The Warren Court’s Regulatory Revolution in Criminal Procedure

by Eric J. Miller

The standard story taught to American lawyers, purporting to describe the Warren Court’s criminal procedure “revolution,” is mostly wrong. The story claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. But frightened by the popular backlash against high crime rates, and in particular the passage of the Omnibus Crime Control and Safe Streets Act of 1968, in Terry v. Ohio a cowed Court shifted [. . .]

Brand Fetishism

by Katya Assaf

This Article focuses on “brand fetishism”—the phenomenon of perceiving trademarks as spiritual entities rather than as informational devices. Modern corporations strive to create brands with personalities and souls, brands that tug at consumers’ heartstrings. Meanwhile, trademark law is intended to protect trademarks as informational tools reducing consumers’ search costs. [. . .]

The Unsettling “Well-Settled” Law of Freedom of Association

by John D. Inazu

This Article argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. These indefensible categories matter deeply to groups that have sought to maintain an unpopular composition and message in the face of anti-discrimination laws. These groups have been denied associational protections. They have been forced to change their composition—and therefore their message. [. . .]

Violent Crimes and Known Associates: the Residual Clause of the Armed Career Criminal Act

by David C. Holman

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (“ACCA”). The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner—instead of based on the statutory crimes for which they were actually convicted. [. . .]

Evidence Rulemaking: Balancing the Separation of Powers

by Thomas A. Bishop

In State v. DeJesus, the Connecticut Supreme Court asserted its common law supervisory authority to adopt a rule of evidence that contradicts a rule on the same subject in Connecticut’s Code of Evidence, adopted by the judges of the superior court in 2000. Questions raised by the DeJesus opinion relate to the inherent power of the judiciary, at any level, to adopt rules of evidence and the relationship among courts in a hierarchical system in which higher courts have supervisory authority over those below. [. . .]

Justice Souter’s Religion Clause Jurisprudence: Judgments of Conscience

by René Reyes

Justice David Souter retired from the United States Supreme Court at the end of the 2008–2009 term. Reflecting upon his legacy, a number of commentators have identified Souter’s joint opinion in Planned Parenthood v. Casey as his most noteworthy contribution to the Court’s constitutional jurisprudence. But beyond Casey, surprisingly few of Souter’s opinions have been identified as particularly remarkable or enduring. This suggests that Justice Souter’s judicial legacy may have been rather modest— perhaps owing to the fact that, as a member of the Court’s liberal minority, he was often in dissent in key cases. [. . .]

To Each His Own Jury: Dual Juries in Joint Trials

by Kaitlin A. Canty

This Note explores the dual jury system in which each defendant in a joint trial has his or her own jury to decide guilt or innocence. In 1968, in Bruton v. United States, the Supreme Court ruled that despite any limiting instruction, a defendant’s right to confrontation is violated when an incriminating out-of-court confession is admitted against him when the confesser does not testify. This decision called into question courts’ ability to try defendants jointly. Shortly thereafter, courts began impaneling two juries simultaneously to decide the guilt or innocence of each defendant. [. . .]

Artificial Grassroots Advocacy and the Constitutionality of Legislative Identification and Control Measures

by Jonathan C. Zellner

Modern lobbying is rife with campaigns that claim to be the fruit of spur-of-the-moment grassroots activity. Despite their outward appearance, these campaigns mask the fact that their sponsors include special interest groups, large corporations, and affluent individuals. They likewise strive to further the objectives of these entities and individuals while purporting to promote the public interest. [. . .]

Not Just One of the Boys: A Post-Feminist Critique of Title IX’s Vision for Gender Equity in Sports

by Dionne L. Koller

Title IX as applied to athletics is a high-profile, controversial public policy effort that has opened up the world of athletics to millions of girls and women. Yet as it is both celebrated for the opportunities it has created for women, and decried as going too far at the expense of men, a reality persists that women do not pursue or remain committed to sport in numbers comparable to men. [. . .]

