Most scientific and medical discoveries are accompanied by new terms to describe the new processes. Although this imposes the burden on society of continually learning a new lexicon, new terminology clarifies that the societal impact of emerging technologies needs to be newly interpreted. A notable exception to this general practice, however, has been the failure to develop new terms to describe the new demands placed on mammalian eggs. Approximately 250 times the size of a somatic cell, and 4,000 times the size of a sperm head, the mammalian egg is a highly specialized cell which has stockpiled a collection of enzymes and other molecules that empower it to completely remodel the chromosomes brought in
{"title":"What is an embryo?","authors":"A. Kiessling","doi":"10.2307/j.ctv19m6444.10","DOIUrl":"https://doi.org/10.2307/j.ctv19m6444.10","url":null,"abstract":"Most scientific and medical discoveries are accompanied by new terms to describe the new processes. Although this imposes the burden on society of continually learning a new lexicon, new terminology clarifies that the societal impact of emerging technologies needs to be newly interpreted. A notable exception to this general practice, however, has been the failure to develop new terms to describe the new demands placed on mammalian eggs. Approximately 250 times the size of a somatic cell, and 4,000 times the size of a sperm head, the mammalian egg is a highly specialized cell which has stockpiled a collection of enzymes and other molecules that empower it to completely remodel the chromosomes brought in","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"36 4 1","pages":"1051-92"},"PeriodicalIF":0.0,"publicationDate":"2020-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42023700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Solo and small firm lawyers comprise more than three-fifths of all lawyers in private practice and are disproportionately subject to discipline sanctions. Sociolegal scholars have long sought to identify the factors that influence the behavior of these lawyers. Research suggests that lawyer professional liability (“LPL”) insurers regulate the behavior of large firm lawyers through the underwriting process, premium pricing, contract design, and risk management practices in order to reduce the risk of loss. This article explores whether LPL insurers also regulate the behavior of solo and small firm lawyers in ways that encourage responsible conduct. The articles draws on interviews of insurance industry executives, risk management counsel, and insured lawyers, as well as surveys of lawyers and insurer documents, to explore the impact of LPL insurers on the work lives of solo and small firm lawyers. The research reveals that unlike LPL insurers of large law firms, LPL insurers appear to regulate the behavior of solo and small firm lawyers in limited ways. The article explores the reasons why this is the case. It also discusses solo and small firm lawyers’ attitudes about malpractice actions, which shed additional light on the likely efficacy of insurers’ efforts to regulate the behavior of these lawyers. The article identifies a much more effective regulator of lawyer conduct — title insurers — and explains how this regulation occurs and the conditions that make effective regulation possible. It suggests some steps that LPL insurers could take to further encourage solo and small firm lawyers to engage in more responsible behavior.
{"title":"Regulators at the Margins: The Impact of Malpractice Insurers on Solo and Small Firm Lawyers","authors":"L. Levin","doi":"10.2139/SSRN.2800620","DOIUrl":"https://doi.org/10.2139/SSRN.2800620","url":null,"abstract":"Solo and small firm lawyers comprise more than three-fifths of all lawyers in private practice and are disproportionately subject to discipline sanctions. Sociolegal scholars have long sought to identify the factors that influence the behavior of these lawyers. Research suggests that lawyer professional liability (“LPL”) insurers regulate the behavior of large firm lawyers through the underwriting process, premium pricing, contract design, and risk management practices in order to reduce the risk of loss. This article explores whether LPL insurers also regulate the behavior of solo and small firm lawyers in ways that encourage responsible conduct. The articles draws on interviews of insurance industry executives, risk management counsel, and insured lawyers, as well as surveys of lawyers and insurer documents, to explore the impact of LPL insurers on the work lives of solo and small firm lawyers. The research reveals that unlike LPL insurers of large law firms, LPL insurers appear to regulate the behavior of solo and small firm lawyers in limited ways. The article explores the reasons why this is the case. It also discusses solo and small firm lawyers’ attitudes about malpractice actions, which shed additional light on the likely efficacy of insurers’ efforts to regulate the behavior of these lawyers. The article identifies a much more effective regulator of lawyer conduct — title insurers — and explains how this regulation occurs and the conditions that make effective regulation possible. It suggests some steps that LPL insurers could take to further encourage solo and small firm lawyers to engage in more responsible behavior.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"49 1","pages":"553-612"},"PeriodicalIF":0.0,"publicationDate":"2016-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68334139","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the 2015 Term, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claimed that the prosecutors violated Batson by exercising race-based peremptories and striking four African-American prospective jurors. Foster was tried, convicted, and sentenced to death by an all-white jury. What made this case so unusual was that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite NO’s” list. As the notes make clear, the prosecutors focused on the African-American prospective jurors’ race, even though they gave seemingly race-neutral reasons to explain why they removed them.The Court in Foster undertook a close reading of the prosecutors’ reasons and found race to be the basis for the prosecutors’ peremptory challenges. This Article identifies the strengths and weaknesses of the Court’s opinion in Foster. However, Foster’s case was unusual because the prosecutors’ notes were in effect a “smoking gun.” Without such notes, the prosecutors’ seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: eliminate peremptory challenges.
