Volume 44

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The Problem of Witchcraft Violence in Africa

PdfPDF by John Alan Cohan · November-22-2011 · Categories: Lead Articles, Number 4, Print Edition, Volume 44

Often enough, laws respond to the serious needs and desires of a society. At other times, society will render the law essentially ineffective because it goes against the grain of society’s moral direction. Prohibition, as well as laws against abortion, fornication, and homosexual acts, all constitute other laws driven by society’s moral compass. “A law that fails to take into account the social ethos of the community it is supposed to guide risks being ignored and hence, remaining a dead letter, incapable of inducing change.” Beliefs about life and death, good luck and misfortune, prosperity and poverty—changes that normally occur as societies undergo periods of profound transformation—are often prompted top down by colonial hegemony, or nudged by missionary proselytizing. Beliefs [...]

Beyond Cherry-Picking: Selection Criteria for the Use of Foreign Law in Domestic Constitutional Jurisprudence

PdfPDF by Andrew Friedman · November-22-2011 · Categories: Lead Articles, Number 4, Print Edition, Volume 44

In the world of international constitutional law, the use of foreign judicial decisions in domestic jurisprudence has long created controversy and confusion for both lawmakers and legal scholars.  This once seemed strictly an American problem because of America’s unique system of judicial review; however, with the tremendous growth in constitutional courts throughout the world, the debate has expanded greatly over the past few decades.  While some countries decry the practice or merely avoid it, others embrace its usefulness and specifically authorize justices to examine foreign law.  Perhaps the first point that must be reiterated on the use of foreign jurisprudence for domestic constitutional interpretation is that nothing in this article—or any other publication—implies that foreign jurisprudence should ever be considered [...]

Securities Market Integration in Asia: What Would Be the Theoretical Approach?

PdfPDF by Md Anowar Zahid and Hasani Mohd Ali · November-22-2011 · Categories: Lead Articles, Number 4, Print Edition, Volume 44

Today, securities offerings and trading have become, to a remarkable extent, global in the same vein as other economic and business activities.  The globalization is taking place mainly through integration of national securities markets. The principal examples of such integrated markets are the European Union (EU) and the Multijurisdictional Disclosure System (MJDS) between Canada and the United States.  Recently, the Association of Southeast Asian Nations (ASEAN) initiated an attempt to integrate securities markets in Asia.  This paper will go over the integration efforts of these three regions to see what theoretical approaches they have taken towards their goal. Integration between different nations is not an easy task because they are politically, economically, and legally divided and diverse.  A look into [...]

Sticker Shock at the Pump: An Evaluation of the Massachusetts Petroleum Price-Gouging Regulation

PdfPDF by Caitlin E. Ball · November-22-2011 · Categories: Notes, Number 4, Print Edition, Volume 44

This Note will first discuss the origin and meaning of “price gouging” and the impetus for states to enact anti-gouging legislation.  This Note will then discuss the existing types of anti-gouging laws implemented by the states as well as review the positions of opponents and proponents of price restrictions.  This Note will proceed to consider the history and judicial interpretation of the Massachusetts anti-price-gouging regulation.  This Note will go on to analyze the First Circuit’s use of contract law and the statute’s plain meaning in the White decision, as well as the possible economic effects of statutory price constraints in light of the court’s decision.  The Note will conclude by proposing recommendations for Massachusetts courts to consider whenan alyzing a gouging [...]

Social Host Liability and the Distribution of Alcohol and Narcotics: A Survey and Guide

PdfPDF by Peter A. Slepchuk · November-22-2011 · Categories: Notes, Number 4, Print Edition, Volume 44

Social host liability law is an area of tort law governing the duties owed by social hosts to both their guests and the general public.  It originated as a common-law negligence doctrine, but has been heavily codified by almost every state legislature in recent years.  Under the common law, a social host who provided alcohol to a guest was never liable to the guest or a third party for damages resulting from the guest’s intoxication.  With the passage of time and the changing of societal values, customs, and public policy, however, both courts and legislatures across the United States have felt it necessary to expand the scope of social host liability.  Today, many jurisdictions allow recovery against social hosts who [...]

