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Zoning laws in the United States came into existence at the turn of the twentieth century and were deemed constitutional under state police power. Since zoning’s inception, states have delegated the bulk of zoning authority to local municipalities, and accordingly, this area of the law is quite diverse. The manifold nature of zoning is strikingly evident at the judicial-review level, where courts grapple with upholding zoning’s legal underpinnings, while at the same time maintaining deference to local decision-making. The interplay between state and local authorities results in a body of law that can be, at times, contradictory and unpredictable.
To have standing to oppose an act of a local zoning board, Massachusetts law requires a person to be “aggrieved”; however, courts’ attempts to define aggrievement have yielded inconsistent results. Recently, in Kenner v. Zoning Board of Appeals, the Massachusetts Supreme Judicial Court (SJC) attempted to clarify the standard, but only managed to further shroud standing laws in confusion and ambiguity. In essence, the SJC raised the bar for threshold standing determinations, and in doing so, utilized vague and imprecise language in defining aggrievement. In addition, the SJC created potential disruption in the well-settled area of the law of particularized harm. . .
On January 14, 2010, Phoebe Prince, a fifteen-year-old Irish immigrant and student at South Hadley High School, took her own life. While the reasons for Phoebe’s suicide remain unknown, what emerged in the broader media coverage of her death was an allegedly systemic pattern of bullying throughout her high school, a pattern ignored by administrators, faculty, and parents. Phoebe’s enemies attacked her with verbal insults, both in school and electronically outside of school, via Facebook.
Massachusetts officials sprang quickly into action after the media onslaught following Phoebe’s death. Northwestern County District Attorney Elizabeth Scheibel charged five of Phoebe’s classmates with a multitude of crimes stemming from their reported bullying of her, including civil-rights violations with bodily injury, criminal harassment, and stalking. The Massachusetts General Court also acted swiftly, passing what many experts deem the most sweeping and powerful antibullying statute in the nation. The statute creates a broad scope of illegal activities for which students can face punishment, including incidents of cyberbullying that occur outside school walls. Because the statute grants school administrators unique authority, Massachusetts now stands as a model testing ground for the national movement to curb bullying incidents in public schools. . .
Next time you go shopping, look at the sales price of an item you want to buy. Compare that price with the somewhat higher price you actually end up paying. That difference is what we all know as a sales tax. Now, sign on to amazon.com (Amazon) and look up the exact same item. You will likely notice that the online price is lower than it would otherwise be in a brick-and-mortar store. You will also notice that unless you are in one of the nine states in which Amazon must charge a sales tax, the final sale price is the same as the ticket price.
Although seemingly unfair, this difference in price between the local brick-and-mortar store and the pure-play online retailer is consistent with the 1992 Supreme Court holding in Quill Corp. v. North Dakota. In Quill Corp., the Court held that a state has taxing authority over an out-of-state retailer only when that retailer has a “physical presence” within the taxing state. Despite the immense expansion of both the Internet and electronic commerce (e-commerce), the 1992 case continues to control today. Consequently, cash-strapped states have become more invested in seeking alternatives that would require out-of-state retailers to charge their in-state consumers a sales tax at the time of purchase. . .
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a public trial. This right, although fundamental, is not absolute. The Supreme Court has held that a criminal defendant’s public-trial right extends to pretrial proceedings including suppression motions and voir dire of potential jurors. Moreover, several circuit courts considering the matter have concluded that the right to a public trial also includes jury-selection proceedings and omnibus hearings. State courts, especially Massachusetts courts, have followed suit in finding structural error when the courtroom is closed during voir dire, jury selection, or trial.
The Sixth Amendment also guarantees a defendant’s right to be tried by an impartial jury. An impartial jury comprised of the defendant’s peers aims to prevent overzealous prosecution and biased judges. Jury-selection proceedings protect criminal defendants by finding an impartial cross section of the community. This cross section is derived from a panel of prospective jurors, called a venire. . .
Eyewitness misidentification is the leading cause of mistaken convictions in the United States. Presently, more than 300 people have been exonerated through postconviction DNA evidence. The average sentence served in these cases, at the time of exoneration, was 13.6 years. Out of these 300 exonerations, eyewitness misidentification played a part in nearly 75% of the convictions. Scientific studies of eyewitness identification began to develop in the late 1970s, frequently the subject of psychological rather than legal journals. The Supreme Court has not directly revisited the topic of eyewitness identification since 1977, despite significant progress in related scientific research over the past thirty years. . .
This Note will discuss some of the most thoroughly studied causes of eyewitness misidentification and suggest that trial judges use their discretion under FRE 403 to exclude unreliable eyewitness-identification evidence. The first part of this Note will provide an overview of scientific research from the last thirty years relating to memory and eyewitness identification. The second part of this Note will discuss current procedures for combating misidentifications, analogous situations where FRE 403 is used for exclusion, and gatekeeping capacities of trial judges. Lastly, the third part of this Note will present arguments for using FRE 403 to exclude unreliable eyewitness identification evidence. . .
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. The bill, known as the Massachusetts Death with Dignity Act (DWDA), would have allowed terminally ill patients to request and receive lethal dosages of medication to end their own lives. Voters narrowly rejected the bill during the 2012 general election.
This Note will focus on the effects that a bill like the proposed DWDA might have on patient care in Massachusetts. Specifically, this Note focuses on the effect of legalized physician-assisted suicide on patient autonomy, elder care, and the dignity of the medical profession. This Note also discusses the potential future of end-of-life care, including active euthanasia and the availability of physician-assisted suicide to minors. . .
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 timing and particularity issues left unresolved by Congress’s 2009 amendment to Rule 41. Part II.A will provide a history of the case law, highlighting the ambiguity surrounding the timeline requirements of Rule 41(e)(2)(B). Part II.B will discuss how the lack of a particularity rule has forced the courts to confront the plain view doctrine’s application to digital evidence. Part II.B will also examine the approaches that various circuit courts have taken to address this issue. Part III will analyze the cases outlined in Parts II.A and II.B, as well as the various approaches courts have taken to address timing and the plain view doctrine’s application to digital evidence. In addition, Part III will discuss how Congress’s failure to resolve these issues in its 2009 amendment is problematic for both defendants and examiners, as well as for judicial efficacy and the interests of justice. Finally, this Note will propose amending Rule 41 to better serve defendants, examiners, and the judicial process. . .
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. . .