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In the spring of 2013, the attention of many turned to one of the largest jackpots available in the history of the Powerball multistate lottery. Eventually, it was reported that Pedro Quezada of New Jersey was the sole winner of the prize. Quezada opted to take a $211 million lump-sum payment, rather than receiving the full amount of the $338 million prize in installments. However, New Jersey authorities made clear that the $29,000 Quezada owed in child support arrears would be deducted before any payments were made to him.
Other than perhaps Quezada himself, few people would have any quibble with this relatively small deduction from his jackpot winnings. After all, the obligation to support one’s children is firmly established in both law and morals. To the extent Quezada can use his newfound wealth to make up for any past failures to satisfy his child-support obligations, he should do so. Similarly, many would agree that Quezada’s minor children should be able to share in his lottery winnings. However, reasonable people may disagree regarding whether this should be in the form of increased mandatory child support payments, or whether Quezada should be able to independently determine how to share (or not share) his newfound wealth with his children as part of his parental prerogative.
For decades, the Supreme Court has expressly declined to address whether the Fifth Amendment right against self-incrimination prohibits the State from using evidence of a non-testifying defendant’s pre-arrest silence in its case-in-chief. But it did so last term in Salinas v. Texas, a ruling that significantly affected the rights of Americans set forth in Miranda v. Arizona. In Salinas, the Court considered whether the Fifth Amendment’s protection against self-incrimination bars the admission of evidence about a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt. However, the Court did not ultimately address this broad issue. Instead, a three-justice plurality only narrowly held that because Salinas did not expressly invoke his Fifth Amendment privilege in his pre-arrest, pre-Miranda police interview, his silence was admissible at his trial.
Americans and their historians have long viewed constitution-making in the Founding Era as a local event with global repercussions. It is a story of American ideals and interests in which American drafters, voters, and ratifiers made key decisions. Americans then began to work out the meaning of their constitutions in state and federal institutions, which required that some officeholders be citizens. Only after the ratification of the federal Constitution did foreign nations take heed, through imitation and (later) force. This myth of the originally authentic, and later diffusionist constitution, is not limited to the United States.It has been the dominant conception of constitution-making
in many times and places.
In fact, American constitution-making began as an international process. All the American constitutions of the Founding Era, state and federal, were made with foreign, as well as domestic, audiences in mind. International factors, from wartime imperatives to calculations of long-term commercial advantages, contributed to American constitution-making from the beginning. Indeed, the founding documents of the early United States⎯the state constitutions, the Articles of Confederation, the Declaration of Independence, and the Model Commercial Treaty⎯were designed at least in part as diplomatic instruments that, together, formed a revolutionary portfolio. Furthermore, the foundational documents articulated an Enlightenment-inflected vision of an international order of “civilized nations,” among which commerce would balance power.
Defamation suits involving anonymous online speech swing between extremes: Some cases involve vulgar postings meant to harass and ridicule, while others take on a whistleblower-like significance in exposing possible political or corporate malfeasance. Despite the prevalence of such cases, there are no national standards guiding a judge’s determination of when to reveal the identities of anonymous posters. Instead, courts have applied a jumble of tests. Some worried observers see the lack of uniformity and the accompanying uncertainties as threats to speak anonymously—a right the
Supreme Court has jealously guarded.
Complicating the issue is the variety of scenarios present in these defamation cases. These suits can be broadly separated into two factions: legitimate defamation suits sometimes called “cybersmears,” and illegitimate suits aimed merely at intimidating critics that resemble illegal Strategic Lawsuits Against
Public Participation (SLAPPs), which are sometimes called “cyber-SLAPPs.” Cybersmear suits are typical defamation actions brought against an anonymous poster who has sought to sully the reputation of his or her target; such speech is not constitutionally protected. CyberSLAPPs, on the other hand, are baseless
lawsuits that corporations, politicians, or others bring to silence critics engaged in constitutionally protected political speech online. Legitimate cybersmear cases and illegitimate cyberSLAPPs are both filed as defamation claims and can appear indistinguishable at first glance, making it difficult to balance one person’s right to speak anonymously against another person’s right to protect his or her reputation against defamation.
Two separate, but related, stories represent a growing debate permeating throughout the competitive atmosphere of Massachusetts high school athletics. At the 2010 Western Massachusetts Division I girls’ field hockey championship game, the two title contenders were engaged in a highly competitive match with the score tied late in the game. With time running out, a player broke free from the field and scored the championship-winning goal as the player collided into the opposing team’s goaltender. Both the play and ensuing result appear relatively normal until it is revealed that a male student athlete, a standout performer in both ice hockey and lacrosse, scored the game-winning goal, and that the female goaltender suffered a concussion as a result of the collision.
