- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
Section 704(a) of the Civil Rights Act of 1964 (Title VII) creates a cause of action for retaliation against claims of discrimination in the employment context. To prevail in a Title VII retaliation claim, a plaintiff must prove that he or she engaged in Title VII protected activity, the defendant possessed knowledge of the protected activity, the defendant took an adverse employment action against the plaintiff, and a causal connection existed between the protected activity and the adverse employment action. In Thompson v. North American Stainless, LP, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) considered whether section 704(a) extended to a thirdparty retaliation claim brought by the fiancée of a discrimination claimant. The Sixth Circuit held that section 704(a) of Title VII does not create a cause of action for third-party retaliation claims where the claimant has not personally engaged in protected activity. . .
Although their application is no longer mandatory, the United StatesSentencing Guidelines (USSG) still serve an important role in determining a defendant’s sentence after conviction and whether a trial judge will accept a negotiated plea agreement. Once imposed, a judge can only reduce a defendant’s sentence for “extraordinary and compelling reasons,” including the subsequent lowering of the USSG range upon which the sentence was based, as per 18 U.S.C. § 3582(c)(2). In United States v. Dews, the United States Court of Appeals for the Fourth Circuit considered whether a sentence to a term of months imposed pursuant to a Rule 11 plea agreement is based on a USSG range for purposes of qualifying for reduction under § 3582(c)(2). The Fourth Circuit held that when a Rule 11 plea to a term of imprisonment is negotiated by the parties and accepted by the court because it is within the applicable USSG range, a defendant may receive a sentence reduction in accordance with § 3582(c)(2). . .
Although Delaware statutory law entrusts a corporation’s board of directors with the power to manage the corporation’s business and affairs, fiduciary duties severely circumscribe the authority allocated to the board. Such duties are essential to safeguard the shareholders’ equity stake from opportunistic board behavior, for although shareholders are statutorily empowered to replace self-serving directors, widespread dispersion of ownership may effectively usurp such control of the corporate enterprise. In Gantler v. Stephens, the Supreme Court of Delaware considered whether the business judgment rule protected a board’s decision to reject a merger proposal and abandon a sale of the company. Under the unique facts presented, the court held that because a majority of the board had breached its duty of loyalty to shareholders, the court would not apply the business judgment rule, but rather would determine the objective fairness of the board’s actions. . .
In Massachusetts, the legislature has long considered the act of reselling tickets for profit, or “ticket scalping,” as harmful to the public and thus has kept the practice heavily regulated. Accordingly, it is illegal for a ticket reseller to charge consumers a price in excess of two dollars above face value, unless the additional cost can be wholly attributable to service charges. In Herman v. Admit One Ticket Agency LLC, the Massachusetts Supreme Judicial Court (SJC) considered whether a potential buyer who received a quote for a ticket priced significantly above face value, has standing to sue the ticket reseller for violating the Anti-Scalping Statute, although no purchase took place. The SJC concluded that a prospective buyer lacks standing, as he would be unable to show that he was ready, willing, and able to buy a ticket at a lawful price unless he had actually purchased a ticket. . .
Article III of the United States Constitution (Article III) explicitly limits the jurisdiction of the federal courts to deciding only “cases” and “controversies.” Although the United States Supreme Court has interpreted Article III as implicitly requiring prospective parties to establish a basis for standing, it has provided no clear guidance as to what standing is constitutionally required of nonparties seeking to intervene in an existing litigation. In Canadian Wheat Board v. United States, the Court of International Trade considered whether a party seeking to intervene in an existing lawsuit must independently satisfy the standing requirements of Article III. The Court of International Trade held that where a valid case or controversy exists between the remaining parties, an intervenor need not provide an independent basis for standing under Article III. . .
The Federal Arbitration Act (FAA) ensures judicial enforcement and validity of private arbitration agreements. Section 7 of the FAA is the only section that deals with discovery, and grants arbitration panels the authority to summon persons before the panel as witnesses and bring with them materials to be used as evidence in the case. In Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, the United States Court of Appeals for the Second Circuit (Second Circuit) considered whether section 7 of the FAA authorizes arbitrators to compel prehearing document discovery from entities not parties to the arbitration proceedings. The Second Circuit, relying on the plain language of section 7, reversed the order enforcing a prehearing subpoena for documents from entities not parties to the arbitration proceedings. . .
