Self Defense Against Robots and Drones

by A. Michael Froomkin & P. Zak Colangelo

Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, this Article concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots—notably the risk that the robot (or drone) may be spying—perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law [. . .]

A Reform Agenda Premised upon the Reciprocal Relationship Between Anti-LGBT Bias in Role Model Occupations and the Bullying of LGBT Youth

by E. Gary Spitko

Employment discrimination in role model occupations on the basis of LGBT status has long been used systematically to define negatively the LGBT identity and to reinforce the associations between the non-LGBT majority and certain positive qualities, values, and institutions. This Article argues that a reciprocal relationship exists between such discrimination and the bullying of LGBT youth. This Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship [. . .]

Opening the "Snake Pit": Arming Teachers in the War Against School Violence and the Government-Created Risk Doctrine

by Danielle Weatherby

In the aftermath of the horrific school shooting at Sandy Hook Elementary School in Newtown, Connecticut, parents, students, and school administrators began to fear the unthinkable—that a violent, ruthless criminal could invade their school campuses and randomly target innocent youth. Even though statistics show that violent crime in elementary and secondary schools is on the decline, trepidation and anxiety on school campuses across the country is at an all-time high.

In response to this perceived threat, in 2013, lawmakers in over thirty states proposed bills that, if passed, would authorize school officials to carry weapons on their persons during the school day. Currently, at least eleven states have adopted this “armed-teachers” approach in fighting the war against school violence.

This Article explores the potential § 1983 liability that the armed-teachers approach could create [. . .]

Transparency and Transmission: Theorizing Information's Role in Regulatory and Market Responses to Workplace Problems

by Charlotte S. Alexander

This Essay develops a comprehensive theory of the role of information in regulatory and market responses to workplace problems. Existing legal and economic scholarship has focused narrowly on transparency mandates that reveal facts about the hidden conditions of work—for example, the health risks to which workers are exposed without their knowledge, or undisclosed pay differentials between men and women. Scholars and policymakers assume that when employers are required to reveal this information, regulators, outside interest groups, and workers themselves will penalize bad actor employers via the market, regulation, or rights- enforcing litigation. However, information about the hidden conditions of work is not self-actuating. Regulatory and market responses depend on additional layers of information—information about context, process, incentives, and the probability and magnitude of other actors’ regulatory and market responses—all of which have been largely ignored in the literature [. . .]

Modernism and Antimodernism in the Federal Courts: Reflections on the Federal District Court for the District of Connecticut on the 100th Anniversary of Its New Haven Courthouse

by John Fabian Witt

The story of the federal courthouse on the New Haven Green is a perfect parable for the modern history of the federal district courts around the country. One hundred years ago, architect James Gamble Rogers built a post office with a courtroom attached as an afterthought. In the century since, the United States has built its lower federal courts into institutions of the first rank. If we want to understand the federal district courts and their contribution, including the District Court for the District of Connecticut, we need to be students of recent American history. And there is no better structure for encapsulating the story of the lower federal courts than a building built as if a post office for the ancients, repurposed as a temple of justice for moderns, backed by the authority of the federal government, and filled with people who for one hundred years now have heroically taken the rule of law to be a sacred mission [. . .]

New York City, New Haven, and the New Mobile Food Trends: An Analysis of Local Law and Culture in Response to the Reawakening of Mobile Food

by Eleni Koutroumanis

In recent years, mobile food vending has become increasingly popular in part due to a developing “foodie” culture and the lingering effects of the 2007 economic recession. While the mobile food business model provides clear benefits for entrepreneurs and consumers alike, communities throughout the nation are divided into pro- and anti-vendor groups in response to issues involving licensing, health regulation, zoning, unfair competition, and the ways in which the presence of mobile food vendors affect brick-and-mortar restaurants. This Note focuses specifically on these existing tensions in New York City and New Haven, Connecticut. First, this Note examines the policies and laws governing mobile food vendors in starting and maintaining a mobile food business and then compares them to laws governing the maintenance of brick-and-mortar restaurants. This Note then analyzes the actual effects of the current regulations, prior to presenting recommendations for each city that aim to promote fair competition and opportunities for both business models to prosper [...]