2015年，美国最高法院裁定，福斯特诉查特曼案的检察官行使了基于种族的强制性挑战，违反了巴特森诉肯塔基州案。法院得到了正确的结果，但却错过了一个重要的机会。法院本应承认，在巴特森实验进行了三十年之后，巴特森显然无法阻止歧视性的强制性挑战。巴特森很容易被规避，因此歧视性的强制性挑战持续存在，其危害很大。法院可以努力加强巴特森案，以使其更有效，但最终消除歧视性强制性挑战的唯一途径是消除强制性挑战。在乔治亚州的这个死刑案件中，请愿人蒂莫西·蒂龙·福斯特(Timothy Tyrone Foster)是一名非洲裔美国人，他声称检察官行使基于种族的强制令，殴打了四名非洲裔美国准陪审员，违反了《巴特森法》。福斯特被一个全是白人的陪审团审判、定罪并判处死刑。这起案件的不同寻常之处在于，福斯特通过《乔治亚州公开记录法案》(Georgia Open Records Act)获得了检察官的记录。在笔记中，控方在候选陪审员名单上突出了非裔美国人的名字，在问卷上圈出了他们的种族，并在陪审员卡片上标注了这一点，并把他们列在了“绝对不允许”的名单上。正如笔记所表明的那样，检察官关注的是非裔美国人未来陪审员的种族，尽管他们给出了看似种族中立的理由来解释为什么要撤掉他们。福斯特法院仔细阅读了检察官的理由，发现种族是检察官提出强制性质疑的基础。本文指出了法院对福斯特案的意见的优点和缺点。然而，福斯特的案子不同寻常，因为检察官的笔记实际上是“确凿的证据”。如果没有这样的注释，在巴特森治下，检察官看似种族中立的解释就足够了。最高法院需要承认巴特森案的无效。它可以以不同的方式调整巴特森测试，比如给予歧视性影响或做法更多的权重，或者设计更强有力的补救措施。然而，最终，唯一足以完成这项任务的补救办法是马歇尔大法官在30年前的巴特森案中提出的:取消强制性挑战。
{"title":"Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge","authors":"Nancy S. Marder","doi":"10.2139/SSRN.2839967","DOIUrl":"https://doi.org/10.2139/SSRN.2839967","url":null,"abstract":"In the 2015 Term, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way to eliminate discriminatory peremptory challenges is to eliminate the peremptory challenge.In this capital case from Georgia, petitioner Timothy Tyrone Foster, an African-American man, claimed that the prosecutors violated Batson by exercising race-based peremptories and striking four African-American prospective jurors. Foster was tried, convicted, and sentenced to death by an all-white jury. What made this case so unusual was that Foster, through the Georgia Open Records Act, was able to obtain the prosecutors’ notes. In the notes, the prosecution had highlighted the names of African-American prospective jurors on the venire list, circled their race on their questionnaires and noted it on their juror cards, and put them on a “definite NO’s” list. As the notes make clear, the prosecutors focused on the African-American prospective jurors’ race, even though they gave seemingly race-neutral reasons to explain why they removed them.The Court in Foster undertook a close reading of the prosecutors’ reasons and found race to be the basis for the prosecutors’ peremptory challenges. This Article identifies the strengths and weaknesses of the Court’s opinion in Foster. However, Foster’s case was unusual because the prosecutors’ notes were in effect a “smoking gun.” Without such notes, the prosecutors’ seemingly race-neutral explanations would have sufficed under Batson. The Court needs to recognize the ineffectiveness of Batson. It could tweak the Batson test in different ways, such as by giving more weight to discriminatory effects or practices or by devising a stronger remedy. In the end, however, the only remedy that is adequate to the task is the one that Justice Marshall proposed in his Batson concurrence thirty years ago: eliminate peremptory challenges.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"49 1","pages":"1137-1209"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68377508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Everyone hates patent trolls, those companies that “hijack somebody else’s idea” and use the patents to “extort some money” from companies that actually make things. But not all patent trolls are created equal. This article is the first to focus on one type of patent troll – the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more broadly and, in fact, provide unique benefits for commercialization of new technologies. Specifically, formerly manufacturing entities do not “sneak up” on manufacturing companies, waiting for them to invest extensively in a technology before seeking a license; rather, the technology and the patents are already out in the open, having been practiced by the patent troll. Further, because formerly manufacturing entities have already worked to commercialize the technology, they are in a much better position to assess its value, as well as the costs and risks associated with bringing it to market. We should recognize the benefits formerly manufacturing entities add to commercialization and ensure that potential patent reform measures and judicial solutions to the patent troll problem are carefully drawn not to do more harm than good.
