Volume 45

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Section 33E Survives the Death Penalty: Why Extraordinary Review of First-Degree Murder in Massachusetts Serves No Compelling Purpose

PdfPDF by Michael Thad Allen · November-12-2012 · Categories: Lead Articles, Number 4, Print Edition, Volume 45

Chapter 278, section 33E of the Massachusetts General Laws guarantees every first-degree murder defendant direct review in the Supreme Judicial Court (SJC), skipping the intermediate Massachusetts Appeals Court. It also grants a more lenient standard of review. This article argues that this serves no justifiable purpose; rather, it routinely dumps meritless, automatic appeals onto the docket of the high court. Section 33E is a relic of the death-penalty era, originally enacted in 1939 to provide special, plenary appeal in “capital cases,” but Massachusetts ceased to be a death-penalty state forty years ago. In 1962, however, the Massachusetts legislature added a crucial clause defining “a capital case” as “a case in which the defendant was tried on an indictment for murder [...]

Monopoly Power in Defense of the Status Quo: A Critique of the ABA’s Role in the Regulation of the American Legal Profession

PdfPDF by Gerard J. Clark · November-12-2012 · Categories: Lead Articles, Number 4, Print Edition, Volume 45

Since its founding in 1878 the American Bar Association (ABA) has served the legal profession in two principal ways: by limiting membership in the profession, and by protecting its prerogatives. It has done so by: advocating a system of licensing backed by unauthorized practice rules; supporting and then regulating law schools and thereby diminishing the apprenticeship-clerkship route to admission; regulating the delivery of professional services through detailed professional codes; by lobbying the state and federal legislatures for favorable legislation; providing a continuous public relations campaign to put the bar in a favorable light; and supporting the growth of state bar associations that press for these prerogatives at the state and local level. The result is an outsized and comfortable profession [...]

Fatherhood and Equality: Reconfiguring Masculinities

PdfPDF by Nancy E. Dowd · December-3-2012 · Categories: Lead Articles, Number 4, Print Edition, Volume 45

Work-family policy debate in the United States has focused on work and the workplace, and has presumed its primary beneficiaries are women. Women’s increased participation in the workplace brought the conflict between work and family sharply into view, and generated solutions geared toward assisting women. An underlying assumption has been that men would change at home by taking on a fair share of family work and care, consistent with norms of  equality and gender neutrality. Consistent with these norms, if equality were defined as co-equal shared parenting to balance dual wage-earning, equality would generate a revolutionary shift in fatherhood. Recalibration toward equality, however, has not taken place. Women continue to not only do wage work but also do a “second shift” of [...]

Doing Kimbrough Justice: Implementing Policy Disagreements with the Federal Sentencing Guidelines

PdfPDF by Scott Michelman and Jay Rorty · November-13-2012 · Categories: Lead Articles, Number 4, Print Edition, Volume 45

Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant’s sentence, violated the Sixth Amendment. The Court’s remedy was to render the Guidelines advisory only—a starting point but not necessarily the endpoint for sentencing decisions. Over the past several years, the Supreme Court and the lower [...]

Shooting the Messenger: A Common-Sense Analysis of State “Ag-Gag” Legislation Under the First Amendment

PdfPDF by Kevin C. Adam · November-12-2012 · Categories: Notes, Number 4, Print Edition, Volume 45

“As children, my brothers and I enjoyed a level of freedom that might make a modern parent gasp, and sometimes we exercised that freedom in the kitchen, where we fed one another weird concoctions that tended toward the unhealthy . . . .  The only time I ever refused to sample my brothers’ culinary creations was when asked to close my eyes during its preparation. I may have been a child, and one with a sense of humor, but I wasn’t an idiot.” Leslie Hatfield’s quote raises a simple question—what did her brother have to hide?  As one of the most powerful industries in the United States, factory farming has become the dominant source of food production in modern America.  Despite [...]

Massachusetts Genetic Bill of Rights: Chipping Away at Genetic Privacy

PdfPDF by Jaclyn G. Ambriscoe · November-13-2012 · Categories: Notes, Number 4, Print Edition, Volume 45

The average human loses between forty and one hundred strands of hair every day.  Humans make one liter of saliva each day.  In a lifetime, the average human sheds about forty pounds of skin.  Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA).  DNA has become an irrefutable method for identifying a person.  In essence, humans are constantly leaving traces of their identity everywhere they go. In the past decade, DNA has transformed criminal procedure jurisprudence.  Law enforcement officers and prosecutors now rely heavily on DNA to solve crimes.  DNA reveals unique genetic information about an individual’s race, ethnicity, and medical risks for diseases [...]

