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Denying Choice of Forum: An Interference by the Massachusetts Trial Court With Domestic Violence Victims’ Rights and Safety

PdfPDF by Margaret B. Drew and Marilu E. Gresens · March-22-2010 · Categories: Lead Articles, Number 2, Print Edition, Volume 43

Petitions for protection from domestic abuse, often referred to as civil protection or restraining orders, are governed by Massachusetts General Laws Chapter 209A, also called the Abuse Prevention Act (APA or Chapter 209A).  With the passing of the APA in 1978, Massachusetts was among the first states to respond to judicial intolerance of domestic violence claims.  Massachusetts has since been at the forefront of many civil protections for domestic violence victims, including the provision of a timely, same-day hearing and other relief that eases the burden on petitioners in need of immediate remedies.  The APA was designed to give domestic violence victims an effective legal remedy and to protect victims from future incidents of abuse through simplified and accessible judicial [...]

Lost Chances, Felt Necessities, and the Tale of Two Cities

PdfPDF by Tory A. Weigand · March-22-2010 · Categories: Lead Articles, Number 2, Print Edition, Volume 43

Courts have been increasingly asked to expand physician liability for loss of statistical chances of survival or better outcome.  The request has been made pursuant to the perceived right of the judiciary to conform the common law to the changing needs or the “felt necessities of the time.”  The loss of chance doctrine raises fundamental questions as to the appropriate limits of judicial policymaking in the area of physician liability. Indeed, recognition of loss of chance as either a theory of causation or a cognizable harm marks a notable judicial expansion of physician liability with significant ramifications for both tort law and health care in general. The two state supreme courts to have last addressed the issue reached polar opposite [...]

E-Discovery in Criminal Cases: A Need for Specific Rules

PdfPDF by Daniel B. Garrie and Daniel K. Gelb · March-22-2010 · Categories: Lead Articles, Number 2, Print Edition, Volume 43

This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESI) are not relegated to civil litigation, and that the subject matter has an equal impact on criminal litigation. The folloewing suggests a rapidly growing need for courts to uniformly recognize the increasing necessity for an accused to access ESI in order to effectively build a defense in modern-day criminal prosecutions where the context in which the ESI was forensically ascertained may be as important to a defendant as the content of the information recovered. Section I introduces the subject matter of e-discovery and ESI. Section II addresses the manner in which civil litigation pioneered a judicial focus on codifying specific rules of [...]

A Look at the Smallest Circuit

PdfPDF by Stephen L. Wasby · March-22-2010 · Categories: Lead Articles, Number 2, Print Edition, Volume 43

The United States Court of Appeals for the First Circuit, which encompasses Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico, is small not only in terms of the geographic area it encompasses, but more important, it is the regional circuit with the smallest number of judgeships. Indeed, for many years, it had only three judgeships—the same size as regular United States court of appeals panels. Because of its small size and caseload, the First Circuit has not received much attention. Receiving far more attention have been the “old” Fifth Circuit before it was divided, because of its importance in the implementation of school desegregation; the District of Columbia Circuit (D.C. Circuit), considered by many to be the nation’s preeminent [...]

Book Review: A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before

PdfPDF by Patrick M. Garry · March-11-2010 · Categories: Lead Articles, Number 2, Print Edition, Volume 43

Perhaps the most obvious lesson of Cass Sunstein’s newest book is that constitutional interpretation is a much more complex matter than is often thought. Typically, we place the different approaches to constitutional interpretation into neatly separate and self-contained categories, such as originalists and those who believe in a living constitution. But as Cass Sunstein demonstrates in A Constitution of Many Minds, constitutional interpretation is anything but a neatly-defined endeavor. Sunstein presents and analyzes three different approaches to constitutional interpretation: traditionalism, populism, and cosmopolitanism. Not only do these three models reflect somewhat newly articulated theories of constitutional interpretation, but Sunstein also takes a new approach in analyzing each of these models. According to Sunstein, each of the three models rest in [...]

