Sex offenders are some of the most hated and feared members of our society. This revulsion towards sex offenders is because they are considered more likely than other criminals to offend again. Accordingly, the public seeks to strengthen legislation that imposes harsher penalties upon them. While such proposed legislation is often used by politicians to garner popular support, the real impetus for change in sex offender legislation usually comes about after the commission of a few serious, high-profile sex crimes.
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We, the Class: What the Founding Generation Can Tell Us About Adequate Representation in Class Action Litigation, by E. Samuel Geisler & R. Jason Richards
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Internet Minimum Advertising Price Policies: Why Manufacturers Should Be Wary When Implementing, by Alexander I. Passo
From Orphan Trains to Underground Networks: The Need To Get on Board with Adoption Reform
By Heather A. Bartel
The legal and social spheres of adoption in the United States are still evolving today through recent legislation, social welfare policies, and programs focused on the institutional care of dependent children, but the tracking of adoptions still proves to be difficult. While the recent boom of social media and networking has given adoption a new voice, it has also enabled an underground, online marketplace for children to flourish, free from government regulation. A Facebook spokeswoman claimed the activities occurring on its forum show “that the Internet is a reflection of society,” and individuals use Facebook “for all kinds of communications and to tackle all sorts of problems.” The Internet has become a preferred method of transacting business on a large scale, but sensitive adoption matters require regulation that the digital marketplace does not currently support.
This Note will analyze whether current United States law is capable of resolving the emergence of an online, underground child network and its complex, inevitable issues.
Time To Blow Up the Showup: Who Are Witnesses Really Identifying?
By Susan M. Campers
Despite recognizing the pitfalls of relying on suggestive pretrial eyewitness identifications, the United States Supreme Court in United States v. Wade upheld the admissibility of such identifications at trial, and issued a broad ruling that requires only some independent basis for the subsequent identification. Although all pretrial identifications raise an issue as to suggestibility and reliability, show-up procedures have indisputably been acknowledged as the most vulnerable to false-suspect identification. A showup is an identification procedure where an officer presents the witness with a single suspect and asks him or her whether that suspect is the perpetrator of the crime at issue. Praised as a quick and easy method of confirming or negating police investigation leads, such advantages come at a heavy cost. Preferably, showups are administered just moments after the commission of a crime, when the image of the perpetrator is presumably fresh in the witness’s mind. Despite this ideal, showups are permitted at any point during an investigation when, under the totality of the circumstances, the identification is deemed sufficiently reliable.
Unfortunately, even when showups are deemed unreliable and thus inadmissible, witnesses are often permitted to make an in-court identification of the suspect. Despite any good intentions of a witness, common sense reality remains: witnesses may not be identifying the perpetrator, but rather the innocent defendant forced to participate in an unduly suggestive show-up procedure. Witnesses rarely comprehend the impact of a suggestive showup on their ability to make an accurate in-court identification. For this reason, in-court identifications are inescapably tainted by pretrial showup procedures.
Tired of Tribunals: A Proposal To Combine Section 60L’s “Notice of Claim” Requirement with Certificates of Merit in Massachusetts Medical Malpractice Litigation
By Andrea L. Davulis
Medical malpractice litigation is complex, lengthy, and thus costly. The cost of this type of litigation contributes, in various ways, to the soaring cost of health care in the United States, although the degree to which this occurs is hotly debated. Tort reform efforts aimed at reducing medical malpractice lawsuits began in the 1970s; the reform of choice for some states, including Massachusetts, was the adoption of screening panels. Although these panels differ in composition from state to state, all involve a panel of individuals that review a plaintiff’s evidence at an early stage in the litigation process and “screen out” the frivolous lawsuits, namely those that do not produce adequate expert witness support. The underlying policy is that not having to defend against frivolous lawsuits will translate into suppressing the cost of medical malpractice litigation, which would in turn lower the cost of the medical malpractice insurance premiums charged to healthcare providers and so on up the chain. Despite this well-intentioned goal, the bottom line is that these screening panels do not work.
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This Note explains the reasons for the adoption of Massachusetts’s medical malpractice tribunal system, the goals it sought to achieve, how it has been implemented, and how its goals have not been met. It further explains Section 60L’s pre-suit notification procedures instituted in 2012 and then explores the use of certificates of merit, which is an alternative used in liquor liability litigation that offers a framework for reworking the tribunal system. This Note concludes with a specific proposal to replace the tribunal system with a process combining the positive aspects of the pre-suit notification procedure with the use of certificates of merit.