{"title":"Formerly Manufacturing Entities: Piercing the Patent Troll Rhetoric","authors":"K. Osenga","doi":"10.31228/osf.io/b64mh","DOIUrl":"https://doi.org/10.31228/osf.io/b64mh","url":null,"abstract":"Everyone hates patent trolls, those companies that “hijack somebody else’s idea” and use the patents to “extort some money” from companies that actually make things. But not all patent trolls are created equal. This article is the first to focus on one type of patent troll – the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more broadly and, in fact, provide unique benefits for commercialization of new technologies. Specifically, formerly manufacturing entities do not “sneak up” on manufacturing companies, waiting for them to invest extensively in a technology before seeking a license; rather, the technology and the patents are already out in the open, having been practiced by the patent troll. Further, because formerly manufacturing entities have already worked to commercialize the technology, they are in a much better position to assess its value, as well as the costs and risks associated with bringing it to market. We should recognize the benefits formerly manufacturing entities add to commercialization and ensure that potential patent reform measures and judicial solutions to the patent troll problem are carefully drawn not to do more harm than good.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"47 1","pages":"435"},"PeriodicalIF":0.0,"publicationDate":"2014-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There are two ways to read the Court's decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.
{"title":"State's Rights, Last Rites, and Voting Rights","authors":"Luis E. Fuentes-Rohwer, G. Charles","doi":"10.2139/SSRN.2377475","DOIUrl":"https://doi.org/10.2139/SSRN.2377475","url":null,"abstract":"There are two ways to read the Court's decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68156920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism. In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War I turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a theory, they adopted pacifism as a practice. World War II and the early Cold War ended the pacifist interlude for all but a few radical pacifists. Beginning in the 1960s, much of the American Catholic leadership, like the leadership of mainline Protestant churches, turned sharply Left. Although churches did not repudiate their teachings on Just War, many Catholic and mainline Protestant leaders seemed unable to find any circumstances under which American or Western force actually was legitimate. Pacifism and anti-Americanism marched hand in hand. Today, pacifism now has greater respectability within orthodox Christianity than any time in the past 1700 years. Among the influential thinkers profiled in this Article are all Popes from World War II to the present, Dorothy Day and her Catholic Worker Movement, and the Berrigan Brothers. The Article suggests that some recent trends in pacifist or quasi-pacifist approaches have been unduly influenced by hostility to the United States, and by the use of narrowly-focused emotion rather than the rigorous analysis that has characterized Catholic philosophy.