The Open Our Democracy Act: A Proposal for Effective Election Reform

by Niel Franzese

Commentators on opposite ends of the American political spectrum do not often agree on much, but one common source of frustration in recent years has been the perceived shortcomings of the Congressional election system. In 2014, Representative John Delaney of Maryland introduced a bill in the House of Representatives that seeks to remedy some of these issues, calling it the Open Our Democracy Act.

The Act has three aims: to require elections for the House of Representatives to take the form of a single open primary regardless of party preference; to make Election Day a federal holiday for purposes of employment; and to begin the process of redistricting reform to remedy the harmful effects of partisan gerrymandering. This Comment examines each of these three areas of election law individually by discussing the current state of affairs as it relates to each, and the theoretical and empirical justifications for the proposed reforms. Finally, it argues that the three proposed reforms can be most effective at increasing voter participation when used in conjunction, as the Act suggests [...]

Please reload

Volume

48, Issue 2

Volume

48, Issue 3

Volume

48, Issue 4

Volume

48, Issue 5

The Psychology of Patent Protection

by Stephanie Plamondon Bair

This Article offers the first comprehensive assessment of the major justifications for our patent system using a behavioral psychology framework. Applying insights from the behavioral literature that I argue more accurately account for the realities of human action than previous analytical tools, I critically evaluate each of the major justifications for patents—incentive theory, disclosure theory, prospect theory, commercialization theory, patent racing theory, and non-utilitarian theories. I ask whether our current patent system is an effective regime for meeting the stated goals of these accounts. When the answer to this question is no, I again turn to the behavioral literature to provide suggestions for how we might better achieve these goals. The results of this analysis suggest that our current patent system is best justified under the commercialization account. Surprisingly, my analysis also suggests that many of the behaviors and outcomes we hope to encourage through patents might more effectively be accomplished using less socially costly non-financial incentives [. . .]

Private Offerings and Public Ends: Reconsidering the Regime for Classification of Investors Under the Securities Act of 1933

by Jonathan D. Glater

Investment in private offerings of securities, those that take place off of public exchanges and that are exempt from federal disclosure rules applicable to public offerings, is primarily available to investors on the basis of wealth. The wealthy are presumed sophisticated enough to make informed decisions about what to buy without mandatory disclosures applicable to public offerings. Yet the financial crisis of 2008 made clear that wealthy and ostensibly sophisticated investors can make tremendous mistakes and suffer enormous losses. Those losses are a problem when the investor serves a public goal, such as providing income to public sector employees. This Article argues that investment in private offerings by institutions serving a public mission should be limited to ensure that public ends are protected [. . .]

Destabilizing Property

by Ezra Rosser

Property theory has entered into uncertain times. Conservative and progressive scholars are, it seems, fiercely contesting everything, from what is at the core of property to what obligations owners owe society. Fundamentally, the debate is about whether property law works. Conservatives believe that property law works. Progressives believe property law could and should work, though it needs to be made more inclusive. While there have been numerous responses to the conservative emphasis on exclusion, this Article begins by addressing a related line of argument, the recent attacks information theorists have made on the bundle of rights conception of property. This Article goes on to make two main contributions to the literature: it gives a new critique of progressive property and, more fundamentally, shows how distribution challenges in property call for a third path forward [. . .]

Transformative Teaching and Educational Fair Use After Georgia State

by Brandon Butler

The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State University e-reserves case, may be the last judicial word on the subject for years to come, and I argue that its import is primarily in its rejection of outdated guidelines and case law, rather than any affirmative vision of fair use, which the court studiously avoids. Because of the unique factual context of the case, it stops short of bridging the gap between educational fair use and modern transformative use jurisprudence. With help from recent scholarship on broad patterns in fair use case law, I pick up where the GSU court left off, describing a variety of common educational uses that are categorizable as transformative, and, therefore, entitled to broad deference under contemporary fair use doctrine. In the process, I show a way forward for vindicating fair use rights and First Amendment rights, by applying the transformative use concept at lower levels of abstraction to help practice communities make sense of the doctrine [. . .]

