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This Note focuses on how courts in New England determine when an individual is mentally incapacitated due to mental illness. Part II.A presents a description of the evolution of guardianship laws from solely common-law to statutorily based. Part II.B follows this historical review with a discussion of the possible abuses of the guardianship system and how courts mitigate the risk of such abuse. Next, Part II.C-D describes the adjudication process generally, types of guardianship, and the factors courts consider when assessing capacity. Part II.E introduces the concept of supported decision-making, which some countries have implemented to supplement existing guardianship law. Part III analyzes the effectiveness of instituting a bright-line rule regarding mental capacity. This Note recommends implementation of a uniform assessment framework and computerized statewide case-management systems to enhance the predictability and efficiency of guardianship proceedings. Finally, this Note proposes an intermediate option for individuals in the grey area between absolute mental capacity and incapacity. . .
This Note will begin by examining the historical background of the constitutional standards for search and seizure analysis. Next, it will address the gradual erosion of the particularized-suspicion requirement, illustrating the modern trend of courts to allow categorical judgments to serve as the basis for suspicion, as well as the move away from strict standards towards general reasonableness inquiries. The Note will then focus on officer training and experience, first addressing the seemingly inconsistent use of an officer’s subjective experiences in what is supposed to be a purely objective analysis of the basis of suspicion, then discussing the differing treatments of officer training and experience, as well as the “expert” nature of officer testimony. Then it turns to the high-crime area factor, highlighting the social, racial, and practical concerns implicated by the high-crime designation. This portion of the Note concludes by providing an example of one court’s framework for determining whether a neighborhood merits the high-crime designation, requiring objective, quantifiable support. . .
This Note will explore the effects and ramifications when the former employee chooses self-employment in an effort to mitigate the damages of the wrongful discharge. It will begin by providing an overview of the history of mitigating damages through self-employment, including an exploration of the different calculation methods used by courts. It will then discuss the current state of the law, relying heavily on cases decided under federal antidiscrimination statutes. Next, this Note will explore plummeting costs of self-employment due to the rise of the internet. Lastly, it will focus on possible ways to prevent former employers from essentially insuring against losses in the self-employed’s new venture, and then argue that the reasonable diligence standard may be too easy to satisfy. . .
Article XVII of the Massachusetts Declaration of Rights guarantees a right to keep and bear arms for the common defense. The Supreme Judicial Court (SJC)—Massachusetts’s highest court—has interpreted article XVII as preserving a right to keep and bear arms in connection with service in the militia. Because the SJC’s interpretation of article XVII does not protect an individual right to keep or bear arms, the court has granted the Massachusetts General Court—the state’s legislative body—wide leeway to craft a broad range of regulations governing gun ownership in Massachusetts. In response, the General Court has enacted a comprehensive regulatory scheme for controlling and licensing firearm ownership in the Commonwealth.
Although many citizens have challenged Massachusetts’s gun laws as infringing upon their Second Amendment right to keep and bear arms, the SJC has consistently upheld the laws because, until recently, the Second Amendment did not apply to the states. The United States Supreme Court’s reticence to incorporate the Second Amendment to apply to the states, coupled with the SJC’s interpretation of article XVII, resulted in the routine failure of challenges to the Massachusetts regulatory scheme. After District of Columbia v. Heller and McDonald v. City of Chicago, however, it appears that “the times they are a changin’.” Because of this new definition of the Second Amendment’s scope of protection, several Massachusetts firearm laws may not survive constitutional challenges in the post-McDonald world. This Note will analyze the impact that these opinions will likely have on the Massachusetts gun regulation landscape. The Note examines a small sampling of laws, including safe-storage requirements, discretionary licensing, and discretionary license restrictions, all of which will almost certainly be subject to constitutional challenges in the near future.
Part II.A of this Note will outline the history of firearm regulation in Massachusetts, beginning with the Massachusetts Declaration of Rights. Part II.B will highlight the laws most vulnerable to challenges after McDonald. Although discussed at length in Part II.B, a brief introduction to some of these vulnerable regulations may be useful at this point. Massachusetts has a discretionary licensing system. A licensing authority—usually the chief of police in each municipality—has the authority to exercise his or her discretion and deny an otherwise qualified applicant if the licensing authority believes that the applicant is not “suitable.” A law allowing the discretionary denial of a fundamental right based on undefined notions of suitability, while passing constitutional muster under article XVII, will not likely survive constitutional scrutiny under the Second Amendment following the amendment’s incorporation after McDonald. . . .
Approximately eighty-two years after Justice Brandeis’s dissent in Olmstead v. United States, the United States Court of Appeals for the Ninth Circuit held that the warrantless placement of a global positioning system (GPS) on a criminal suspect’s vehicle did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The court, relying on precedent established by the United States Supreme Court, concluded that Drug Enforcement Agency (DEA) officials did not invade any area in which the appellant possessed a reasonable expectation of privacy. Furthermore, the court upheld the constitutionality of the GPS technology used by the DEA to track the appellant’s movements to and from suspected marijuana “grow houses.”
