Law Commons^™

Physical Fitness And The Police: The Case For Unisex Testing, Peter Siegelman

Connecticut Law Review

Many jurisdictions require applicants for police jobs to take physical fitness tests, many of which have easier passing requirements for women than for men. While the goal of increasing women’s representation among police is laudable, this Article argues that the use of gendered cutoff scores violates Title VII for two distinct reasons: not only does it constitute disparate treatment under the core provision of the statute, but it also violates a separate Section that expressly bars the use of different cutoff scores by gender. (Surprisingly, the very few cases to have considered these issues have wrongly concluded that gendered cutoff …

A Parent’S Right To Obtain Puberty Blockers For Their Child, Megan Medlicott

Connecticut Law Review

Since Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, many scholars have expressed concern over how the Dobbs decision may impact other privacy interests that previously have been recognized as protected rights under the Fourteenth Amendment’s Due Process Clause. The substantive due process right associated with a parent’s right to the care, control, and custody of their child, however, is situated differently in comparison to those rights presumably displaced by the Dobbs opinion. A parent’s right, unlike other rights recognized under the substantive due process doctrine, is objectively deeply rooted in our nation’s history and tradition, and is …

The Public Trust: Administrative Legitimacy And Democratic Lawmaking, Katharine Jackson

Connecticut Law Review

This Article argues that recent United States Supreme Court decisions invalidating agency policymaking rely on a normatively unattractive and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their …

The Language Of Record: Finding And Remedying Prejudicial Violations Of Limited English Proficient Individuals’ Due Process Rights In Immigration Proceedings, Anna C. Everett

Connecticut Law Review

In immigration court proceedings, court interpreters interpret only those statements made directly to and by the limited English proficient (“LEP”) party. Thus, LEP individuals can only understand what is being spoken to them, not what is being asserted about them. In asylum interviews, applicants must provide their own interpreter, and failure to do so may result in an applicant-caused delay and, ultimately, a denial of work authorization. In immigration proceedings, the LEP party’s livelihood, family unity, and freedom from persecution and death are at stake. The message that the U.S. legal system makes clear is that it does not value …

The Right To Personality: Navigating The Brave New World Of Personality-Altering Interventions, Christopher S. Sundby

Connecticut Law Review

As neuroscience progresses, policy makers will have an increasing arsenal of behavior-modifying interventions at their disposal to deploy in the hopes of reducing recidivism and making the criminal justice system more rehabilitative. While these interventions are promising, they also can pose grave risks to individual liberty interests that are insufficiently acknowledged, much less protected, by current jurisprudence. Specifically, the current legal regimes and proposed alternatives either fail to identify the nature of the liberty at stake by overly focusing on physical side effects to the exclusion of thought- and personality-altering side effects, reject completely the potential for these interventions to …

A Sixth Amendment Inclusionary Rule For Fourth Amendment Violations, Scott W. Howe

Connecticut Law Review

Early in the tenure of Chief Justice Roberts, a five-Justice majority of the Supreme Court signaled that it was ready to consider eliminating the exclusionary rule as a remedy for Fourth Amendment violations. The central concern was that, even after decades of limiting the rule through new exceptions, it purportedly lacked utility in balancing protections against the competing dangers of crime and police abuse, the only rationale on which it has been grounded in the modern era. That existential reappraisal never openly occurred, and the exclusionary rule, in further reduced form, still survives. Yet, given the Court’s recent conservative shift, …

Inadequate Healthcare, Inadequate Recovery: Exploring The Challenges Of Compensating Pregnant Inmates Deprived Of Adequate Healthcare At State Prisons, Katherine Mckeon

Connecticut Law Review

Prenatal healthcare services available to pregnant inmates in state prisons are wholly inadequate. Despite the glaring shortcomings of state prisons’ healthcare services, there has still only been limited attention paid to rectifying the problem. This lack of attention is problematic for many reasons, but especially because the number of women in prisons has increased in recent decades and inmates who are pregnant when they arrive to prison face conditions that risk extreme health condition.

Not only are pregnant inmates subjected to inadequate healthcare services, but they also have very few legal remedies available to them when they have been deprived …

Evaluating The Constitutionality Of Marital Status Classifications In The Regulation Of Posthumous Reproduction And Postmortem Sperm Retrieval, Alison Jane Walker

Connecticut Law Review

In Eisenstadt v. Baird, the Supreme Court held that a state law prohibiting the provision of contraceptives to unmarried persons violated the Fourteenth Amendment’s rational basis test because of the disparate treatment it afforded to married and unmarried individuals. Eisenstadt stands for an individual’s right to make their own procreative decisions, free from governmental intrusions which impose arbitrary classifications on privacy and freedom. This Note focuses on posthumous reproduction and, more specifically, postmortem sperm retrieval: the process of using a deceased male’s frozen sperm after his death to produce his biological children at the request of his spouse or intimate …

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 of …

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”) …

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 …

Of Omnipotent Things, Joel I. Colon-Rios

Connecticut Law Review

To say that some constituent assemblies have acted as omnipotent lawmakers, as not subject to the separation of powers, and as able to exercise the ordinary powers of government, is an understatement. It is, in fact, the way in which many, if not most, constitution-making bodies have operated since the late 18th century. A famous historical example is the French National Convention of 1793, which despite having been called under an already constituted legal order and after having drafted a (later popularly ratified) constitution, declared a state of emergency, abolished the separation of powers, and proceeded to govern the country. …

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.