Unifying Depreciation Recapture

by Richard L. Schmalbeck & Jay A. Soled

To achieve fairness and accuracy, an income tax system must accomplish two objectives: allow depreciation deductions for the erosion in the value of assets used to produce income, and correct errors that may result from excessive depreciation allowances. The Internal Revenue Code currently fares well in accomplishing the first objective but conspicuously fails to achieve the second. One of the two main depreciation corrective mechanisms is embodied in Internal Revenue Code § 1250. This section requires that upon the disposition of depreciable real estate used in a trade or business, a portion of the gain that reflects the taxpayer’s prior depreciation deductions must be treated as ordinary income or, in tax parlance, “recaptured.” Recapturing gain as ordinary income is consistent with the treatment of depreciation itself, which allows ordinary deductions over the period during which the asset was used to produce income. The problem is that § 1250 is seriously flawed. When it was initially enacted, it corrected some excessive depreciation allowances; however, under current law, it rarely applies at all. Taxpayers are thus able to achieve significant tax arbitrage windfalls: by taking generous depreciation deductions, they can shelter income subject to high ordinary tax rates while recognizing subsequent gains produced by those deductions at preferential capital gains rates. The reform that this analysis calls for is remarkably simple: Congress should repeal § 1250 and uniformly apply the more accurate recapture rules of § 1245—which currently applies only to assets other than real estate—to all depreciable assets. Uniform depreciation recapture rules would produce a more coherent tax regime, fostering fairness, efficiency, and accuracy [...]

Is the Future of the American Dream Bright?: A Panel of the 2014 Federalist Society National Lawyers Convention

by Karlyn Bowman, Lanny J. Davis, Neal K. Katyal, Rachel L. Brand & Charles A. Murray

The following remarks were given on November 15, 2014 during a panel of the 2014 Federalist Society National Lawyers Convention. The panel sought to answer the following questions: What is the future for our young—for the best and brightest—and for everyone else? Does the American Dream still apply? Does our current legal and regulatory system offer the young prospects for a more just and better society, or for an overregulated society that stifles enterprise and compromises individual liberty? How do we balance these competing concerns and what role can and should our legal system play? Are efforts to address income inequality through law or taxes beneficial or harmful to the young and their vision of a better society? Recordings of the full conference can be seen at http://www.fed-soc.org/multimedia/detail/showcase-panel-iv-roundtable-is -the-future-of-the-american-dream-bright-event-video [...]

Proportional Union or Paper Confederacy?

by Jennifer Karr

American Founders worked tirelessly to end the lack of representation colonists had faced under British rule. The Constitution requires that each state be apportioned a proportional number of representatives in the House of Representatives. Throughout the first 120 years of the nation’s history, the size of the House increased in proportion to population. Though population continued to grow exponentially, the Apportionment Act of 1911 limited the House to 435 representatives. One hundred years later, the population has increased by nearly 220 million, but the number of representatives in the House remains stunted at 435. This mismatched growth and stiltedness results in greatly disparate representation in the federal government between residents of neighboring states, as well as inaccurate outcomes in federal elections. This Note argues that the Founders’ goal of proportionality in representation should be striven for in four ways. First, repealing the limit on representatives in the Apportionment Act of 1911 should be accompanied by a new formula for determining the number of representatives apportioned to each state that resembles the formula used in other western countries. Second, we should change the formula for determining how many representatives each state will receive to a method previously used, which lacks all bias. The second two changes I propose are geared towards fairer presidential elections. First, each state should elect to split Electoral College votes in order to better represent the choices of the electorate. Second, the Twelfth Amendment requirement that in the event of no Electoral College winner the vote must go to the House should be repealed. Enacting these changes will result in a better represented electorate, which will more closely resemble the Founders’ vision [...]