Comparing the Strike Zones of “Three Strikes and You’re Out” Laws for California and Georgia, the Nation’s Two Heaviest Hitters

PdfPDF by Cole F. Heyer · November-13-2012 · Categories: Notes, Number 4, Print Edition, Volume 45

On November 4, 1995, Leandro Andrade was arrested for the benign offense of shoplifting $84.70 worth of children’s movies from a K-Mart store located in Ontario, California.  Just fourteen days later, Andrade was again arrested for stealing $68.84 of children’s movies in Montclair, California.  A life of crime was nothing new to Andrade.  In fact, Andrade had been in and out of prison since 1982 for a host of offenses, including petty theft, first-degree residential burglary, and transporting marijuana. In 1994, California adopted a “Three Strikes and You’re Out” law (three strikes law), which is an antirecidivist law that mandates a sentence of twenty-five years to life in prison upon a criminal’s third felony conviction if the criminal has two [...]

A Bridge Too Far: Due Process Considerations in State Unclaimed Property Law Enforcement

PdfPDF by William S. King · November-13-2012 · Categories: Notes, Number 4, Print Edition, Volume 45

Although U.S. economists note that the most recent U.S. recession came to an end in June 2009, belt tightening can still be felt throughout the economy, more than three years later.  Perhaps nowhere is this more evident than in state budgets, which continue to face huge shortfalls and endure significant cutbacks.  With legislatures generally unwilling to raise taxes to make up for these deficits, states have looked toward new sources—unclaimed property, in particular—to find much needed cash. By some accounts, $35 billion of unclaimed property is currently held by states—an amount that continues to increase annually.  Simply put, the transformation of unclaimed property into revenue first requires a state to “escheat,” or take custody of property from a “holder,” which [...]

Eldercare for the Baby-Boom Generation: Are Caregiver Agreements Valid?

PdfPDF by Sheena J. Knox · November-13-2012 · Categories: Notes, Number 4, Print Edition, Volume 45

Behind the current cacophony of concerns about the unemployment rate, slow economic recovery, and U.S. budget deficit, is the ever-present murmur of the impending economic impact baby boomers will have as they retire and rely on government benefits.  In 2010 Social Security went “cash negative,” states threatened to drop out of the Medicaid program, and more individuals dipped into their 401k plans for current needs.  The “silver tsunami” looms closer as the first members of the baby-boom generation turned sixty-five in 2011, and concerns over how to manage long-term care for elders increase at an individual, state, and federal level.  State and federal governments’ concerns come from the heavy burden long-term care for boomers will put on government-funded health services [...]

The Thirteenth Stroke: An Approach to “Ultimate Authority” After Janus

PdfPDF by Andrew Power · November-13-2012 · Categories: Notes, Number 4, Print Edition, Volume 45

In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court produced a decision worthy of Janus, the two-faced Roman god whose image appears on Janus Capital’s corporate logo.  The five-to-four opinion by Justice Thomas, while paying lip service to the private right of action under Rule 10b-5, effectively cut off that right for many plaintiffs.  The Court in Janus addressed the question of whether a mutual fund’s management could be liable to investors in the fund’s parent company for losses tied to misstatements in the fund’s prospectuses.  Answering in the negative, the Court held only a third group—the fund’s independent board of trustees—could have “made” those misstatements under Rule 10b-5.  Significantly, the Court concluded only those with “ultimate authority” [...]

Constitutional Law—First Circuit Protects Right to Record Public Officials Discharging Duties in Public Space—Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)

PdfPDF by Jane T. Haviland · November-13-2012 · Categories: Case Comments, Number 4, Print Edition, Volume 45

The First Amendment protects the freedom of speech and press—liberties that include the right to disseminate certain information concerning governmental activities, including police work.  A police officer may defend against a claim of violating a citizen’s constitutionally protected right to gather and disseminate information by invoking the doctrine of qualified immunity.  Qualified immunity requires the government official to prove the constitutional right allegedly infringed upon was not clearly established at the time of the challenged conduct.  In Glik v. Cunniffe, the Court of Appeals for the First Circuit addressed the existence of a constitutional right to film officers discharging their duty in public and assessed whether that right was clearly established at the time Glik did so.  The court held that [...]

Constitutional Law—Third Circuit Holds First Amendment Protects Off-Campus Internet Speech from School Discipline—Layshock ex rel. Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011)

PdfPDF by David C. Soutter · November-13-2012 · Categories: Case Comments, Number 4, Print Edition, Volume 45

Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools.  The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit’s approach, commonly referred to as the Tinker test.  In Layshock ex rel. Layshock v. Hermitage School District, the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus.  The court [...]

Energy & Environmental Law—Nuclear Regulatory Commission Authorizes Inaugural Combined License for Construction and Operation of Two Nuclear Power Plants—In re Southern Nuclear Operating Company, Nos. 52-025-COL, 52-026-COL, 2012 WL 440403 (N.R.C. Feb. 9, 2012)

PdfPDF by Andrew J. Burke · November-13-2012 · Categories: Case Comments, Number 4, Volume 45

On February 9, 2012, the United States Nuclear Regulatory Commission (NRC) brought an end to the atomic power industry’s thirty-four-year construction hiatus when it green-lighted the licensing of two state-of-the-art nuclear reactors in eastern Georgia.  In In re Southern Nuclear Operating Co. [hereinafter Vogtle 3 & 4], the NRC considered whether Southern Nuclear Operating Company’s (SNC) application for two combined construction and operating licenses satisfied the applicable licensing standards set forth in the Atomic Energy Act of 1954 (AEA), the National Environmental Policy Act of 1969 (NEPA), and the agency’s own rules and regulations.  By a 4-1 margin, with Chairman Gregory Jaczko as the lone dissenter, the Commission concluded that SNC fulfilled all statutory and regulatory prerequisites for full licensure and [...]