Acceptable Deviance and Property Rights

by Mark A. Edwards

Compliance with—or deviance from—law is often dependent upon the law’s convergence with—or divergence from—normative sensibilities. Where the legality and social acceptability of behavior diverge, some deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually [. . .]

Cultural Norms and Race Discrimination Standards: A Case Study in How the Two Diverge

by Derek W. Black

The legal standard for race discrimination—the intent standard—has been scrutinized and justified for decades, but that conversation has occurred almost entirely within the legal community. Relatively little effort has been made to engage the public. This Article posits that the discussion of discrimination standards must account for and include public understandings of race and discrimination because race is a socially constructed concept and discrimination is culturally contingent. [. . .]

Curbing Energy Sprawl with Microgrids

by Sara C. Bronin

Energy sprawl—the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities—is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects—especially large-scale projects that require large-scale transmission and distribution infrastructure—contribute to energy sprawl. [. . .]

Abstention: The Unexpected Power of Withholding Your Vote

by Grant M. Hayden

This Article examines the effect of abstentions on the outcome of votes. Scholars (and voters) operate under two basic assumptions about the nature of abstention. First, they assume that an abstention affects all alternatives in equal measure. Second, and relatedly, people assume that a voter’s preferred alternative will be less likely to win if that voter abstains (and, of course, more likely to win if she votes). [. . .]

Burning Crosses on Campus: University Hate Speech Codes

by Alexander Tsesis

Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. [. . .]

The New Employment Verification Act: The Functionality and Constitutionality of Biometrics in the Hiring Process

by Grayson Colt Holmes

In 1990, Congress created the U.S. Commission on Immigration Reform to assess and make recommendations regarding the implementation and impact of U.S. immigration policy. Unanimously, the Commission proposed employment-based immigration reforms that have lead to the creation of E-Verify, an Internet-based electronic verification system used by employers to verify a prospective worker’s eligibility. [. . .]

Google Sets Sail: Ocean-Based Server Farms and International Law

by Steven R. Swanson

In recent years, the oceans have become a venue for nontraditional uses such as rocket launches, fish farming, and energy production. In 2009, the United States Patent and Trademark Office granted Google a patent for an ocean-based server farm, powered and cooled by the seas’ wind and water. A server farm is simply a collection of computers joined together on a network providing services to remotely connected users. [. . .]

Property’s End: Why Competition Policy Should Limit the Right of Publicity

by Steven Semeraro

The right of publicity is an intellectual property right that empowers celebrities to prohibit unauthorized uses of their names, images, and identities. Since its inception a half-century ago, the right has been an enigma. Publicity rights, critics argue, are unnecessary to stimulate the pursuit of fame, unneeded to manage the value of publicity, and undeserved in any recognized moral sense. [. . .]

The Extraordinary Mrs. Shipley: How the United States Controlled International Travel Before the Age of Terrorism

by Jeffrey Kahn

Ruth B. Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. As Chief of the State Department’s Passport Division, she had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions. If, in the language of her day, she determined that travel was “not in the interest of the United States,” that U.S. citizen stayed put. [. . .]

Second-Class Licensure: the Use of Conditional Admission Programs for Bar Applicants with Mental Health and Substance Abuse Histories

by Stephanie Denzel

The permissibility of inquiries about mental health and substance abuse treatment histories on bar applications was actively debated in the years after the passage of the Americans with Disabilities Act (“ADA”). Two decades after those debates began, the law remains unclear and the question is, for the most part, no longer discussed. However, the increasing use of conditional admission for applicants with treatment histories requires a renewed scrutiny of whether state bars should be allowed to use or request this information. [. . .]

Common Law Same-Sex Marriage

by Peter Nicolas

In this Essay, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that—for the first time in the United States—a same-sex couple may enter into a legally recognized common law marriage. In the Essay, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in these three jurisdictions [. . .]

