approve the private party’s actions. Courts have rejected that approach as overly restrictive. But what they have adopted in its …

New Hampshire V. Massachusetts: Taxation Without Representation?, Richard Pomp

Faculty Articles and Papers

In this article, Professor Pomp details the dispute behind New Hampshire’s pending motion in the U.S. Supreme Court.

The issue is whether Massachusetts may constitutionally subject remote-working nonresidents to its income tax when, prior to the pandemic, those workers commuted in-state.

It is beyond dispute that nonresidents who earn their income within a state can be taxed by the state. The constitutional rule that a state tax may not discriminate against interstate commerce, which ensures nonresident taxpayers are treated the same as residents, acts as a safeguard against taxation without representation. Resident taxpayers indirectly serve the tax interests of nonresidents …

Hate Speech On Social Media: Content Moderation In Context, Richard A. Wilson, Molly Land

Faculty Articles and Papers

For all practical purposes, the policy of social media companies to suppress hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of vigorous regulation. Nonetheless, revisiting these debates provides insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as tenuous. …

Why America's Response To The Covid-19 Pandemic Failed: Lessons From New Zealand's Success, Richard Parker

Faculty Articles and Papers

Polls show that 48 percent of Americans think the United States has fared no worse in dealing with COVID-19 than most other countries and that COVID-19 posed an essentially impossible test. This article refutes that remarkable misperception. It shows that the U.S. COVID-19 mortality rate for 2020, adjusted for population, was more than twice as high as Canada’s and Germany’s; ten times higher than India’s; 29 times higher than Australia’s; 40 times higher than Japan’s; 59 times higher than South Korea’s, and 207 times higher than New Zealand’s mortality rate. In fact, U.S. performance at the level of South Korea, …

Beware Of Giant Tech Companies Bearing Jurisprudential Gifts, Kiel Brennan-Marquez

Faculty Articles and Papers

Responding to Rebecca Wexler, Privacy as Privilege: The Stored Communications Act and Internet Evidence, 134 HARV. L. REV. 2721 (2021).

A Trend You Can't Ignore: Social Media As Government Records And Its Impact On The Interpretation Of The Law, Jessica De Perio Wittman

Faculty Articles and Papers

There has been a sharp increase in official communications from government agencies and elected officials that occur initially, primarily, and even solely, on social media. The Federal Records Act (FRA), Presidential Records Act (PRA) and the Freedom of Information Act (FOIA) govern the retention, access, preservation and disclosure of records produced by the federal government. Recent litigation has highlighted why courts, attorneys, and other legal researchers must consider social media as a primary source of government information, particularly when records may become inaccessible once a social media post is modified or deleted, or when technology becomes obsolete. Additionally, as social …

Responding To The Pandemic: A Case Study, Richard Pomp

Faculty Articles and Papers

This article describes how Connecticut, despite catching a fiscal break from the pandemic, has failed to seize the opportunity to enact meaningful reform targeted at its $90 billion debt.

The article begins by explaining why Connecticut fared well during the pandemic. Many wealthy taxpayers moved into Connecticut from New York City. The increase in their stock-market driven income taxes, as well the sales tax boost from secondary and tertiary purchases by homebuyers, has eliminated Connecticut’s short-term budget deficit. The State is sitting on a $3 billion rainy-day fund.

Next, the article examines several tensions between the democratic governor, Ned Lamont, …

Ordinary Clients, Overreaching Lawyers, And The Failure To Implement Adequate Client Protection Measures, Leslie C. Levin

Faculty Articles and Papers

Every year, thousands of individual clients are victimized by overreaching lawyers who overcharge clients, refuse to return unearned fees, or steal their money. For more than forty years, the American Bar Association (ABA) has considered, and often proposed, client protection measures aimed at protecting clients from overreaching lawyers. These measures include requirements that lawyers use written fee agreements in their dealings with clients and rules relating to fee arbitration, client protection funds, insurance payee notification, and random audits of trust accounts. This Article examines what happened to these ABA recommendations when the states considered them and assesses the current state …

The Politics Of Bar Admission: Lessons From The Pandemic, Leslie C. Levin

Faculty Articles and Papers

No abstract provided.

Minimizing The Impact Of Cognitive Bias In Transactional Legal Education, Alina Ball

Connecticut Law Review

This Article explores methods law professors can employ to address the cognitive biases their law students possess. This Article provides concrete thoughts on how transactional law clinics can utilize the social, political, and neuroscience research included in this symposium edition.

Original Constitutionalist: Reconstructing Richard S. Kay’S Scholarship, Yaniv Roznai

Connecticut Law Review

No abstract provided.

Constituent Power And Constituent Authority, Mikolaj Barczentewicz

Connecticut Law Review

My aim in this Paper is to analyze Professor Richard Kay’s notion of ‘constituent authority’ within H. L. A. Hart’s model of foundations of legal systems. I thus elucidate the relationship between constituent power, Kay’s constituent authority, and Hartian rules of recognition. I begin by distinguishing two understandings of constituent power: de facto and de jure. In general, constituent power is a power to bring about constitutional change that is not a legal power and is not constituted by (grounded in) any legal power. On the first view, constituent power is a factual capacity (e.g. a kind of social “power”) …

The Role Of Lawyers And Law Schools In Fostering Civil Public Debate, Jennifer K. Robbennolt, Vikram D. Amar

Connecticut Law Review

Partisanship can make policy discussion and civil debate difficult. Partisan differences in how facts and policies are understood contribute to the escalation of conflict and a lack of cooperation. Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict.