Legislation is Necessary for Deferred Prosecution of Corporate Crime

PdfPDF by John A. Gallagher · March-22-2010 · Categories: Notes, Number 2, Print Edition, Volume 43

Corporate crime has plagued the American economy during the past two decades, causing staggering unemployment and destroying investor confidence in the stock market.  Typically involving complex financial schemes and sophisticated cover-ups, corporate crime is incredibly difficult to detect and prevent.  Corporate culture often embraces the criminal activity, so employees are less likely to report or refrain from wrongdoing.  Within the corporate setting, minor accounting or tax violations can quickly snowball into complex fraudulent schemes.  Most corporate crime entails methodical deceit and concealment by intelligent high-level executives who are familiar with and can anticipate and evade government regulation.  In addition, corporations hire experienced lawyers who conduct internal investigations to defend the corporation and utilize principles such as the attorney-client privilege and [...]

Oil and Water: How the Polluted Wake of the Exxon Valdez has Endangered the Essence of Punitive Damages

PdfPDF by Patrick H. Foley · March-22-2010 · Categories: Notes, Number 2, Print Edition, Volume 43

In the late hours of March 23, 1989, the Exxon Valdez supertanker moved through the waters of Prince William Sound off the coast of Alaska, en route to deliver fifty-three million gallons of crude oil to the lower forty-eight states.  Steering the vessel was Captain Joseph Hazelwood, still intoxicated from the five double vodkas he drank in the waterfront bars of Valdez just prior to leaving port.  As the clock approached midnight, just minutes before the ship was scheduled to make a required turn, Captain Hazelwood abruptly and inexplicably abandoned the bridge to return to his cabin.  With no one to properly navigate the scheduled turn, the supertanker grounded on the reefbelow, causing the hull to fracture, spilling eleven million [...]

Administrative Law-Government Agency Withholding Information, Reimbursing Attorney Fees-Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir. 2008)

PdfPDF by Brett E. Heyman · March-11-2010 · Categories: Case Comments, Number 2, Print Edition, Volume 43

Congress enacted the Freedom of Information Act (FOIA) in 1966 to allow private citizens wide access to government information protected by federal agencies.  In an effort to enable greater public access to government documents, Congress amended FOIA in 1974 to include a provision awarding attorneys’ fees to any individual who substantially prevails in an action requesting agency information.  In Davy v. Central Intelligence Agency, the United States Court of Appeals for the District of Columbia considered whether an author who publishes a book based, in part, on information obtained from the Central Intelligence Agency (CIA) in partial satisfaction of his request under FOIA is entitled to attorneys’ fees.  The majority awarded the author attorneys’ fees because he substantially prevailed in the [...]

Employment Discrimination Law-Sixth Circuit Denies Standing to Former Employees Under Title I of Americans With Disabilities Act-McKnight v. General Motors Corporation, 550 F.3d 519 (6th Cir. 2008)

PdfPDF by Jeffrey E. Dolan · March-11-2010 · Categories: Case Comments, Number 2, Print Edition, Volume 43

Pursuant to the Americans with Disabilities Act (ADA), an employer may not discriminate against an employee on the basis of a disability with respect to most aspects of employment, including the provision of fringe benefits. In order to have standing to bring suit under Title I of the ADA (Title I), a plaintiff must be a “qualified individual” with a disability.  In McKnight v. General Motors Corp., the United States Court of Appeals for the Sixth Circuit considered, in light of the United States Supreme Court’s holding in Robinson v. Shell Oil Co., whether disabled former employees have standing to bring suit under Title I “against their former employers for discrimination with respect to the payment of post-employment fringe benefits.”  The Sixth [...]

Trusts and Estates Law-Knowledge of Successor Trustee Sufficient to Commence Statute of Limitations-O’Connor v. Redstone, 452 Mass. 537 (2008)

PdfPDF by Heidi A. Seeley · March-11-2010 · Categories: Case Comments, Number 2, Print Edition, Volume 43

A trustee holds legal title to property for the benefit of another, and consequently has the power to bring actions at law against third parties who harm the trust property.  These legal actions are restricted by the statute of limitations applicable to tort or contract matters.  The trustee is also personally liable in equity to the beneficiary for any internal breaches of fiduciary duty, such as a breach of the duty of loyalty.  Equitable actions by beneficiaries against trustees have typically been subject to the doctrine of laches, which requires the beneficiary to bring suit within a reasonable time after gaining actual knowledge of the trustee’s breach.  In O’Connor v. Redstone, the Supreme Judicial Court of Massachusetts considered whether a successor [...]