Health Theft

by Jason R. Bent

Three possible approaches have been advanced for setting appropriate occupational health standards: the feasibility principle currently employed by OSHA, cost-benefit analysis, and a "soft" cost-benefit analysis that allows for qualitative considerations. This Article rejects all three and advances a fourth possible approach that would focus on counteracting "health theft" by employers--employer actions that expose workers to health risks without compensation. An anti-health theft approach recognizes that Congress's purpose in enacting the Occupational Safety and Health Act was to maximize worker welfare, not to maximize overall total social welfare. This Article makes both the positive claim that counteracting health theft was Congress's intent when it enacted the OSH Act and the normative claim that an anti-health theft approach sets a […]

A Series of Unfortunate Events: The Admissibility of “Other Fires” Evidence in Arson Cases

by C.J. Williams & Dasha Ternavska

The law is occasionally at odds with common-sense logic. One example is the prohibition on character evidence in the context of serial arsonists. American evidence law bans evidence of other fires offered to prove a defendant acted consistent with a character trait-pyromania-as to a criminally charged fire. Still, Federal Rule of Evidence 404(b) permits the admission of similar fact evidence for non-character reasons, such as motive or lack of accident. One theory of relevance not explicitly enumerated in Rule 404(b) is at the heart of this Article. Namely, the doctrine of chances posits that evidence that a defendant was involved in a series of unusual events is admissible to show the objective improbability that the defendant could be the repeated innocent victim of unfortunate events. In an arson case, the government would thus ask the jury to conclude that the charged fire is so objectively unlikely to have been the product of an accident that it must have been arson. […]

The Relational Rights of Children

by Pamela Laufer-Ukeles

Although children have been considered central to family law for some time, the discussion of children's rights is still controversial and the methodology for advocating on behalf of children contested Modern accounts of how to best uphold the interests of children are based on one of three models. Parents are either designated the fiduciaries best positioned to protect the interests of children, or the state is deemed responsible for intervening to protect the rights of children, or theorists and lawmakers look to decipher children's own voices and perspectives in order to develop child-centered advocacy. These three perspectives often stand in opposition to each other and result in children's rights being articulated in the midst of struggle and dissonance. The best interests standard most often relied upon to protect children's interests is amorphous and subject to internal conflict and manipulation. Moreover, it is based on competing interests and factors and subject to differing perspectives based on the three models for how to best protect children. […]

The American Advantage in Civil Procedure? An Autopsy of the Deutsche Telekom Litigation

by Michael Halberstam

This Article examines the influence of civil procedure on the legal framework that supports securities markets in the United States and in Germany. It does so by way of comparing parallel shareholder actions against Deutsche Telekom for securities disclosure violations arising out of the same facts and allegations-the first set of actions filed in federal district court in Manhattan, the second filed in district court in Frankfurt, Germany. Deutsche Telekom was accused in both actions of misrepresenting the value of its real estate holdings in its financial disclosures and for failing to disclose negotiations for the acquisition of the U.S. company VoiceStream in its July 2000 offering. But the cases proceeded very differently and produced dramatically different outcomes. Within five years, and after full discovery, the U.S. class action plaintiffs […]

Lessons in Cyclical Fiscal Activism

by Mirit Eyal-Cohen

This Article highlights an anomaly. It tells a story of two tax rules that were introduced at the same time to achieve a similar goal. Both were meant to be temporary and stimulate economic growth but received dramatically different outcomes. The Article reviews the reasons for this paradox. It demonstrates that the causes are structural, ideological, and political. It argues that the historical support the two mechanisms received diverged in accordance with their complexity, the perceptions they epitomized, and their instrumental role in society. The Article not only enriches an important and ongoing debate on the role of the tax system in our society that has received much attention in recent years, but also provides important historical insights to policymakers. […]

“Never Having Loved at All”: An Overlooked Interest That Grounds the Abortion Right

by Sherry F. Colb

Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as illustrated by the sad plight of dairy cows. Accordingly, the abortion right may be best understood as protecting not only an interest in bodily separation, but an interest in avoiding loss, that is, an interest in “never having loved at all.” […]

