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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. . .
The average human loses between forty and one hundred strands of hair every day. Humans make one liter of saliva each day. In a lifetime, the average human sheds about forty pounds of skin. Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA). DNA has become an irrefutable method for identifying a person. In essence, humans are constantly leaving traces of their identity everywhere they go.
In the past decade, DNA has transformed criminal procedure jurisprudence. Law enforcement officers and prosecutors now rely heavily on DNA to solve crimes. DNA reveals unique genetic information about an individual’s race, ethnicity, and medical risks for diseases such as breast cancer or the risk of having a child with cystic fibrosis. Access to a person’s DNA provides a dangerously intimate blueprint of a person’s body. If misused, DNA information could cause a person to be stigmatized, discriminated against, or targeted for criminal prosecution. Some scientists have even proffered the idea of a behavioral gene predisposing an individual to a tendency to commit crimes. Easy access to DNA exposes an individual’s most private and intimate information to the world.
As genetic information becomes increasingly easy to obtain, it renews the timeless debate over precisely which circumstances trigger an individual’s right to privacy. An individual’s right to be left alone has deep roots in English common law, but it continues to be the subject of contentious legal debate today. Although advancements in science and technology have many advantages, these advancements can sometimes encroach upon individual privacy rights. Unless DNA is protected by law, government access to an individual’s genetic information will greatly undermine Americans’ Fourth Amendment rights. In response to the dire need to protect an individual’s private genetic information, the Massachusetts Legislature introduced a Genetic Bill of Rights (GBR) that would establish property and privacy rights for genetic information and genetic material.
This Note explores the proposed Genetic Bill of Rights—including the current proposed version’s flaws—and makes recommendations for a more effective version. Part II.A summarizes Fourth Amendment history and the basis of the constitutionally implied right to privacy. Part II.B presents different legal theories for protecting DNA. Part II.C studies and explains the proposed Massachusetts Genetic Bill of Rights. Part II.D studies the application of conflict of laws in criminal procedure. With conflict-of-laws principles as a foundation, Part III analyzes the effectiveness and validity of the proposed Genetic Bill of Rights. . .
On November 4, 1995, Leandro Andrade was arrested for the benign offense of shoplifting $84.70 worth of children’s movies from a K-Mart store located in Ontario, California. Just fourteen days later, Andrade was again arrested for stealing $68.84 of children’s movies in Montclair, California. A life of crime was nothing new to Andrade. In fact, Andrade had been in and out of prison since 1982 for a host of offenses, including petty theft, first-degree residential burglary, and transporting marijuana.
In 1994, California adopted a “Three Strikes and You’re Out” law (three strikes law), which is an antirecidivist law that mandates a sentence of twenty-five years to life in prison upon a criminal’s third felony conviction if the criminal has two prior serious or violent felony convictions. The State charged and convicted Andrade of two counts of petty theft with a prior conviction for shoplifting children’s videotapes—a felony in California. Tragically, because Andrade had two prior violent or serious felony convictions, a judge sentenced Andrade to serve two consecutive terms of twenty-five years to life in prison. Leandro Andrade will not be eligible for parole until 2046, at which time he will be eighty-seven years old.
If California’s three strikes law is considered overly broad, at the opposite end of the spectrum is Georgia’s version, which only applies to seven specific offenses. Colloquially known as Georgia’s “Seven Deadly Sins Law” (two strikes law), Georgia’s two strikes law is considered the nation’s harshest because it only takes two strikes—as opposed to three—for a criminal to be “out.” A criminal who is convicted for committing a second serious violent felony is sentenced to life in prison without the possibility of parole or any other sentence-reducing measures. In Ortiz v. State, Robert Ortiz was charged and convicted of rape, aggravated sodomy, and burglary in Georgia. Because the crimes of rape and aggravated sodomy are categorized as serious violent felonies, Ortiz will spend the rest of his life behind bars without any hope for parole.
Here are two versions of a three strikes law, two repeat offenders with differing criminal histories, two very different triggering offenses, and yet, both Leandro Andrade and Robert Ortiz will spend the rest of their lives behind bars. The message both California and Georgia are trying to send to recidivists, although not equally clear in California’s case, is that if you continually commit a certain class of felonies, you are going to prison for life. Yet, when juxtaposed, these specific outcomes inevitably beg the question: Does incarcerating a repeat offender for life—in Andrade’s case, for petty theft—violate the Eighth Amendment’s proscription against cruel and unusual punishment? Moreover, do the social and financial costs saved from prevented crimes warrant the frequent use of three strikes laws in California and Georgia? Or rather, are these laws needlessly filling prisons with lifelong prisoners who, as they age, will only cost states more to incarcerate?
