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Economic Windfalls and Child Support: How Should Gifts, Inheritances, and Prizes Be Treated?

PdfPDF by Steven K Berenson · December-19-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 4, Print Edition, Volume 47

In the spring of 2013, the attention of many turned to one of the largest jackpots available in the history of the Powerball multistate lottery. Eventually, it was reported that Pedro Quezada of New Jersey was the sole winner of the prize. Quezada opted to take a $211 million lump-sum payment, rather than receiving the full amount of the $338 million prize in installments. However, New Jersey authorities made clear that the $29,000 Quezada owed in child support arrears would be deducted before any payments were made to him.   Other than perhaps Quezada himself, few people would have any quibble with this relatively small deduction from his jackpot winnings. After all, the obligation to support one’s children is firmly [...]

Salinas v. Texas: Pre-Miranda Silence Can Be Used Against a Defendant

PdfPDF by Harvey Gee · December-19-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 4, Print Edition, Volume 47

For decades, the Supreme Court has expressly declined to address whether the Fifth Amendment right against self-incrimination prohibits the State from using evidence of a non-testifying defendant’s pre-arrest silence in its case-in-chief. But it did so last term in Salinas v. Texas, a ruling that significantly affected the rights of Americans set forth in Miranda v. Arizona. In Salinas, the Court considered whether the Fifth Amendment’s protection against self-incrimination bars the admission of evidence about a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt. However, the Court did not ultimately address this broad issue. Instead, a three-justice plurality only narrowly held that because Salinas did not expressly invoke his Fifth Amendment privilege in his pre-arrest, pre-Miranda police interview, his [...]

The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution

PdfPDF by Daniel J. Hulsebosch · December-19-2014 · Categories: Current, Current Lead Articles, Lead Articles, Number 4, Print Edition, Volume 47

Americans and their historians have long viewed constitution-making in the Founding Era as a local event with global repercussions. It is a story of American ideals and interests in which American drafters, voters, and ratifiers made key decisions. Americans then began to work out the meaning of their constitutions in state and federal institutions, which required that some officeholders be citizens. Only after the ratification of the federal Constitution did foreign nations take heed, through imitation and (later) force. This myth of the originally authentic, and later diffusionist constitution, is not limited to the United States.It has been the dominant conception of constitution-making in many times and places.   In fact, American constitution-making began as an international process. All the [...]

Maintaining the Mask of the First Amendment: Procedural and Legislative Approaches to Protecting Anonymous Online Speech

PdfPDF by Benjamin Conery · December-19-2014 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 47

Defamation suits involving anonymous online speech swing between extremes: Some cases involve vulgar postings meant to harass and ridicule, while others take on a whistleblower-like significance in exposing possible political or corporate malfeasance. Despite the prevalence of such cases, there are no national standards guiding a judge’s determination of when to reveal the identities of anonymous posters. Instead, courts have applied a jumble of tests. Some worried observers see the lack of uniformity and the accompanying uncertainties as threats to speak anonymously—a right the Supreme Court has jealously guarded.   Complicating the issue is the variety of scenarios present in these defamation cases. These suits can be broadly separated into two factions: legitimate defamation suits sometimes called “cybersmears,” and illegitimate [...]

ERA v. Title IX: Should Male-Student Athletes be Allowed To Compete on Female Athletic Teams?

PdfPDF by Raymond Grant · December-19-2014 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 47

Two separate, but related, stories represent a growing debate permeating throughout the competitive atmosphere of Massachusetts high school athletics. At the 2010 Western Massachusetts Division I girls’ field hockey championship game, the two title contenders were engaged in a highly competitive match with the score tied late in the game. With time running out, a player broke free from the field and scored the championship-winning goal as the player collided into the opposing team’s goaltender. Both the play and ensuing result appear relatively normal until it is revealed that a male student athlete, a standout performer in both ice hockey and lacrosse, scored the game-winning goal, and that the female goaltender suffered a concussion as a result of the collision. [...]

