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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 Section 33E is a relic of the death-penalty era, originally enacted in 1939 to provide special, plenary appeal in “capital cases,” but Massachusetts ceased to be a death-penalty state forty years ago.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” [...]