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Carbon Dioxide: Our Newest Pollutant

PdfPDF by Richard A. Epstein · August-4-2010 · Categories: Lead Articles, Number 4, Print Edition, Volume 43

It was my great pleasure to come to Suffolk University Law School to join the ranks of the many distinguished individuals who have delivered the Donahue Lecture. The topic of this lecture is the simple chemical, carbon dioxide, which is, now officially, our newest pollutant. The first question to ask is why I chose this particular title for carbon dioxide, a substance that predates the industrial revolution and is, in limited quantities at least, necessary for the survival of life as we know it on this planet. The answer relates to complexities that lie beyond my control under the peculiar statutory framework for dealing with pollutants under the Clean Air Act (CAA), which is administered by the Environmental Protection Agency [...]

A National Security Agenda Revisited

PdfPDF by Elizabeth Rindskopf Parker · August-4-2010 · Categories: Lead Articles, Number 4, Print Edition, Volume 43

In November 2008, one week after Barack Obama was elected as our forty-fifth President, I had the honor of delivering a Donahue Lecture at Suffolk University Law School.  “A National Security Agenda” offered thoughts on national security challenges, priorities and strategies for a new presidential administration. Now, more than one year later, this paper is a “scorecard” on the success of these earlier recommendations and the new administration’s actions. In the pages following, what has been accomplished and what remains is reviewed and judged against my earlier suggestions, in the hope of encouraging readers in their own analysis. . . For more information about Dean Parker’s Donahue Lecture (which served as the basis for this article) as well as audio [...]

The Frequency, Predictability, and Proportionality of Jury Awards of Punitive Damages in State Courts in 2005: A New Audit

PdfPDF by Neil Vidmar and Mirya Holman · August-4-2010 · Categories: Lead Articles, Number 4, Print Edition, Volume 43

The state of punitive damages in the United States has been a controversial topic for more than three decades, resulting in litigation reaching the U.S. Supreme Court and state supreme courts. Various business advocacy groups have sought to drastically curb or eliminate punitive damages while plaintiffs’ lawyers and consumer groups vigorously defend the use of punitive damages. State legislatures have responded with many substantive and procedural reforms over the years. Yet, in Exxon Shipping Co. v. Baker, the United States Supreme Court, while approvingly citing empirical evidence indicating that there are “not mass-produced runaway awards” and that “by most accounts the median ratio of punitive to compensatory awards has remained less than 1:1,” once again expressed concerns about punitive awards exceeding a single-digit [...]

Client Files and Digital Law Practices: Rethinking Old Concepts in an Era of Lawyer Mobility

PdfPDF by Robert W. Hillman and Allison D. Rhodes · August-4-2010 · Categories: Lead Articles, Number 4, Print Edition, Volume 43

The rise of lawyer mobility is a recent and remarkable development within the legal profession. In the past, movement of lawyers between firms was uncommon, but over the last thirty years lateral hiring has become the norm rather than the exception, and lawyers may expect to change their practice locales numerous times over their professional careers. The recent wide acceptance of lawyer mobility caused one court to describe the “revolving door” as a “modern-day law firm fixture.” The era of lawyer mobility began in the 1980s and shows no signs of subsiding. To the contrary, in recent years, lateral moves of entire practice groups have become common. The moves are made possible because client loyalties run to lawyers as well [...]

The Impact of Gross v. FBL Financial Services, Inc. and the Meaning of the But-For Requirement

PdfPDF by Bran Noonan · August-4-2010 · Categories: Lead Articles, Number 4, Print Edition, Volume 43

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. [...]

The Gramm-Leach-Bliley Act of 1999: A Bridge Too Far? Or Not Far Enough?

PdfPDF by Lawrence J. White · August-4-2010 · Categories: Lead Articles, Number 4, Print Edition, Volume 43

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 [...]

CAN-SPAM Versus the European Union E-Privacy Directive: Does Either Provide a Solution to the Problem of SPAM?

PdfPDF by Ariella Mutchler · August-4-2010 · Categories: Notes, Number 4, Print Edition, Volume 43

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 [...]

Making Homes Safer with Safe Homes: A Look at the Controversial Way Boston Attempted to Reduce Youth Violence

PdfPDF by Jaclyn M. Essinger · August-4-2010 · Categories: Notes, Number 4, Print Edition, Volume 43

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 [...]

Arbitration Law-Second Circuit Holds Section 7 of the Federal Arbitration Act Does Not Permit Arbitration Panels to Issue Prehearing Document Subpoenas to Nonparties-Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210 (2d Cir. 2008)

PdfPDF by Scott A. Booth · August-4-2010 · Categories: Case Comments, Number 4, Print Edition, Volume 43

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 [...]

Constitutional Law-Court of International Trade Holds Article III Standing Not Required to Intervene in Existing Litigation-Canadian Wheat Board v. United States, 637 F.Supp. 2d 1329 (Ct. Int’l Trade 2009)

PdfPDF by Daniel Tartakoff · August-4-2010 · Categories: Case Comments, Number 4, Print Edition, Volume 43

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 [...]