Colloquium: Religious Liberty After Hobby Lobby: A Panel of the 2014 Federalist Society National Lawyers Convention

by William L. Saunders, Hon. Diarmuid F. O’Scannlain, Kim Colby, William P. Marshall & Robin Fretwell Wilson

The following remarks were given on November 14, 2014 during a panel of the 2014 Federalist Society National Lawyers Convention. The focus of the discussion revolved around the recent Supreme Court decision in Burwell v. Hobby Lobby. The discussion included such topics as the impact that Hobby Lobby will have on future interpretations of the Religious Freedom Restoration Act and the constitutional implications of the decision. The panel also sought to answer questions such as: Do RFRA 's protections apply to publicly held corporations? What import does Hobby Lobby hold for religiously based exemptions outside of the Affordable Care Act context? Recordings of the conference can be found at http://www.fed-soc.org/multimedia/detail/religious-liberty-after-hobby-lobby-event-video. These remarks have been edited by the panelists for clarity. […]

Common-Sense Responses to Radical Practices: Stifling Sovereign Citizens in Connecticut

by Michael Mastrony

"Sovereign citizen" is a general term that describes various groups that do not recognize the authority of the government. These groups abuse the legal system in order to intimidate and harass anybody who challenges their actions. They will often use common-law liens in order to harass government employees or to retaliate against government employees. Many states have enacted legislation that deters individuals from doing it and makes it easier for victims to remove the liens. Connecticut has not enacted such legislation, although the legislature attempted to pass such a bill over a decade ago. It is time for Connecticut to pass legislation in order to address this practice. […]

Please reload

Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism

by J.J. Prescott

The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence that these laws work to reduce sex offender recidivism (despite years and years of effort), and some evidence (and plenty of expert sentiment) suggests that these laws may increase sex offender recidivism. In this Article, I develop a more comprehensive economic model of criminal behavior—or, rather, I present a simple, but complete model—that clarifies that these laws have at best a theoretically ambiguous effect on recidivism levels [...]

The Growing and Broad Nature of Legal Financial Obligations: Evidence from Alabama Court Records

by Claire Greenberg, Marc Meredith, & Michael Morse

In 2010, Harriet Cleveland was imprisoned in Montgomery, Alabama for failing to pay thousands of dollars in fines and fees stemming from routine traffic violations. More than thirty years after a series of Supreme Court rulings outlawed debtor’s prisons, Ms. Cleveland’s case brought national attention to both the sheer amount of legal financial obligations (LFOs) that could be accrued, even in cases without a criminal conviction, and the potential consequences of non-payment. But it has been nearly impossible to know how common Ms. Cleveland’s experience is because of a general lack of individual-level data on the incidence and payback of LFOs, particularly for non-felonies. In this vein, we gather about two hundred thousand court records from Alabama over the last two decades to perform the most comprehensive exploration of the assessments and payback of LFOs to date across an entire state. Consistent with conventional wisdom, we demonstrate that the median LFOs attached to a case with a felony conviction nearly doubled between 1995 and 2005, after which it has remained roughly steady. But a felony-centric view of criminal justice underestimates the extent of increasing LFOs in the United States. Our systematic comparison of LFOs in felony, misdemeanor, and traffic cases across Alabama demonstrates how the significant debt Ms. Cleveland accumulated for a series of minor traffic offenses is not such an aberration [...]

Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation

by Sarah French Russell & Tracy L. Denholtz

The U.S. Supreme Court’s recent decisions in Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana place categorical Eighth Amendment limits on sentences for children. Together, the decisions require that sentences for children provide “a meaningful opportunity for release based on demonstrated maturity and rehabilitation”—except in the rarest of homicide cases where the sentencer determines that the child is “irreparably corrupt” and rehabilitation is impossible. Twenty-six states have enacted statutes responding to the Court’s decisions, and there has been extensive litigation nationwide. After a first wave of litigation that largely focused on the scope of the Court’s categorical holdings, a new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment. In the past several years, parole boards in some states have started holding hearings for juvenile offenders, and many juveniles have been sentenced or resentenced. States have adopted a range of approaches. In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing hearings, some states have adopted special procedures for serious juvenile cases. [...]

