Law Commons^™

Third-Party Moral Hazard And The Problem Of Insurance Externalities, Peter Siegelman, Gideon Parchomovsky

Faculty Articles and Papers

Insurance can lead to loss or claim creation not only by insureds but also by uninsured third parties. These externalities-which we call third-party moral hazard-arise because insurance creates opportunities both to extract rents and to recover otherwise unrecoverable losses. Using examples from health, automobile, kidnap, and liability insurance, we demonstrate that the phenomenon is widespread and important and that the downsides of insurance are greater than previously believed. We explain the economic, social, and psychological reasons for this phenomenon and propose policy responses. Contract-based methods that are traditionally used to control first-party moral hazard can be welfare reducing in the …

The New Privity In Personal Jurisdiction, Alexandra Lahav

Faculty Articles and Papers

Personal jurisdiction doctrine should be understood largely in relation to the substantive law. The doctrine makes sense when it is in harmony with state substantive law. It fails to cohere to the extent that it diverges from state substantive law. In the case of products liabilhiy law, which was at issue in the most recent personal jurisdiction case to come before the Court, personal jurisdiction doctrine attempts to balance the social obigation to produce safe products with immunity from suit. Until recently, the Roberts Court had failed to harmonize personal jurisdiction with substantive state law; indeed, it had usurped state …

Under A Nifty Light: Trademark Considerations For The New Digital World, Willajeane Mclean

Faculty Articles and Papers

No abstract provided.

Pretrial Disparity And The Consequences Of Money Bail, Miguel De Figueiredo, Dane Thorley

Faculty Articles and Papers

Catalyzed by the Black Lives Matter protests in 2020, support for criminal justice reform in the United States has become a groundswell, with reformers demanding an end to racial and socioeconomic disparities in all aspects of policing, prosecution, adjudication, and incarceration. While high-profile cases of police misconduct during arrest remain in the limelight, a growing and politically diverse chorus of voices is calling for change at the first point of contact between a defendant and the court system: the bail hearing. Bail decisions are highly consequential in terms of their scale and impact on the lives of defendants, their families, …

In Memoriam-The Many Sides Of Hugh C. Macgill, Richard D. Pomp, Carol Weisbrod, Kent Newmyer, Bruce H. Mann, Richard Kay, Avi Soifer, Timothy Fisher

Connecticut Law Review

These remarks honor the memory of Hugh C. Macgill, Professor of Law from 1971 to 1990; 2000 to 2014, and Dean of the University of Connecticut School of Law from 1990 to 2000.

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 …

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

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. …

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 the patent …

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 …

Time To Bite The Bullet? How An Emboldened Fda Could Take Aim At The Firearms Industry, Lars Noah

Connecticut Law Review

Firearms continue to cause tremendous losses in the United States, prompting increasingly frustrated calls for a public health response to this endemic problem. Although Congress has legislated repeatedly on the issue over the last century, it has not managed to do anything remotely comprehensive in the aggregate. This Article offers a radical new approach that has gone entirely unnoticed. Much as it tried to do a quarter of a century ago in asserting jurisdiction over tobacco products, the U.S. Food and Drug Administration (FDA) could try to use its “device” authority to rein in companies that manufacture firearms and accessories …

Liberty And Just [Compensation] For All: Wrongful Conviction As A Fifth Amendment Taking, Kelly Shea Delvac

Connecticut Law Review

In the United States, over 2,900 people have been exonerated for crimes they did not commit. While some exonerees currently qualify for compensation for their wrongful convictions, less than 40% have received any type of financial support. This Note examines the history of wrongful convictions in America as well as the historical background of the Fifth Amendment. It then looks at the current compensation schemes available to exonerees and analyzes the evolution of takings jurisprudence. This Note argues that a wrongful conviction is a taking of an exoneree’s labor under the Fifth Amendment and, therefore, constitutionally entitles an exoneree to …

The Anti-Human Rights Machine: Digital Authoritarianism And The Global Assault On Human Rights, Richard Ashby Wilson

Faculty Articles and Papers

Across the world, governments and state-aligned actors increasingly target human rights defenders online using techniques such as surveillance, censorship, harassment, and incitement, which together have been termed “digital authoritarianism.” We currently know little about the concrete effects on human rights defenders of digital authoritarianism as researchers have focused primarily on hate speech targeting religious, national, and ethnic minority groups. This article analyzes the effects of digital authoritarianism in two countries with among the highest rates of killings of human rights defenders in the world; Colombia and Guatemala. Anti-human rights speech in these countries portrays defenders as Marxist terrorists who are …

Mohegan Women, The Mohegan Church, And The Lasting Of The Mohegan Nation, Bethany Berger, Chloe Scherpa

Faculty Articles and Papers

No abstract provided.