Constitutional Law—Eighth Circuit Permits Broad Protective Sweep During Execution of Arrest Warrant Inside Suspect’s Home—United States v. Green, 560 F.3d 853 (8th Cir. 2009)

PdfPDF by Richard A. Gambale · November-22-2011 · Categories: Case Comments, Number 4, Print Edition, Volume 44

The Fourth Amendment’s proscription against unreasonable searches and seizures effectively limits the federal government’s power to invade an individual’s privacy.  Under certain circumstances, however, courts have deemed searches that protect a police officer or other government agent from danger to be reasonable.  In United States v. Green, the United States Court of Appeals for the Eighth Circuit considered whether an officer exceeded the permissible scope of a protective sweep incident to arrest where the officer, in searching for confederates, seized incriminating evidence that came into plain view after the officer climbed onto a chair to examine the top of a large dresser.  The court held that the officer acted reasonably in protecting himself from danger, and therefore did not contravene the [...]

Federal Civil Procedure—Government May Intervene and Invoke State Secrets Privilege for Defendant Company that Allegedly Assisted CIA—Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010)(en banc), cert. denied, 131 S. Ct. 2442 (2011)

PdfPDF by John M. Wilusz · November-22-2011 · Categories: Case Comments, Number 4, Print Edition, Volume 44

The United States judiciary will defer to the executive branch on matters of foreign policy and national security when evaluating the need for secrecy.  The state secrets doctrine, a common-law evidentiary privilege, permits the government to bar the disclosure of information that poses a reasonable danger of exposing military matters that should not be divulged in the interest of national security.  In Mohamed v. Jeppesen Dataplan, Inc., the Court of Appeals for the Ninth Circuit considered the government’s motions to intervene in and dismiss—on state secrets grounds—an action brought by foreign nationals against a company that purportedly assisted in the Central Intelligence Agency’s (CIA) “extraordinary rendition” program.  On rehearing en banc, the court of appeals affirmed the district court’s judgment and held that [...]

The Role of Non-Governmental Organizations (NGOs) in Combating Corruption: Theory and Practice

PdfPDF by Indira Carr and Opi Outhwaite · October-8-2011 · Categories: Lead Articles, Number 3, Print Edition, Volume 44

Corruption, in its many guises, is a global phenomenon to be contended with in commerce, politics, and day-to-day life. And in some countries, according to Transparency International (TI), it has become deeply embedded in the very fabric of society.  The international lending community, including the World Bank and intergovernmental institutions such as the United Nations (U.N.), the African Union (AU), and the Organisation for Economic Co-operation and Development (OECD), has sought to combat the problem of corruption through a variety of mechanisms. These mechanisms range from tying loans to conditions that require the borrower (donee) state to adopt better governance mechanisms and pass anti-corruption laws to international treaties and soft law.  Of the treaties, the 2005 U.N. Convention Against Corruption [...]

A Lawyer in Pursuit of Truth and Unity: Mohandas Gandhi and the Private Practice of Law

PdfPDF by Paul G. Lannon, Jr. · October-5-2011 · Categories: Lead Articles, Number 3, Print Edition, Volume 44

Before he was known around the world as Mahatma (or “great soul”), Mohandas K. Gandhi was known as esquire. He was an attorney. In fact, after being called to the bar in England in 1891, Gandhi practiced law as a private attorney in South Africa and India for over twenty years.  He eventually gave up his practice so that he could devote all of his remarkable energies towards public service and independence for India. During his time as a practicing attorney, Gandhi developed “special,” even “peculiar views” of lawyers and the practice of law.  These views are interwoven with his religious and political thinking and are evident in how he practiced both law and his nonviolent action campaigns or satyagrahas. [...]

Gene Patents: The Controversy and the Law in the Wake of Myriad

PdfPDF by Kenneth James Liddle · October-11-2011 · Categories: Lead Articles, Number 3, Print Edition, Volume 44

The topic of gene patents is as controversial as it is misunderstood, and the law surrounding these patents was not made any clearer following the United States District Court for the Southern District of New York’s decision in the Myriad patent case.  The concept that someone might patent, and therefore own, the rights to the genes in your body has created controversy since the earliest patents on genes were issued in the early 1980s. Thirty years later, the concept remains controversial, as the courts and legislatures struggle to resolve the central issues. Can someone really own the genes in your body? And what exactly does that mean? The answers to these common questions lie at the intersection of law, science, [...]

