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The first I had heard of a plaintiffs lawyer short-selling the stock of a company he was about to sue was in The King of Torts, a recent John Grisham novel. The lead character, a plaintiffs attorney, short-sells the stock of a pharmaceutical company that he is about to sue for a negligently produced drug. When the lawsuit is announced, the price of the stock drops and the attorney profits handsomely. Later, the attorney is investigated for insider trading, since the information that he based his suit upon came from a stolen document.
Although The King of Torts may be fiction, life has been imitating fiction without any repercussions, so far, for any of the potential wrongdoing parties. For example, in a recent lawsuit against Eckerd Drug Stores (Eckerd), which is owned by J.C. Penney Co. (Penney), there is some evidence of a link between the law firm that sued Eckerd and a New York hedge fund that often takes short positions. The lawsuit alleged that Eckerd engaged in a widespread practice of overcharging for prescription drugs. The lawsuit negatively impacted Penneys stock by over thirty percent. While the shareholders took a beating, a short-seller who shorted Penneys stock before the suit was filed could have profited greatly. . . .
Since 1973, all federal courts have used the three-stage analysis established in McDonnell Douglas Corp. v. Green to decide a vast majority of intentional employment discrimination cases. During the 1990s, an increasing number of commentators criticized the McDonnell Douglas test, particularly the first stage, the so-called ”prima facie case.” At the dawn of a new decade, in 2000, the Supreme Court reconsidered the McDonnell Douglas test for the first time in years in Reeves v. Sanderson Plumbing Products, Inc. How did the Court treat the prima facie case, given the strong criticisms that had been leveled against it for several years? The Reeves Court made the prima facie case more important than ever. . . .
While $350 dollars to play high school football in Massachusetts and $630 dollars to play high school tennis in Ohio are near the high end of the pay-to-play spectrum, the national average—between $75 and $100 dollars—is nevertheless alarming to those who consider athletics a fundamental part of public high school. Despite sharp criticism, pay-to-play programs provide an alternate source of revenue for public schools in dire budgetary straits and often act as a last resort to save athletic programs from elimination. Charging students participation fees, however, raises equity issues among students and schools in a given district. Students unable to pay the fee risk being excluded from activities that may otherwise enhance their educational experience. Beyond the individual student’s ability or inability to pay a fee, one school may offer more courses and activities than another school in the same district because a sufficient number of its students are able to pay associated fees and therefore preserve the course or program. Thus, pay-to-play programs may ”save” football at one school, while the costs of charging students to play may eliminate football at another school, ”turning a once-sacred part of public education into a numbers-driven business” . . . .
After spending three years together and participating in a commitment ceremony, T.F. and B.L. agreed to have a child. Together, the parties selected an anonymous donor, shared the insemination and prenatal care expenses, and signed the clinic’s requisite insemination consent form. T.F. became pregnant on the second insemination attempt. Despite their relationship’s deterioration in the months following the news of T.F.’s pregnancy, B.L. verbalized her continuous commitment to parent and support the child she agreed to conceive. Soon after the child was born, B.L. sent a letter to T.F. indicating her desire to cut off all future contact with T.F. and the baby.
In August of 2004, the Supreme Judicial Court of Massachusetts held that to the extent T.F. and B.L. entered into an agreement, express or implied, to co-parent the child, the agreement was unenforceable because “‘parenthood by contract’ is not the law in Massachusetts.” The dissent, however, argued that even though Massachusetts does not recognize parenthood by contract, the agreement in this case included an implied promise of support, which is enforceable. Justice Greaney therefore concluded, “[a] person cannot participate, in the way the defendant did, in bringing a child into the world, and then walk away from a support obligation” . . . .
The judicial branch of the federal government has historically had an uneasy relationship with public opinion. Like the executive and legislative branches, the judiciary depends on public support for its legitimacy. But unlike the political branches, the judiciary is not electorally accountable to those whose support it requires. To the contrary, one of its defining attributes is the duty to thwart political expressions of popular will that run afoul of the Constitution. Nevertheless, it has been noted that “the arguments of appellate judges in the Common Law world necessarily rest, according to some legal scholars, on community consensus about extralegal values.” In other words, the often counter-majoritarian judiciary must produce results acceptable to the general public over the long term in order to maintain its legitimacy. Professor Chemerinsky has posited that the judiciary’s legitimacy actually hinges on both the general acceptability of the results it produces and the relative consistency of the methods by which those results are reached.