Equity Run Amuck: The Necessary Reevaluation of the Preliminary Injunction Standard to Reflect Modern Day Legal Realities—A Comparison of the Massachusetts and Delaware Noncompete Agreement Preliminary Injunction Standard

PdfPDF by Christian McTarnaghan · December-19-2014 · Categories: Current, Current Notes, Lead Articles, Number 4, Print Edition, Volume 47

The concept of a legal remedy is an old tenant of both the English and the American legal systems. At one time, based on the very remedies they had jurisdiction to provide litigants, American courts were split in two, with courts of equity and courts of law.   Remedies are omnipresent in civil litigation. The relief sought in civil cases fall into two broad categories: monetary or equitable. The concept of monetary damages, at its most basic level, is that the liable party pays a dollar amount for the harm it caused another. Conversely, equitable relief is sought in situations where money is insufficient to right the wrong suffered by the nonliable party. In many instances, this form of relief [...]

Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters

PdfPDF by Timothy D. Rodden, Jr. · December-19-2014 · Categories: Current, Current Lead Articles, Notes, Number 4, Print Edition

In today’s technologically advanced world, nearly fifty percent of Americans own smartphones, a statistic that increases to sixty-six percent when considering Americans between the ages of twenty-four and thirty-five. This, along with the recording capabilities of smartphones, increases the potential number of police misconduct incidents caught on film. In order to avoid inevitable police misconduct litigation and potential punitive actions by their agencies and departments, police officers discourage citizens from filming them, often implementing creative uses of state and federal laws against civilians who record their activities. Such creative use of these laws raises constitutional concerns regarding civilian recordings of police officers performing their public duties, who for various reasons, do not want their on-duty activity recorded and therefore rarely [...]

Trusts—Trustee’s Decanting Power Derived from Irrevocable Trust Language—Morse v. Kraft, 992 N.E.2d 1021 (Mass. 2013)

PdfPDF by Ian Bagley · December-19-2014 · Categories: Case Comments, Current, Current Case Comments, Number 4, Print Edition, Volume 47

A trustee’s discretion is generally constrained by statute, by the terms of the trust, and by the trustee’s fiduciary duty to act in the beneficiaries’ interests. When a trustee, acting within the scope of that discretion, distributes trust property into a new trust, that distribution is called “decanting.” In Morse v. Kraft, the Massachusetts Supreme Judicial Court (SJC) considered whether the broad discretion afforded to a trustee under the terms of an irrevocable trust included the power to decant. Holding that it did, the SJC nevertheless declined to adopt the Boston Bar Association’s (BBA’s) preferred position that such power is inherent in all trustees of irrevocable trusts  

Constitutional Law—Eleventh Circuit Holds True Threats Doctrine Analyzed Under Objective Standard—United States v. Martinez, 736 F.3d 981 (11th Cir. 2013)

PdfPDF by David Holland · December-19-2014 · Categories: Case Comments, Current, Current Case Comments, Number 4, Print Edition, Volume 47

Although the First Amendment generally bars government restrictions on speech based on message or viewpoint, the government may restrict certain categories of speech where the speech’s content imposes harm that “‘overwhelmingly outweigh[s]’ any First Amendment concerns.” A true threat constitutes one such category of unprotected speech. In United States v. Martinez, the Court of Appeals for the Eleventh Circuit considered whether a true threat must be analyzed under an objective or subjective standard. The court held that true threats are analyzed under an objective standard, and following therefrom, the indictment of the defendant was constitutional where she made a threat that “‘an objectively reasonable jury could find beyond a reasonable doubt to be a serious expression of an intent to [...]

Evidence—Admitting Prior Conviction for Drug Possession in Later Prosecution for Drug Distribution is Reversible Error—United State v. Lee, 724 F.3d 968 (7th Cir. 2013)

PdfPDF by John Scannell · December-19-2014 · Categories: Case Comments, Current, Current Case Comments, Number 4, Print Edition, Volume 47

In a criminal trial, Federal Rule of Evidence 404(b) (FRE 404(b)) prohibits the prosecution from using a defendant’s other crimes, wrongs, or bad acts to prove the defendant’s propensity to commit the charged offense. Courts, in their discretion, may admit other bad acts to prove something other than propensity, such as knowledge, intent, or absence of mistake. In United States v. Lee, the United States Court of Appeals for the Seventh Circuit considered whether it was an abuse of discretion and reversible error to admit a prior drug possession conviction against a defendant in a trial for drug distribution. The Seventh Circuit held that the federal district court abused its discretion by admitting a prior possession conviction because it was [...]