The Government Speech Doctrine and Its Effect on the Democratic Process

PdfPDF by Alyssa Graham · October-8-2011 · Categories: Notes, Number 3, Print Edition, Volume 44

Technological advances in an ever-increasing age of communication enable the dissemination of information and opinions by individuals and groups, including the government.  The ease of modern communication assists the government in reaching people, which is important because for a republican democracy to function, the government must be allowed to communicate its position.  The government relies on words to “explain, persuade, coerce, deplore, congratulate, implore, teach, inspire, and defend.”  United States courts have formalized and protected the federal government’s right to speak through the government speech doctrine. This protection allows the government to freely communicate with the public, while also posing potential problems of undue government interference in the political process. . .

Dueling Approaches to Dual Purpose Documents: The Reaches of the Work Product Doctrine After Textron

PdfPDF by Olivia K. LaBoda · October-8-2011 · Categories: Notes, Number 3, Print Edition, Volume 44

This Note will begin by looking at the public policy rationale underlying the Supreme Court’s establishment, and Congress’s codification, of the work product doctrine.  It will then look at the state of the work product doctrine before the First Circuit’s Textron decision.  The Note will then discuss the Textron decision and how the First Circuit developed its new “for use in litigation” test. The Note will then examine the protection currently afforded to dual purpose documents in the areas of environmental law and insurance law.  The analysis will argue that the Textron test will have broad ramifications beyond the context of tax accrual work papers, and it will discuss the negative consequences on environmental stress and insurance law if dual purpose [...]

Yelp! Libel or Free Speech: The Future of Internet Defamation Litigation in Massachusetts in the Wake of Noonan v. Staples

PdfPDF by Shauna L. Spinosa · October-8-2011 · Categories: Notes, Number 3, Print Edition, Volume 44

This Note will first analyze the history of early internet defamation litigation and subsequent federal statutory solutions.  It will then discuss libel statutes and decisions applicable to internet libel suits from Massachusetts and other jurisdictions. The Note will then discuss the Noonan decision and how it reconciles with previous case law and Massachusetts statutory law.  In the analysis section, the Note will examine the Noonan decision and its potential impact on future internet libel suits. The Note will argue for First Amendment protection for those who post anonymous opinions on the internet and a higher standard of proof to demonstrate the “actual malice” element of libel.  It will also recommend and discuss various alternatives for protecting bloggers’ rights to free speech on [...]

Criminal Law—Supreme Judicial Court of Massachusetts Fails to Require Statistical Analysis for Nonexclusion DNA Test Results—Commonwealth v. Mattei, 920 N.E.2d 845 (Mass. 2010)

PdfPDF by Kevin C. Adam · October-11-2011 · Categories: Case Comments, Number 3, Print Edition, Volume 44

Massachusetts grants judges broad discretion when determining the relevancy of evidence.  The Massachusetts Guide to Evidence Section 403 (Section 403) states that relevant evidence is admissible unless the trial judge believes the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant.  Massachusetts judges apply a case-by-case approach in weighing the prejudicial effect of deoxyribonucleic acid (DNA) test results presented to a jury absent supporting testimony regarding the statistical accuracy of such results.  In Commonwealth v. Mattei, the Massachusetts Supreme Judicial Court (SJC) addressed whether DNA test results that failed to exclude an individual as a possible contributor to the DNA sample were admissible without an accompanying probability analysis.  Although the SJC held that [...]

Civil Procedure–In-Forum Injury May Constitute Forum Contact for Relatedness Prong of Specific Jurisdiction Inquiry–Astro-Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1 (1st Cir. 2009)

PdfPDF by Thomas R. Fulford · October-8-2011 · Categories: Case Comments, Number 3, Print Edition, Volume 44

To properly exercise specific jurisdiction over a nonresident defendant, due process requires that the defendant have certain minimum contacts with the forum, such that it would be fair to hale him into court there to defend against a claim related to those contacts.  The First Circuit has refined its minimum contacts analysis by requiring that a plaintiff’s claim relate to or arise out of the defendant’s contacts, that the defendant have purposely availed himself of the forum, and that the exercise of jurisdiction be reasonable.  When a defendant, although not physically present in the relevant forum, intentionally engages in tortious conduct that injures a plaintiff located there, courts will evaluate the injuries or “effects” when analyzing whether a sufficient connection [...]

