- 50th Anniversary
- Online Edition
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- Donahue Lecture Series
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 plaintiffs’ action must be dismissed at the pleadings stage, in the interest of national security. . .
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 Fourth Amendment. . .
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 distribute alcohol to minors and visibly intoxicated persons.
This Note begins by providing a brief history of social host liability law in the United States. It then provides a comprehensive survey of the current social host liability laws of each state, analyzing the various approaches and the legal theories supporting them. Next, this Note proposes an approach to social host liability that best benefits society, taking into account both the need to deter irresponsible behavior and to protect innocent parties from harm. Finally, this Note argues that a social host who distributes narcotics to a guest violates the duty of reasonable care and should be liable for injuries resulting from the guest’s intoxication. . .
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 claim in the future. . .
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 the theoretical perspective will describe how integration has been achieved despite these diversities. As integration has already successfully taken place in Europe and North America, their approaches will be examined first. After that, this paper will evaluate the ASEAN approach to determine if it is following the same line of theoretical construction to achieve its goal. . . .
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 in any way binding. While at this point of comparative scholarship, such a clarification would seem both trivial and obvious, it still bears mentioning. . .
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 may evolve as a result of better education and health practices, or simply as an adjunct to the inevitable influence of globalization in communication and commerce.
In developing nations, a palpable tension develops if the “dominant group . . . enact[s] government policies that discriminate implicitly or incidentally against non-dominant traditions.” A society can ignore these problems and tensions, recognize them and refrain from proposing a solution, allow conflict resolution between groups to take its course, or enforce new norms with the force of law and punish offenders. . .
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, business, and politics. To understand the state of the law, I will begin with a discussion of the science surrounding gene patents, including the ethical, business, and policy concerns. I will then examine the history of patent law as it relates to these patents, followed by a close examination of the Myriad court decision and Myriad’s appeal. I will conclude with a discussion of possible outcomes for the case and the future of gene patents. . .
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 the nonexclusion test results were improperly admitted, it failed to require that supporting statistical testimony is always necessary to admit such results. . .
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 (UNCAC) and the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention) are the most well-known. And of the soft law instruments, the most famous are the U.N. Global Compact (UNGC) and the OECD Guidelines for Multinational Enterprises (OECD Guidelines), which recommend that companies avoid corrupt practices when engaging in business transactions to focus on reducing corruption from the supply side. Despite these efforts, the recent past is replete with numerous bribery allegations such as the BAE case and the Siemens case, to name a few. . .