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Connecticut Law Review

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Roberts, Rules, And Rucho, Chad M. Oldfather, Sydney Star

Connecticut Law Review

This Article arises out of a symposium exploring the connection between the political question doctrine and judicial legitimacy in the wake of the Supreme Court’s decision in Rucho v. Common Cause, and more specifically a panel devoted to the implications of Rucho for theories of judgment and judging. Chief Justice Roberts’s majority opinion in Rucho emphasizes the need for judicial action to “be governed by standard, by rule” and to be “principled, rational, and based on reasoned distinctions.” Yet our analysis—which compares and contrasts the arguments, reasoning, and rhetoric in Rucho with their counterparts in the Chief Justice’s other opinions—suggests …

Connecticut Workers’ Compensation Coverage For Medical Cannabis In The Age Of The Opioid Crisis, Sydnee Sousa

Connecticut Law Review

In 2019 the Connecticut Workers’ Compensation Review Board (CRB) in Caye v. Thyssenkrupp Elevator rejected the employer and its workers’ compensation insurer’s argument that the Workers’ Compensation Commission cannot compel them to reimburse the cost of medical cannabis because such an order would require them to engage in conduct that is criminalized under the Controlled Substances Act (CSA). The CRB in Caye instead affirmed the trial commissioner’s order that the respondent must reimburse the claimant’s expenses in obtaining medical cannabis.

This Note argues that when the issue of workers’ compensation reimbursement for medical cannabis is inevitably reviewed by the Connecticut …

To Be Continued: How Comic Book Copyright Inequity Inspired Industry Innovation And Instilled Instrumentalities For Independence, Richard P. Metzroth

Connecticut Law Review

Before Superman first made the world believe a man can fly or Captain America greeted Hitler with a punch to the face, comic book publishers sought to exercise command over all the characters and stories that writers and artists put to paper. Until recently, this one-sided industry culture regarding ownership—reinforced by decades of court rulings in publishers’ favor—left creators with few avenues by which to retain control of their art. The legal norms that enforced creators’ subservient position in the comic book copyright ecosystem drove these authors to seek out and construct alternative systemsfrom which they could realize the benefits …

Caster Semenya And The Policing Of Competitive Athletic Advantage, Taylor Vann

Connecticut Law Review

In recent years, transgender and intersex athletes competing in track and field have come under intense scrutiny. The most notable of these athletes at the elite level is Caster Semenya of South Africa. Semenya has been accused of benefiting from an unfair competitive advantage due to her natural biological makeup. In response, international track and field’s governing body has promulgated multiple regulations to address athletes like Semenya. This article examines these regulations and their impact on transgender and intersex athletes at multiple levels of competition, It argues that these regulations and similar attempts under Title IX in the United States …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Connecticut Law Review

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration, as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

Children, Disability, And The Digital Classroom: Rethinking Access And Assistive Technology For Low-Income Children With Disabilities In The Digital Age, Ashley R. Nyce

Connecticut Law Review

As U.S. public schools increasingly incorporate digital learning tools at home, primary and secondary classrooms have come to transcend their traditionally brick-and-mortar walls. While these hybrid learning environments provide powerful spaces to build digital literacy skills, low-income children with disabilities—among the most vulnerable students in the U.S. education system—are increasingly left behind. Recent data suggest that children with disabilities, particularly low-income children with disabilities, are less likely than their peers to have the fundamental technology necessary to access classrooms’ increasingly digital spaces. This discrepancy exacerbates disparate outcomes between children with and without disabilities, as those with disabilities receive lower test …

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 …

A New Feudalism: Selfish Genes, Great Wealth, And The Rise Of The Dynastic Family Trust (Dft), Eric Kades

Connecticut Law Review

Today’s record levels of economic inequality are infecting our future as the top 0.01% bequeath vast wealth to their descendants. With the death of the Rule Against Perpetuities (RAP), this inequality has the potential to harden social class lines—not just for a generation or two, but forever. Although it may sound implausible, interviews with estate lawyers serving very high-net-worth clients reveal that some members of the wealthiest tier of testators are already exploiting the RAP’s elimination, along with a tax loophole, to establish dynasty trusts that will financially empower their bloodline as long as it continues. Recent work in evolutionary …

Rise Of Police Unions On The Back Of The Black Liberation Movement, Ayesha Bell Hardaway

Connecticut Law Review

Police unions have garnered the attention of the media and some scholars in recent years. That attention has often focused on exploring the seemingly inexplicable and routine power police unions have to shield problem officers from accountability. This Article shows that police union power did not surreptitiously arrive on the doorsteps of American cities. Instead, collective bargaining rights for law enforcement began to gain firm footing during the 1960s as white Americans remained committed to preserving their place in the nation’s racial hierarchy as it related to housing, jobs, education, and entertainment. Existing legal scholarship has successfully highlighted the depth …

Restoring Faith In Military Justice, Eleanor T. Morales, John W. Brooker

Connecticut Law Review

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military …