What Does It Take? The Informal Factors That Are Conducive To The Passage Of A Participatory Amendment, Connor Huydic

Honors Scholar Theses

Hundreds of Constitutional revisions are proposed in our national legislature every year, yet only twenty-seven have been ratified as amendments in the 243-year history of the United States. The Constitution outlines the formal factors required to ratify an amendment, but this paper will focus on the informal factors that are integral to the eventual passage of a participatory amendment. Through case studies of the Nineteenth and Twenty-Sixth Amendments, this thesis examines the factors that contributed to the ratification of these amendments to find similarities in the circumstances that helped propel these bills to eventual adoption as amendments. Non-radical social movements, …

Extremely Broad Laws, Kiel Brennan-Marquez

Faculty Articles and Papers

Extremely broad laws offend due process. Although the problem has not been lost on courts, their solution to date has been haphazard: casting breadth as a species of uncertainty-ambiguity or vagueness-and repurposing uncertainty-focused doctrine accordingly. The trouble is, breadth and uncertainty are not the same. They have different analytic features and raise distinct concerns, making the tools designed to resolve uncertainty ill-suited to reining in breadth. Vague and ambiguous laws deprive people of notice about what the law requires. They evoke the Star Chamber and Kafka stories-the dread of inhabiting an incomprehensible legal order. With broad laws, the issue is …

Updating The Constitution: Amending, Tinkering, Interpreting, Richard Kay

Faculty Articles and Papers

The U.S. Constitution is now 230 years old, and it is showing its age. Its text, taken in the sense that its enactors understood it, is, unsurprisingly, inadequate to the needs of a large, populous twenty-first century nation. The Constitution creates a government that is carefully insulated from the democratic preferences of the population. It fails to vest the central government with the tools needed to manage and regulate a vast, complicated, and interrelated society and economy. On the other hand, it guarantees its citizens protection of only a limited set of human rights. Notwithstanding these blatant defects, the means …

Interpreting Constitutional Provisions In Tandem, Kiel Brennan-Marquez

Faculty Articles and Papers

No abstract provided.

Formal And Informal Amendment Of The United States Constitution, Richard Kay

Faculty Articles and Papers

No abstract provided.

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Faculty Articles and Papers

In recent years, the literature of constitutional originalism has adopted a new concept, "constitutional construction." This Essay critically examines that concept. Contrary to some claims, the difference between "interpretation" and "construction" is not well established in common law adjudication. Contemporary descriptions of constitutional construction end up leaving some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is unavoidable because the constitutional text is inherently incomplete. It fails to provide a decision-rule for manyindeed for most-constitutional disputes. This conclusion follows, howeveronly when the Constitution is interpreted according to the "new" or "public …

Of Milk And The Constitution, Mathilde Cohen

Faculty Articles and Papers

Central cases in our constitutional law canon share an unexpected similarity: they all arose out of litigation involving cattle and milk. The Slaughter-House Cases, Nebbia v. New York, Carolene Products, and Wickard v. Filburn are familiar to generations of law students as iconic cases that address key concepts such as equal protection, the states' police powers, and Congress' commerce powers. Importantly, they also ground the Supreme Court's "dairy jurisprudence "-the series of cases about milk and cattle decided between the 1880s and the early 2000s. This Article argues that this dairy jurisprudence expresses an underlying ideology of nutrition, which glorifies …

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger

Faculty Articles and Papers

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

Impact Of The “Nirbhaya” Rape Case: Isolated Phenomenon Or Social Change?, Tina P. Lapsia

Honors Scholar Theses

In December 2012, a twenty-three year old college student, who was given the pseudonym “Nirbhaya” (“fearless”), was fatally gang-raped on a private bus in Delhi, India, galvanizing the country to swiftly adopt new legislative measures and catapulting the issue of violence against women in India into the international spotlight. Although assault and rape cases have made India infamous for its high volume of crimes against women, the reaction to this particular incident was much different from before. This paper investigates whether the governmental and societal responses represent social change, as indicated by changing attitudes towards violence against women in India. …

Two Ways To Rewrite The Constitution, Richard Kay

Faculty Articles and Papers

The proposition that the Constitution needs to be rewritten begs a critical question-namely what the Constitution is. If we posit that by Constitution we mean the rules drafted by the Philadelphia Convention of 1787 as amended in accordance with Article V of those rules, the argument that many of those rules are out of date and need to be replaced is a powerful one. This inadequacy appears in the powers they grant, the powers they do not grant, some of the limitations they impose on public decisions, and some limitations they ought to impose but do not. No matter how …

The Jury And Participatory Democracy, Alexandra Lahav

Faculty Articles and Papers

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay

Faculty Articles and Papers

In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect — that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing …

Public Debt In The United States And Germany: A Constitutional Perspective, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Due Process And The Future Of Class Actions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

A Modest Defense Of Mind Reading, Kiel Brennan-Marquez

Faculty Articles and Papers

The last decade has witnessed a profusion of commentary on "mind-reading" devices. Instead of offering traditional legal arguments against such devices, most scholars have simply assumed their use to be unconstitutional. The consensus is clear: by essentially "speaking for" defendants, mind-reading devices offend the basic spirit of the Self-Incrimination Clause. In this Article, I defend the constitutionality of mind-reading on both doctrinal and normative grounds. First, I reconstruct the Court's self-incrimination jurisprudence to demonstrate that evidence is only "testimonial" and thus, privileged if it involves a "communicative act" from the suspect. Whether or not particular types of mind-reading devices would …