Constitutional Law—Constitutional Rights of Parents Do Not Require Showing of Unfitness in Third Party Cases—Kulstad v. Maniaci, 220 P.3d 595 (Mont. 2009)

PdfPDF by Peter P. Gelzinis · October-8-2011 · Categories: Case Comments, Number 3, Print Edition, Volume 44

The United States Constitution and the Montana Constitution protect a natural parent’s fundamental right to parent his or her children.  Courts have, however, differed in defining the extent of that right and the protection it affords the natural parent in relation to a third party seeking to establish contact with a child.  In Kulstad v. Maniaci, the Montana Supreme Court considered whether the constitutional rights of a natural parent required a showing that the natural parent was unfit as a prerequisite to awarding a third party a parental interest.  In upholding the constitutionality of sections 40-4-211 and 40-4-228 of the Montana Code, the court held that the absence of a requirement that a court first determine the fitness of the parent [...]

Criminal Law-Fourth Circuit Holds Retroactive Application of Federal Sentencing Guidelines Amendments Violates Ex Post Facto Clause-United States v. Lewis, 606 F.3d 193 (4th Cir. 2010)

PdfPDF by Jennifer G. Roma · October-8-2011 · Categories: Case Comments, Number 3, Print Edition, Volume 44

The Ex Post Facto Clause of the United States Constitution prohibits retroactive laws that alter the definition of or increase the penalty for a criminal offense.  Accordingly, the use of amended sentencing guidelines at the time of sentencing, which call for a harsher penalty than that which existed at the time the offense was committed, has raised varying ex post facto concerns among the circuits.  In United States v. Lewis, the United States Court of Appeals for the Fourth Circuit considered whether the application of newly revised sentencing guidelines, not in effect at the time of the crime’s commission, violated the Ex Post Facto Clause.  The Fourth Circuit held that application of the more severe guideline amendments would violate the Ex [...]

Foreward: Symposium—The Massachusetts Constitution of 1780

PdfPDF by Honorable John M. Greaney · June-6-2011 · Categories: Lead Articles, Number 2, Print Edition, Volume 44

 Symposium-The Massachusetts Constitution of 1780 This issue of the Suffolk University Law Review acknowledges, and celebrates, the 230th anniversary of the Massachusetts Constitution of 1780.  It is appropriate to do so. Not so long ago, state constitutions were considered static documents, principally intended to structure the branches of state government and define their authority.  Where the constitutions provided guarantees for basic citizens’ rights, the guarantees were considered to be limitations on the power of government.  Many other rights afforded citizens in state constitutions were taken to be aspirational, subject to implementation as matter of policy by the executive and the legislature, but not as independent sources of duties that were enforceable against the executive and the legislature in the courts. [...]

The Massachusetts Constitution—The Last Thirty Years

PdfPDF by Chief Justice Herbert P. Wilkins (Ret.) · June-6-2011 · Categories: Lead Articles, Number 2, Print Edition, Volume 44

 Symposium-The Massachusetts Constitution of 1780 The Constitution of the Commonwealth has never been more significant for the rights of individuals than in the past thirty years. Although the greater impact has been on the rights of criminal defendants, the Constitution’s influence on civil relationships has been substantial, as indicated most particularly by Goodridge v. Department of Public Health on the right to same-sex marriage. In 1980, this law review published my article comparing the treatment of similar provisions of the Federal Constitution and the State Constitution.  My current effort is, in a sense, an updating of the 1980 article. Before 1980, there were only a handful of cases that foretold the impending impact of the Supreme Judicial Court’s independent treatment of [...]

“You Have the Right to an Attorney,” but Not Right Now: Combating Miranda’s Failure by Advancing the Point of Attachment Under Article XII of the Massachusetts Declaration of Rights

PdfPDF by D. Christopher Dearborn · June-6-2011 · Categories: Lead Articles, Number 2, Print Edition, Volume 44

 Symposium-The Massachusetts Constitution of 1780 Over forty years’ worth of popular culture has led most Americans to believe that they have a “right to an attorney” upon arrest.  We have watched this familiar scene unfold in countless movies and television shows: the police close in on the lone (and undoubtedly guilty) suspect, pin him against a wall, slap on the cuffs, and triumphantly recite his “Miranda warnings,” which apparently include the right to counsel. Technically, officers here are referring to a suspect’s limited Fifth Amendment right, upon “clearly” and “unambiguously” invoking it, to the presence of an attorney before custodial interrogation by the police.  This idea would probably strike most people as extremely sensible—that, upon arrest, you should have the opportunity [...]