{"title":"Evolving Christian Attitudes Towards Personal and National Self-Defense","authors":"D. Kopel","doi":"10.2139/SSRN.1028849","DOIUrl":"https://doi.org/10.2139/SSRN.1028849","url":null,"abstract":"This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism. In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War I turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a theory, they adopted pacifism as a practice. World War II and the early Cold War ended the pacifist interlude for all but a few radical pacifists. Beginning in the 1960s, much of the American Catholic leadership, like the leadership of mainline Protestant churches, turned sharply Left. Although churches did not repudiate their teachings on Just War, many Catholic and mainline Protestant leaders seemed unable to find any circumstances under which American or Western force actually was legitimate. Pacifism and anti-Americanism marched hand in hand. Today, pacifism now has greater respectability within orthodox Christianity than any time in the past 1700 years. Among the influential thinkers profiled in this Article are all Popes from World War II to the present, Dorothy Day and her Catholic Worker Movement, and the Berrigan Brothers. The Article suggests that some recent trends in pacifist or quasi-pacifist approaches have been unduly influenced by hostility to the United States, and by the use of narrowly-focused emotion rather than the rigorous analysis that has characterized Catholic philosophy.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"45 1","pages":"1709-1771"},"PeriodicalIF":0.0,"publicationDate":"2013-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68130022","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be a useful tool in fighting crime in inner-city communities.
{"title":"In the Civic Republic: Crime, the Inner City, and the Democracy of Arms — Being a Disquisition on the Revival of the Militia at Large","authors":"Robert J. Cottrol, Raymond T. Diamond","doi":"10.2139/ssrn.3403128","DOIUrl":"https://doi.org/10.2139/ssrn.3403128","url":null,"abstract":"This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be a useful tool in fighting crime in inner-city communities.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2013-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68590837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.This paper focuses on the implications of these profound disruptive changes. It looks at the expectations the market may place on future lawyers and by extension the training necessary for lawyers entering the practice of law. The final section reflects a suggested curriculum and programmatic redesign, highlighting one possible future legal educational model, complete with acquiescence to existing constraints found in American Bar Association and other accreditation regimes.
{"title":"Legal Education in Disruption: The Headwinds and Tailwinds of Technology","authors":"Jon M. Garon","doi":"10.2139/SSRN.2040560","DOIUrl":"https://doi.org/10.2139/SSRN.2040560","url":null,"abstract":"By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.This paper focuses on the implications of these profound disruptive changes. It looks at the expectations the market may place on future lawyers and by extension the training necessary for lawyers entering the practice of law. The final section reflects a suggested curriculum and programmatic redesign, highlighting one possible future legal educational model, complete with acquiescence to existing constraints found in American Bar Association and other accreditation regimes.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"45 1","pages":"1165"},"PeriodicalIF":0.0,"publicationDate":"2012-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67875389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court's Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations. Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts-namely Congress's decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level-that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.
