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A Name of One’s Own: The Spousal Permission Requirement and the Persistence of Patriarchy

PdfPDF by Beth D. Cohen · February-8-2013 · Categories: Lead Articles, Number 1, Print Edition, Volume 46

Throughout the years, I have witnessed many friends and acquaintances struggle with naming decisions during the occasions of marriage, birth of children, divorce, and remarriage. Naming decisions are deeply personal, and as expected, people choose different paths; they change their names to their spouses’ last names, keep their birth names, hyphenate their names, and alternate the last names of their children. In particular, two friends, who upon marriage adopted their husbands’ last names, decided to resume using their birth names during the course of their marriage; both felt as though they had lost a piece of themselves and sought to reclaim their identity by reclaiming their birth name. Their individual identities, however, were not reclaimable by themselves as individuals; each [...]

Reforming Alimony: Massachusetts Reconsiders Postdivorce Spousal Support

PdfPDF by Charles P. Kindregan, Jr. · February-8-2013 · Categories: Lead Articles, Number 1, Print Edition, Volume 46

When John Adams wrote the Massachusetts Constitution during the American Revolution, he included a provision allowing for alimony awards in divorce cases.  Thus Massachusetts has recognized awards of spousal support longer than any other state.  From a national perspective, the evolution of alimony law began to undergo changes in the last half of the twentieth century in many states, including time limits on the obligation, use of rehabilitative orders, and greater flexibility to modify.  The introduction of equitable property division in divorce actions in the last decades of the twentieth century throughout the United States helped to reduce the need for alimony in many cases.  Changes in societal habits, including the growing ability of women to become self-supporting, played a [...]

Targeted Hate Speech and the First Amendment: How the Supreme Court Should Have Decided Snyder

PdfPDF by Rosalie Berger Levinson · February-8-2013 · Categories: Lead Articles, Number 1, Print Edition, Volume 46

The Supreme Court in Snyder extolled the protected status of hate speech as essential to First Amendment values, even when targeting a private funeral where it caused significant emotional harm to grieving family members.  The Court in essence ruled that hate speech, no matter how offensive and intentionally hurtful, is protected if it addresses a matter of public concern in a public place.  This article contends that the near-absolutist position the Court espoused in Snyder does not comport with established First Amendment jurisprudence, which acknowledges several categories of unprotected or less protected speech.  Nor can the Court’s analysis be reconciled with other decisions, which recognize that in some contexts concerns for human dignity, equality, and privacy outweigh First Amendment values.  [...]

Cluttered Apartments and Complicated Tenancies: A Collaborative Intervention Approach to Tenant “Hoarding” Under the Fair Housing Act

PdfPDF by Christopher C. Ligatti · February-8-2013 · Categories: Lead Articles, Number 1, Print Edition, Volume 46

While the phenomenon of hoarding is not new, the media scrutiny accompanying it has reached heights undreamt of even in 1947, when the living situation of the famous Collyer brothers became front-page news.  Along with numerous recent newspaper and magazine accounts of the problem, and an increased focus from the medical community, the term “hoarding” has burrowed into popular culture through ubiquitous reality shows as one of those amusing extreme behaviors to which the human experience occasionally gravitates.  However, in discussing hoarding, it is surprising how commonly we find that we know “hoarders,” either as neighbors, friends, parents of friends, coworkers, or even family members.  It seems that everyone knows someone or knows someone who knows someone who could become a reality television star if [...]

Restitutionary Recovery: The Appropriate Standard of Care for Emergency Rescue Reimbursement by Hikers

PdfPDF by Jonathan R. DeBlois · February-24-2013 · Categories: Notes, Number 1, Print Edition, Volume 46

During the fiscal year ending in June 2009, there were 131 emergency rescues in New Hampshire at a total cost of about $175,000. Traditionally, in New Hampshire and elsewhere in the United States, the cost of these rescues would be borne by the government.  The reasoning behind not charging individuals for rescue services was based on common-law principles such as the free-public-services doctrine, as well as general public policy.  Recently, however, states have been trending toward enacting legislation requiring reimbursement for the cost of being rescued.  Most of these statutes target hikers, allowing the state to recover from the rescuee, or the rescuee’s guardian or estate. As of March 2012, eight states have enacted such laws. . . This Note [...]

