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This Note will first analyze the history of early internet defamation litigation and subsequent federal statutory solutions. It will then discuss libel statutes and decisions applicable to internet libel suits from Massachusetts and other jurisdictions. The Note will then discuss the Noonan decision and how it reconciles with previous case law and Massachusetts statutory law. In the analysis section, the Note will examine the Noonan decision and its potential impact on future internet libel suits. The Note will argue for First Amendment protection for those who post anonymous opinions on the internet and a higher standard of proof to demonstrate the “actual malice” element of libel. It will also recommend and discuss various alternatives for protecting bloggers’ rights to free speech on the internet via state anti-Strategic Legislation Against Public Participation (SLAPP) legislation, which bars frivolous suits intended to silence critics. Finally, this Note will examine the ability of Massachusetts’s anti-SLAPP statute to extend to internet communications beyond those petitioning the government. . .
This Note will begin by looking at the public policy rationale underlying the Supreme Court’s establishment, and Congress’s codification, of the work product doctrine. It will then look at the state of the work product doctrine before the First Circuit’s Textron decision. The Note will then discuss the Textron decision and how the First Circuit developed its new “for use in litigation” test. The Note will then examine the protection currently afforded to dual purpose documents in the areas of environmental law and insurance law. The analysis will argue that the Textron test will have broad ramifications beyond the context of tax accrual work papers, and it will discuss the negative consequences on environmental stress and insurance law if dual purpose documents are no longer shielded from discovery by the work product doctrine.
Technological advances in an ever-increasing age of communication enable the dissemination of information and opinions by individuals and groups, including the government. The ease of modern communication assists the government in reaching people, which is important because for a republican democracy to function, the government must be allowed to communicate its position. The government relies on words to “explain, persuade, coerce, deplore, congratulate, implore, teach, inspire, and defend.” United States courts have formalized and protected the federal government’s right to speak through the government speech doctrine. This protection allows the government to freely communicate with the public, while also posing potential problems of undue government interference in the political process. . .
On August 29, 2007, a grease fire in West Roxbury killed two members of the Boston Fire Department. According to media reports of the autopsy results, the firefighters were under the influence of alcohol and drugs at the time of their deaths, and presumably, when they responded to the fire that claimed their lives. In the wake of this tragic accident, public and political support for mandatory, random drug testing of safety-sensitive personnel has grown in Massachusetts. House Bill 2210—An Act Relative to Public Safety Employees (House Bill 2210)—addresses that increased concern, authorizing random drug and alcohol testing of all publicly and privately employed public safety personnel within the Commonwealth. The current debate over random drug testing of fire department personnel echoes a debate that took place almost twenty years ago over drug testing of Boston police officers—a practice the Supreme Judicial Court denounced in its deeply divided Guiney v. Police Commissioner of Boston opinion. . .
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense. In doing so, the Court settled the long-debated question of whether the Second Amendment applies outside the context of state-organized military institutions. The National Rifle Association heralded the decision as a major victory for gun owners across America. Others saw Heller differently, with one scholar arguing that the decision likely demands little change to the nation’s existing gun laws.
Despite its landmark decision that the Second Amendment protects an individual right, the Heller Court failed to protect the full scope of that right, as read by the Court itself. A strong theme throughout the decision is that the Second Amendment’s original purpose was to protect Americans’ ability, if the need arose, to resist the tyranny of their federal government. Heller’s holding, however, is limited to the Second Amendment’s protection of a right to self-defense, and the Court indicated that it would allow limitations on the types of firearms protected by Amendment, even though such limitations would render its original purpose unachievable. Moreover, the Court avoided setting the standard of review for Second Amendment violations, further allowing for infringement of its original purpose.
This Note examines the conflict between Heller’s reading of the Second Amendment’s original purpose, on the one hand, and its holding about self-defense and dicta on the Amendment’s limitations, on the other. Part II.A outlines the Supreme Court’s pre-Heller Second Amendment cases. Part II.B examines Heller, focusing on its holding, as well as its interpretation of the Second Amendment’s purposes and its dicta on the Amendment’s limitations. Part II.C introduces the federal machine gun ban, a law that is presumably constitutional under Heller. Part III.A argues that the limitation that Hellerallows on the types of firearms that citizens may lawfully possess fundamentally frustrates the Court’s own reading of the Second Amendment’s original purpose. Part III.B highlights the Court’s use of circular reasoning to support this specific restriction on the Second Amendment. Part III.C argues that the Second Amendment, as a fundamental right, should enjoy the protection of strict scrutiny. It then applies this standard to the federal machine gun ban, concluding that the law would be unconstitutional as the Court has previously applied that standard. Part III.D argues that in implementing Heller, federal courts seeking to render a truly originalist interpretation of the Second Amendment would rely on the Heller Court’s broad reading of the Amendment’s purposes rather than its dicta on the Amendment’s limitations. . .
This Note begins by describing the process for seeking benefits as a disabled veteran in the United States. It next examines how PTSD due to sexual assault is subject to a higher level of scrutiny in the benefit application process. The Note then considers the prevalence of MSA in the armed forces and the veracity of victims’ claims. It goes on to describe the clinical connection between MSA and PTSD. Lastly, it catalogs the obstacles to successful disability claims that the veterans disability application process presents.