Lessons and Liabilities in Litigating Solitary Confinement

by Keramet Reiter

This Essay reviews the recent deluge of legal attention solitary confinement has received in the United States, focusing in particular on three legal cases: Davis v. Ayala (a U.S. Supreme Court case), Coleman v. Taylor (a case filed and recently dismissed in a federal district court in Illinois), and Ashker v. Brown (a settled case filed in a federal district court in California). A close analysis of the reasoning in each of these cases provides a framework for examining the changing landscape of prison reform litigation in what many are heralding as a new era of reform. Together, these cases reveal one critical, changing mechanism of success in reform litigation: in each of the three cases, lawyers have leveraged careful investigative reporting and collective action by prisoners in changing not just the legal conversation, but also the public attitude towards isolation. This reveals the growing importance of what I call “multi-method” approaches to reform litigation. However, the reforms being sought and implemented are, perhaps, neither so drastic nor so sustainable as critics of solitary confinement might hope. In light of the history of solitary confinement, three lessons have been ignored and deserve further scrutiny: the persistence of solitary, the opacity of solitary, and the administrative discretion governing solitary [...]

The New Overcrowding

by Jonathan Simon

American prisons are seriously overcrowded, perhaps more than ever in our history. Before the era of mass incarceration, prisoner advocates sought to build on progressive penological ideas about the proper standards for housing prisoners, which focused on one person to each prison cell to create a jurisprudence of overcrowding that might compel states to reduce their reliance on incarceration. The goal failed, and states adopted tough new sentencing laws that increased imprisonment. As the prison book got under way, the Supreme Court decisively rejected the one person to a cell rule in the 1981 case of Rhodes v. Chapman. This Essay returns to this failed jurisprudence to argue that it has been outdated by a fundamental transformation in the nature of prison overcrowding. Before mass incarceration, overcrowding was primarily a product of antiquated prisons and the reluctance of states to pay for new modern facilities to better fit the then dominant rehabilitative objectives. While overcrowding was a problem, states had effective tools to deal with it, especially parole laws that allowed centralized administrative boards to control the pace of prison releases. Mass incarceration has created a new type of overcrowding, one that is far more severe and enduring than in the past. This new chronic hyper overcrowding plays out in a context where prisoners serve much longer sentences, have less access to rehabilitative programs, and greater unmet needs for medical and mental health treatment. The old overcrowding led to conflicts and riots. The new overcrowding leads to inhumane treatment and sometimes tortuous suffering on a routine basis [...]

Learning to Counter Mass Incarceration

by Brett Dignam

Limited access to education inside American prisons imposes a devastating condition of confinement that cripples both the offender and the community. The prolonged and empty time that characterizes prison today affords little mental stimulation, productive engagement, or preparation for post-release employment. Recent research and analysis has found that education during incarceration correlates with lower rates of recidivism and increases the likelihood and quality of post-release employment. There is a pronounced racially disparate dimension to these effects that are concentrated in communities where investment by the criminal justice system is extraordinarily high. Failure to provide education and the resulting higher rates of recidivism exacerbate prison overcrowding and inflate the costs of incarceration. Initiatives for expanding and evaluating diverse models of education, restoring federal funding for higher education inside prison, and forging partnerships between academia and people inside prison offer the hope of improved conditions both in our prisons and in our communities [...]

“For I Was Hungry and You Gave Me Something to Eat”: Utilizing RLUIPA to Prevent Force-Feeding Religiously Based Hunger-Striking Inmates

by Megan Wade

Religiously based hunger-striking prisoners face a cruel reality—being force-fed for adhering to their religious beliefs. Typically, hunger-striking prisoners facing being force-fed challenge this state action as a First Amendment violation. So far, no inmate has been successful. Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in direct response to state infringement upon prisoners’ right to religious freedom. Because RLUIPA offers greater protection of religious rights than does the First Amendment, religiously based hunger-striking prisoners will have a greater likelihood of preventing a state from force- feeding them by alleging a RLUIPA violation [...]

