- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
The Sixth Amendment to the United States Constitution provides a criminal defendant with the right to a trial by an impartial jury. If a jury convicts a criminal defendant, the United States Sentencing Guidelines (Sentencing Guidelines) provide guidance to federal judges for determining sentence length. In United States v. White, the United States Court of Appeals for the Sixth Circuit considered whether a district court violates the Sixth Amendment when it uses conduct of which the jury acquitted the defendant to enhance the defendant’s sentence. The court, in a 9-6 opinion, held that the district court did not violate the defendant’s right to a jury trial by basing sentencing enhancements on acquitted conduct. . .
Under the Immigration and Nationality Act (INA), an alien is subject to deportation if convicted of any aggravated felony. A state misdemeanor drug offense is an aggravated felony if that offense would constitute a felony had it been charged under the Federal Controlled Substance Act (CSA). The recidivist provision of the CSA extends the maximum allowable imprisonment for an alien who commits a second drug possession offense to two years, thus rendering the alien a felon under the CSA. In Alsol v. Mukasey, the United States Court of Appeals for the Second Circuit considered whether a second state drug possession conviction constitutes a felony under the CSA because it could have been prosecuted as a recidivist offense. The Second Circuit held that a second possession offense is not automatically a recidivist offense and therefore not an aggravated felony subject to immigration consequences. . .
The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. The United States Supreme Court created the exclusionary rule, which requires suppression of evidence obtained in violation of the Fourth Amendment when the potential to deter future police misconduct outweighs societal costs of excluding the evidence. In Herring v. United States, the Court considered whether to employ the exclusionary rule to suppress contraband found during a search incident to arrest by an officer who reasonably relied on an assurance of an outstanding warrant because of the negligent bookkeeping error by another law enforcement agency. In a five-to four decision, a majority of the Court held that the exclusionary rule would not have a sufficient deterrent effect on isolated incidences of negligent bookkeeping, and therefore affirmed the district court’s decision to decline application of the exclusionary rule. . .
In the wake of Leegin, companies engaged in cross-border transactions face a great deal of uncertainty regarding how to take advantage of the increased freedom afforded by this new United States policy. A company either undertakes to manage different pricing policies in each jurisdiction, risks the threat of prosecution in certain jurisdictions, or follows the strictest policy in all jurisdictions–none of which are ideal options.
This Note will examine the potential complications of the fact that Leegin now sets the United States at odds with many of its major trading partners in the area of RPM, and the ramifications of that divide. Part II.A reviews the development of United States antitrust law in the area of RPM. Part II.B discusses the details of the Leegin decision, and Part II.C addresses both federal and state reaction to the outcome of the case.
Part II.D then explores international competition law and the implications of Leegin in a global sense, focusing on the interplay between United States antitrust laws and the laws of both Canada and the EU. Parts II.D.1-2 focus on the substantive antitrust law on RPM in Canada and the EU. Part II.D. discusses the mechanics of the exposure of a United States company when engaging in practices that violate foreign antitrust laws. Part II.E then surveys the general trend toward harmonization of international antitrust policy and the efforts of jurisdictions such as Canada and the EU to conform with United States practices.
Part III analyzes the challenges posed by the divergence of United States and international law, and the possibilities for resolution. Part III.A focuses specifically on the options available to companies engaged in cross-border trade and interested in taking advantage of the new federal law in the United States. Part III.B examines the likelihood for resolution and convergence of substantive law on minimum RPM. Part III.B.1 discusses the potential that the states or Congress will overturn Leegin in the United States. Part III.B.2 evaluates the possibility that either Canada or the EU will modify their laws to align with the United States. Part III.B.3 explains that, because of the focus on international convergence of competition policy, the United States domestic response to Leegin will likely play a role in determining the actions of Canada and the EU.
This Note concludes by asserting that the recent emphasis on convergence will likely motivate Canada and the EU to reconsider their RPM policies in light of the Leegin decision, though the uncertainty in the domestic application of Leegin will likely require a waiting period for both the United States and foreign jurisdictions to observe the effects of this precedent. . .
On March 12, 2008, the Boston Zoning Commission amended the Boston Zoning Code to restrict more than four undergraduate students from living together in a leased dwelling. The amendment redefined the term “family” in the zoning code by explicitly stating that five or more full-time undergraduate students do not constitute a family. This redefinition made it illegal for five or more undergraduate students to live together, as the City of Boston zones residential districts strictly for “family” habitation. Proponents support the new definition because it strikes directly at the overcrowded, student-occupied dwellings that proponents believe are the main cause of neighborhood disruption. Opponents believe the amendment arbitrarily targets undergraduate students and will result in higher rents. In addition to public policy concerns, critics have raised serious issues regarding the amendment’s legality.
This Note explores the amendment through analysis of the aforementioned constitutional issues. Part II.A summarizes the legal challenge that prompted Boston to amend its zoning code. Part II.B examines case law relating to potential constitutional challenges to the amendment involving heightened scrutiny. Part II.C presents case law relevant to the amendment’s likelihood of passing the lowest level of judicial scrutiny. With the important case law as a foundation, Part III analyzes the amendment’s potential to receive heightened scrutiny and likelihood of passing the lowest level of constitutional review. . .
