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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 [...]