- Online Edition
- Print Edition
- Donahue Lecture Series
- Archived Mastheads
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. . .
The purpose of this Note is to evaluate the effect of recent decisions, especially Business Roundtable, on court challenges to the CFTC regulation concerning position limits for commodity futures and derivatives. Part II.A will briefly discuss the recent history of financial regulation in the United States before exploring the economic circumstances that led to the passage of Dodd-Frank. Part II.B will discuss the implementation of the Dodd-Frank Act and other legislation that both bolstered and limited the regulatory power of the SEC and CFTC. Part II.B will also spell out the aforementioned CFTC regulations, including their cost-benefit analysis and justification along with concerns voiced by members of the financial community whom the regulations will affect. Additionally, Part II.B will explore the recent district court decision remanding the position-limit rule back to the CFTC for further consideration. Part II.C will dissect relevant court decisions that have invalidated SEC regulations. Finally, Part III compares the proposed CFTC regulations with those defeated in the courts, and attempts to predict the success or failure of the promulgated rules in a court challenge. . .
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 is that religious law is already applied routinely in America through the use of religious arbitration tribunals, and decisions by these bodies are binding on American judges through the Federal Arbitration Act (FAA) and state law based upon the Revised Uniform Arbitration Act (RUAA). In fact, agreements to arbitrate disputes using Islamic, Christian, and Jewish principles and law have been honored in jurisdictions from New York to Texas. . .
This Note addresses these issues by analyzing the ways in which precepts of Shari’a differ from American law in the areas of divorce, child custody, and probate law. It then examines the effect that the application of Shari’a can have on the substantive rights of parties who submit to it. Part II explores the historical development of religious arbitration and how arbitration can be beneficial to Muslims who choose to employ it. After comparing the two legal systems’ approaches to family and probate law, Part III argues that the expansion of religious arbitration in these areas could have inequitable effects on parties who never agreed to be bound by religious arbitration. This Note then concludes that while Shari’a arbitration may be viable in the area of divorce, where two clear contracting and consenting parties are present, Shari’a and American law in the areas of custody and probate disputes have potentially irreconcilable differences that militate against the further expansion of religious arbitration in these areas. . .
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. Part II.C details the plurality’s decision from McIntyre’s forerunner, Asahi, and Part II.D presents the three-way circuit split prior to McIntyre. Finally, Part II.D summarizes the McIntyre opinion. Part III analyzes the decision in McIntyre, critiques the outcome, and suggests the implementation of a revised approach to personal jurisdiction, by adopting elements from Justice Stevens’s concurring opinion in Asahi. . .
A criminal defendant’s motion to suppress often implicates the Fourth Amendment’s protections against “unreasonable searches and seizures.” Nevertheless, the extent to which government surveillance activities associated with wireless communication and location tracking technology fall within the ambit of the Fourth Amendment is unclear. In United States v. Graham, the United States District Court for the District of Maryland considered whether defendants’ Fourth Amendment rights were violated when the government acquired historical cell site location information (CSLI) without a search warrant. The court found that the defendants’ Fourth Amendment rights were not violated because they did not have a legitimate expectation of privacy—a requisite condition precedent to an unconstitutional search determination—in the CSLI at issue. . .
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 will explore whether hikers should be held liable for the cost of their rescue against the backdrop of the current New Hampshire standard of negligence. Part II.A discusses the origin and traditional application of rescue reimbursement, focusing on the common-law principle of rescue liability and its evolution. Part II.B covers the early history of state attempts to recover the cost of rescues, followed by the history of the New Hampshire approach and efforts of other states. Part III analyzes New Hampshire’s current standard of liability and explores the benefits and drawbacks of the negligence standard. This Note argues that in light of the state’s history and general common law, the negligence standard is the most appropriate standard to impose upon hikers requiring rescue. . .
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 only they bared their secret shame to an insatiable television audience.
The shame of hoarding behavior is one of the prominent aspects of the disorder; one that keeps the behavior hidden, prevents treatment, keeps individuals in a state of isolation, leads to a regression of social interaction, and eventually reinforces the behavior itself. In hoarding literature, the sense of shock at discovering a hoarder is palpable, whether displayed by a landlord, family member, or social worker. And such shock is not altogether inappropriate. Because of the very nature of hoarding, the individual often goes to great lengths to hide the problem, or at the very least, the extent of it. Furthermore, disgust and even anger are not unreasonable considering the serious health and safety risks severe hoarding can pose, not just to the hoarder, but also to those around them.
These health and safety risks have legal implications. And as in so many areas, the issue of mental illness and independent living in safe and affordable housing must be weighed against the needs of housing providers, whether private landlords or housing authority administrators. As touched upon above and explained more fully below, the needs of these housing providers are not just economic, they do not involve merely rents or the diminution of value in a property—instead, numerous local health laws may be implicated and the safety of other tenants may also be at risk. This creates a conflict above and beyond the already difficult process of finding housing for the psychiatrically disabled, a population already subject to stereotypes often as disabling as their condition.