{"title":"Limiting Principles and Empowering Practices in American Indian Religious Freedoms","authors":"Kristen A. Carpenter","doi":"10.2139/SSRN.2015771","DOIUrl":"https://doi.org/10.2139/SSRN.2015771","url":null,"abstract":"Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court's Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations. Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts-namely Congress's decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level-that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67854837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For the second time in twenty-five years, personal jurisdiction has perplexed the U.S. Supreme Court. The problem is purposeful availment. All of the Justices agree that specific jurisdiction does not exist without purposeful availment, but the Court could not cobble together a majority opinion in J. McIntyre Machinery, Ltd. v. Nicastro to clarify what purposeful availment means or what it requires.This Article sets forth a simple — yet meaningful and necessary — solution. Purposeful availment is best understood by its negative: no court should find a nonresident defendant subject to personal jurisdiction for a contact with the forum state that the defendant could not reasonably prevent. Put another way, where it is not reasonably feasible for a defendant to sever its connection with the state, purposeful availment does not exist. Conversely, where it is reasonably feasible for a defendant to prevent its contact with a state but it has not done so, there is presumptively purposeful availment and, subject to the fairness balancing, specific jurisdiction.This principle is consistent with the understanding reached by the Court more than twenty-five years ago and shared by a majority of the current Justices that personal jurisdiction is an individual liberty interest that is protected by the Due Process Clause. Because it is an individual liberty interest, the purposeful availment requirement must be applied in such a manner that an economic actor can structure its conduct so as to avoid subjecting itself to jurisdiction in a disfavored forum.Application of this principle leads to clear, but certain to be controversial, resolution of several questions left unresolved by the Court in McIntyre v. Nicastro. It also makes clear that Nicastro itself was wrongly decided. First, component part manufacturers generally do not control the distribution and point of sale of the end product into which their component part is incorporated. Thus, absent some additional conduct targeting the forum state, component part manufacturers do not purposefully avail themselves of a particular state where the end product is sold, even where there is a regular flow of a large quantum of the component parts into that state. Second, end product manufacturers retain nearly complete control over the initial point of sale of their products. Thus, an end product manufacturer has purposefully availed itself of every state where the product is sold to consumers — even where the manufacturer sold the product to a distributor who sold the product to a retailer who sold the product to a consumer. Third, a manufacturer who markets its product nationwide has purposefully availed itself of every state where the product is sold and causes injury.
{"title":"The Persistent Problem of Purposeful Availment","authors":"Henry S. Noyes","doi":"10.2139/SSRN.2010803","DOIUrl":"https://doi.org/10.2139/SSRN.2010803","url":null,"abstract":"For the second time in twenty-five years, personal jurisdiction has perplexed the U.S. Supreme Court. The problem is purposeful availment. All of the Justices agree that specific jurisdiction does not exist without purposeful availment, but the Court could not cobble together a majority opinion in J. McIntyre Machinery, Ltd. v. Nicastro to clarify what purposeful availment means or what it requires.This Article sets forth a simple — yet meaningful and necessary — solution. Purposeful availment is best understood by its negative: no court should find a nonresident defendant subject to personal jurisdiction for a contact with the forum state that the defendant could not reasonably prevent. Put another way, where it is not reasonably feasible for a defendant to sever its connection with the state, purposeful availment does not exist. Conversely, where it is reasonably feasible for a defendant to prevent its contact with a state but it has not done so, there is presumptively purposeful availment and, subject to the fairness balancing, specific jurisdiction.This principle is consistent with the understanding reached by the Court more than twenty-five years ago and shared by a majority of the current Justices that personal jurisdiction is an individual liberty interest that is protected by the Due Process Clause. Because it is an individual liberty interest, the purposeful availment requirement must be applied in such a manner that an economic actor can structure its conduct so as to avoid subjecting itself to jurisdiction in a disfavored forum.Application of this principle leads to clear, but certain to be controversial, resolution of several questions left unresolved by the Court in McIntyre v. Nicastro. It also makes clear that Nicastro itself was wrongly decided. First, component part manufacturers generally do not control the distribution and point of sale of the end product into which their component part is incorporated. Thus, absent some additional conduct targeting the forum state, component part manufacturers do not purposefully avail themselves of a particular state where the end product is sold, even where there is a regular flow of a large quantum of the component parts into that state. Second, end product manufacturers retain nearly complete control over the initial point of sale of their products. Thus, an end product manufacturer has purposefully availed itself of every state where the product is sold to consumers — even where the manufacturer sold the product to a distributor who sold the product to a retailer who sold the product to a consumer. Third, a manufacturer who markets its product nationwide has purposefully availed itself of every state where the product is sold and causes injury.","PeriodicalId":80998,"journal":{"name":"Connecticut law review","volume":"45 1","pages":"41"},"PeriodicalIF":0.0,"publicationDate":"2012-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67850060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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