Execution Watch: Mitt Romney’s “Foolproof” Death Penalty Act and the Politics of Capital Punishment

PdfPDF by Russell G. Murphy · November-29-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 45

Execution Watch, KPTF 90.1 FM, Houston, Texas, is a Public Radio program that only broadcasts when the State of Texas is executing one of its death-row inmates. Hosted by a former prison inmate and providing live coverage at Huntsville Prison, Execution Watch promotes political accountability and responsible social change through legal and political commentary on each case. On February 15, 2011, the author of this article appeared on Execution Watch to comment on the execution of Michael Wayne Hall. Hall’s case presented troubling issues of mental retardation and Texas standards and procedures for determining whether a defendant is mentally retarded. At the time of his crime—participation in the kidnapping, torture, and murder of a young girl—Hall’s IQ was 67, he [...]

The First Facebook Firing Case Under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media

PdfPDF by Christine Neylon O’Brien · November-22-2011 · Categories: Lead Articles, Number 1, Print Edition, Volume 45

The emergence of social media, from Facebook to Myspace and Linkedin to Twitter—much like the earlier evolution of email, IM, and web 2.0—have changed the way people communicate, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones and other portable internet data generators such as iPads, and even internet hotspots incorporated into motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing. In the first case of its kind, the National Labor Relations Board (Labor Board or NLRB) issued a complaint against an employer, American Medical Response of Connecticut [...]

Restating the Restatement of Conflicts: Approaching the Legitimacy Question in Choice-of-Law Theory

PdfPDF by Justin Zaremby · January-14-2012 · Categories: Lead Articles, Number 1, Print Edition, Volume 45

Since the so-called conflicts revolution, choice-of-law theory continues to reject the vested rights approach of the First Restatement of Conflicts without fully criticizing the failures of the governmental interest theory in the Second Restatement of Conflicts. At the same time, neither approach adequately examines the question of what constitutes a legitimate resolution to a conflict between states. This Article suggests that the choice between the rights language of the First Restatement and the governmental interest language of the Second Restatement is actually a debate between legal formalism and legal realism. Both choices lead to a legitimacy deficit for theorists and judges who attempt to resolve conflicts. This Article applies liberal and republican political theory to the debate between vested rights [...]

Who Is Armed, and by What Authority? An Examination of the Likely Impact of Massachusetts Firearm Regulations After McDonald and Heller

PdfPDF by Brian Driscoll · January-17-2012 · Categories: Notes, Number 1, Print Edition, Volume 45

Article XVII of the Massachusetts Declaration of Rights guarantees a right to keep and bear arms for the common defense.  The Supreme Judicial Court (SJC)—Massachusetts’s highest court—has interpreted article XVII as preserving a right to keep and bear arms in connection with service in the militia.  Because the SJC’s interpretation of article XVII does not protect an individual right to keep or bear arms, the court has granted the Massachusetts General Court—the state’s legislative body—wide leeway to craft a broad range of regulations governing gun ownership in Massachusetts.  In response, the General Court has enacted a comprehensive regulatory scheme for controlling and licensing firearm ownership in the Commonwealth. Although many citizens have challenged Massachusetts’s gun laws as infringing upon their [...]

Is This Heaven? No, It’s I.O.U.: Why Major League Baseball Must Modify Its Current Revenue-Sharing and Luxury-Tax Procedures

PdfPDF by Zachary Golden · January-14-2012 · Categories: Notes, Number 1, Print Edition, Volume 45

In August 2010, Deadspin.com, a sports and entertainment website, published leaked financial records for a number of Major League Baseball (MLB) clubs, including the Pittsburgh Pirates, Florida Marlins, Tampa Bay Rays, and Los Angeles Angels of Anaheim.  According to these documents, the Pirates, one of the league’s worst teams, raked in an operating profit upwards of $14.4 million in 2008.  MLB’s current revenue-sharing system aided in the Pirates’ accumulation of such a robust profit margin.  These leaked financial statements served to demonstrate what many baseball commentators have bemoaned for years: the current MLB revenue-sharing system is clearly dysfunctional, as evidenced by the fact that smaller market teams are realizing substantial profits while remaining consistently uncompetitive.  Parties on both sides of [...]

Do as I Say and Not as I Do: The United States’ Immunity in Oil Spill Response Actions

PdfPDF by Mark M. Higgins · January-14-2012 · Categories: Notes, Number 1, Print Edition, Volume 45

Residents of the states bordering the Gulf of Mexico have more in common with their part of the sea than only salt content.  Affecting the well-being of Gulf residents, the Deepwater Horizon oil spill was the largest in United States history, and efforts to respond to the disaster were similar in scale.  Neither the United States government nor the responsible party was prepared to mitigate the risks present in deep-sea oil exploration.  The lack of preparation and size of the spill forced responders to consider and implement untested strategies. Private actors must consider the potential liability of their actions.  Government, shielded by sovereign immunity, does not need to utilize the same calculations.  This Note will suggest that government should waive [...]

