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A Yawning Black Abyss:* Section 35 and the Equal Protection of Women in the Commonwealth of Massachusetts

PDF by Gregory D. Chisholm · December-26-2013 · Categories: Current, Lead Articles, Lead Articles, Number 4, Print Edition, Volume 46

In Massachusetts, an individual with a drug or alcohol problem may be confined against his or her will in a publicly funded detoxification facility. Such a confinement is known as a civil commitment, and may occur (pursuant to chapter 123, section 35 of the Massachusetts General Laws (Section 35)) upon the petition of certain relatives of the individual or other official personnel, and after both an examination by a psychologist and a hearing before a district court judge. A civil commitment may last up to ninety days. When no beds are available at a publicly funded detoxification facility, an individual may nonetheless be detained in one of two facilities: Bridgewater State Hospital (BSH), if male; or the Massachusetts Correctional Institution [...]

Analyzing the Tension Between Military Force Reductions and the Constitution: Protecting an Officer’s Property Interest in Continued Employment

PDF by Joshua Flynn-Brown · December-26-2013 · Categories: Current, Lead Articles, Lead Articles, Number 4, Print Edition, Volume 46

In 2011, the unemployment rate for military veterans discharged between the years 2001 and 2011 stood at 12.1%. The jobless rate for all veterans stood at 8.3%. Meanwhile, the overall unemployment rate hovered at 8.8%. Between the U.S. government’s current budgetary tailspin and the ongoing drawdown with respect to the wars in Iraq and Afghanistan, it is inevitable that service members will feel the impact of economic challenges. Nevertheless, this impact becomes even more dramatic when analyzing the Department of Defense’s (DOD) force-shaping measures in 2011 because these force reductions are responsible for discharging tens of thousands of service members. Such deep military cuts present a unique opportunity to legally dissect the military’s employment culture. Can the military fire [...]

Securities Law—Second Circuit Accepts Rule 10b-5 Pleading of Economic Loss After Share-Price Recovery—Acticon AG v. China North East Petroleum Holdings Ltd., 692 F.3d 34 (2d Cir. 2012)

PDF by James M. Alexander · December-26-2013 · Categories: Case Comments, Current, Current Case Comments, Number 4, Print Edition, Volume 46

Securities and Exchange Commission (SEC) Rule 10b-5 provides the principal remedy for private investors ensnared in fraudulent securities transactions. A successful pleading of a fraud-on-the-market claim under Rule 10b-5 requires a showing of actual economic loss caused by a fraudulently inflated price of a security purchased by the plaintiff. In Acticon AG v. China North East Petroleum Holdings Ltd., the Court of Appeals for the Second Circuit considered whether a defrauded investor’s unrealized opportunity to sell securities at a profit precludes the ability to prove economic loss under Rule 10b-5’s fraud-on-the-market theory. The Second Circuit held that a recovery in share price after the fraud was disclosed to the purchasers does not automatically defeat an inference of economic loss at [...]

Cyber Law—Dismissing Employer’s Claim Under the CFAA Against Former Employees Who Allegedly Misappropriated Trade Secrets—WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012), cert. dismissed, 133 S. Ct. 831 (2013)

PDF by Abbey P. Coffin · December-26-2013 · Categories: Case Comments, Current, Current Case Comments, Number 4, Print Edition, Volume 46

Among other things, the Computer Fraud and Abuse Act (CFAA) provides for civil and criminal penalties when a person, “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer.” Employers have increasingly sought relief under the CFAA against errant employees who download confidential and proprietary information from the employer’s network files for their own benefit or for the benefit of a competitor. In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit Court of Appeals determined whether WEC Carolina Energy Solutions LLC (WEC) could maintain a CFAA claim against former employees and a competitor who allegedly misappropriated WEC’s proprietary information. The Fourth Circuit affirmed the district court’s dismissal of the CFAA [...]