Prophylactic Rules and State Constitutionalism

PdfPDF by Arthur Leavens · June-6-2011 · Categories: Lead Articles, Number 2, Print Edition, Volume 44

This article argues that even if states ought to defer to the Supreme Court concerning the meaning of cognate constitutional provisions, such deference is not required in considering the reach of prophylactic rules. Such rules, while constitutional in status, are not vessels of constitutional meaning. Rather, they are a pragmatic means to implement more open-ended constitutional norms and thus, by design, are adjustable where necessary to improve their fitness for that task. The Supreme Court makes such adjustments, and there is no reason why states should not also be able to do so where local conditions suggest the need for a more protective rule. A state’s expansion of a prophylactic rule leaves untouched the meaning of the underlying federal principle, [...]

Exploring How Municipal Boards Can Settle Appeals of Their Land Use Decisions Within the Framework of the Massachusetts Open Meeting Law

PdfPDF by R. Lisle Baker · June-6-2011 · Categories: Lead Articles, Number 2, Print Edition, Volume 44

 Symposium-The Massachusetts Constitution of 1780 One of the enduring issues in zoning law is how to resolve appeals involving the grant of zoning special permits or other discretionary decisions made by the municipal boards that have jurisdiction over some aspect of the private use of land. While their decisions are made in public, and the appeals of these decisions are also decided by a public process, such as a court or an administrative agency, the resolution of these appeals without litigation or administrative appeal poses challenges because resolution without adjudication traditionally requires some confidentiality in order to encourage frank conversation about how a settlement might be achieved. . .

But See Guiney: Revisiting Mandatory Random Suspicionless Drug Testing of Massachusetts Public-Sector Safety-Sensitive Employees in Light of House Bill 2210

PdfPDF by Lesley Benware · June-6-2011 · Categories: Notes, Number 2, Print Edition, Volume 44

 Symposium-The Massachusetts Constitution of 1780 On August 29, 2007, a grease fire in West Roxbury killed two members of the Boston Fire Department.  According to media reports of the autopsy results, the firefighters were under the influence of alcohol and drugs at the time of their deaths, and presumably, when they responded to the fire that claimed their lives.  In the wake of this tragic accident, public and political support for mandatory, random drug testing of safety-sensitive personnel has grown in Massachusetts.  House Bill 2210—An Act Relative to Public Safety Employees (House Bill 2210)—addresses that increased concern, authorizing random drug and alcohol testing of all publicly and privately employed public safety personnel within the Commonwealth.  The current debate over random [...]

Gun-Shy Originalism: The Second Amendment’s Original Purpose in District of Columbia v. Heller

PdfPDF by Kyle Hatt · June-6-2011 · Categories: Notes, Number 2, Print Edition, Volume 44

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense.  In doing so, the Court settled the long-debated question of whether the Second Amendment applies outside the context of state-organized military institutions.  The National Rifle Association heralded the decision as a major victory for gun owners across America.  Others saw Heller differently, with one scholar arguing that the decision likely demands little change to the nation’s existing gun laws. Despite its landmark decision that the Second Amendment protects an individual right, the Heller Court failed to protect the full scope of that right, as read by the Court itself. A strong theme throughout the decision is [...]

Miscarriage of Justice: Appellate Review of Unpreserved Constitutional Objections to the Admission of Evidence in Massachusetts

PdfPDF by Jonathan P. Hunter · June-6-2011 · Categories: Notes, Number 2, Print Edition, Volume 44

This Note argues that, absent objection at trial, the Massachusetts courts should review admission of objectionable evidence as potential ineffective assistance of counsel, rather than as error under the miscarriage of justice standard.  Part II.A discusses the impact of the Melendez-Diaz decision on Confrontation Clause jurisprudence and posits that the Massachusetts courts will apply the miscarriage of justice standard to unpreserved claims of error based on Melendez-Diaz.  Part II.B.1 begins a discussion of the evolution of appellate review in Massachusetts, describing the state’s traditional rule of finality.  Part II.B.2 examines the emergence of review for a substantial risk of a miscarriage of justice and ineffective assistance of counsel as exceptions to the traditional rule.  Part II.B.3 recounts the Massachusetts courts’ [...]