Much Ado About Nothing: Why the War over the Affordable Care Act’s Individual Mandate Will End with a Whimper and Not a Bang

PdfPDF by Christian G. Kiely · January-17-2012 · Categories: Notes, Number 1, Print Edition, Volume 45

Since the emergence of “modern” medicine in America at the turn of the twentieth century, political debate has raged over reforming and expanding access to the healthcare system.  While the movement enjoyed limited victories over the years, the Patient Protection and Affordable Care Act of 2010 (PPACA or the Act) represents the first successful attempt at comprehensive healthcare reform.  On March 23, 2010, the day President Obama signed the bill into law, the attorneys general of thirteen states filed suit in United States District Court challenging the constitutionality of various provisions of the Act.  While many prior failed attempts at healthcare reform have included some version of an “individual mandate,” the PPACA represents the first time Congress enacted a general [...]

GPS Tracking, Police Intrusion, and the Diverging Paths of State and Federal Judiciaries

PdfPDF by Brian Andrew Suslak · January-17-2012 · Categories: Notes, Number 1, Print Edition, Volume 45

Approximately eighty-two years after Justice Brandeis’s dissent in Olmstead v. United States, the United States Court of Appeals for the Ninth Circuit held that the warrantless placement of a global positioning system (GPS) on a criminal suspect’s vehicle did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures.  The court, relying on precedent established by the United States Supreme Court, concluded that Drug Enforcement Agency (DEA) officials did not invade any area in which the appellant possessed a reasonable expectation of privacy.  Furthermore, the court upheld the constitutionality of the GPS technology used by the DEA to track the appellant’s movements to and from suspected marijuana “grow houses.” The Ninth Circuit’s holding in United States v. Pineda-Moreno does not constitute [...]

Tort Law-First Circuit Declares Widespread Publicity Triggers Claim Accrual Under Federal Tort Claims Act-Donahue v. United States, 634 F.3d 615 (1st Cir. 2011)

PdfPDF by Bryan M. Connor · January-16-2012 · Categories: Case Comments, Number 1, Print Edition, Volume 45

The Federal Tort Claims Act (FTCA) affords private parties the opportunity to bring suit against the United States for certain types of tortious harm caused by government employees.  An FTCA claim generally accrues at the time of injury, but in circumstances where either the injury or its cause is not immediately apparent, federal courts employ a discovery rule that delays accrual until the plaintiff knows or reasonably should know the factual basis of his claim. In Donahue v. United States, the United States Court of Appeals for the First Circuit considered whether publicity regarding the government’s role in causing the plaintiffs’ injuries was sufficient to start the running of the FTCA claim-accrual period.  The court held that the two-year statute of limitations [...]

Constitutional Law-Arrest or Impaired Movement Material to Physical Force Seizure Analysis-Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010), cert. denied, 131 S. Ct.1045 (2011)

PdfPDF by John M. Wilusz · January-17-2012 · Categories: Case Comments, Number 1, Print Edition, Volume 45

The Fourth Amendment of the United States Constitution provides protection for individuals from unreasonable searches and seizures.  The Supreme Court and circuit courts alike have repeatedly analyzed the definition and applicability of the word “seizure,” along with the requisite amount of force needed to constitute a seizure, in a continued effort to safeguard against violation of the Fourth Amendment.  In Brooks v. Gaenzle,  the Court of Appeals for the Tenth Circuit considered whether shooting a suspect in the back as he successfully fled from pursuit could be construed as a seizure, and therefore represent a violation of the suspect’s constitutional rights.  The court held that no Fourth Amendment violation took place, because a clear restraint of freedom of movement must [...]

Employment Law-Third Circuit Denies ERISA Whistleblower Protection to Employee Discharged After Making Unsolicited Internal Complaint-Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217 (3d Cir. 2010), cert. denied, 131 S. Ct. 1604 (2011)

PdfPDF by George G. Baxter, IV · January-17-2012 · Categories: Case Comments, Number 1, Print Edition, Volume 45

The Employee Retirement Income Security Act (ERISA) established certain rights and protections for employee benefit plan participants.  In Edwards v. A.H. Cornell & Son, Inc.,  the Court of Appeals for the Third Circuit considered whether Section 510—ERISA’s anti-retaliation, or “whistleblower,” provision—protected from termination employees who make unsolicited internal complaints about their employer’s ERISA violations.  In a matter of first impression, the court held that Section 510 does not protect employees who voluntarily complain to their superiors about the employer’s ERISA violations outside the context of an “inquiry” or “proceeding,” and, in so doing, split with several of its sister circuits. In March 2006, Shirley Edwards began working at A.H. Cornell and Son, Inc. (Cornell), a family-owned construction company, as its [...]