The Stream of Commerce Flows On

PdfPDF by Jessica Jeffrey · February-24-2013 · Categories: Notes, Number 1, Print Edition, Volume 46

The Supreme Court’s 2011 decision in J. McIntyre Machinery, Ltd. v. Nicastro marked the first time the Court explored personal jurisdiction in a “stream-of-commerce” conflict since its 1987 decision in Asahi Metal Industry Co. v. Superior Court of California. While many analysts and litigators hoped for clarification of the law, the Court’s decision did little to refine the lines originally blurred in Asahi. The Court failed to deliver a majority decision on the facts of the case, leaving circuit courts to rely on their own analytical devices. . .

This Note will track the evolution of personal jurisdiction by analyzing the current status of the stream-of-commerce theory in light of the decision in McIntyre.  Part II.A discusses the origins of personal jurisdiction, while Part II.B outlines the progression of the stream-of-commerce analysis. [...]

Where Angels Fear to Tread: Islamic Arbitration in Probate and Family Law, a Practical Perspective

PdfPDF by Evan M. Lowry · February-24-2013 · Categories: Notes, Number 1, Print Edition, Volume 46

In 2010, voters in Oklahoma overwhelmingly approved an amendment to the Oklahoma State Constitution that barred the consideration of “international law or Shari’a Law” in Oklahoma state courts. Before it took effect, a Muslim named Muneer Awad successfully challenged the law by arguing that it rendered his Shari’a-compliant will unenforceable and infringed upon his First Amendment rights. Before the Tenth Circuit struck down the “Save Our State” amendment, legislatures in as many as twenty states proposed similar legislation. It is clear from this trend that a portion of the American public finds the idea of substituting religious law for civil law in American courtrooms disconcerting. What many of the proponents of “Save Our State” and similar legislation may not realize [...]

Paper Tiger: The Validity of CFTC Position-Limit Rulemaking Under Dodd-Frank

PdfPDF by Andrew Notini · February-24-2013 · Categories: Notes, Number 1, Print Edition, Volume 46

The passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), signed into law by President Barack Obama on July 21, 2010, was Congress’s response to the 2007 global financial crisis.  This crisis was primarily caused by the inflation of the housing bubble along with financial institutions’ risky mortgage lending and securitization practices, leading to a severe liquidity strain and credit crunch among these institutions and a near collapse of the global financial system.  Preceding these events was a period of laissez-faire financial regulation wherein major financial institutions and capital markets were largely left to regulate themselves.  The passage of Dodd-Frank marked a return to strict governmental regulation of both capital markets and large financial institutions for the purpose of re-establishing the financial stability of the United States. [...]

What the Founders Did Not See Coming: The Fourth Amendment, Digital Evidence, and the Plain View Doctrine

PdfPDF by Kaitlyn R. O’Leary · February-24-2013 · Categories: Notes, Number 1, Print Edition, Volume 46

The development of digital technology has created a unique set of problems for courts attempting to determine whether certain practices pertaining to search and seizure of digital forensic evidence are violative of the Fourth Amendment.  The significant inherent differences between physical and digital property make a traditional application of the Fourth Amendment ill-fitting and unworkable.  Congress and the courts have attempted to grapple with the doctrinal inconsistencies that result from the physical-digital distinction by recognizing modifications in the practices, policies, and procedures that govern the search and seizure of digital evidence.  In the absence of well-defined  rules, however, courts are implementing widely varied and inconsistent approaches to determine whether the government violated the timing and particularity requirements of search warrants under the Fourth Amendment. . . This Note will analyze [...]

The Doctor Will See You for the Last Time Now: Physician-Assisted Suicide in Massachusetts

PdfPDF by Stephen J. Orlando · February-24-2013 · Categories: Notes, Number 1, Print Edition, Volume 46

Under early common law, many states punished assisted suicide as murder.  In 1994, however, the Supreme Court of Michigan drew a legal distinction between the concepts of murder and assisted suicide.  Despite this distinction, forty-seven states still prohibit physicians from assisting in a patient’s death. The justifications for this restriction include avoiding the possibility of abuse, preventing the risk of a slippery slope to involuntary euthanasia, or preserving the integrity of the medical profession.  The three states that allow the practice view physician-assisted suicide (P.A.S.) as a means of promoting patient autonomy and providing a merciful end-of-life option for terminally ill patients. Presently, Massachusetts is in line with the majority of states in prohibiting P.A.S.  In September 2011, Attorney General Martha Coakley certified an initiative petition to legalize physician-assisted suicide. [...]