This Note compares California’s and Georgia’s versions of a three strikes law. Part II of this Note briefly discusses the meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause as interpreted by the United States Supreme Court. Additionally, Part II explains the respective mechanics and effects of both California’s and Georgia’s versions. Finally, Part III of this article seeks to substantiate several claims: first, the United States Supreme Court has significantly diverged from its prior decisions interpreting the Eighth Amendment’s Cruel and Unusual Punishment Clause regarding noncapital punishments; second, Georgia’s version of a three strikes law warrants greater judicial deference than California’s; and third, although both California’s and Georgia’s versions of a three strikes law contribute to prison overcrowding and increased costs in their respective states, California’s version causes a greater burden. . .
Although U.S. economists note that the most recent U.S. recession came to an end in June 2009, belt tightening can still be felt throughout the economy, more than three years later. Perhaps nowhere is this more evident than in state budgets, which continue to face huge shortfalls and endure significant cutbacks. With legislatures generally unwilling to raise taxes to make up for these deficits, states have looked toward new sources—unclaimed property, in particular—to find much needed cash.
By some accounts, $35 billion of unclaimed property is currently held by states—an amount that continues to increase annually. Simply put, the transformation of unclaimed property into revenue first requires a state to “escheat,” or take custody of property from a “holder,” which is generally a corporation. Furthermore, “unclaimed property” usually refers to intangible property (such as amounts represented by uncashed checks, amounts in suspense, or outstanding stock) in the custody of a holder that actually belongs to another (known as the “owner”), but which has been inactive for a statutorily defined amount of time (the “dormancy period”). In their search for revenue, states have recently been escheating more unclaimed property than ever through the use of increasingly aggressive techniques. Although states do not take title to the property they recover, most state laws provide that at least some portion of funds received as unclaimed property is deposited in a state’s general fund, or go so far as to direct the proceeds from unclaimed property to fund specific state programs. The benefits of a state’s use of unclaimed property are compounded by the fact that underlying owners, to whom the property rightfully belongs, rarely claim escheated property from the state. Thus, states have begun to transform their unclaimed-property laws and regulations into revenue-raising mechanisms that undermine their original, consumer protection-oriented goal of reuniting missing owners with their property. This departure raises a host of due-process concerns for unclaimed-property holders, which should be considered a defense to aggressive state escheatment.
This Note will focus on the constitutional concerns raised by two specific techniques employed by states that have resulted in the escheatment of large quantities of unclaimed property: the use of contract auditors paid on a contingency basis to make unclaimed-property assessments against holders, and state and auditor reliance on statistical modeling and estimates to make assessments against holders when their unclaimed-property records are deemed incomplete or inadequate. This Note will begin by explaining the history and development of escheat law, from its common-law origins in England to its modern evolution in the United States. Particular attention will be paid to cases that have attempted to address issues relating to audit techniques and revenue-raising statutes. Finally, this Note will introduce new considerations and propose new procedures that legislatures, courts, and state unclaimedproperty administrators should heed to address procedural shortfalls in constitutionality and fairness. . .
Behind the current cacophony of concerns about the unemployment rate, slow economic recovery, and U.S. budget deficit, is the ever-present murmur of the impending economic impact baby boomers will have as they retire and rely on government benefits. In 2010 Social Security went “cash negative,” states threatened to drop out of the Medicaid program, and more individuals dipped into their 401k plans for current needs. The “silver tsunami” looms closer as the first members of the baby-boom generation turned sixty-five in 2011, and concerns over how to manage long-term care for elders increase at an individual, state, and federal level. State and federal governments’ concerns come from the heavy burden long-term care for boomers will put on government-funded health services at a time when governments face pressure to cut these services to decrease deficits. Individuals’ worries stem from the need to provide long-term care for themselves or for aging family members.
Individuals who care, or will care, for an aging relative must consider how long-term care duties can decrease both their earning potential in the workplace and their savings as they pay for an elderly relative’s necessities. Caregivers often cannot afford to cut down their time or quit their job outside the home. In order to continue caring for an elderly relative, an increasing number of caregivers are asking elder-law attorneys to draw up agreements in which the caregiver helps the elder for a certain number of hours each week in exchange for an hourly wage. These caregiving agreements benefit both parties by relieving financial strain on caregivers and by keeping elderly relatives out of nursing homes.
While caregiver agreements may reassure individual caregivers, these same agreements are a concern for states. State Medicaid agencies claim these agreements are often a front for elders to gift assets to their children, impoverish themselves, and qualify for the state to pay for long-term care in a nursing home. The high price of nursing home care would quickly deplete most seniors’ accumulated wealth; however, if elders can transfer their assets to their children via a “caregiver contract,” elders may qualify to have Medicaid pay for nursing home care, while ensuring that their posterity will receive an inheritance. States want to preserve scarce resources for those who truly cannot afford care.