This article will discuss the legal implications of hoarding behavior by providing a general overview of current psychiatric understanding of hoarding disorders, explaining the impact of tenant hoarding on local housing laws and safety concerns, surveying the Fair Housing Act (FHA) reasonable accommodation case law on eviction because of hoarding or other psychiatric disabilities, analyzing how reasonable accommodations can be used to prevent unnecessary evictions and homelessness of this population, and concluding by suggesting the use of collaborative services, such as those provided by local hoarding task forces, in creating reasonable accommodation plans. . . .
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. A review of this jurisprudence demonstrates why virulent, outrageous hate speech that targets private individuals for the purpose of directly inflicting egregious psychological harm should not enjoy unlimited First Amendment protection when injured parties bring civil tort suits for damages. . . .
For more information about Professor Levinson’s Donahue Lecture (which served as the basis for this article), as well as photos and audio from the event, please click here.
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 role in diminishing expectations of spousal support over recent decades. In the meantime, efforts were being made to develop models for alimony legislation for states to consider, but few had any national impact. Certainly, these influences played a role in Massachusetts, just as they did in other states. But in practice, the idea of maintaining a lifetime lien on the income of alimony obligors also persisted among many lawyers and judges. The refusal of the Massachusetts Supreme Judicial Court in 2010 to create a presumption in favor of an obligor’s request to be relieved of his alimony obligation to his long-divorced wife when he reached the age of full retirement, as defined by the Social Security Act, helped to set off a discussion in the bar and among the public about whether alimony needed rethinking. It led to an effort to reform the statutory standards governing alimony, which eventually led all the major bar associations in the state, as well as members of both houses of the state legislature and the governor, to work together to produce a modern law on spousal support. This article reviews the substance of this new law, referred to as the Alimony Reform Act of 2011, and some of its implications. . . .
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 woman had to either get her husband’s signed permission or serve her husband as a defendant in what was otherwise a simple, administrative name-change proceeding. While some may dismiss this as a lingering anachronism, the requirement that a woman specifically notify or secure her husband’s permission prior to changing her name continues to inflict real present-day harms and remains an unnecessary vestige of patriarchy.
We carry many things with us through life, not the least of which is our own name. Although this significant part of our identity is given to us, selected for us at birth, most people accept their “given name” as their own. However, cultural norms and pressures exist to encourage women to change their name, typically upon marriage. This article addresses a discrete but inequitable issue in the area of name-change law. As the law currently operates in Massachusetts, the process by which a married person, usually a woman, can seek a legal name change requires signed permission—the written assent of a spouse. In the absence of such signed permission or spousal consent, a married person seeking a name change is required to serve his or her spouse by certified mail, as an adversary, in what is otherwise typically a nonadversarial administrative legal process. This requirement of spousal notification and consent, although gender neutral on its face, has a disparate impact on married women seeking to change their names, including those seeking to resume their birth names. Although the legalization of same-sex marriage has somewhat altered these dynamics, many individuals in same-sex relationships also change their names upon marriage and therefore the impact of the spousal-consent requirement applies with equal force in any marital relationship. Whether due to marriage, change in marital status, or some other significant life event, there is no question that many people, particularly women, face the issue of whether to change their name. The law that addresses this most personal and private yet also very public issue of name-change regulation includes vestiges of patriarchy that place an undue burden on women, particularly those who marry. This article will discuss why this spousal-consent requirement is a problem and suggests simple changes to cure at least this one flagrant disparity. Additionally, because this “requirement” is not referenced in the controlling statutory law, it seems to fall into the category of what Elizabeth F. Emens refers to as “desk-clerk law” in her seminal article Changing Name Changing: Framing Rules and the Future of Marital Names. Therefore, it seems that this problem can be corrected by a legislative, administrative, or judicial initiative to correct the forms as well as the required process for legal name change in Massachusetts.
Part I provides a brief overview of the historical, social, and political context of name changes for women. Part II describes the history and current state of name-change law and process in Massachusetts and compares Massachusetts with other states. Part III explores the negative and inequitable impact of the spousal-consent requirement. Specifically, the requirement for either spousal consent or the service of process alternative places an unfair and unnecessary burden on women, and, as in other name-change cases, the publication requirement should be sufficient even when the person seeking a name change is married. Part IV suggests a legislative, administrative, or judicial remedy to address the needlessly onerous and outdated spousal-consent requirement for name changes and outlines steps that courts, clerks, and legal advisors could take to remedy this seemingly overlooked obstacle. . . .