Criminal Procedure-The Impact of Marijuana Decriminalization on Searches and Seizures in Massachusetts-Commonwealth v. Cruz, 945 N.E.2d 899 (Mass 2011)

PdfPDF by Beth Lidington · January-17-2012 · Categories: Case Comments, Number 1, Print Edition, Volume 45

Article XIV of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, affords individuals the right to be free from unreasonable searches and seizures.  Certain searches and seizures, such as an exit order issued to a passenger in a vehicle, may comport with constitutional protections if there is reasonable suspicion of criminal activity. In Commonwealth v. Cruz, a case of first impression, the Massachusetts Supreme Judicial Court (SJC) considered whether the odor of burnt marijuana alone provides reasonable suspicion of criminal activity in light of the recent decriminalization of marijuana under section 32L of chapter 94C of the Massachusetts General Laws (section 32L).  The court held that the odor of burnt marijuana alone is no longer sufficient to [...]

Inter Arma Enim Non Silent Leges

PdfPDF by Philip C. Bobbitt · April-3-2012 · Categories: Lead Articles, Number 2, Print Edition, Volume 45

There is good reason to think that law and war have nothing to do with one another, and this has certainly been so for most of the lifetime of mankind.  Cicero’s famous observation—silent enim leges inter arma—from which I take my title, was not a novel insight when uttered in 52 B.C. and in any case was not said in the context of war, but of a prosecution for murder in the aftermath of the Roman riots of that era between the partisans of the populares and optimates. Clausewitz, however, said much the same thing when he decried moderation in warfare, and expressed contempt for legal rules: “War is . . . an act of force to compel an enemy to do our will. . . [...]

What’s Going On? The Right to Confrontation

PdfPDF by Hon. Mark S. Coven and James F. Comerford · April-3-2012 · Categories: Lead Articles, Number 2, Print Edition, Volume 45

In Michigan v. Bryant, the United States Supreme Court wrote another chapter in the clash between the Confrontation Clause of the Sixth Amendment to the United States Constitution and the admissibility of extra-judicial statements. This article presents an outline of Bryant’s “ongoing emergency” doctrine, an examination of how Bryant may affect Massachusetts’s decisional law, and a view that Bryant’s holding and dictum may mark a return to the basic contours of the reliability of excited utterances in the context of domestic violence prosecutions. . .

Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya

PdfPDF by Andrew Novak · April-3-2012 · Categories: Lead Articles, Number 2, Print Edition, Volume 45

The death penalty is rapidly receding in the former British colonies of common-law Africa.  Although proposals to institute or retain the death penalty for a wide assortment of crimes are not uncommon, actual judicial executions have grown extremely rare south of the Sahara Desert.  The death penalty has fallen into disuse in most of common-law Africa, and many of these countries are now considered de facto abolitionist.  As in other parts of the retentionist world, death-penalty abolition is an incremental process, nurtured more by small steps—stays of execution, grants of clemency, judicial clarification—than by dramatic ones, the most important of which for the continent of Africa was the 1995 decision of the Constitutional Court of South Africa, deeming the death [...]

The Federalist Papers, the Commerce Clause, and Federal Tort Reform

PdfPDF by Paul Taylor · April-3-2012 · Categories: Lead Articles, Number 2, Print Edition, Volume 45

In the modern era, Congress has enacted many federal “tort reform” statutes that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality.  Even President Ronald Reagan, known for his deference to the states, established a special task force to study the need for tort reform that concluded the federal government should address the modern tort liability crisis in a variety of ways.  Still, some question the appropriate constitutional role of Congress in enacting federal tort reform.  This Article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers. . .

Insuring the Knot: The Massachusetts Approach to Postnuptial Agreements

PdfPDF by Stephanie A. Bruno · April-6-2012 · Categories: Notes, Number 2, Print Edition, Volume 45

As divorce rates in the United States continue to skyrocket, couples keep searching for new ways to protect their relationships and their wallets. Thanks to the contractual nature of the marital relationship, the wary fiancé or exhausted spouse may dictate certain terms relating to his impending marital union or dissolution in the form of a prenuptial or separation agreement. While both agreements are widely accepted options for defining and restricting the rights and liabilities one assumes upon entering or ending a marriage, many jurisdictions recently began entertaining and sanctioning a third method, the postnuptial agreement.  The conditions and components required to produce a legitimate postnuptial agreement, however, differ radically from state to state. Massachusetts, having declined to address the issue in the past [...]

Only as Strong as the Missing Link: The Unsteady Constitutionality of the Adam Walsh Act

PdfPDF by Elizabeth Burke · April-4-2012 · Categories: Notes, Number 2, Print Edition, Volume 45

This Note will examine constitutional challenges to the Adam Walsh Act, analyze the history of relevant jurisprudence, discuss the flaws in the Supreme Court’s opinion, and offer recommendations for legislative modification.  Parts II.A and II.B will discuss the history of sexually violent person (SVP) laws at the state and federal level.  Part II.C will review the various constitutional challenges brought against the Act.  In Part II.D, this Note will discuss the Supreme Court’s reasoning in United States v. Comstock.  Part III.A will analyze the weakness of the Court’s opinion in Comstock, and suggest that the Court’s analysis of the Adam Walsh Act under the Necessary and Proper Clause is, at best, tenuous.  Part III.B will offer alternative arguments for constitutional [...]

