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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 [...]