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 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 [...]

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. . .

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 law and insurance law if dual purpose [...]

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 [...]

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 [...]

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’ [...]

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 [...]

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 [...]

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 [...]

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. . .