Legal Guardianship of Individuals Incapacitated by Mental Illness: Where Do We Draw the Line?

PdfPDF by Meta S. David · April-4-2012 · Categories: Notes, Number 2, Print Edition, Volume 45

This Note focuses on how courts in New England determine when an individual is mentally incapacitated due to mental illness.  Part II.A presents a description of the evolution of guardianship laws from solely common-law to statutorily based.  Part II.B follows this historical review with a discussion of the possible abuses of the guardianship system and how courts mitigate the risk of such abuse.  Next, Part II.C-D describes the adjudication process generally, types of guardianship, and the factors courts consider when assessing capacity.  Part II.E introduces the concept of supported decision-making, which some countries have implemented to supplement existing guardianship law.  Part III analyzes the effectiveness of instituting a bright-line rule regarding mental capacity.  This Note recommends implementation of a uniform [...]

Writing Scripts for Silent Movies: How Officer Experience and High-Crime Areas Turn Innocuous Behavior into Criminal Conduct

PdfPDF by Thomas R. Fulford · April-3-2012 · Categories: Notes, Number 2, Print Edition, Volume 45

This Note will begin by examining the historical background of the constitutional standards for search and seizure analysis. Next, it will address the gradual erosion of the particularized-suspicion requirement, illustrating the modern trend of courts to allow categorical judgments to serve as the basis for suspicion, as well as the move away from strict standards towards general reasonableness inquiries. The Note will then focus on officer training and experience, first addressing the seemingly inconsistent use of an officer’s subjective experiences in what is supposed to be a purely objective analysis of the basis of suspicion, then discussing the differing treatments of officer training and experience, as well as the “expert” nature of officer testimony. Then it turns to the high-crime area factor, highlighting [...]

Do Friends Need the Law? Examining Why Friendship Matters and What Governments Can Do for This Important, Though Often Overlooked, Relationship

PdfPDF by Peter P. Gelzinis · April-5-2012 · Categories: Notes, Number 2, Print Edition, Volume 45

This Note will analyze whether the law should do more for the institution of friendship. Throughout Part II of this Note, I will provide an overview of different works of classical philosophy to help familiarize the reader and to understand their relevance to a present-day analysis of friendship.  Part II.A will analyze the problem of defining what a friend is. Part II.B will consider the personal nature of friendship and its significance for the greater community.  Part II.C will describe recent trends toward extending legal recognition to different kinds of relationships that the law had previously overlooked.  Part III.A will demonstrate the weaknesses of some of the existing proposals for attaching legal significance to friendship. In the last section of this Note, [...]

Discriminatory Opportunism: Why Undertaking Self-Employment to Mitigate Damages Creates Unique Challenges

PdfPDF by Thomas J. McIntyre · April-3-2012 · Categories: Notes, Number 2, Print Edition, Volume 45

This Note will explore the effects and ramifications when the former employee chooses self-employment in an effort to mitigate the damages of the wrongful discharge. It will begin by providing an overview of the history of mitigating damages through self-employment, including an exploration of the different calculation methods used by courts.  It will then discuss the current state of the law, relying heavily on cases decided under federal antidiscrimination statutes.  Next, this Note will explore plummeting costs of self-employment due to the rise of the internet.  Lastly, it will focus on possible ways to prevent former employers from essentially insuring against losses in the self-employed’s new venture, and then argue that the reasonable diligence standard may be too easy to [...]

Civil Procedure—Ninth Circuit Focuses on Importance of Subsidiary Rather Than Control to Impose General Jurisdiction over Foreign Corporation—Bauman v. DaimlerChrysler Corp., 644 F.3d 909 (9th Cir. 2011)

PdfPDF by Andrew T. Stark · April-5-2012 · Categories: Case Comments, Number 2, Print Edition, Volume 45

The Supreme Court of the United States has established that general personal jurisdiction allows a forum to exercise authority over a defendant to adjudicate claims that do not arise from the defendant’s contacts within the forum state.  Since the advent of the modern corporation, plaintiffs have attempted to establish jurisdiction over a foreign corporation because of its subsidiary’s contacts with a forum state.  In Bauman v. DaimlerChrysler Corp., the Court of Appeals for the Ninth Circuit considered whether a state may exercise general jurisdiction over a foreign corporation because it has a subsidiary with extensive contacts in the United States.  The Ninth Circuit held that a subsidiary is a foreign corporation’s agent for jurisdictional purposes if the subsidiary’s services are sufficiently [...]