Gambling with Equal Protection: Connecticut’s Exploitation of Mancari and the Tribal Gaming Framework

by Allison S. Ercolano

Recent legislation passed in Connecticut grants two Indian tribes an exclusive right to pursue development of the state’s third casino. On one hand, financial benefits stemming from casinos enhance tribal self- sufficiency, foster tribal wealth, and provide an economic benefit to the state. On the other hand, legislation that allows for these benefits often does so by singling out Indians as a separate and distinct entity. Connecticut’s legislation comes at a precarious time as a legal attack on the preferential treatment of Indians gains traction in the courts. As it now stands, federal statutes singling out Indians are not subject to heightened judicial scrutiny, and will be upheld by a court so long as a legitimate end is furthered. This Note seeks to explore the boundaries of Connecticut’s law in comparison with the federal Indian gaming regulatory framework and contemplates whether the law can serve a legitimate end. After describing and analyzing the state statute, this Note then suggests that the current void of legal guidance over preferential state tribal gaming laws will allow states like Connecticut to exploit Indians in the name of money [...]

Tick-Bite Litigation: An Illustration of the Battle Over Duty and Breach in Connecticut and the Second Circuit

by Michael J. Senzer

In cases with tragic facts, the jury is perhaps the chief danger to a defendant. Attorneys defending tort suits routinely argue that courts should dismiss a case on grounds that a tortfeasor does not owe a victim a duty of care. This often takes the form of an argument that fact-specific “limited” duties should be created in order to dismiss a plaintiff’s case. This Note argues that Connecticut and other jurisdictions should embrace a form of limited duty that is perhaps itself well described as “limited.” In order to preserve factual issues for the trier of fact and the function of dispositive motions based on the existence or non-existence of those issues (e.g., summary judgment), the existence of duty should remain an abstract inquiry into the relationship between plaintiff and defendant. Thus, this Note contends that public policy analysis should not play a role in determining whether a legal duty exists unless there is a legal principle that merits restricting the responsibilities that exist given the basic relationship between the parties. In cases where the existence of a legal duty is otherwise clear at this level of generality, courts should not use public policy analysis to qualify legal duty. Since the duty inquiry is an inquiry into law and not facts, this sort of reserved approach is what is judicially proper—in the TBI cases, and for all cases [...]

Guns & Governance

by Denis J. O'Malley III

Every felon in Connecticut-violent and non-violent alike-loses the right to bear arms upon conviction. But felons convicted of public corruption offenses in Connecticut and fifteen other states have nothing between them and the ballot once their sentences expire. Why is that? Why do these states limit a black-letter right so broadly but leave unregulated the implied "right" to hold office? Additionally, why is it that in thirteen of these states lifetime disqualification from office follows impeachment but not conviction? This Note would have Connecticut and the fifteen similarly situated states foreclose these questions with laws prohibiting corrupt politicians from holding office. [...]

Please reload

Kelo Is Not Dred Scott

by Wesley W. Horton & Brendon P. Levesque

The almost universal adverse reaction—politically and legally—to Kelo v. New London is both wrong because Kelo is well within the legal mainstream, and misguided because it diverts attention from the real problem of eminent domain abuse. Far from encouraging such abuse, Kelo, which faithfully follows existing precedents in condemnation law, actually points the way to a more muscular judicial review of government claims of public purpose in all takings cases. Focusing instead on reversing Kelo, its critics risk throwing out the good public purpose takings for promising economic development plans that happen to be carried out privately, while leaving untouched the bad public purpose takings for boondoggles that happen to be carried out by the government [...]