When Rape Isn’t Like Combat: The Disparity Between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault

PdfPDF by Ben Kappelman · June-6-2011 · Categories: Notes, Number 2, Print Edition, Volume 44

This Note begins by describing the process for seeking benefits as a disabled veteran in the United States.  It next examines how PTSD due to sexual assault is subject to a higher level of scrutiny in the benefit application process.  The Note then considers the prevalence of MSA in the armed forces and the veracity of victims’ claims.  It goes on to describe the clinical connection between MSA and PTSD. Lastly, it catalogs the obstacles to successful disability claims that the veterans disability application process presents. This Note then analyzes the application process and suggests areas for improvement.  Continued vigilance is necessary to abandon the outmoded stereotypes of sexual assault and this Note commends the Department of Defense (DOD) for taking [...]

The EEZ Solution to Striper Management: Why the Federal Government Should Ban the Commercial Harvest of Striped Bass Once and For All

PdfPDF by Thomas Rapone · June-6-2011 · Categories: Notes, Number 2, Print Edition, Volume 44

The striped bass has long been a symbol of America’s coastal bounty.  During his maiden voyage into the Chesapeake Bay in 1608, Captain John Smith observed of the striped bass, “I myself at the turning of the tyde have seen such multitudes that it seemed to me that one mighte go over their backs drisho’d.”  Despite historical accounts of a seemingly limitless resource, even the earliest colonists had the foresight to limit their harvest of striped bass.  Most notably, in 1639, the striped bass became the impetus for America’s first fisheries law when the General Court of the Massachusetts Bay Colony banned the practice of fertilizing cornfields with the discarded frames of the fish. Part II.A of this Note traces [...]

Constitutional Law-Ninth Circuit Characterizes Taser as “Intermediate” Level of Force Requiring Justification of Strong Governmental Interest-Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010)

PdfPDF by George G. Baxter, IV · June-6-2011 · Categories: Case Comments, Number 2, Print Edition, Volume 44

When analyzing a claim under 42 U.S.C. § 1983 that a law enforcement officer used excessive force during the course of a seizure, courts typically use the objective reasonableness standard of the Fourth Amendment.  In Bryan v. MacPherson, the Court of Appeals for the Ninth Circuit considered whether a police officer’s use of an electronic control device (ECD)—commonly known as a Taser—during a traffic stop for failure to use a seatbelt violated the plaintiff’s Fourth Amendment rights.  Because of the significant level of force delivered through Tasers like the one the officer used in this case, the court determined that ECDs may only be used when justified by a strong governmental interest.  As the officer had no reason to suspect the [...]

Copyright Law-Seventh Circuit Holds Product Photography Sufficiently Creative for Copyright as Derivative Works-Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513 (7th Cir. 2009)

PdfPDF by Marcus Hall · June-6-2011 · Categories: Case Comments, Number 2, Print Edition, Volume 44

Originality stands as both a constitutional and statutory prerequisite for copyright protection.  Nevertheless, the absence of a clear definition of copyright originality in the Copyright Act and in judicial application has lead to uncertainty regarding the meaning of the term “originality” in copyright law.  Despite the ambiguity, originality endures as the very premise of copyright law and requires thorough articulation in order to establish the boundary between a truly original work and a work exhibiting only a marginal contribution by the alleged author.  In Schrock v. Learning Curve International, Inc.,  the Seventh Circuit Court of Appeals examined whether inherently accurate product photographs contained the requisite amount of originality to be entitled to copyright protection as derivative works.  By concluding that [...]

Forward to States in the Vanguard: Protecting Consumers During the Financial Crisis

PdfPDF by Kathleen C. Engel · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

In July 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which fills many of the gaps in mortgage regulation that brought the United States economy to its knees. This new law and the debates leading up to it grabbed the headlines for several years. What is less well known is the critical role that states and local communities have played in attempting to chill risky lending and address the fallout from home foreclosures. States have been enacting anti-predatory lending laws since the 1990s, many of which ultimately served as models for the Dodd-Frank Act. In parallel moves, state attorneys general have been enforcing discrimination and consumer protection laws against abusive lenders. And, as the subprime crisis has [...]