Constitutional Law—Ninth Circuit Effectively Precludes Future Findings of Brady Violations in the Absence of a Conviction—Smith v. Almada, 640 F.3d 931 (9th Cir. 2011)

PdfPDF by Andrew J. Burke · April-3-2012 · Categories: Case Comments, Number 2, Print Edition, Volume 45

When analyzing a claim under 42 U.S.C § 1983 that the government withheld exculpatory evidence from a criminal defendant, courts typically use the Fifth or Fourteenth Amendment’s due process standard as articulated in the iconic 1963 case of Brady v. Maryland.  In Smith v. Almada, the Court of Appeals for the Ninth Circuit considered whether a police officer’s failure to disclose exculpatory evidence violated the plaintiff’s due process right to a fair trial—thereby exposing the officer to civil liability under Brady—where the plaintiff had spent over seventeen months in jail but had never been convicted.  The Ninth Circuit initially answered that question very broadly, holding that relief under Brady is unavailable entirely in the absence of a conviction.  On plaintiff’s motion for [...]

Contract as Meaning: An Introduction to “Contract as Promise at 30″

PdfPDF by Jeffrey M. Lipshaw · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Charles Fried wrote Contract as Promise because he objected to the idea—growing increasingly prevalent in the years preceding the book’s publication—that something other than moral duty underlay the social institution through which the state intervenes to enforce, at the request of one private party, the promissory obligations of another private party. Under one view, for example, contract law is a product of social development since the Industrial Revolution, the means by which large, impersonal institutions—corporations, unions, governments—regulate their affairs.  According to another line of thought, contract law is merely a way of doing justice and imposing social policy on parties who have come, in one way or another, to interact with each other. Professor [...]

The Holmesian Bad Man Flubs His Entrance

PdfPDF by Barbara H. Fried · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Thirty years after its publication, Contract as Promise remains the canonical presentation of a liberal, autonomy-based conception of contractual obligation. In Charles Fried’s words, “The moral force behind contract as promise is autonomy: the parties are bound to their contract because they have chosen to be,” and their “rights and duties [are] as far as possible a function of their own will and not of standards of justice external to that will.”  While other strains of liberal contract theory (consent-based, obligation-based) may differ from Prof. Fried’s “will” theory of contracts in other respects, they all share his foundational commitment to the view that promissory obligations, unlike most other forms of [...]

Contract Is Not Promise; Contract Is Consent

PdfPDF by Randy E. Barnett · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective theory of assent and the content of most “gap fillers” [...]

The Sacred and Profane Contracts Machine: The Complex Morality of Contract Law in Action

PdfPDF by Jean Braucher · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory This article begins to articulate a theory that a central moral concern in contract law in action is flexibility to recognize the need for adjustment, release, and forgiveness among good faith parties, most obviously in relational contexts. The article explores some telling examples, from the morality of the businessmen Stewart Macaulay wrote about in Non-Contractual Relations in Business to that of the characters in Harriet Beecher Stowe’s satiric novel The Minister’s Wooing, which puts the need for promissory forgiveness at the center of the dramatic action. Also examined in this article are the animating moral concerns of the law in action school of thought itself. The overall aim is to [...]

Promise Etc.

PdfPDF by Gregory Klass · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Charles Fried’s Contract as Promise is the first post-realist will theory of contract. It is post-realist in two senses. First, Fried has learned the lessons of the realist critique of Langdellian formalism. He does not attempt to deduce the entire law of contract from a single promise principle. The theory is attuned to the multiple purposes and principles, as well as the practical exigencies, that figure into contract law. In his discussion of Red Owl, for example, Fried writes that “contract as promise has a distinct but neither exclusive nor necessarily dominant place among legal and moral principles.”  While Fried minimizes the conflict between those different principles and purposes—imagining established [...]

Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried

PdfPDF by Brian H. Bix · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Charles Fried’s 1981 book, Contract as Promise, started the modern discussion in the United States and many other places on contract theory, and remains an influential view to which all contract theorists who have come later must respond. This Article will consider two important themes connected with Fried’s project: first, the nature of the theoretical claims in Contract as Promise; and second, the question of whether contract law, especially when this area is equated with the enforcement of promises, is in tension with John Stuart Mill’s “Harm Principle.” Part I of this Article looks at Fried’s book from the perspective of theory construction, evaluating Fried’s claims in the context of [...]

Promises and Prices

PdfPDF by Richard Craswell · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory What sanctions should the law inflict on those who break their contracts? Would it matter if more severe sanctions were likely to cause prices to rise? What if most contracting parties prefer higher sanctions and higher prices, or what if they prefer lower sanctions and lower prices? And whatever the answer to these questions might be, why do economists and philosophers think about these issues so differently? Of course, when I speak of “economists” I mean something closer to “most economists, though not necessarily all of them; and including the many lawyers (like me) who do not have advanced degrees but who use economics in their scholarship.” An analogous but [...]

Virtue Ethics and Efficient Breach

PdfPDF by Avery Katz · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory The concept of “efficient breach”—the idea that a contracting party should be encouraged to breach a contract and pay damages if doing so would be more efficient than performance—is probably the most influential concept in the economic analysis of contract law. It is certainly the most controversial. Efficient breach theory has been criticized from both within and without the economic approach, but its most prominent criticism is that it violates deontological ethics—that the beneficiary of a promise has a right to performance, so that breaching the promise wrongs the promisee. This essay argues that this criticism is misplaced, and that efficient breach theory, properly understood, is not inconsistent with parties’ [...]

