IAN A. RUSSELL

Work is a universal human experience, but the nature of work and the relationships between workers and employers have changed dramatically in recent years, thanks in large part to the rise of the “gig economy.” Gig workers on platforms like Uber, Lyft, DoorDash, Grubhub, and many others enjoy a degree of flexibility and autonomy, but that same autonomy helps to shield their employers from legal liability when workers cause harm to others.

This Comment explores the doctrine of respondeat superior and specifically the “control test” in the context of the gig economy. Because gig work is not bound by specific time and space requirements in the same way as traditional employment, and because gig workers often have multiple “gigs” simultaneously, it is often difficult to determine whether a tort is committed within the scope of employment. This Comment proposes using the “scope of the gig” as the key to unlock vicarious liability: if the worker’s intent was, at least in part, to complete the gig, then the gig
employer can be held legally responsible for the harm caused.

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SAMANTHA G. CRONE

A jury “hangs” or results in impasse or deadlock when the jury cannot reach a unanimous verdict. This results in the judge declaring a mistrial, where the double jeopardy bar is lifted in criminal trials, and the defendant may be retried. Oftentimes, jury deadlock results from a majority voting block who cannot sway a lone dissenter, also known as the “holdout juror.” When faced with the potential of deadlock, judges across the country routinely administer an impasse charge, commonly known as a “Dynamite Charge,” for its ability to blast a jury out of deadlock and into a unanimous verdict.

With the United States Supreme Court silent on the charge in recent years, some jurisdictions have abandoned the charge altogether or reformed the language of the charge administered to omit coercive language of “minority” and “majority” or “dissenting” jurors. Connecticut’s “Chip Smith” Charge has been consistently upheld by the Connecticut Supreme Court and is considered settled jurisprudence. Despite many criminal defendants arguing to end the practice of administering the charge, the court has declined to do so. Though the state’s courts have, in recent
years, altered the language of the model charge to include “balancing principles” to counteract the language targeting “dissenting” jurors, judicial discretion looms large in this area, and there are few checks on a trial judge’s ability to tell dissenting jurors to reconsider their view. Because the demise of Chip Smith is highly unlikely, this Comment argues instead that Connecticut should take a more middle ground approach and constrain judicial discretion in this area by limiting the number of times the charge may be read to a jury, eliminating the pressure placed on dissent,
and establishing a higher degree of judicial scrutiny when a trial judge strays from approved language. These changes will help protect a criminal defendant’s due process right to an uncoerced jury verdict.

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BRYAN SCHWARTZ

Sex trafficking is the “fastest-growing business of organized crime” and “the third-largest criminal enterprise in the world,” with the number of cases in the United States steadily increasing over the last two decades. In fact, sex trafficking recently took center stage when rap singer and music producer Sean “Diddy” Combs was arrested and charged, in part, with sex trafficking. Relevant to this Article, the lawyers for both sides brought forth motions challenging the admissibly of character evidence under both Federal Rule of Evidence 404(b) and 413.

In the context of sex trafficking, this Article builds on the existing scholarship analyzing character evidence, particularly Rule 404(b). Notably, sex trafficking often follows a typical framework, which this Article lays out in three parts: Victim Selection, the Grooming Process, and the method of Operation. These parts also contribute to complex dynamics between the offender and the victim, which greatly impact the investigation and prosecution of these cases. Importantly, as this Article sets forth, courts do not appear to be uniformly aware of this framework,
particularly when evaluating character evidence. Thus, this Article sets forth a sex trafficking framework to be used by courts, lawyers, and lawmakers, which will result in improved consistency and predictability when evaluating the admissibility of character evidence.

Additionally, this Article also aims to start the controversial conversation of whether propensity evidence should be admissible in sex trafficking cases, such as by expanding Rules 413, 414, and 415 (“the propensity rules”). While additional contributions are necessary to answer this question, this Article lays the initial foundation by setting forth the scholarly debate surrounding propensity evidence, focusing on the important concerns that propensity evidence inherently possesses, balanced against recent studies relying on forensic psychology theory suggesting
its evidentiary value in sex trafficking cases.