Five Realities About the Current Financial and Economic Crises

PdfPDF by James H. Carr and Katherine Lucas-Smith · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

It would be difficult to overstate the dire condition of the U.S. economy as inherited by President Barack Obama on January 20, 2009. At that time, the economy stood on the precipice of collapse. Over the past year and a half, a combination of economic stimulus spending and continued bank bailouts successfully averted a second Great Depression and returned the major banks to profitability. But the challenge of laying the foundation for a more promising long-term economic future for America remains largely unaddressed. In fact, despite recent positive GDP and employment data, the foreclosure crisis that initially imploded the credit markets and undermined the economy continues to worsen. And many characteristics of the current recovery are cause for concern. This [...]

Small-Dollar Loans, Big Problems: How States Protect Consumers from Abuses and How the Federal Government Can Help

PdfPDF by Leah A. Plunkett and Ana Lucía Hurtado · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

Across America, drivers pass twice as many payday loan storefronts as Starbucks coffee shops.  In twenty-nine states, there are more payday lender stores than McDonald’s restaurants.  Numerous research studies warn of the dangers associated with payday loans, including significantly higher rates of bankruptcies, evictions, utility shut-offs, and involuntary bank account closures.  Many states have recognized the dangers posed by payday and other types of small-dollar loans with predatory features, prompting them to adopt laws to combat the abusive nature of these loans. These laws, however, offer consumers varying degrees of protection. Historically, states have used their police powers to protect consumers from predatory lending. This Article discusses the extent to which each state’s current laws protect consumers from lending abuses [...]

Can Public Nuisance Law Protect Your Neighborhood from Big Banks?

PdfPDF by Kermit J. Lind · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

This article considers how the law of public nuisance might be applied to protect neighborhoods from the destructive forces of the mortgage crisis. For more than thirty years I have been a close observer and a participant in community development at the neighborhood level in Cleveland, Ohio.  I now supervise a law school clinical practice that provides legal counsel to an array of nonprofit community development corporations that, for more than thirty-five years, have been renewing housing and neighborhood sustainability in a city going through major social and economic change. . .

The Finger in the Dike: State and Local Laws Combat the Foreclosure Tide

PdfPDF by Geoff Walsh · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

The foreclosure crisis that began in 2007 has forced state and local governments to develop a first response capacity to meet a national crisis. States seeking to control foreclosures have always faced certain limitations in enacting laws that limit or impair contract rights. These limits arise primarily under the Contracts Clause of the United States Constitution. Other provisions of the U.S. Constitution, such as the Takings Clause, as well as terms of state constitutions may set additional limits. This article will examine the degree to which various constitutional provisions may limit the ability of states to control mortgage foreclosures. Overall, my conclusion is that under their police power, states have broad authority to limit enforcement of mortgage obligations. This article [...]

Book Review: Deciding Whether the Death Penalty Should Be Abolished Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment

PdfPDF by Thomas H. Koenig and Michael L. Rustad · March-9-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 44

The issue of the death penalty, like abortion, deeply divides this country.  To most Americans, the answer to the question of whether the death penalty is unavoidable is obvious and beyond debate. It is “one of the most complex, emotional, controversial, and important public policy issues of our time.”  American attitudes on the death penalty “have been relatively stable for almost a decade.”  Two out of three Americans support capital punishment. A Gallup poll conducted in 2006 asked respondents how they would decide “between death or life in prison without parole.”  Forty-eight percent of the respondents favored life without parole to capital punishment.  Too often, however, strongly held opinions on this topic are based on emotionally charged slogans rather than a [...]

Up in Smoke? Commercial Free Speech in the United States and the European Union: Why Comprehensive Tobacco Advertising Bans Work in Europe, but Fail in the United States

PdfPDF by Sean P. Flanagan · March-6-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (Smoking Prevention Act) into law, authorizing new methods to fight youth smoking.  The new law provides the legislative approval necessary for the Food and Drug Administration (FDA) to regulate the tobacco industry.  Advertising and marketing restrictions designed to thwart the tobacco industry’s attempts to communicate with American youths are among the new rules and regulations proposed in the Smoking Prevention Act.  The new law mimics legislation passed within the European Union (EU), which instituted a complete ban on tobacco advertising in print, radio, and national services media.  Although the World Health Organization (WHO) argues that comprehensive bans on advertising—like the one implemented in the [...]