One year later, at the 2011 Massachusetts Women’s South/Central Sectional Swimming and Diving Championships, one of the top female swimmers in the meet, who had trained all year to receive the honors and accolades associated with an individual championship, was forced to settle for second place. Competing in the fifty-yard freestyle, the female swimmer was the fastest female in the field but was out-touched by one of the several male athletes competing in the event. The male athlete, whose time would have failed to qualify for the Massachusetts Boys’ Swimming and Diving State Championship, received all of the individual accolades associated with an individual championship while the fastest female swimmer in the meet had to content herself with second place.
The concept of a legal remedy is an old tenant of both the English and the American legal systems. At one time, based on the very remedies they had jurisdiction to provide litigants, American courts were split in two, with courts of equity and courts of law.
Remedies are omnipresent in civil litigation. The relief sought in civil cases fall into two broad categories: monetary or equitable. The concept of monetary damages, at its most basic level, is that the liable party pays a dollar amount for the harm it caused another. Conversely, equitable relief is sought in situations where money is insufficient to right the wrong suffered by the nonliable party. In many instances, this form of relief can require the liable party to act or forbear from acting.
A preliminary injunction—the focus of this Note—is one equitable remedy granted by the trial court, which typically lasts until a case can be fully adjudicated on the merits. The preliminary injunction is one of the most powerful remedies a court can issue.It is also an important tool for litigators when monetary compensation is insufficient to right the wrong suffered. In modern courts, a preliminary injunction can be the difference between moving forward with the case or dropping it all together because of how long it can take for a contested case to be docketed for trial.
In today’s technologically advanced world, nearly fifty percent of Americans own smartphones, a statistic that increases to sixty-six percent when considering Americans between the ages of twenty-four and thirty-five. This, along with the recording capabilities of smartphones, increases the potential number of police misconduct incidents caught on film. In order to avoid inevitable police misconduct litigation and potential punitive actions by their agencies and departments, police officers discourage citizens from filming them, often implementing creative uses of state and federal laws against civilians who record their activities. Such creative use of these laws raises constitutional concerns regarding civilian recordings of police officers performing their public duties, who for various reasons, do not want their on-duty activity recorded and therefore rarely consent to being recorded—especially when potential police misconduct exists. Fortunately, such police activity has recently received scrutiny from federal and state courts, as well as the United States Department of Justice.
A trustee’s discretion is generally constrained by statute, by the terms of the trust, and by the trustee’s fiduciary duty to act in the beneficiaries’ interests. When a trustee, acting within the scope of that discretion, distributes trust property into a new trust, that distribution is called “decanting.” In Morse v. Kraft, the Massachusetts Supreme Judicial Court (SJC) considered whether the broad discretion afforded to a trustee under the terms of an irrevocable trust included the power to decant. Holding that it did, the SJC nevertheless declined to adopt the Boston Bar Association’s (BBA’s) preferred position that such power is inherent in all trustees of irrevocable trusts
Although the First Amendment generally bars government restrictions on speech based on message or viewpoint, the government may restrict certain categories of speech where the speech’s content imposes harm that “‘overwhelmingly outweigh[s]’ any First Amendment concerns.” A true threat constitutes one such category of unprotected speech. In United States v. Martinez, the Court of Appeals for the Eleventh Circuit considered whether a true threat must be analyzed under an objective or subjective standard. The court held that true threats are analyzed under an objective standard, and following therefrom, the indictment of the defendant was constitutional where she made a threat that “‘an objectively reasonable jury could find beyond a reasonable doubt to be a serious expression of an intent to injure another person.’”
In a criminal trial, Federal Rule of Evidence 404(b) (FRE 404(b)) prohibits the prosecution from using a defendant’s other crimes, wrongs, or bad acts to prove the defendant’s propensity to commit the charged offense. Courts, in their discretion, may admit other bad acts to prove something other than propensity, such as knowledge, intent, or absence of mistake. In United States v. Lee, the United States Court of Appeals for the Seventh Circuit considered whether it was an abuse of discretion and reversible error to admit a prior drug possession conviction against a defendant in a trial for drug distribution. The Seventh Circuit held that the federal district court abused its discretion by admitting a prior possession conviction because it was probative “only in the sense that it established his propensity” to commit a similar crime.