Kelo and the Constitutional Revolution that Wasn't

by Bethany Berger

Wesley Horton and Brendon Levesque are right that public outrage over Kelo has overshadowed the real facts of the New London plan, and that the decision only affirmed well-established precedent. But while the facts were on New London’s side, those facts were harder to translate to the public sympathy than the story of the white, female plaintiffs effectively publicized by the Institute for Justice in the case. Kelo is also not Dred Scott in even more ways than Horton and Levesque state. Unlike Scott v. Sandford, Kelo preserved the rights of individuals to challenge taking of their homes and receive compensation for the same. For lead plaintiff Susette Kelo, this right to compensation resulted in a pay-out of about four times the value of her little pink house. And while Scott v. Sandford helped trigger a constitutional revolution, Kelo remains good law, and the state legal response to it is more show than substance. Although I agree with the authors on the big picture, I suggest caution on their proposal for curbing eminent domain abuse. The scrutiny for pretext they propose was established well before Kelo, but some of the factors they suggest would discourage public-private partnerships that may more effectively achieve public goals. While judges must police governments for bias and favoritism, having inexpert judges make decisions that are better left to planning experts and the public process will not achieve this end [...]

Nor Is Kelo a Red Herring: A Response to Horton and Levesque

by Scott G. Bullock & Joshua A. House

This Essay responds to Horton and Levesque’s defense of the Supreme Court’s decision in Kelo v. City of New London. Their essay suggests that Kelo’s critics ignore its facts, misunderstand its legal context, and therefore distract from the real issue at hand: eminent domain abuse for public projects. We respond that Kelo is not defensible on any ground. Development in New London did not require eminent domain; New London could have been any American town with politicians and private interests hungry for forced development at the expense of the rights of working class home owners and small businesses. Nor was New London well suited to the development plan in Kelo: evidence demonstrated that the Fort Trumbull development plan was doomed from the start. Moreover, Horton and Levesque’s legal analysis ignores Kelo’s novel expansion of “public use.” By pushing past traditional public uses (such as takings for infrastructure, utilities, blight amelioration, and ending land oligopolies), Kelo repudiated the longstanding principle that the government may not take from A for the sole purpose of giving to B. Crucially, Horton and Levesque ignore the important role judges play in checking the sometimes unconstitutional excesses of democratic majorities or powerful special interests that capture the political process to further their own ends. We agree with Horton and Levesque that eminent domain can be abused even in the context of traditional public use takings. But by allowing government officials to take homes, businesses, and other property simply to place a bet on future economic gains from private development, Kelo represents the worst and most dangerous form of eminent domain abuse [...]

Who Cares What the Pundits Think of Kelo?

by Timothy S. Hollister

In this Essay, Attorney Hollister reflects on more than thirty years of involvement with eminent domain in Connecticut, primarily representing property owners. He asserts that Kelo was correctly decided, but notes that the exercise of eminent domain is ripe for misuse, and thus property owners require advocacy and judicial oversight to protect their rights. He summarizes Connecticut eminent domain procedure and analyzes the General Assembly’s 2007 Kelo-inspired amendments. The Essay then explains the importance in Connecticut of conducting a separate state law analysis of property owner rights when challenging eminent domain, particularly with regard to the “necessity” of the taking. The Essay discusses Emery v. City of Middletown, the first court case to test a municipality’s compliance with the 2007 amendments and in which Attorney Hollister, representing the property owner, obtained an injunction against the city’s proposed taking [...]

A Solution in Search of a Problem: Kelo Reform Over Ten Years

by Wendell E. Pritchett

Kelo is NOT Dred Scott. Kelo is not only NOT Dred Scott, it was, as this Essay will argue, the right decision given the facts of the cases and the current state of legal jurisprudence. As an academic who has detailed the historic exploitation of eminent domain to uproot persons of color in this country, I find it interesting, and somewhat troubling, that the case has received so much criticism, much more criticism, I would argue, than other Supreme Court decisions that deserve condemnation. Certainly, eminent domain, like any other government power, must be regulated carefully. But upending the principles of judicial restraint and federalism is not necessary in this case. This Essay argues that eminent domain is a necessary tool for governments to promote the public interest, and that the problem of potential “abuse” can be managed by less dramatic—and more effective—methods than categorical bans on the use of condemnation [...]

The Public Use Clause and Heightened Rational Basis