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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 law 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 [...]