- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
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 despite acknowledging the opportunity, recently spoke up in the case of Ansin v. Craven-Ansin, rejecting the theory that postnuptial agreements are per se against public policy. Instead, the court held that such agreements are valid, provided, however, that the circumstances prompting the agreement and the terms of the agreement satisfy certain requirements. The Massachusetts standard for upholding postnuptial agreements is moderate as compared to other states’ approaches. Ohio, for instance, falls at one end of the spectrum, statutorily abolishing postnuptial agreements as per se against public policy, while Utah takes the opposite position, treating postnuptial agreements no differently than prenuptial agreements.
This Note will first look at how marital law has evolved, specifically focusing on the Massachusetts law that paved the way for the Ansin decision. It will then address the general policy concerns associated with postmarital contracting, focusing on the differing levels of scrutiny that select state courts and legislatures apply to postnuptial agreements, all while exploring the underlying philosophies fueling these decisions. In doing so, it will also consider how the Massachusetts approach, as reflected in the Ansin decision, comports with not only these assorted viewpoints but also with the state’s position on related topics pertaining to marriage, namely, how the judiciary’s rationale behind defending same-sex marriage ought to be considered when assessing the appropriateness of its present approach to postnuptial contracting. Lastly, this Note will consider the most effective means of protecting the policy concerns, such as threats of unfair bargaining power and general inequities, ultimately concluding that Massachusetts may wish to bolster its standard of review as the current considerations may not provide adequate protection. . .
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 important to the parent corporation and the parent has the right to substantially control the subsidiary’s activities.
In 2004, twenty-three persons (Plaintiffs) filed a lawsuit against DaimlerChrysler Aktiengesellschaft (DCAG) in the United States District Court for the Northern District of California. Plaintiffs alleged that DCAG’s wholly owned subsidiary, Mercedes-Benz Argentina, collaborated with the Argentinean government to kidnap, torture, or kill the Plaintiffs or their relatives during Argentina’s “Dirty War.” In response to the Plaintiffs’ complaint, DCAG moved to dismiss for insufficient service of process and lack of personal jurisdiction. . .
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, I will narrow my focus to one political community—the Commonwealth of Massachusetts—and, by drawing upon themes contained in the landmark decision of Goodridge v. Department of Public Health, I will argue that the Commonwealth would be a logical place for moving forward with this friendship agenda by making limited, public-policy changes that would create protections and incentives that would make it easier for friends to help one another during times of difficulty. . .
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 justification of the Act under the Commerce Clause. Part III.C offers recommendations for legislative changes to avoid additional litigation regarding the Act’s due process guarantees. . .
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 assessment framework and computerized statewide case-management systems to enhance the predictability and efficiency of guardianship proceedings. Finally, this Note proposes an intermediate option for individuals in the grey area between absolute mental capacity and incapacity. . .
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. . .
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. . . . [A]ttached to force are certain, self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it. Force—that is, physical force, for moral force has no existence save as expressed in the state and its law—is thus the means of war.”
This view of law and war as mutually exclusive has prevailed through most of the various periods in the life of the modern state. . .
For more information about Professor Bobbitt’s Donahue Lecture (which served as the basis for this article) as well as photos from the event, please click here.
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. . .
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 penalty unconstitutional. Upon independence, former British colonies inherited nearly identical constitutions drafted at Lancaster House in London, each of which specifically saved the death penalty from constitutional challenge. Although common-law African constitutions have been written and rewritten since independence during the eras of oneparty rule in the 1970s, of economic adjustment in the 1980s, and democratization in the 1990s, most former British colonies retain similar constitutional and legal structures, including retention of the death penalty in national penal codes. The mandatory death penalty, a relic of nineteenth century Britain, is the most constitutionally vulnerable aspect of African deathpenalty regimes, and is facing sustained challenge in a number of countries. . .
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 the social, racial, and practical concerns implicated by the high-crime designation. This portion of the Note concludes by providing an example of one court’s framework for determining whether a neighborhood merits the high-crime designation, requiring objective, quantifiable support. . .