Airline Consolidation: A Study of the American-US Airways Merger, Other Major Mergers from the Past Two Decades, and Their Effect on Consumers
By Simon Kurash
The merger between AMR, Corporation (American) and US Airways (USAir) attracted wide media attention as well as a multitude of Congressional hearings. The board of directors for each airline approved the merger, so the last hurdle appeared to be a challenge from the Department of Justice (DOJ). The DOJ contended that the two airlines merging would severely harm consumers. In response, the two airlines put forward three main defenses: the merger is complementary, the merger has significant customer benefits, and the merger enhances competition in the airline industry. Subsequently, the DOJ announced a proposed settlement that would divest slots and gates at highly concentrated airports around the country to low cost carrier airlines (LCCs). However, the DOJ did not address the airports where American and USAir would hold over sixty percent of the market share and instead primarily focused on the East Coast corridor between Washington, DC and Boston.11 This Note will argue that the DOJ settlement with American-USAir did not go far enough to protect consumers in Boston, Charlotte, and Washington, DC.
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Part II.A of this Note will discuss the traditional definition of competition. Part II.B will then discuss airline deregulation and merger guidelines. Part II.C will sample past mergers by examining their effects on consumers and the industry as a whole. Part II.D will discuss LCCs and their interaction with megacarriers. Next, Part III will analyze these concepts by focusing on the recent merger between American and USAir. Finally, Part IV will conclude that the merger between American and USAir will ultimately hurt consumers.
Stop Letting Them Get Away with Murder: The Need To Limit the Use of Head of State Immunity as a Defense for War Crimes and Crimes Against Humanity
By Aoife F. Martin
Historically, heads of state, both sitting and former, enjoyed absolute immunity because there was no distinction made between immunity afforded to a head of state and the immunity afforded to a sovereign. Over time, however, international law slowly evolved to allow the prosecution of former heads of state for certain acts, particularly war crimes and crimes against humanity. International courts holding current and former heads of state accountable, as well as the weakening of head of state immunity generally, have received both criticism and praise.
This Note will explore the emerging issue of sitting head of state immunity. Part II.A discusses sovereign and diplomatic immunity, from which head of state immunity has evolved. Part II.B discusses various theories of head of state immunity in international law. Part II.C details one of the most famous instances where a head of state faced prosecution. Part II.D describes the ratification of the Rome Statute, a treaty establishing a permanent international court and international criminal laws, and how it changed the scope of head of state immunity. Part II.E reviews the four instances where an international court has pursued charges against sitting heads of state. Part III.A then explores the arguments for and against continuing to narrow the legal concept of head of state immunity. Part III.B further argues that despite some of the potential political ramifications, allowing international courts to indict sitting heads of state is ultimately a positive trend.
Renewable Energy Policy in Massachusetts: How the Commonwealth Should Build Upon the Success of the Green Communities Act of 2008
By Kurt S. Stiegel
Thanks in part to the [Green Communities Act of 2008 (GCA)], the renewable energy industry in Massachusetts is thriving at an all-time high; the Commonwealth, however, must build upon this success by simplifying certain processes and creating further incentives for continued development. Massachusetts already ranks among the nation’s leaders in installed solar capacity, due to ambitious policy goals supported by aggressive subsidy and incentive programs that should be continued and strengthened. Although Massachusetts streamlined the permitting process for the largest capacity wind energy projects, this consolidated process should also be available to smaller capacity projects.
Part II.A of this Note will discuss the ways states and local governments regulate and promote renewable energy through permitting, siting, incentives and subsidies for developing renewable energy. Part II.B will then analyze the policies implemented in Massachusetts through the GCA, subsequent legislation, and regulations. Part II.C will focus on the permitting and siting of wind in Massachusetts and pending legislation to streamline those procedures. Part II.D will then consider the various incentives and subsidies available for solar energy development in Massachusetts. Part II.E will discuss various constitutional challenges to state and local renewable energy policies. Part III will analyze and propose further steps Massachusetts can take to build upon the successes of the GCA to continue promoting renewable energy development. Part IV will then conclude that the Commonwealth’s renewable energy policy is still evolving and, by building upon the successes of the GCA, Massachusetts will continue to lead the nation in this renewable energy development.
Symposium—Student Loans
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Foreword, by Rohit Chopra
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Remarks as Prepared for Delivery by Senator Elizabeth Warren, March 12, 2014
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Student Loan Debt in Bankruptcy: An Empirical Assessment, by Daniel A. Austin
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Student Debt: What We Still Need To Know, by Dr. Sandy Baum
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Missing Data: Focusing on the Wrong Factors Could Contribute to Student Loan Distress, by Paul Combe & Julie Ryder Lammers
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How Risk-Based Loans Would Help Students Achieve Better Outcomes, by Stephen Crawford & Robert Sheets
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Beyond Title IV: The Emergence of Private Student Loan Lending and a Profit-Driven System, by Justin A. DeAngelis
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State Variation of Student Loan Debt and Performance, by Wenhua Di & Kelly D. Edmiston
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The Cost of Opportunity: Student Debt and Social Mobility, by Daniela Kraiem
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Thought and Advocacy About Student Debt: Representation of Low-Income Borrowers in Law School Clinical Programs, by Ann Shalleck
Sperm stealing—also known as the unauthorized use of sperm—comes in several forms, which fall in three categories: sperm stashing, nonconsensual sexual intercourse, and the improper use of artificial reproductive technology (ART). Sperm stashing usually occurs through a woman saving sperm from oral sexual relations or a used condom and using such sperm to inseminate herself. Sperm stealing through nonconsensual sexual intercourse includes rape and statutory rape that results in pregnancy. Improper use of ART includes a woman obtaining and becoming inseminated with a man’s sperm donation or implanted with fertilized pre-embryos created with his sperm without his consent. A handful of cases dealing with sperm stealing have made it on to court dockets. Most have been dismissed, others given the chance to make it to trial, and a clear minority have resulted in favorable verdicts for the man whose sperm was stolen. Cases that have achieved verdicts, however, are restricted to improper use of ART, creating a class system among the categories of sperm stealing. Typically, courts favor the policy of child welfare, ensuring the child has the support of two parents and making male rights to reproductive choice insignificant. In Massachusetts—a state that allowed recovery for a man whose fertilized pre-embryo was used by his estranged wife—a new set of child support guidelines took effect on August 1, 2013, greatly enforcing and emphasizing the policy to favor the welfare of the child at all costs. It prompts the inquiry of whether these policies may affect this preexisting case law.