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KARIN CARMIT YEFET

American divorce law in the twenty-first century stands on the brink of a troubling paradigmatic shift. States have begun to experiment anew with divorce-restrictive regimes, most prominently covenant marriage. This singular antidivorce mechanism—the first of its kind worldwide—establishes an optional marital framework in which exit is severely constrained. Despite a voluminous literature examining covenant marriage through sociological, theological, policy, and legal lenses, its constitutional validity has been all but ignored. This Article argues that marital freedom is an unenumerated fundamental right within the American constitutional edifice and explores the implications of that right for this novel divorce regime. It pioneers the constitutional analysis of exit barriers—whether imposed by covenant legislation or contractual stipulation—and finds them indefensible. It then confronts covenant marriage’s most radical innovation: the purported permissibility of voluntary limits on marital exit. Grounded in theories of inalienability, the Article establishes that the core right to divorce lies beyond the reach of waiver and concludes that this recognition calls into question the very legitimacy of the covenant marriage regime.

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DANIELI EVANS

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At a moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for Fourth Amendment law, centered not around privacy or private law, but around the value of democratic citizenship. I argue that the prevailing Fourth Amendment rules and proposed private law alternatives are both deficient in one important respect: they both fail to recognize and address the ways in which policing impacts democratic citizenship. A large body of social science research shows that coercive encounters with police tend to diminish people’s trust in government, sense of citizenship, and political participation. These citizenship harms, I argue, ought to be a central concern for Fourth Amendment law. This is necessary to realize the  Fourteenth Amendment’s guarantee of full and equal citizenship.

Under a citizenship model, when deciding whether an action is an unreasonable search or seizure, courts would consider what the action conveys about the subject’s belonging and standing in the community. To evaluate this, courts would ask how the action comports with values associated with democratic citizenship, such as participation, autonomy, anti-subordination, and proportionality.

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REBECCA E. WOLITZ

Historically, the United States has been the largest public funder of biomedical innovation in the world, yet public contributions to drug research and development (“R&D”) often fail to translate into affordable medications. The Inflation Reduction Act presents an opportunity to reconsider the relationship between public funding and public returns by requiring the consideration of federal funding as a factor in the Medicare Drug Price Negotiation Program (“MDPNP”). However, neither the statute nor agency guidance articulate clear normative principles for what the public is owed based on our contributions to drug R&D. This Article makes two key contributions. First, it offers an original scholarly analysis of the MDPNP’s “prior Federal financial support” factor, critically examining the program’s treatment of federal funding in fair drug pricing. Second, it  valuates a range of fairness principles and argues that policymakers should adopt a principle of proportionality as the default for allocating benefits from public contributions to drug R&D. By establishing a default in favor of proportional fairness, this approach ensures that public returns are meaningfully aligned with public contributions, flexibility is maintained to protect biomedical innovation, public confidence in institutions can be bolstered, and what we—the public—are owed is better secured. This Article charts a path toward a more equitable and accountable recognition of public contributions to privatized medical innovations within existing agency authority.

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ELIZABETH C. TIPPETT & JAMILLAH BOWMAN WILLIAMS

Courts assessing summary judgment motions in Title VII harassment claims commonly grant the motion on the basis that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard. This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the severe or pervasive element of a Title VII harassment claim. We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently severe or pervasive to meet the legal threshold. We provided the participants with relevant jury instructions and asked them to: (1) rate the severity or pervasiveness of the alleged harassment; (2) assess whether the plaintiff met the legal standard; and (3) discuss their reasoning.

Our results suggest a substantial divergence between judicial assessments and simulated jury assessments of the sampled cases. Judges granted summary judgment in favor of the employer or dismissed 65% of the harassment cases in the sample. By contrast, our simulated juries would have dismissed less than 20% of the very same cases. Both our quantitative and qualitative findings shed light on the source of this divergence. The difference in assessment is not due to demographic differences between judges and the mock jurors, nor is it caused by shifting judicial assessments over time. Our qualitative results indicate laypeople tend to view the fact patterns in a much more holistic manner than judges, which is consistent with guidance established by the Supreme Court. In addition, our quantitative analysis suggests courts may be selectively discounting the severity or pervasiveness of cases alleging intersectional harassment based on more than one protected characteristic. Going forward, we recommend that courts exercise far greater caution in evaluating harassment claims on summary judgment. Courts should also allow intersectional claims to be pled as a single cause of action.

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