Notes


Lighten Up: Should Massachusetts Implement a Smoking Surcharge for State Employees?

PdfPDF by Brian Wall · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

On November 18, 2010, Anna Jaques Hospital in Newburyport, Massachusetts revealed its new hiring policy. Under the policy, the hospital will not hire any prospective employees who test positive for nicotine. Anna Jaques Hospital’s policy is part of a national trend among private employers that have instituted tobacco-free employment policies and tobacco surcharges on health insurance. Many employers have gone even further, instituting policies that target not only potential employees, but also current employees, who must attempt to quit using tobacco or face termination. . . .  

Eye in the Sky: U.S. Citizen Casualties in the Shadow War

PdfPDF by Joshua Sylla · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

In the wake of the September 11, 2001 terrorist attacks, the protection of U.S. national security became the impetus for far-reaching legal action. In response to recent U.S. national security measures, legal scholarship has continuously examined the use of military force, and the legal justifications and constraints surrounding such action. One particular area of this debate focuses on the controversial use of unmanned aerial vehicles (UAVs), or drones, and the legality of carrying out UAV-targeted strikes against alleged members of Al Qaeda throughout the Middle East and Asia-Pacific regions. . . .  

The Sword and Shield of Social Networking: Harming Employers’ Goodwill Through Concerted Facebook Activity

PdfPDF by Stephanie Merabet · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

In early labor and employment law history, employers enjoyed unfettered power under the at-will employment doctrine, which allowed employees to be terminated for any reason, so long as they were not hired for a fixed term. Seeking to remedy the harsh conditions imposed on working men, Congress altered the employment dynamics by equalizing the previously employer dominated at-will employment relationship. Congress enacted the National Labor Relations Act (NLRA) to safeguard employee rights and prevent abuse by employers who enjoyed greater bargaining power. Considered the heart of the NLRA, section 7 codifies the protections guaranteed to private sector employees—including the right to engage in protected concerted activity. Congress simultaneously created the National Labor Relations Board (NLRB) to ensure proper administration and [...]

Yours, Mine, or Ours: A Proposal for Sensible Reform of the Massachusetts Tenancy-by-the-Entirety Statute

PdfPDF by Sarah J. Fischer · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

Modern concepts of property ownership are deeply rooted in centuries of Anglo-American jurisprudence. The earliest form of concurrent property ownership—joint tenancy—dates back to the early thirteenth century; from the first references, joint tenancy included the hallmarks of the modern estate: undivided interest in the entire estate and the right of survivorship. By the fourteenth century, English law recognized that husbands and wives could hold property in a special manner—distinct from a joint tenancy—while still including the right of survivorship and an undivided interest in the whole. . . .  

‘Tis Enough, ‘Twill Serve: Defining Physical Injury Under the Prison Litigation Reform Act

PdfPDF by Hilary Detmold · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

Congress passed the Prison Litigation Reform Act (PLRA) in 1995. Since that time, no provision of the PLRA has created more confusion than the limitation-on-recovery provision, or § 1997e(e), commonly referred to as the “physical-injury requirement.” The provision reads: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Because the statute itself does not define physical injury, the provision leaves the task of defining the phrase to the courts. . . .  

Justice Delayed Is Justice Denied: Wrongful Convictions, Eyewitness-Expert Testimony, and Recent Developments

PdfPDF by Douglas Balko · December-26-2013 · Categories: Current, Current Notes, Notes, Number 4, Print Edition, Volume 46

Legal literature, periodicals, and judicial decisions have spilled much ink on the propriety and scope of the admissibility of expert opinion testimony on the reliability of eyewitness identifications. In the interim, the scientific community continues to stockpile evidence that consistently concludes that eyewitness identifications are unreliable. Many researchers contend that the most effective countermeasure to unreliable eyewitness testimony is the admission of expert testimony. Nevertheless, courts across the country continue to preclude the admission of expert testimony regarding the accuracy of eyewitness accounts. . . .  

Choosing a Home: When Should Children Make Autonomous Choices About Their Home Life?

PdfPDF by Sarah J. Baldwin · May-15-2013 · Categories: Current, Current Notes, Notes, Number 2, Print Edition, Volume 46

A sixteen-year-old female may decide to give birth and become a mother, but she cannot independently obtain an abortion or marry the father of her child.  A young mother may relinquish rights to her child without judicial intervention, but that same teenager may not decide independently with which parent she wishes to live.  The passage of the Twenty-Sixth Amendment highlighted inconsistencies in the law that allowed eighteen-year-olds to fight for their country but deprived those same individuals of the right to vote for the politicians who sent them to war.  Although this debate changed the way many individuals feel, society has failed to fully integrate young people into the legal and social worlds currently populated only by adults.  Similar inconsistencies [...]

Not a Bad Idea: The Increasing Need to Clarify Free Appropriate Public Education Provisions Under the Individuals with Disabilities Education Act

PdfPDF by Michele L. Beatty · May-15-2013 · Categories: Current, Current Notes, Notes, Number 2, Print Edition, Volume 46

The Supreme Court has long stressed the importance of providing equal education opportunities to children.  Additionally, the Court has emphasized that the Due Process Clause prohibits school personnel from removing a student for violating its code of conduct “absent fundamentally fair procedures to determine whether the misconduct has occurred.”  The rights of disabled children to receive an equal education, including fundamental procedural-due-process rights, have developed considerably in the past three decades. Efforts to ensure disabled students receive the same opportunities as their nondisabled peers are reflected in both federal and state laws.  The first congressional breakthrough occurred with the passage of the Education for All Handicapped Children Act of 1975 (EHA).  Over time, amendments improving the EHA were made, and [...]

Let’s Be Frank: The Future Direction of Controlling Person Liability Remains Uncertain

PdfPDF by Michael A. Bednarz · May-15-2013 · Categories: Current, Current Notes, Notes, Number 2, Print Edition, Volume 46

In the wake of the Great Depression, Congress enacted the Securities Act of 1933 (1933 Act) and the Securities Exchange Act of 1934 (1934 Act).  Together, the Acts provide the Securities and Exchange Commission (SEC) with broad authority over the securities industry, and institute methods for holding those who commit securities fraud liable.  Section 15 of the 1933 Act and section 20(a) of the 1934 Act establish controlling person liability, a mechanism for establishing secondary liability against corporate directors and officers for securities fraud committed by their subordinates.  Section 15 of the 1933 Act merely permits controlling person liability to be pursued if very limited types of securities fraud have been committed.  As a result, pursuing a controlling person liability [...]

What’s the Holdup? How Bureaucratic Obstacles Are Undercutting the True Potential of American Wind Power

PdfPDF by Anthony V. Bova · May-15-2013 · Categories: Current, Current Notes, Notes, Number 2, Print Edition, Volume 46

Wind power is now the fastest growing source of alternative energy in the United States, due in part to desires to increase utilization of cleaner energy and to withdraw from dependence on foreign energy.  Studies have shown that if properly harnessed, the United States has enough wind-energy potential to provide well over the amount of electricity currently consumed nationally.  Capitalizing on this potential, thirty-eight states currently maintain utility-scale wind projects, with fourteen states amassing over one thousand megawatts (mW) of energy from these projects. Although all current wind power generated in the United States is produced through land-based operations, the country is pursuing offshore projects—specifically the perpetually delayed Cape Wind project located off the coast of Massachusetts.  If the United States [...]