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“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 its major role in providing food to the public, the factoryfarming industry has landed in the crosshairs of animal-rights and environmental activists seeking to expose the public-health, environmental, and animal-rights violations of commercialized farming facilities. To date, the most common means of exposing these concerns is through undercover investigations—activists pose as employees to obtain footage of animal abuse, health-code violations, and pollution. These investigations have exposed unsavory conditions on factory farms, generated considerable media attention, and created substantial financial consequences for those facilities that have been exposed. In response to the increase of undercover investigations, state legislatures, with the support of factory-farming lobbyists, have passed legislation that will criminalize undercover photography and videotaping on farms, and many other states are attempting to pass similar laws.
Critics of the proposed legislation have commonly referred to the statutes as “whistleblower suppression” laws, while supporters have referred to them as “animal interference” laws, but it was Mark Bittman, of the New York Times, who coined the most popular term—“ag-gag” laws. As of the publication of this Note, five states have “ag-gag” laws on the books, while eight other states are either considering or have recently rejected similar legislation. “Ag-gag” laws take aim at varying levels of conduct, but the behavior targeted by each statute generally falls within one of three categories: (1) dishonesty in the jobapplication process, when the applicant has the intention of infiltrating the facility to investigate; (2) the act of photographing or videotaping on agricultural facilities; and (3) the act of photographing or videotaping, as well as the possession or distribution of such videos.
This Note will focus primarily on the second and third categories of “ag-gag” legislation, analyzing the constitutionality of proposed and existing laws under the First Amendment. Specifically, this Note will address whether photography and videotaping, in the context of undercover farming investigations, should be considered protected speech, and if so, whether “ag-gag” laws amount to impermissible, content-based restrictions on speech. Additionally, this Note will consider whether “ag-gag” laws that place restrictions on the distribution of undercover footage are prior restraints on speech and thus barred under the First Amendment. . .
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 in the first degree . . . .” By virtue of this legislative malapropism, section 33E survived the death penalty and has persisted as a statute orphaned by judicial and legislative history. Now first-degree murder defendants are guaranteed special review regardless of the punishment they face, and they take up a huge share of the SJC’s docket: over a third of its criminal appeals and almost twenty percent of all full opinions issued.
This article is the first to address comprehensively the unique treatment of murder appeals in Massachusetts. It blends original research into legislative and judicial history as well as contemporary statisti was never the case. Massachusetts actually enacted section 33E to make the death penalty more effective. Furthermore, the statute always addressed the punishment of death, not the crime of homicide. The 1962 definition clause changed this and guaranteed first-degree murderers, for no reason inherent in the crime, an expedited and more lenient appeal. This article argues that Massachusetts should eliminate the definition clause consistent with the statute’s original intent. This will preserve the Supreme Judicial Court’s primary purpose, as stated by Justice Henry Lummus, to “superintend the growth of the law.”
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 that is costly, and inefficient. By seizing the initiative in the creation of a trade association, which simply declared itself the official voice of the bar over all aspects of the profession (although less than one-third of the 1.2 million lawyers in the United States are ABA members), and then convincing state bar authorities to accept its judgments, the ABA accomplished its goal of self-regulation through the use of monopoly power. Not until the 1970s did the ABA experience any real challenge to its dominance.
The Watergate scandal harmed the bar’s reputation when President Nixon’s prestigious lawyers committed crimes that subverted governmental authority. Furthermore, the Supreme Court found a number of the ABA’s regulations of lawyer professionalism to be illegal.