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Full-Text Articles in Law

Unsettled Law: Social-Movement Conflict, Stare Decisis, And Roe V. Wade, Mary Ziegler Apr 2022

Unsettled Law: Social-Movement Conflict, Stare Decisis, And Roe V. Wade, Mary Ziegler

Connecticut Law Review

With President Donald Trump’s third Supreme Court nomination, the reexamination of Roe v. Wade has become a probability. An increasingly conservative Court will almost certainly not embrace the idea of abortion rights. Instead, the fate of abortion rights will likely turn on the meaning of stare decisis, a doctrine requiring the Court to pay some deference to its past decisions. Stare decisis has recently played a starring role in abortion jurisprudence. In his controlling concurrence in June Medical Services L.L.C. v. Russo, Chief Justice Roberts invoked stare decisis while gutting the substantive rule written into the precedent ...


Judicial Consensus: Why The Supreme Court Should Decide Its Cases Unanimously, David Orentlicher Apr 2022

Judicial Consensus: Why The Supreme Court Should Decide Its Cases Unanimously, David Orentlicher

Connecticut Law Review

Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five of the nine Justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules.

Nor it is obvious that the Court should decide by a majority vote. When the public votes on a ballot measure, it typically makes sense to follow the majority. The general will of the electorate ought to govern. But judicial decisions are not supposed to ...


Risk And Rights In Transatlantic Data Transfers: Eu Privacy Law, U.S. Surveillance, And The Search For Common Ground, Ira Rubinstein, Peter Margulies Apr 2022

Risk And Rights In Transatlantic Data Transfers: Eu Privacy Law, U.S. Surveillance, And The Search For Common Ground, Ira Rubinstein, Peter Margulies

Connecticut Law Review

Privacy advocates rightly view the Court of Justice of the European Union (CJEU) decision in Data Protection Commissioner v. Facebook Ireland Ltd. and Maximilian Schrems (Schrems II) as a landmark. But, one stakeholder’s landmark is another’s headache. The CJEU’s decision invalidated the EU-U.S. Privacy Shield agreement governing transatlantic transfers of personal data. Citing U.S. surveillance, the CJEU found that data transfers lacked adequate privacy protections under the EU’s General Data Protection Regulation (GDPR). The Schrems II decision thus clouded the future of data transfers that help drive the global economy. This Article offers a ...


What’S In A Form? Employment Background Checks Under The Fair Credit Reporting Act, Emily Scace Apr 2022

What’S In A Form? Employment Background Checks Under The Fair Credit Reporting Act, Emily Scace

Connecticut Law Review

For employers, background checks, credit checks, and similar measures are a prudent step to guard against negligent hiring claims and other potential losses that can result from poor hiring decisions. But these practices necessarily require employees to relinquish some of their interests in privacy and may also introduce bias into the hiring process. The Fair Credit Reporting Act (FCRA), which applies to many of these employment screening measures, requires employers to follow certain procedural requirements that seek to ensure that employees and applicants understand the scope of the information that will be sought in a background or credit check, provide ...


Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky Apr 2022

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky

Connecticut Law Review

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but ...


Pricing Plastics Pollution: Lessons From Three Decades Of Climate Policy, Jonas J. Monast, John Virdin Apr 2022

Pricing Plastics Pollution: Lessons From Three Decades Of Climate Policy, Jonas J. Monast, John Virdin

Connecticut Law Review

Plastic is now the most widely used human-made substance on the planet, and plastics pollution impacts marine and coastal ecosystems, local economies, and human health. Local and national governments are increasingly responding by banning plastic bags and other specific plastic products, taxing the use of certain plastics, and improving waste management and recycling. These are important steps, but alone they will not result in a meaningful reduction in cumulative plastics pollution or encourage development of sufficient alternatives to plastic. Additional policy measures are necessary.

This Article argues that climate change and plastic pollution share numerous similarities, and these similarities allow ...


The Rise And Fall And Rise Again Of Informal Justice And The Death Of Adr, Amy J. Cohen Jan 2022

The Rise And Fall And Rise Again Of Informal Justice And The Death Of Adr, Amy J. Cohen

Connecticut Law Review

Today, the field of alternative dispute resolution (ADR) is often conceptualized and taught as an apolitical, institutional practice designed to enhance the effective and efficient settlement of legal disputes. But this was not always the case. In the 1970s, scholars imagined mediation as a technique of social and political transformation: a practice that might enable people to resolve disputes without reproducing the inequalities that shaped the society in which they lived. That view of ADR has largely disappeared from the American legal academy. But, as this Article shows, it has not disappeared entirely. Outside the legal academy, prison and police ...