Justice Undeterred: A Call for Massachusetts Legislation on Post-Conviction DNA Access

PdfPDF by Joseph Lazazzero · March-9-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

This Note argues that the Massachusetts legislature should enact a post-conviction DNA access statute by focusing on various approaches of other state courts and legislatures in recognizing a statutory right to post-conviction DNA testing. The goal of this Note is not to assess the constitutional and due process rights of access to DNA evidence, but instead to provide effective and pragmatic policy reasons for a Massachusetts statute. Part II.A provides an overview of federal legislation and case law on post-conviction DNA access.  Part II.B discusses how Massachusetts prisoners currently appeal for postconviction DNA testing.  Part II.C studies Massachusetts case law, which has interpreted and applied Rule 30, specifically in motions for post-conviction DNA access.  Part II.D focuses on the statutory [...]

Indefinite Detention After Boumediene: Judicial Trailblazing in Uncharted and Unfamiliar Territory

PdfPDF by Tyler L. Sparrow · March-9-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

In the wake of Boumediene, there has been a flood of litigation in which detainees seek the writ of habeas corpus challenging their detention as unlawful.  As of this writing, there have been roughly thirteen detainees released, while at least sixteen others who were granted the writ of habeas corpus remain confined in a state of limbo at Guantanamo Bay.  With no clear guidance on how to proceed with these novel issues, the judges of the United States District Court for the District of Columbia have had the difficult task of determining which of the petitioning detainees are lawfully detained, and which have been put through an excruciating ordeal without legal justification. Part II.A of this Note will discuss the [...]

Model Citizenship: The Supreme Court Redefines Principal Place of Business

PdfPDF by Thomas G. Stanwood · March-9-2011 · Categories: Notes, Number 1, Print Edition, Volume 44

This Note will explore the evolution of diversity jurisdiction as it relates to corporations and the state of the law after Hertz. Part II.A discusses the constitutional origins of diversity jurisdiction, and Part II.B details the progression of the case law thereafter. Part II.C outlines various statutory modifications to diversity jurisdiction, while Part II.D presents the four-way circuit split prior to Hertz. Finally, Part II.E summarizes the Hertz opinion itself. With this historical background in place, Part III analyzes the decision in Hertz in light of the legislative history of diversity jurisdiction, its constitutional conception, and the administrative concerns of today’s federal court system. . .

Constitutional Law—Seventh Circuit Applies Ex parte Young Doctrine to Allow State Agency’s Action Against State Officials-Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, 603 F.3d 365 (7th Cir. 2010)

PdfPDF by Andrew Power · March-9-2011 · Categories: Case Comments, Number 1, Print Edition, Volume 44

Article VI of the Constitution establishes the supremacy of federal law over the states, while the Eleventh Amendment grants the states immunity from suit without their consent.  The incompatibility of these provisions becomes apparent, however, when a defendant state asserts its immunity in response to an attempt to enforce a valid federal law in federal court.  This constitutional contradiction recently divided two circuit courts ruling on suits brought under the same state-managed federal program: the Fourth Circuit held the Eleventh Amendment barred a state agency from enforcing the program’s requirements against state officials in federal court, while the Seventh Circuit held the amendment posed no bar.  This Case Comment analyzes the Seventh Circuit’s decision in Indiana Protection & Advocacy Services [...]

Constitutional Law—Warrants Required to Search Cell Phones Seized Incident to Arrest-State v. Smith, 920 N.E.2d 949 (Ohio 2009)

PdfPDF by Alexis P. Theriault · March-9-2011 · Categories: Case Comments, Number 1, Print Edition, Volume 44

The Fourth Amendment to the United States Constitution guarantees that persons shall be free from searches that invade their reasonable expectation of privacy without a warrant issued on the basis of probable cause.  Search incident to an arrest represents one of four primary exceptions to the requirement for search warrants.  In State v. Smith, the Supreme Court of Ohio confronted a modern question about the scope of searches incident to arrest: when police arrest a person with a cell phone, may the arresting officers search the information stored in the phone?  Concluding that a cell phone should not be characterized as a closed container, the Supreme Court of Ohio held that a cell phone’s storage capacity creates and justifies a high [...]