Case Comment
K.M. ex rel. Bright v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493, cert. denied sub nom. Poway Unified Sch. Dist. v. D.H. ex rel. K.H., 134 S. Ct. 1494 (2014)
The rights of deaf and hard-of-hearing students in public schools derive primarily from two federal laws: the Individuals with Disabilities Education Act (IDEA) and Title II of the Americans with Disabilities Act (Title II of the ADA). The IDEA requires public school districts to provide disabled children, including those who are deaf or hard of hearing, with a free appropriate public education (FAPE). Under IDEA, a FAPE necessitates the development and implementation of an individualized education plan (IEP) for each disabled child addressing his or her unique needs. Meanwhile, Title II of the ADA and its effective communications regulations prohibit public schools from discriminating against deaf and hard-of-hearing children and require schools to ensure that these students have access to effective communications. In K.M. ex rel. Bright v. Tustin Unified School District, the Ninth Circuit considered the interplay of these two laws and held that a public school’s provision of a FAPE to a hearing-disabled student (as required under IDEA) does not automatically mean that the school has complied with Title II of the ADA.
Consumers across the country cannot help but notice that the natural food industry has caught onto their preferences for “all natural” food. Natural food has developed into a thirty-seven billion dollar per year industry in response to consumers’ attraction to “all natural” products. A robust segment of the “all natural” trend are the anti-genetically modified organisms supporters. Genetically modified organisms (GMOs) are plants or animals that are created by genetic engineering (GE)—combining deoxyribonucleic acid (DNA) from different species to create combinations that cannot occur in nature. Anti-GMO advocates believe consumers have a right to know what is in the food products they are purchasing, including whether those products contain GMOs.
The Fourth Amendment of the United States Constitution guarantees personal privacy by limiting the government’s ability to conduct searches and seizures in the absence of probable cause. When the government believes that an individual has been involved in criminal activity, a search warrant must be obtained from a judge before a search is conducted. In order to obtain a search warrant, the government must produce evidence that the search will likely reveal the existence of the alleged criminal activity, details concerning the place to be searched, and the things to be seized. In the context of electronic communications, such as email, upholding Fourth Amendment protection has become increasingly complex as the law has been slow to adapt to changes in technology.
In the controversy over judicial citation of foreign law, little noticed are the effects of citations that contrast American law with the laws of foreign jurisdictions. The controversy typically revolves around the extent to which judges may legitimately look to foreign law as persuasive authority in American courts. It arises out of the Supreme Court’s longtime penchant for referring to foreign law, which has attracted particular attention in recent years after it surfaced in a number of high-profile cases. This practice has prompted both judicial criticisms and defenses. Likewise, many constitutional and comparative law scholars have raised questions about the permissibility and prudence of the practice.
Case Comment
Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981 (9th Cir. 2014)
Employment law cases often present one particularly vexing issue: whether a worker should be classified as an employee or an independent contractor. Under California law, this determination relies primarily on the common-law “right-to-control” test along with several secondary factors. In Alexander v. FedEx Ground Package System, Inc., the Ninth Circuit Court of Appeals considered whether FedEx delivery drivers were misclassified as independent contractors under California’s multi-factor right-to-control test. A three-judge panel of the Ninth Circuit concluded that FedEx drivers should have been classified as employees.
Presently, Massachusetts courts lag behind courts of federal jurisdiction with regard to the use of prior consistent statements at trial. While the Advisory Committee notes accompanying Federal Rule of Evidence 801 explicitly state that “no sound reason is apparent why” prior consistent statements made under oath “should not be received generally [at trial],” in Massachusetts, prior statements are not admissible for the truth of what they assert when they are consistent with testimony at trial. Instead, pursuant to a variety of Massachusetts Supreme Judicial Court (SJC) and Appeals Court decisions, such prior statements are admissible only to suggest to the fact-finder that the witness is credible. Contrastingly, when these statements are sufficiently inconsistent with testimony at trial, they are admitted for their full probative value.