Lawyers are trained and socialized to internalize and safeguard the foundational tenets of our constitutional democracy, to uphold the law even when it does not reflect their own individual preferences. The professional rules of conduct encourage …

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed Handelsman Shugerman

Connecticut Law Review

Kent Newmyer’s classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer’s account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer’s Story is fundamentally important for students of American history. But in Robert Cover’s account in Justice Accused on northern judges’ deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic comity. …

The Emerging Genre Of The Constitution: Kent Newmyer And The Heroic Age, Mary Sarah Bilder

Connecticut Law Review

In written celebration of Kent Newmyer’s intellectual and collegial influence, this Essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the Constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging genre …

Carpenter, The Fourth Amendment, And Third-Party Workarounds, Jillian Chambers

Connecticut Law Review

The Supreme Court’s 2018 decision, Carpenter v. United States, seemed to signal a shift in the Court’s Fourth Amendment jurisprudence to acknowledge and adapt to developments in technology. It was a hollow victory. Per Carpenter, if a telecommunications company collected and held your cell phone location data, and law enforcement asked for it, they would need a warrant. But if the location data was repackaged and sold to another company or data broker, and then law enforcement bought the data: no warrant necessary. Why is one exchange of cell phone location data subject to stringent warrant requirements while the other …

Authority And Meaning, Laurence Claus

Connecticut Law Review

This conference contribution celebrates Richard Kay’s contention that a sound theory of legal meaning depends on a sound theory of legal status. Contrary to Kay, I conclude that identifying law’s true source reveals that we should seek law’s meaning not primarily in lawgivers’ intentions, but in public understanding.

The Folly Of The Famous Family: Why Matter Of L-E- A-’S Definition Of Distinction Does Not Merit Deference, Danielle L. Schmalz Fullam

Connecticut Law Review

Attorney General Barr abruptly changed the course of asylum law in the United States on July 29, 2019, in his decision in Matter of L-E-A-. Barr declared that usually, family-based, particular social group asylum claims would fail due to a lack of specific social distinction. Essentially, Barr decided that in order to constitute a cognizable particular social group, a family would have to be well-known within the society in question. While social distinction has been a component of asylum law jurisprudence for some time, never before was there the requirement of specific social distinction. Despite making a major change to …

Hate Speech On Social Media: Content Moderation In Context, Richard A. Wilson, Molly Land

Connecticut Law Review

For all practical purposes, the policy of social media companies to suppress hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of vigorous regulation. Nonetheless, revisiting these debates provides insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as tenuous. …

Constitutional Chronometry, Legal Continuity, Stability And The Rule Of Law: A Canadian Perspective On Aspects Of Richard Kay’S Scholarship, Warren J. Newman

Connecticut Law Review

The United States and Canada have many common traits, including a constitutional heritage originally derived in part from British common law and statute, a written constitution declared to be supreme law, a federal and local state (or provincial) division of legislative powers, an entrenched bill of rights, written procedures for constitutional amendment, and constitutional judicial review. However, while the United States has a presidential and congressional system of government, Canada is a constitutional monarchy with a parliamentary system of responsible government. Moreover, unlike the United States, Canada achieved its independence from the United Kingdom gradually and incrementally, within the existing …

How People Judge Institutional Corruption, Elinor Amit, Eugy Han, Ann-Christin Posten, Steven Sloman

Connecticut Law Review

Institutional corruption refers to actions that are legal yet carry negative consequences for the greater good. Such legal yet harmful behaviors have been observed among politicians and donors who establish quid-pro-quo relationships in exchange for money and among doctors who receive gifts from pharmaceutical companies in return for recommending the companies’ drugs. How does the general public reconcile the tension between the legal status of an action and its impact on the greater good and judge the action’s moral acceptability? We explored this question empirically by comparing the relative weight people give to the legal status of actions and to …

Joseph Story’S Republics In A Minor Key: Dark Times And The Astonishing Relevance Of Kent Newmyer, Steven Wilf

Connecticut Law Review

No abstract provided.

A Case For Compulsory Licensing In Instances Of Reverse Trademark Confusion, Lauren Straight

Connecticut Law Review

Trademark remedies in cases of reverse confusion are economically inefficient. Junior users in the best position to take economic advantage of marks are sometimes unable to do so due to prior use of a mark by a much smaller, remote senior user. This creates economic inefficiencies and leaves market share unutilized. For this reason, TRIPS needs to be revised to allow for a limited system of compulsory licensing for trademarks in reverse confusion cases. A system of compulsory licensing for trademarks would allow the person or company in the best position to use and gain market share from a trademark, …

Reading The Illegible: Can Law Understand Graffiti?, Katya Assaf-Zakharov, Tim Schnetgoke

Connecticut Law Review

This essay focuses on graffiti—the practice of illegal writing and painting on trains, walls, bridges, and other publicly visible surfaces.

Social responses to graffiti are highly ambivalent. On the one hand, media often picture graffiti painters as “vandals” and “hooligans.” Local authorities define graffiti as an “epidemic” and declare “wars on graffiti.” On the other hand, graffiti is recognized as a valuable form of art, exhibited in mainstream museums sold for high prices. Reflecting the ambivalent social attitude, the legal treatment of graffiti is highly uneven, punishing some graffiti writers for vandalism while granting copyright protection to others.

Scholars have …