Negligence At The Breach: Information Fiduciaries And The Duty To Care For Data, Daniel M. Filler, David M. Haendler, Jordan L. Fischer Jan 2022

Negligence At The Breach: Information Fiduciaries And The Duty To Care For Data, Daniel M. Filler, David M. Haendler, Jordan L. Fischer

Connecticut Law Review

Personal data is a cost of admission for much of modern life. Employers, tech companies, advertisers, information brokers, and others collect huge quantities of data about us all. Yet outside of a few highly-regulated industries, American companies face few legal restrictions on how they manage and use that data. Until now, individuals have had very limited remedies when their data is stolen from data collectors. But change is afoot. In a significant recent decision, the Pennsylvania Supreme Court took a consequential step holding that entities collecting personal data owe a duty of reasonable care to protect data subjects against harm ...


Selectively Disciplining Advocates, Bruce A. Green Jan 2022

Selectively Disciplining Advocates, Bruce A. Green

Connecticut Law Review

After lawsuits challenging the results of the 2020 presidential election failed spectacularly, some wondered whether the plaintiffs’ lawyers would be disciplined for filing frivolous complaints. Time will tell. But, if these lawyers are not disciplined, one should not be surprised. This Article presents an empirical study of the New York disciplinary process, which confirms that advocates who violate disciplinary rules by overzealously pursuing their clients’ interests, such as by making frivolous claims, are rarely punished in the disciplinary process. That is because disciplinary prosecutors, operating in secret, have discretion as to whether to bring formal charges against lawyers who violate ...


Compulsory Licensing Of Patents During Pandemics, Sapna Kumar Jan 2022

Compulsory Licensing Of Patents During Pandemics, Sapna Kumar

Connecticut Law Review

Wealthy countries with major pharmaceutical industries have historically supported strong patent rights and opposed temporarily abrogating them—even to save lives. However, as drug shortages have become commonplace due to COVID-19, governments have begun reassessing their views. The European Union and various countries have issued new policies and passed legislation facilitating their ability to provide drugs to their citizens for the duration of the pandemic. They have signaled a willingness to do so through “compulsory licensing,” in which the government issues a license to a third party to produce a patented invention without the patent holder’s permission and pays ...


Hostile Learning Environments, The First Amendment, And Public Higher Education, Todd E. Pettys Jan 2022

Hostile Learning Environments, The First Amendment, And Public Higher Education, Todd E. Pettys

Connecticut Law Review

The Supreme Court has never squarely addressed the First Amendment status of student-on-student verbal harassment at public institutions of higher education. Does the First Amendment permit public colleges and universities to discipline students on the grounds that their speech has created a hostile learning environment for others on campus? If so, what is the analysis underlying that constitutional judgment, and what are the requisite hallmarks of such an environment? Does it matter whether a student’s speech created the hostile learning environment on its own or whether it wielded that power only by virtue of its combination with the speech ...


A Truer Concept Of Service For Citizenship: Reimagining Military Naturalization, Ryan P. Coleman Jan 2022

A Truer Concept Of Service For Citizenship: Reimagining Military Naturalization, Ryan P. Coleman

Connecticut Law Review

The Immigration and Nationality Act provides noncitizen service members and honorably discharged immigrant veterans a path toward United States citizenship. The Act allows those who have honorably served in the military to apply for naturalization with a considerably reduced residency requirement. However, the current military naturalization process is riddled with complexity, excessive and arbitrary vetting practices, misinformation, and an ever-growing backlog of naturalization applications that have precipitated processing delays. These flaws result in veteran deportations, which precipitate family separations and the deprivation of healthcare for veterans. Furthermore, requiring separate enlistment and naturalization processes leads to squandered government resources in the ...


Re-Evaluating Turnover/Gross Receipts Taxes: Their Myths And Their Realities, Richard Pomp Jan 2022

Re-Evaluating Turnover/Gross Receipts Taxes: Their Myths And Their Realities, Richard Pomp

Faculty Articles and Papers

Turnover taxes have a storied history dating back to ancient Athens, and are starting to make a comeback in the States. A gross receipts or turnover tax is levied every time a good or service “turns over,” that is, transferred from one entity to another for consideration. The resulting gross receipt is subject to tax. The tax base is “turnover” and the measure of the tax is “gross receipts.”