Mickey v. Mickey: the Long-Awaited Clarification in the Landscape of Equitable Distribution of Marital Assets

by Jennifer F. Dalenta

Although the equitable distribution of assets during a marital dissolution proceeding is governed by Connecticut General Statutes section 46b-81, the interpretation of this statutory language has resulted in somewhat inconsistent case law, culminating in the Supreme Court of Connecticut’s recent decision in Mickey v. Mickey. This Comment traces the judicial history of equitable distribution in Connecticut by reviewing several cases preceding the Mickey decision. [. . .]

Letter from the Editor: Symposium Thank You

by Daniel E. Goren

On October 15, 2010, Connecticut Law Review hosted a Symposium, Is Our Constitutional Order Broken? Structural and Doctrinal Questions in Constitutional Law. Scholars from across the United States gathered to examine the U.S. Constitution and discuss whether we are following a system that is either structurally or doctrinally dysfunctional. [. . .]

Has the Obama Presidency Vitiated the “Dysfunctional Constitution” Thesis?

by Sanford Levinson

The title I was given by the organizers of this symposium, and very happily accepted, was: “Has the Obama Presidency Vitiated the ‘Dysfunctional Constitution’ Thesis?” I presume I was invited because I did indeed publish a book in 2006 called Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). [. . .]

The Unconstitutionality of the Filibuster

by Josh Chafetz

This Article argues that the filibuster, as currently practiced, is unconstitutional. After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of “unlimited debate,” this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate. [. . .]

The Senate: out of Order?

by Aaron-Andrew P. Bruhl

Due to the routine use of the filibuster and related devices, today’s Senate operates as a supermajoritarian body. This Symposium Article considers whether this supermajoritarian aspect of the Senate renders it dysfunctional and, if so, what can be done about it. I contend that the Senate is indeed broken. Its current supermajoritarian features have pernicious effects. [. . .]

The Once and Future Equal Protection Doctrine?

by Mario L. Barnes & Erwin Chemerinsky

This Essay is the third in a series of pieces assessing Equal Protection Doctrine and jurisprudence. Here, we endeavor to do two things: (1) to utilize constitutional structure, text, and history to interrogate the concept of equality protected under the Fourteenth Amendment; and (2) to critique the Supreme Court’s present approach to adjudicating constitutional discrimination claims. [. . .]

“Too Big to Fail” States

by Gerard N. Magliocca

This Essay explores the constitutional implications of a threatened default by a large state. Much like the huge financial institutions that became distressed in 2008, a large state might well be deemed too big to fail. If that kind of state seeks a federal bailout, it would hold most of the cards in any negotiation because Congress lacks the power to compel a state to pay its debts. [. . .]

If It Quacks like a Lame Duck, Can It Lead the Free World?: The Case for Relaxing Presidential Term Limits

by Jeremy Paul

This Essay explains why the post-war constitutional amendment limiting Presidents to two terms has been bad for our country. Since the amendment’s adoption, presidential second terms have been ineffective and plagued by scandal. Leading the country has become more difficult because the President’s political opponents and the broader citizenry understand the President’s days are officially numbered. [. . .]

A Skeptical View of a Skeptical View of Presidential Term Limits

by Jack M. Beermann

Dean Jeremy Paul is concerned that the presidency has been weakened and that the Twenty-Second Amendment’s limitation on presidential service is at least partly to blame. He proposes replacing the Twenty-Second Amendment with a new Amendment limiting Presidents to three consecutive terms, after which the President would be required to sit out a term before serving again. [. . .]

One Person, One Vote, 435 Seats: Interstate Malapportionment and Constitutional Requirements

by Jeffrey W. Ladewig

Beginning in the 1960s and 1970s, the Supreme Court began to establish and enforce a constitutional requirement for the apportionment of legislative districts at the national, state, and local levels. This requirement, the “one person, one vote” principle, has become a benchmark of the constitutional jurisprudence as well as a conceptualization of the fundamental democratic norm of political equality. [. . .]