Traditionally, scholarly and judicial commentary on the influence of public opinion on the federal judiciary has followed two courses. Some commentators and jurists argue that judicial independence requires that public opinion have no influence on judicial decision-making. Another group of scholars advocates an indirectly influential role for public opinion in limited contexts. These scholars believe judges should refer to “objective” measures of public opinion as guidelines when deciding questions of statutory interpretation and delineating the Eighth Amendment’s prohibition on “cruel and unusual punishment” . . . .
A debate over the need for mediation confidentiality and how to best provide it has accompanied the rapid growth of mediation. Most states have found mediation confidentiality sufficiently important to warrant creating a new evidentiary privilege by statute. Despite widespread belief that mediation confidentiality merits the protection of a privilege, most jurisdictions have refused to completely block mediation communication from use as evidence. The inclusion of exceptions to a mediation privilege reflects the longstanding doctrine that the need for evidence, at times, outweighs the rationale behind protected communications. The Massachusetts legislature has created a statutory privilege for communication during mediation, providing confidentiality in any “judicial or administrative proceeding.” The blanket of confidentiality extends to all memoranda and other work product, and to any communication made by a mediator, party participant or third parties involved in the mediation. No exceptions to this broad protection are provided by the statute. . . .
Violence involving parents and fans at youth sporting events continues to grow to alarming rates. In the last few years, the media has reported violent behavior by parents occurring at athletic events involving kids ranging from high school to tee-ball games. This new parental violence sweeping over youth sports has been labeled “sports rage” by the media. Sports rage is defined as “[a]ny physical attack upon another person such as striking, wounding, or otherwise touching in an offensive manner, or any malicious, verbal abuse or sustained harassment which threatens subsequent violence or bodily harm.” One reason violence occurs is because parents place a great deal of importance on their children’s athletic success.6 Parents push their kids to succeed at all costs in order to get highly competitive sports scholarships. Tensions are also likely to rise when parents see their children injured during a sporting event. In addition to parents, youth coaches are placing a lot of importance on winning which encourages violent play and coaching. . . .
Massachusetts General Laws chapter 233, § 20 states that all people of “sufficient understanding” may offer evidence in criminal and civil proceedings in the Commonwealth of Massachusetts. Notwithstanding this broad principle of inclusion, the statute’s fourth clause expressly defines an exception that prevents children living with a parent from testifying against that parent. In In the Matter of a Grand Jury Investigation, the Supreme Judicial Court of Massachusetts considered the exclusion’s intent and questioned the breadth of the phrase “living with a parent.” The court commented that privileges and exclusions were to be narrowly construed, and concluded that the statutory exception should be given its plain, unambiguous meaning. . . .
Efforts by the United States to liberalize trade across the globe have resulted in numerous international free trade agreements (FTAs). The newly approved United States-Dominican Republic Central American Free Trade Agreement (DR-CAFTA) exemplifies the Bush administration’s approach to including workers’ rights protections in FTAs. The agreement will liberalize trade between the United States, the Dominican Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. Similar to other recently assembled FTAs such as the Chile and Singapore agreements, DR-CAFTA contains only one binding labor provision, which requires countries to enforce existing domestic labor laws. The agreement does not require trade partners to uphold existing, binding obligations to respect core labor standards identified by the International Labour Organization (ILO).
The United States Senate and House of Representatives easily approved several earlier FTAs negotiated by the Bush administration. DR-CAFTA, however, faced significant opposition in Congress. Eventually, both the Senate and House narrowly approved the agreement. Much of the pre-vote debate focused on people like Mrs. del Carmen Leiva and issues such as her government’s failure to respect her rights in the workplace. . . .
Patrick Holland’s courageous attempt to terminate his father’s parental rights brought to light the importance of allowing children to play a more significant role in legal matters that greatly affect their lives. The media frenzy surrounding Patrick’s case, however, mischaracterized a common legal procedure used by the Massachusetts’ Department of Social Services (DSS) as well as the courts. The case grabbed the public’s attention because Patrick took the initial steps to terminate the legal relationship with his father, rather than the DSS. Initially, Patrick’s case could not go forward because of procedural roadblocks: neither Patrick nor his prospective adoptive parents had standing to bring the petition in Massachusetts courts. Ultimately, the DSS stepped in and prosecuted the case against Patrick’s father. Otherwise, Patrick’s new family could not have adopted him and he would have had to wait until he turned eighteen to be free of legal ties to his incarcerated father. . . .