The Expectation Remedy and the Promissory Basis of Contract

PdfPDF by Daniel Markovits and Alan Schwartz · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Charles Fried’s Contract as Promise stands as a model of principled legal argument.  It took a single, integrating thought—that a promise lies at the heart of every contract—and then reconstructed broad swaths of doctrine as elaborations of that thought. The book’s argument is all the more impressive because the promissory ideal in whose name it seeks to unify contract law is not straightforward.  On the contrary, grounding contract in promise highlights two of contract law’s most distinctive yet least understood features:  that the law establishes liability strictly, rather than based on fault; and that it creates forward-looking rather than the usual backward-looking entitlements, entitlements to be made better off rather [...]

Promissory Autonomy, Imperfect Courts, and the Immorality of the Expectation Damages Default

PdfPDF by George Triantis · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory To a generation of law students, lawyers, and legal scholars, Contract as Promise has provided a liberal theory of contract that explains fundamental features of contract law and provides a normative foundation for evaluating the legal doctrine. As is well known by now, the promissory theory of contracts justifies the legal enforcement of contracts in terms of respect for individual freedom and autonomy to make binding commitments. The touchstone of contractual analysis from this perspective is the intent of the promisor. Together with other moral theories of promising, this perspective on contract law has generated voluminous scholarship. Thirty years after the book’s publication, I am unlikely to shed new light on [...]

The Promise Principle and Contract Interpretation

PdfPDF by Juliet P. Kostritsky · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of contract law, have importantly contributed to rescuing contract law from absorption into tort law and from the imposition of externally imposed standards that are collective in origin. The principle makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this Essay questions whether a promise-centered system, derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty, can provide the basis on which the public law can [...]

Do Promises Distinguish Contract from Tort?

PdfPDF by Curtis Bridgeman and John C.P. Goldberg · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Contract as Promise, Charles Fried’s modern classic, argues that contract law has a “moral basis” in the “promise principle.”  It was written, of course, in response to scholars who foresaw the “Death of Contract.” According to them, it is a mistake to think of contract as a distinct domain of law, with a distinct foundation. Properly understood, contract is just an instantiation of the more basic category of tort, with the latter understood as law that requires persons who wrongfully cause losses to compensate their victims. Contract-as-tort scholars made their point in different ways. Patrick Atiyah took a historical route, arguing that promising was only center stage in contract law for [...]

The Equitable Dimension of Contract

PdfPDF by Henry E. Smith · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Contract theory has long been preoccupied with the common law.  Contracts is taught in the first year of law school along with the other “common law subjects.”  The rise of the modern view of contracts as involving mutually dependent undertakings—as opposed to the earlier independent covenants model—was carried out by the common law courts. Contracts are usually enforced with damages, the classic common law remedy.  From proto-realists like Holmes, through the realists and their successors in law and economics, theorists have emphasized the law and downplayed the special role of equity, as developed over the centuries by Chancery and building on a tradition of thought going back at least to [...]

On the New Pluralism in Contract Theory

PdfPDF by Roy Kreitner · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory Pluralism is on the agenda of contract theory. Maybe pluralism is a budding movement, the next big thing; maybe it is just a rehashing of pragmatic muddling through that either shuns or doesn’t deserve the name “theory.”  But whatever our predilections or eventual evaluations, it is worth noting that pluralism has become a question for theorists interested in contracts.  Some of the scholars articulating what I will call pluralism have adopted this moniker themselves; others have developed pluralist insights without calling on the label.  This paper has two goals.  The first is to draw together a number of works that develop a pluralistic view in contract theory and to map [...]

Promise and Private Law

PdfPDF by Nathan B. Oman · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory This essay was part of a symposium on the thirtieth anniversary of the publication of Charles Fried’s Contract as Promise and revisits Fried’s theory in light of two developments in the private-law scholarship:  the rise of corrective justice and civil-recourse theories.  The structural features that motivate these theories—the bilateralism of damages and the private standing of plaintiffs—are both elements of the law of contracts that Contract as Promise sets out to explain.  I begin with the issue of bilateralism.  Remedies—in particular the defense of expectation damages—occupy much of Fried’s attention in Contract as Promise, and he insists that this particular remedial response flows from a commitment to promissory morality.  I [...]

Contract as Promise Thirty Years On

PdfPDF by Charles Fried · June-20-2012 · Categories: Lead Articles, Number 3, Print Edition, Volume 45

Symposium—Contract as Promise at 30: The Future of Contract Theory At the time Contract as Promise was written, there were two views of the subject in the field: a traditional, doctrinal and not particularly theorized view that saw contract as the law’s way of allowing private parties to create and enforce the terms that would govern transactions and long-term undertakings, and a burgeoning literature that saw contract law as a tool of social control imposing obligations on parties growing in part, but only in part, from dealings into which they had voluntarily entered. This latter view saw contract law disappearing into tort law, which is quite frankly a means for adjusting—on grounds of perceived fairness, social utility or redistribution—relations between parties. The [...]