Lead Articles


Compromising the Safety Net: How Limiting Tax Deductions for High-Income Donors Could Undermine Charitable Organizations

PdfPDF by Patrick E. Tolan, Jr. · May-15-2013 · Categories: Current, Lead Articles, Lead Articles, Number 2, Print Edition, Volume 46

With the election behind us, tax reform looms as the hot-button topic of the day.  Based on election results, it is likely that the Obama administration will continue to push for the same types of reforms proposed in the 2013 budget.  However, inadvertent consequences of the administration’s proposals, specifically those impacting charitable donations, may lead to unfortunate results in the rush to do something to break the gridlock on tax reform, especially while federal spending remains reduced or “sequestered” until the budget can be balanced. President Obama’s budget proposals have contemplated reducing the top rate for charitable deductions (and all itemized deductions) to 28%.  Because America’s largest donors are those in the highest marginal tax brackets, efforts to limit deductibility [...]

Making Law with Lawsuits: Understanding Judicial Review in Campaign Finance Policy

PdfPDF by Rebecca Curry · May-15-2013 · Categories: Current, Lead Articles, Lead Articles, Number 2, Print Edition, Volume 46

Campaign finance law presents quite a puzzle:  It is an area of federal policy closely tied to the interests of incumbents in the political branches, and yet, it is controlled to a great extent by unelected federal court judges.  While we tend to assume that First Amendment considerations drive judicial review here, scholars have yet to account for political leaders’ decisions to establish federal court jurisdiction in the first place, allowing lawsuits that either challenge or enforce the law.  Can it be that Congress went to great lengths to write statutes regulating the use of money in elections, but had nothing to say about how and to what extent courts would review the law? This Article examines the role political [...]

“When Numbers Get Serious”*: A Study of Plain English Usage in Briefs Filed Before the New York Court of Appeals

PdfPDF by Ian Gallacher · May-15-2013 · Categories: Current, Lead Articles, Lead Articles, Number 2, Print Edition, Volume 46

At the time of writing, the academic discipline of legal writing has just celebrated its twenty-fifth birthday in the United States.  This is a significant milestone and the discipline enters its second quarter century in impressively robust health:  It has three professional organizations dedicated to it, three specialist journals, an ever-expanding bibliography of articles published in other journals and law reviews, two listservs and at least one blog, and a library full of books devoted to its study and teaching.  Most law schools in the country employ faculty dedicated to teaching legal writing, many of them adjuncts, to be sure, but many more as full-time teachers.  Indeed, because the recognized best-practices model of teaching legal writing involves relatively small classes, it is likely that there [...]

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

PdfPDF by Beth D. Cohen · February-8-2013 · Categories: Current, Lead Articles, 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: Current, Lead Articles, 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: Current, Lead Articles, 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: Current, Lead Articles, 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 [...]

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, 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, 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, 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 [...]