This Note will explore the benefits and burdens of courts acknowledging and upholding caregiver agreements, ultimately arguing for more recognition of caregiving agreements to encourage greater numbers of caregivers for the burgeoning elder population. First, this Note will examine the parties to caregiver agreements and what influence their identities may have on a court’s evaluation of the agreement. Parties to a caregiver agreement are typically family members, so the initial discussion of the parties’ identities will lead to a discussion of the cultural and legal presumptions against family-member contracts. Then, turning more specifically to caregiver agreements, this Note will outline the considerations a Medicaid agency uses when deciding if an elder qualifies for benefits. State Medicaid agencies decide long-term care benefits; therefore, this Note will use Massachusetts as a case study to review caregiver agreements evaluated by the Office of Medicaid Board of Hearings and state courts. In light of the decisions in Massachusetts, this Note will propose clarifications to the Massachusetts Medicaid regulations to give Massachusetts and other states direction about how to allow caregivers who truly are rendering services to contract for their services, while avoiding giving elders Medicaid services if their “contract” was merely a gift. In addition, this Note will analyze current presumptions about family members and contracts. Finally, this Note will argue that acknowledging caregiver agreements will benefit caregivers, the elderly, and the state. . .
In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court produced a decision worthy of Janus, the two-faced Roman god whose image appears on Janus Capital’s corporate logo. The five-to-four opinion by Justice Thomas, while paying lip service to the private right of action under Rule 10b-5, effectively cut off that right for many plaintiffs. The Court in Janus addressed the question of whether a mutual fund’s management could be liable to investors in the fund’s parent company for losses tied to misstatements in the fund’s prospectuses. Answering in the negative, the Court held only a third group—the fund’s independent board of trustees—could have “made” those misstatements under Rule 10b-5. Significantly, the Court concluded only those with “ultimate authority” over a statement are liable for making it—a new Rule 10b-5 standard apparently not limited to the unique structures of mutual fund families.
And so, in its zeal to extend the limitations of Central Bank of Denver v. First Interstate Bank of Denver, eliminating secondary liability for private plaintiffs under Rule 10b-5, the Janus majority provided a roadmap for avoiding primary liability, regardless of culpability. Indeed, the dissent predicted “guilty” management may now be able to launder a false statement through an “innocent” board while avoiding liability for lack of the ultimate authority to make that statement. Janus may have interpreted Rule 10b-5 so narrowly that conceivably no one could be primarily liable for “making” a demonstrably false statement–neither those who wrote it without the necessary authority nor those who approved it without the necessary intent.
Assuming the Court intended, as it said, to retain Rule 10b-5’s private right of action—and assuming Congress, in enacting antifraud legislation, intended someone be held liable for material misstatements in securities filings—this Note recommends interpreting the phrase “ultimate authority,” which is inadequately defined in Janus, to mean “ultimate control,” a phrase appearing synonymously in the majority opinion. As Justice Thomas reasoned, “[w]ithout control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right.” While the concept of ultimate authority leaves open the question of who is really responsible for a statement, the concept of ultimate control does not. Ultimately, the legislative intent and policies behind Rule 10b-5 will be served best by a precise definition of its contours. . .
“As children, my brothers and I enjoyed a level of freedom that might make a modern parent gasp, and sometimes we exercised that freedom in the kitchen, where we fed one another weird concoctions that tended toward the unhealthy . . . . The only time I ever refused to sample my brothers’ culinary creations was when asked to close my eyes during its preparation. I may have been a child, and one with a sense of humor, but I wasn’t an idiot.”
Leslie Hatfield’s quote raises a simple question—what did her brother have to hide? As one of the most powerful industries in the United States, factory farming has become the dominant source of food production in modern America. Despite its major role in providing food to the public, the factoryfarming industry has landed in the crosshairs of animal-rights and environmental activists seeking to expose the public-health, environmental, and animal-rights violations of commercialized farming facilities. To date, the most common means of exposing these concerns is through undercover investigations—activists pose as employees to obtain footage of animal abuse, health-code violations, and pollution. These investigations have exposed unsavory conditions on factory farms, generated considerable media attention, and created substantial financial consequences for those facilities that have been exposed. In response to the increase of undercover investigations, state legislatures, with the support of factory-farming lobbyists, have passed legislation that will criminalize undercover photography and videotaping on farms, and many other states are attempting to pass similar laws.