A turnover tax applies to both services and tangible items ranging from sales of business inputs to sales to end users alike; in essence it taxes business activity, whereas a retail ...


Resisting The Siren Song Of Gross Receipts Taxes: From The Middle Ages To Maryland’S Tax On Digital Advertising-Abstract, Richard Pomp Jan 2022

Resisting The Siren Song Of Gross Receipts Taxes: From The Middle Ages To Maryland’S Tax On Digital Advertising-Abstract, Richard Pomp

Faculty Articles and Papers

A turnover tax, more commonly known as a gross receipts tax, has a long and sordid history. The tax has ancient roots, first appearing when economies were primitive and underdeveloped, with few alternatives for raising revenue. A turnover tax makes no pretense of taxing profits, income, consumption, wealth, or other bases that have come to be accepted as legitimate around the world. Instead, it taxes business activity, and is fundamentally different in concept, and inferior to, either a well-designed retail sales tax or a value-added tax.

Economists throughout the ages have nearly universally condemned turnover taxes; some even blame the ...


Turnover Taxes: Their Origin, Fall From Grace, And Resurrection, Richard Pomp Jan 2022

Turnover Taxes: Their Origin, Fall From Grace, And Resurrection, Richard Pomp

Faculty Articles and Papers

The turnover tax, a hallmark of developing nations and even once blamed for Spain’s decline, has made a comeback in the states, starting with Ohio.

A turnover tax is a gross receipts tax that is applied every time a good or service “turns over,” that is, every time the good or service transfers from one entity to another for consideration. The tax base is therefore turnover, and the measure of the tax is gross receipts.

In this article, Professor Richard Pomp examines the turnover tax’s deep roots dating back to ancient Athens, and tracks its course from the ...


Replacement Of The Transfer Act: The Impact Of Connecticut's Effort To Expedite Contaminated Site Remediation, Avery Bikerman Jun 2021

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 May 2021

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 ...


Untold Stories Of The African Diaspora: The Lived Experiences Of Black Caribbean Immigrants In The Greater Hartford Area, Shanelle A. Jones May 2021

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 ...


New Hampshire V. Massachusetts: Taxation Without Representation?, Richard Pomp Jan 2021

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 ...


Minimizing The Impact Of Cognitive Bias In Transactional Legal Education, Alina Ball Jan 2021

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.


Hate Speech On Social Media: Content Moderation In Context, Richard A. Wilson, Molly Land Jan 2021

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 ...


Obscured By 'Willful Blindness': States' Preventive Obligations And The Meaning Of Acquiescence Under The Convention Against Torture, Jon Bauer Jan 2021

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 ...


Ordinary Clients, Overreaching Lawyers, And The Failure To Implement Adequate Client Protection Measures, Leslie Levin Jan 2021

Ordinary Clients, Overreaching Lawyers, And The Failure To Implement Adequate Client Protection Measures, Leslie 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 client money. Starting in the 1980s, the American Bar Association 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 Model Rules for 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 of client protection ...


Why America's Response To The Covid-19 Pandemic Failed: Lessons From New Zealand's Success, Richard Parker Jan 2021

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 ...


Constitutional Chronometry, Legal Continuity, Stability And The Rule Of Law: A Canadian Perspective On Aspects Of Richard Kay’S Scholarship, Warren J. Newman Jan 2021

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 ...


Authority And Meaning, Laurence Claus Jan 2021

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.


How People Judge Institutional Corruption, Elinor Amit, Eugy Han, Ann-Christin Posten, Steven Sloman Jan 2021

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 ...


The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed Handelsman Shugerman Jan 2021

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 ...


Conscience In Commerce: Conceptualizing Discrimination In Public Accommodations, Amy J. Sepinwall Jan 2021

Conscience In Commerce: Conceptualizing Discrimination In Public Accommodations, Amy J. Sepinwall

Connecticut Law Review

According to much current law and theory, a public accommodation that offers a good or service to one customer cannot refuse to provide that same good or service to another patron simply because of the latter’s identity. Thus, in many jurisdictions, reception hall owners must rent their spaces to both a Black Baptist Church and the Christian Identity KKK, wedding vendors must sell their goods to a marrying couple no matter the sex of the couple’s members, and foster parent agencies must serve same- and opposite-sex parenting duos alike. Call the principle underpinning this policy the “Equal Access ...


The Role Of Lawyers And Law Schools In Fostering Civil Public Debate, Jennifer K. Robbennolt, Vikram D. Amar Jan 2021

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 ...