Looking for a Few Good Philosopher Kings: Political Gerrymandering as a Question of Institutional Competence

by Luis Fuentes-Rohwer

The redistricting season is about to begin in full swing, and with it will come renewed calls for the federal courts, particularly the U.S. Supreme Court, to aggressively review the work of the political branches. This is an intriguing puzzle. Since the early 1960s, the federal courts have regulated questions of politics aggressively. They have done this even in the face of difficult questions of political representation. [. . .]

Leading by Example: a Comparison of New Zealand’s and the United States’ Invasive Species Policies

by Flynn Boonstra

Invasive species pose a threat to native ecosystems and to the economy. It is estimated that the United States spends $138 billion annually in agricultural losses, infrastructure damage, and management costs stemming from invasive species. The United States’ invasive species management policy is a conglomeration of federal and state statutes that do not coalesce into a comprehensive policy. [. . .]

The Intersex Community and the Americans with Disabilities Act

by Yamuna Menon

Members of the intersex community have largely been absent from the civil rights legal discourse and do not constitute a protected class. Consequently, such individuals often face varying levels of discrimination such as stereotyping, medicalizing, pathologizing, and societal misunderstandings. With the passage of the ADA Amendments Act of 2008, Congress significantly expanded the statute. [. . .]

Commentary Introduction

by Jessica H. Stein

There are those who believe that in 2011 we finally live in a postracial, colorblind society. But since the election of President Barack Obama in 2008, events have shown that there is nothing "post" about the country's consciousness of race. We have seen unprecedented questioning of Obama's birth certificate, even though his white opponent in the 2008 election was not born in the United States and faced no such gauntlet of scrutiny. [. . .]

Twenty Years of Critical Race Theory: Looking Back to Move Forward

by Kimberlé Williams Crenshaw

This Article revisits the history of Critical Race Theory (CRT) through a prism that highlights its historical articulation in light of the emergence of postracialism. The Article will explore two central inquiries. This first query attends to the specific contours of law as the site out of which CRT emerged. The Article hypothesizes that legal discourse presented a particularly legible template from which to demystify the role of reason and the rule of law in upholding the racial order. [. . .]

A Critical Race Psychology Is Not yet Born

by Glenn Adams & Phia S. Salter

Critical Race Theory (CRT) challenges scholars to reveal and dismantle disciplinary conventions that constitute racial power. In this Article, we take up this challenge and consider the potential for a Critical Race Psychology. Although CRT-compatible work has drawn upon psychological scientific research to challenge disciplinary conventions in law, there has been little consideration of disciplinary conventions including (1) a colorblind epistemology that denies the racially positioned [. . .]

Beyond the Best Black: the Making of a Critical Race Theorist at Yale Law School

by Luke Charles Harris

In Kimberld Williams Crenshaw's lead article in this Commentary Issue she contends that critical insights on race often develop out of institutional struggles over the terms upon which racial politics are engaged and normalized My pathway to Critical Race Theory (CRT) confirms this idea. Thus, this comment traces the making of a critical race theorist at Yale through the contested discourses around race, meritocracy and affirmative action. [. . .]

The Value of Intersectional Comparative Analysis to the “Post-Racial” Future of Critical Race Theory: A Brazil-U.S. Comparative Case Study

by Tanya Katerí Hernández

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of “postracialism. “ The central thesis of the Article is that the dangerous seductions of a U.S. ideology of “post-racialism” are more clearly identified when subject to the comparative law lens. [. . .]

Race . . . to the Top, Again: Comments on the Genealogy of Critical Race Theory

by Gloria Ladson-Billings

Critical Race Theory (CRT) has made inroads into a variety offields beyond law. Education is an area that fostered critical race theory scholarship for more than fifteen years. In this Commentary Article the author describes critical race theory's development in education and documents pivotal incidences that both challenged and propelled the theory in education. [. . .]