This Note then analyzes the application process and suggests areas for improvement. Continued vigilance is necessary to abandon the outmoded stereotypes of sexual assault and this Note commends the Department of Defense (DOD) for taking important steps to that end. Unifying the veterans’ disability application process would provide fair and equal treatment of PTSD claims regardless of cause. The fact-finding process within the Board of Veterans’ Appeals (BVA) should be reformed to ensure the Board does not delegate its fact-finding responsibilities to the medical professionals it turns to for evidence. Finally, the contemporaneous proof requirement bars PTSD claims with an otherwise sound clinical basis—a profile that fits many claims based on MSA—and federal regulations should acknowledge this fact. . .
This Note argues that, absent objection at trial, the Massachusetts courts should review admission of objectionable evidence as potential ineffective assistance of counsel, rather than as error under the miscarriage of justice standard. Part II.A discusses the impact of the Melendez-Diaz decision on Confrontation Clause jurisprudence and posits that the Massachusetts courts will apply the miscarriage of justice standard to unpreserved claims of error based on Melendez-Diaz. Part II.B.1 begins a discussion of the evolution of appellate review in Massachusetts, describing the state’s traditional rule of finality. Part II.B.2 examines the emergence of review for a substantial risk of a miscarriage of justice and ineffective assistance of counsel as exceptions to the traditional rule. Part II.B.3 recounts the Massachusetts courts’ struggle to define the limits of miscarriage of justice review. Lastly, using appeals based on Melendez-Diaz as illustrative examples, Part III argues that the Massachusetts courts’ current approach is inconsistent with the traditional meaning of “miscarriage of justice,” misunderstands the distinction between the miscarriage of justice and ineffective assistance of counsel standards, and undermines the role of counsel in our legal system. . .
The striped bass has long been a symbol of America’s coastal bounty. During his maiden voyage into the Chesapeake Bay in 1608, Captain John Smith observed of the striped bass, “I myself at the turning of the tyde have seen such multitudes that it seemed to me that one mighte go over their backs drisho’d.” Despite historical accounts of a seemingly limitless resource, even the earliest colonists had the foresight to limit their harvest of striped bass. Most notably, in 1639, the striped bass became the impetus for America’s first fisheries law when the General Court of the Massachusetts Bay Colony banned the practice of fertilizing cornfields with the discarded frames of the fish.
Part II.A of this Note traces the development of coastal fisheries law, both from state and federal perspectives, and explains how migratory fish have historically been subject to conflicting management schemes upon crossing the arbitrary demarcation between state and federal waters. Part II.B details current striped bass legislation and offers insight into the fish’s lifecycle in order to illustrate the unique challenges of managing a species that knows no jurisdictional boundaries. Part II.C describes the federal government’s renewed interest in conserving the striped bass population, exhibited most recently in a 2007 executive order that reiterated the ban on harvesting striped bass in federal waters. Part II.D examines the standards that govern preemption of state law under the Supremacy Clause, with a focus on cases that address the hierarchy of state and federal fisheries regulations. Finally, Part III explains how and why the federal government should preempt state laws that allow the commercial harvest of striped bass in order to prevent another population crash. . .
This Note argues that the Massachusetts legislature should enact a post-conviction DNA access statute by focusing on various approaches of other state courts and legislatures in recognizing a statutory right to post-conviction DNA testing. The goal of this Note is not to assess the constitutional and due process rights of access to DNA evidence, but instead to provide effective and pragmatic policy reasons for a Massachusetts statute. Part II.A provides an overview of federal legislation and case law on post-conviction DNA access. Part II.B discusses how Massachusetts prisoners currently appeal for postconviction DNA testing. Part II.C studies Massachusetts case law, which has interpreted and applied Rule 30, specifically in motions for post-conviction DNA access. Part II.D focuses on the statutory and case law approaches of the state of New York. Part II.E discusses the statutory requirements needed for post-conviction DNA access under Maine law, as well as Maine’s recently amended DNA access statute. Finally, Part III suggests the approach the Massachusetts legislature should take in developing a post-conviction DNA statute, incorporating successful aspects of federal, Maine, and New York legislation on post-conviction DNA access. . .
In the wake of Boumediene, there has been a flood of litigation in which detainees seek the writ of habeas corpus challenging their detention as unlawful. As of this writing, there have been roughly thirteen detainees released, while at least sixteen others who were granted the writ of habeas corpus remain confined in a state of limbo at Guantanamo Bay. With no clear guidance on how to proceed with these novel issues, the judges of the United States District Court for the District of Columbia have had the difficult task of determining which of the petitioning detainees are lawfully detained, and which have been put through an excruciating ordeal without legal justification.
Part II.A of this Note will discuss the historical precedent for the detention of enemy combatants, the writ of habeas corpus, and issues implicating separation of powers during times of national and international crisis. Part II.B will explore the evolution of legislation dealing with detention of enemy combatants from World War II to the present, focusing on how such legislation has come to pass, and its utilization by the executive branch. Part II.C will then examine how the Supreme Court granted detainees the ability to challenge their detention, and how that ability affects habeas corpus litigation in the federal courts. Part II.D will examine the importance of the Al Ginco decision and its implications on detainee habeas corpus litigation. Finally, Part III of this Note will call for legislation that may serve to unify the courts in their consideration of detainee habeas corpus actions, maintain the correct separation of powers throughout the three branches of the U.S. government, and ensure that no one is indefinitely detained without clear legal justification. . .