Critics of the proposed legislation have commonly referred to the statutes as “whistleblower suppression” laws, while supporters have referred to them as “animal interference” laws, but it was Mark Bittman, of the New York Times, who coined the most popular term—“ag-gag” laws. As of the publication of this Note, five states have “ag-gag” laws on the books, while eight other states are either considering or have recently rejected similar legislation. “Ag-gag” laws take aim at varying levels of conduct, but the behavior targeted by each statute generally falls within one of three categories: (1) dishonesty in the jobapplication process, when the applicant has the intention of infiltrating the facility to investigate; (2) the act of photographing or videotaping on agricultural facilities; and (3) the act of photographing or videotaping, as well as the possession or distribution of such videos.
This Note will focus primarily on the second and third categories of “ag-gag” legislation, analyzing the constitutionality of proposed and existing laws under the First Amendment. Specifically, this Note will address whether photography and videotaping, in the context of undercover farming investigations, should be considered protected speech, and if so, whether “ag-gag” laws amount to impermissible, content-based restrictions on speech. Additionally, this Note will consider whether “ag-gag” laws that place restrictions on the distribution of undercover footage are prior restraints on speech and thus barred under the First Amendment. . .
As divorce rates in the United States continue to skyrocket, couples keep searching for new ways to protect their relationships and their wallets. Thanks to the contractual nature of the marital relationship, the wary fiancé or exhausted spouse may dictate certain terms relating to his impending marital union or dissolution in the form of a prenuptial or separation agreement. While both agreements are widely accepted options for defining and restricting the rights and liabilities one assumes upon entering or ending a marriage, many jurisdictions recently began entertaining and sanctioning a third method, the postnuptial agreement. The conditions and components required to produce a legitimate postnuptial agreement, however, differ radically from state to state.
Massachusetts, having declined to address the issue in the past despite acknowledging the opportunity, recently spoke up in the case of Ansin v. Craven-Ansin, rejecting the theory that postnuptial agreements are per se against public policy. Instead, the court held that such agreements are valid, provided, however, that the circumstances prompting the agreement and the terms of the agreement satisfy certain requirements. The Massachusetts standard for upholding postnuptial agreements is moderate as compared to other states’ approaches. Ohio, for instance, falls at one end of the spectrum, statutorily abolishing postnuptial agreements as per se against public policy, while Utah takes the opposite position, treating postnuptial agreements no differently than prenuptial agreements.
This Note will first look at how marital law has evolved, specifically focusing on the Massachusetts law that paved the way for the Ansin decision. It will then address the general policy concerns associated with postmarital contracting, focusing on the differing levels of scrutiny that select state courts and legislatures apply to postnuptial agreements, all while exploring the underlying philosophies fueling these decisions. In doing so, it will also consider how the Massachusetts approach, as reflected in the Ansin decision, comports with not only these assorted viewpoints but also with the state’s position on related topics pertaining to marriage, namely, how the judiciary’s rationale behind defending same-sex marriage ought to be considered when assessing the appropriateness of its present approach to postnuptial contracting. Lastly, this Note will consider the most effective means of protecting the policy concerns, such as threats of unfair bargaining power and general inequities, ultimately concluding that Massachusetts may wish to bolster its standard of review as the current considerations may not provide adequate protection. . .
This Note will analyze whether the law should do more for the institution of friendship. Throughout Part II of this Note, I will provide an overview of different works of classical philosophy to help familiarize the reader and to understand their relevance to a present-day analysis of friendship. Part II.A will analyze the problem of defining what a friend is. Part II.B will consider the personal nature of friendship and its significance for the greater community. Part II.C will describe recent trends toward extending legal recognition to different kinds of relationships that the law had previously overlooked. Part III.A will demonstrate the weaknesses of some of the existing proposals for attaching legal significance to friendship. In the last section of this Note, I will narrow my focus to one political community—the Commonwealth of Massachusetts—and, by drawing upon themes contained in the landmark decision of Goodridge v. Department of Public Health, I will argue that the Commonwealth would be a logical place for moving forward with this friendship agenda by making limited, public-policy changes that would create protections and incentives that would make it easier for friends to help one another during times of difficulty. . .
This Note will examine constitutional challenges to the Adam Walsh Act, analyze the history of relevant jurisprudence, discuss the flaws in the Supreme Court’s opinion, and offer recommendations for legislative modification. Parts II.A and II.B will discuss the history of sexually violent person (SVP) laws at the state and federal level. Part II.C will review the various constitutional challenges brought against the Act. In Part II.D, this Note will discuss the Supreme Court’s reasoning in United States v. Comstock. Part III.A will analyze the weakness of the Court’s opinion in Comstock, and suggest that the Court’s analysis of the Adam Walsh Act under the Necessary and Proper Clause is, at best, tenuous. Part III.B will offer alternative arguments for constitutional justification of the Act under the Commerce Clause. Part III.C offers recommendations for legislative changes to avoid additional litigation regarding the Act’s due process guarantees. . .