“Constituted by a Series of Contestations”: Critical Race Theory as a Social Movement

by George Lipsitz

The ideas, insights, and analyses that define the Critical Race Theory (CRT) project have made critical contributions to scholarship in law and many other disciplines. Yet CRT has never been merely a project of intellectual engagement and argument. The movement emerged from and contributed to the Black freedom struggle of the twentieth century. [. . .]

History, Identity, and Alienation

by Gary Peller

This Commentary Article sets forth a grid for distinguishing between approaches to racial justice by diferentiating between liberal and critical approaches in general, and between integrationist and nationalist stances regarding race in particular. The Article then utilizes the grid to contend that Kimberld Crenshaw and others on the left wing of Critical Race Theory have accomplished a significant breakthrough in identity theory [. . .]

Foundational Events, Foundational Myths, and the Creation of Critical Race Theory, or How to Get Along with a Little Help from Your Friends

by David M. Trubek

In this Essay, David Trubek looks back from the viewpoint of a participant and observer at the events that led to the founding of Critical Race Theory. He notes that the formation of CRT was stimulated by resistance to demands for a black perspective at the Harvard Law School, facilitated both by CLS and the University of Wisconsin Law School, and crystalized in reaction to concerns that CLS might not welcome a race-based critique. [. . .]

Critical Race Materialism: Theorizing Justice in the Wake of Global Neoliberalism

by Francisco Valdes & Sumi Cho

Critical Race Theory's (CRT's) first two decades produced a rich and diverse literature deconstructing law and society using a racial lens. CRT's emergence and rise occurred at a moment in history where the U.S. was still the uncontested unipolar superpower whose privileged elites enjoyed unprecedented prosperity and status. Despite its dominant standing in the world economy and polity, prevailing "social structures of accumulation" within the United States were already in decline. [. . .]

Critical Race Theory of Society

by Tukufu Zuberi

Kimberld Williams Crenshaw's Twenty Years of Critical Race Theory: Looking Back To Move Forward calls for a broader definition of CRT and for the next phase of this movement to embrace scholars from a multitude of disciplines. The tradition of critical theories of race in the social sciences is intimately related to the CRT Movement developed in the law. The social sciences are an important part of the realization of Crenshaw's aspirations. [. . .]

Critical What What?

by Devon W. Carbado

More than twenty years after the establishment of Critical Race Theory (CRT) as a self-consciously defined intellectual movement, defining oneself as a Critical Race Theorist can still engender the question: critical what what? When asked, the inquiry is not just about the appellation, though this is certainly part of what engenders the question. [. . .]

“Men Made It, but They Can't Control It”: Immigration Policy During the Great Depression, Its Parallels to Policy Today, and the Future Implications of the Supreme Court’s Decision in Chamber of Commerce v. Whiting

by Abigail E. Langer

In its landmark 1941 decision, Edwards v. California, the Supreme Court held that people are themselves instruments of commerce. The Court's decision not only signaled a dramatic shift in immigration policy, but also reflected the federal government's desire to control the social and economic strife during and after the Great Depression. [. . .]

False Perceptions on Limitation: Why Imposing a Nexus Requirement Under the Maritime Drug Law Enforcement Act Would Not Significantly Discourage Efforts to Prosecute Maritime Drug Trafficking

by John O’Neil Sheehy

The Maritime Drug Law Enforcement Act ("MDLEA') is the principal statute through which the United States prosecutes smugglers of narcotics on ocean-going vessels in international and territorial waters and remains one of the most important weapons in America's arsenal in the ongoing war on drugs. Most of the Federal Circuits require only that the MDLEA statutory jurisdictional requirements be met in order for suspected smugglers to stand trial in the United States. [. . .]

Want to see more Print Edition Articles? Head to the archive.

Please reload

© 2018 by Connecticut Law Review. 

  • LinkedIn Social Icon
  • Twitter Social Icon