Desperate to stop the youth-on-youth violence permeating the city, the Boston Police Department (BPD) unveiled the Safe Homes Initiative (Safe Homes) in November 2007—a program designed to reduce the number of weapons available to at-risk youth by confiscating firearms from juveniles without prosecuting them for illegal possession. Under Safe Homes, the police targeted four neighborhoods in which they planned to seek consent from parents to search homes for illegal weapons. Safe Homes is a community policing based initiative that requires both participation and cooperation from members of the local communities. However, the program was met with strong opposition from the communities it targets. The American Civil Liberties Union (ACLU) has been especially vocal about its concerns, citing constitutional issues as well as its apprehension about the negative consequences that are likely to result from this program.
This Note analyzes whether Safe Homes, as it was originally proposed by the BPD, is compatible with the Fourth Amendment’s guarantee to be free from unreasonable searches and seizures. Part II.A details Safe Homes, the program it was modeled after, and similar programs initiated in other cities. Part II.B provides an overview of the Fourth Amendment principles applicable to Safe Homes. Part III analyzes Safe Homes to determine whether it comports with constitutional standards and whether the constitutional standards adequately protect residents targeted by Safe Homes. Next, this Note explores both the negative and positive consequences likely to result from Safe Home and argues that the initiative will not work without the support of the Boston community. Further, even with community support, there are changes that could be made to ensure Safe Homes is conducted properly. . .
Unsolicited commercial e-mail (UCE), more commonly known as spam, takes a heavy toll on business each year and has proven to be a serious international problem. In 2008, spam comprised an estimated eighty percent of all e-mails sent worldwide. And according to at least one source, the United States generates more spam than any other country around the world.
Spam often results in decreased employee productivity because of the necessity of sorting through the huge volumes of spam received every day for legitimate business e-mail. Additionally, though spam filters are now common, there is always the risk that a filter will block legitimate e-mail and, for a business, missing time sensitive e-mails can be extremely detrimental to customer relations. According to a study by Nucleus Research, Inc., spam costs U.S. businesses an estimated $71 billion in lost productivity, or approximately $712 per employee, per year. Though these figures are difficult to verify, and different sources often suggest widely different figures, it is clear that businesses pay a high price for the convenience of e-mail communication. Spamming has become so prevalent that there is now a plethora of sites devoted to calculating the cost of spam to individual businesses, as well as those offering protection from it. . .
The Gramm-Leach-Bliley Act (GLBA) of 1999, also termed the Financial Modernization Act of 1999, was signed into law on November 12, 1999. At the time of its enactment it was hailed by supporters as an important step forward in the removal of the legal barriers between commercial banking and investment banking in the United States—a step that would strengthen both sectors.
A decade later, in the wake of the worst financial crisis since the early 1930s—followed by the worst economic recession since the early 1980s, possibly since even the 1930s—the GLBA has instead been flailed by critics as a major cause of the financial crisis of 2007-2009. These critics often call for a revival of the Glass-Steagall barriers that the GLBA eliminated.
A quite recent manifestation of this anti-GLBA sentiment is the so-called Volcker Rule, which would forbid deposit-taking financial institutions from engaging in proprietary trading for their own accounts or from operating hedge funds or private equity operations. . .
With the interpretation of fair employment laws often mired in confusion, it comes as no surprise that the United States Supreme Court’s decision in Gross v. FBL Fin. Servs., Inc. raises more questions than it answers. In declining to apply the mixed-motive standard, commonly used in Title VII discrimination actions to claims under the Age Discrimination in Employment Act (ADEA), the Court held that an employee must prove that an adverse action would not have occurred “but-for” the employee’s age. The Court maintained that the statutory text, which prohibited discrimination “because of” an employee’s age, could not be literally interpreted any other way. This holding marks a significant departure from the Court’s prior pronouncement in the seminal Price Waterhouse v. Hopkins case decided twenty years earlier and is likely a harbinger for impending disparity among the circuits. . .