The Ninth Circuit’s holding in United States v. Pineda-Moreno does not constitute an outlier, but rather the latest in a growing body of federal jurisprudence in which courts have permitted advances in technology to restrict the privacy rights of citizens. When faced with privacy issues stemming from advances in technology over the last decade, federal courts have continued to rely upon precedent established twenty-seven years ago, rather than issuing decisions that recognize the implications created by new technology. Even as technology evolves to become more pervasive, courts continue to rely on an outdated application of the Fourth Amendment, thereby jeopardizing citizens’ privacy rights. . .
Since the emergence of “modern” medicine in America at the turn of the twentieth century, political debate has raged over reforming and expanding access to the healthcare system. While the movement enjoyed limited victories over the years, the Patient Protection and Affordable Care Act of 2010 (PPACA or the Act) represents the first successful attempt at comprehensive healthcare reform. On March 23, 2010, the day President Obama signed the bill into law, the attorneys general of thirteen states filed suit in United States District Court challenging the constitutionality of various provisions of the Act. While many prior failed attempts at healthcare reform have included some version of an “individual mandate,” the PPACA represents the first time Congress enacted a general requirement that all Americans obtain health insurance or pay a penalty. It is this provision—which one author called “health care reform’s most controversial element”—that lies at the heart of the constitutional challenges. . .
In August 2010, Deadspin.com, a sports and entertainment website, published leaked financial records for a number of Major League Baseball (MLB) clubs, including the Pittsburgh Pirates, Florida Marlins, Tampa Bay Rays, and Los Angeles Angels of Anaheim. According to these documents, the Pirates, one of the league’s worst teams, raked in an operating profit upwards of $14.4 million in 2008. MLB’s current revenue-sharing system aided in the Pirates’ accumulation of such a robust profit margin. These leaked financial statements served to demonstrate what many baseball commentators have bemoaned for years: the current MLB revenue-sharing system is clearly dysfunctional, as evidenced by the fact that smaller market teams are realizing substantial profits while remaining consistently uncompetitive. Parties on both sides of the collective-bargaining process believe that the Pirates embody the “core problem” with a system that has been implemented over the last two decades, “step by arduous step.” In other words, the revenue-sharing structure that MLB ostensibly created to increase parity has simply produced “a welfare class of teams that can turn significant profits by keeping payroll down.” . . .
Residents of the states bordering the Gulf of Mexico have more in common with their part of the sea than only salt content. Affecting the well-being of Gulf residents, the Deepwater Horizon oil spill was the largest in United States history, and efforts to respond to the disaster were similar in scale. Neither the United States government nor the responsible party was prepared to mitigate the risks present in deep-sea oil exploration. The lack of preparation and size of the spill forced responders to consider and implement untested strategies.
Private actors must consider the potential liability of their actions. Government, shielded by sovereign immunity, does not need to utilize the same calculations. This Note will suggest that government should waive its sovereign immunity during oil spill response actions in light of the controversies surrounding the Macondo Well blowout. This Note argues that United States government response efforts were detrimental to the national welfare and, although a similarly situated private party would be liable for the citizens’ injuries, the United States will not be held accountable. . .
Social host liability law is an area of tort law governing the duties owed by social hosts to both their guests and the general public. It originated as a common-law negligence doctrine, but has been heavily codified by almost every state legislature in recent years. Under the common law, a social host who provided alcohol to a guest was never liable to the guest or a third party for damages resulting from the guest’s intoxication. With the passage of time and the changing of societal values, customs, and public policy, however, both courts and legislatures across the United States have felt it necessary to expand the scope of social host liability. Today, many jurisdictions allow recovery against social hosts who distribute alcohol to minors and visibly intoxicated persons.
This Note begins by providing a brief history of social host liability law in the United States. It then provides a comprehensive survey of the current social host liability laws of each state, analyzing the various approaches and the legal theories supporting them. Next, this Note proposes an approach to social host liability that best benefits society, taking into account both the need to deter irresponsible behavior and to protect innocent parties from harm. Finally, this Note argues that a social host who distributes narcotics to a guest violates the duty of reasonable care and should be liable for injuries resulting from the guest’s intoxication. . .
This Note will first discuss the origin and meaning of “price gouging” and the impetus for states to enact anti-gouging legislation. This Note will then discuss the existing types of anti-gouging laws implemented by the states as well as review the positions of opponents and proponents of price restrictions. This Note will proceed to consider the history and judicial interpretation of the Massachusetts anti-price-gouging regulation. This Note will go on to analyze the First Circuit’s use of contract law and the statute’s plain meaning in the White decision, as well as the possible economic effects of statutory price constraints in light of the court’s decision. The Note will conclude by proposing recommendations for Massachusetts courts to consider whenan alyzing a gouging claim in the future. . .