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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 [...]