Copyright Law—Southern District of Texas Still Has Dial-Up and Holds Uploaded Webpages Not Published or Accessible—Rogers v. Better Business Bureau of Metropolitan Houston, Inc., 887 F. Supp. 2d 722 (S.D. Tex. 2012)

PDF by R. Brice Turner · December-26-2013 · Categories: Case Comments, Current, Current Case Comments, Print Edition, Volume 46

In order to bring a copyright infringement suit before a court, the work must first have been registered with the United States Copyright Office (Copyright Office). In addition to permitting copyright infringement actions, a copyright’s registration “constitute[s] prima facie evidence of the validity of the copyright.” The certificate of registration is usually held valid unless a defendant can prove that the claimant presented inaccurate information to the Copyright Office with the intent to commit fraud. In Rogers v. Better Business Bureau of Metropolitan Houston, Inc., the United States District Court for the Southern District of Texas analyzed whether uploading webpages to the internet constituted “publication” under copyright law, an act that would invalidate a certificate of copyright registration covering an [...]

Lighten Up: Should Massachusetts Implement a Smoking Surcharge for State Employees?

PDF by Brian Wall · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

On November 18, 2010, Anna Jaques Hospital in Newburyport, Massachusetts revealed its new hiring policy. Under the policy, the hospital will not hire any prospective employees who test positive for nicotine. Anna Jaques Hospital’s policy is part of a national trend among private employers that have instituted tobacco-free employment policies and tobacco surcharges on health insurance. Many employers have gone even further, instituting policies that target not only potential employees, but also current employees, who must attempt to quit using tobacco or face termination. . . .

Eye in the Sky: U.S. Citizen Casualties in the Shadow War

PDF by Joshua Sylla · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

In the wake of the September 11, 2001 terrorist attacks, the protection of U.S. national security became the impetus for far-reaching legal action. In response to recent U.S. national security measures, legal scholarship has continuously examined the use of military force, and the legal justifications and constraints surrounding such action. One particular area of this debate focuses on the controversial use of unmanned aerial vehicles (UAVs), or drones, and the legality of carrying out UAV-targeted strikes against alleged members of Al Qaeda throughout the Middle East and Asia-Pacific regions. . . .

The Sword and Shield of Social Networking: Harming Employers’ Goodwill Through Concerted Facebook Activity

PDF by Stephanie Merabet · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

In early labor and employment law history, employers enjoyed unfettered power under the at-will employment doctrine, which allowed employees to be terminated for any reason, so long as they were not hired for a fixed term. Seeking to remedy the harsh conditions imposed on working men, Congress altered the employment dynamics by equalizing the previously employer dominated at-will employment relationship. Congress enacted the National Labor Relations Act (NLRA) to safeguard employee rights and prevent abuse by employers who enjoyed greater bargaining power. Considered the heart of the NLRA, section 7 codifies the protections guaranteed to private sector employees—including the right to engage in protected concerted activity. Congress simultaneously created the National Labor Relations Board (NLRB) to ensure proper administration and [...]

Yours, Mine, or Ours: A Proposal for Sensible Reform of the Massachusetts Tenancy-by-the-Entirety Statute

PDF by Sarah J. Fischer · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

Modern concepts of property ownership are deeply rooted in centuries of Anglo-American jurisprudence. The earliest form of concurrent property ownership—joint tenancy—dates back to the early thirteenth century; from the first references, joint tenancy included the hallmarks of the modern estate: undivided interest in the entire estate and the right of survivorship. By the fourteenth century, English law recognized that husbands and wives could hold property in a special manner—distinct from a joint tenancy—while still including the right of survivorship and an undivided interest in the whole. . . .

‘Tis Enough, ‘Twill Serve: Defining Physical Injury Under the Prison Litigation Reform Act

PDF by Hilary Detmold · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

Congress passed the Prison Litigation Reform Act (PLRA) in 1995. Since that time, no provision of the PLRA has created more confusion than the limitation-on-recovery provision, or § 1997e(e), commonly referred to as the “physical-injury requirement.” The provision reads: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Because the statute itself does not define physical injury, the provision leaves the task of defining the phrase to the courts. . . .