This Note will discuss the uncontrollable growth of the mortgage giants, Fannie Mae and Freddie Mac, and the need to change the policies that created perverse incentives for financial institutions and investors to act in ways adverse to economic stability. The first part of this Note will discuss the history of the federal government’s role in financing mortgages and promoting home ownership. Secondly, the Note will examine the secondary mortgage market and the innovative financial securities that have emerged in the past few years and the concerns that come with these new products. Finally, part three of the Note will present arguments for privatizing Fannie Mae and Freddie Mac. . .
DEAN ALFRED C. AMAN: Good afternoon and welcome to part two of our Donahue Lecture Series. We are honored to have a very distinguished panel who will be commenting on Justice Kirby’s talk that you have just heard. I want to introduce all the members of the panel all at once and then they will speak in an order that goes across the table. When they finish I am hoping that Justice Kirby will have some comments, responses, or resonances. At that point, we want to open it up to questions and discussion from the audience. We have with us four commentators today, beginning with Professor Eric Blumenson, who needs no introduction at Suffolk Law School. He came here from criminal law practice in Seattle and later in Boston and has been teaching Criminal Law at this law school as well as Moral and Legal Philosophy, Human Rights, and Jurisprudence. He has been a Fulbright scholar in Lahore, Pakistan, and a visiting professor at the University of Witswatersrand in South Africa. He was a reporter to the Supreme Judicial Court’s Criminal Rules Advisory Committee. He was responsible for drafting the first major revision to the Massachusetts Criminal Rules. His scholarly work includes a two-volume criminal law treatise, numerous articles on criminal law, human rights, and philosophy. . .
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this discussion) please click here.
DONAHUE LECTURE AND PANEL DISCUSSION
A particular feature of the past fifty years has been the introduction of the post-war independence constitutions of many nations. The introduction of such constitutions in India, Pakistan, Ireland, Ceylon, and then many parts of Africa, Asia and the Caribbean, has resulted in the adoption of human rights provisions that sometimes reflect an international template. Quite often, such provisions, in repeated language, can be traced to earlier progenitors, including the English Bill of Rights of 1688, the Bill of Rights of the American Constitution after 1791, and the Universal Declaration of Human Rights of 1948.
To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of rights, it has often seemed appropriate and useful, over recent years, to reach for the exposition of analogous problems written by judges and decision-makers in the courts of other countries, in international or regional courts and other bodies, grappling with similar problems. Doing so has not generally been viewed as evidencing any illegitimate loyalty, or deference, to nonbinding texts. Still less has it been seen as exhibiting obedience to the legal norms of other countries or the international community, or to the opinions of judges and others outside the legitimacy of the municipal court hierarchy. Instead, reference to such elaborations has occurred because such expositions have been found helpful and informative and therefore useful in the development of the municipal decision-maker’s own opinions concerning apparently similar problems presented by the municipal constitution or other laws.
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this article) please click here.
Poets and writers often work unseen, shuttered away in rooms and silences so wide and clear that to speak in this kind of silence one must have the courage to listen to oneself. Visual artists celebrate the light and solitude of their studios, the being alone with one’s self in the world. There may be art on the writing room walls or music playing in the studios, but there is rarely conversation. Unseen and unheard, artists and writers are free alone to devolve everything they are into the work they make.
Law more often proceeds in formal spaces filled with art, carpets, and ceremonial gestures where language moves between people, much as it does in conversation. Law, though, imposes a structure on its dialogue, an exchange of questions and answers that mirrors the form of legal reasoning and the internal dialogue seen throughout appellate cases. In courtrooms and classrooms, the language of law defines a geography where arguments and strategies about hierarchies, authority and legal categories displace concerns with justice and caring, social context and ethical dilemmas. Sadly and too often, the messy details of law’s human stories go unseen and unheard.
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this discussion) please click here.
The First Annual Symposium of the Masterman Institute
on the First Amendment and the Fourth Estate
It is a privilege for me to give the first Masterman Institute lecture. Edward Masterman has been an inspiring leader of the bar. He and his wife, Sydell, funded the institute to explore the freedom of the press and its limits. I think that is a wise combination of subjects. The press often sounds as though there are no limits on what it can do—as though all its problems can be solved by crying, “First Amendment.” But that is not true and never has been. In my judgment, the press will be strengthened in its great functions if it understands that limits—responsibilities—go along with its freedom. My subject today is privacy and how that value intersects with and limits the vital interest of press freedom. I shall begin by describing an actual series of events, asking you to consider where lines should be drawn. On June 24, 1990, Mrs. Ruth Shulman was driving on a California freeway when her car was hit by another and rolled down an embankment. Mrs. Shulman was gravely injured and was trapped in the car. A rescue helicopter was called to the scene. . . .