Contributing Author Profile: Rachel VanLandingham

Contributing Editor: Kathleen Frain Brekka

Rachel VanLandingham – professor, author, and former member of the U.S. Armed Forces – will present her article “Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weakness In A Special Society” at the New England Law Review’s Fall Symposium on Thursday, October 8, 2015 at 4:30 p.m. During her presentation, she will discuss the teleology of the military justice system, specifically addressing why non-lawyer commanders make prosecutorial decisions, and highlighting why such a system should be improved by keeping senior commanders as decision-makers while creating a more equal role for military attorneys, as well by adding other transparency and accountability measures.

Rachel VanLandingham earned her B.S. in Political Science from the U.S. Air Force Academy, her M.P.M. with a National Security emphasis from the University of Maryland, College Park, her J.D. from the University of Texas, Austin (high honors), and her LL.M from the U.S. Army’s Judge Advocate General’s Legal Center and School (Commandant’s List).

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Contributing Author Profile: James Gallagher

Contributing Editor: Kasey Emmons

James (“Jim”) Gallagher began his legal career as an Officer and Judge Advocate for the United States Marine Corps: serving as prosecutor, defense counsel, and Special Assistant U.S. Attorney for the District of Hawaii. From 2006 through 2009, Jim was involved in the prosecution and defense of more than 100 courts-martial. In 2008, Jim deployed to Karmah, Iraq as the Battalion Judge Advocate with 2d Battalion, 3d Marines in support of Operation Iraqi Freedom. In this role, Jim was the legal advisor to the Battalion’s Commanding Officer advising him on issues involving international law, rules of engagement, and laws of war. Jim was also responsible for monitoring detainee operations, military justice, investigations, claims adjudication for the Battalion and serving as a liaison to local Iraqi judicial figures.

Jim now practices at Davis, Malm & D’Agostine, P.C. in Boston. Jim’s practice encompasses advising individuals and businesses on a wide variety of business, employment and litigation issues. Jim represents clients in these issues in both state and federal courts and in front of multiple administrative bodies.

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NELR Happenings: Sexual Violence in the U.S. Military: Discipline, Justice, and Command — Fall 2015 Symposium

Join the New England Law Review for our fall paper symposium on October 8th at 4:30 p.m. in the Cherry Room at New England Law | Boston. It will showcase Professor Rachel VanLandingham’s article “Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society.” She will discuss why military commanders should be removed from the prosecutorial chain, as this position constitutes an unethical practice of law, and further discuss the collateral consequences of such a removal.

She also will consider how problems associated with prosecutorial discretion can be potentially magnified in the military, the unique aspects of commander-owned prosecutorial discretion, and the insufficient checks and balances currently in place.

The symposium will feature Professor VanLandingham, a Visiting Scholar from Southwestern Law School, as our keynote speaker, as well as feedback and commentary from a panel of prominent legal voices, including:

  • Associate Dean Victor Hansen, New England Law | Boston
  • Provost Elizabeth Hillman, UC Hastings College of Law
  • Adjunct Professor James Gallagher, Suffolk University Law School

For more information, visit our symposium page here.

You can also join our Facebook event page.

We look forward to seeing you there!

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Faculty Blog: Tribute to a Mentor

On Monday, August 31, Gregory Hobbs will step down as Associate Justice of the Colorado Supreme Court, a position he has held for the past nineteen years. I was extremely fortunate to serve as a law clerk for Justice Hobbs for the 2000–2001 term. On the occasion of his retirement from the bench, I wanted to add my voice to the chorus of praise for this extraordinary public servant.

Justice Hobbs was (is!) a water law expert, a historian, a poet, a keen cultural observer, and a man with his finger on the pulse of the communities he served. More than once during my clerkship, he reminded me that the Court’s authority came with profound responsibility: each decision directly affected lives and livelihoods. There was no place for judicial (or judicial clerk) egotism or haughtiness. At a time when the news cycle and daytime television converged to create a culture celebrating sassy, snarky judges, Justice Hobbs was always a jurist of remarkable care and humility.

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Faculty Blog: Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.”

The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

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NELR Happenings: New England Law Review Volume 50 Associate Members

The New England Law Review is proud to announce its membership selection for Volume 50:

Ioana Aprodu
Katherine Brady
Alexander Conley
Sean Connolly
Zahlia Cronce-King
M. James Giugno
Zachary Gregoricus
Arne Hans

Alexandra Law
Briana Matuszko
Chanal McCain
Robert Murphy
Somto Ojukwu
Amanda Palmeira
S. Michael Pidani
M. Abigail Pratt

Anthony Riley
Matthew Riordan
Justin Rostoff
Brandon Smith
Angela Szymcik
Ashley Valdivia
Emily White
Daniel Williams

Click on each Associate name above to learn a little about each member.

Congratulations to you all! We look forward to working with you.

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Faculty Blog: Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy

One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment.

The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

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Faculty Blog: Recent Supreme Court Term: King v. Burwell

“The issue in this case is whether the Act’s [the Affordable Care Act] tax credits are available in States that have a Federal Exchange rather than a State Exchange.” King v. Burwell, 576 U.S. __ (2015) (p. 5). The Affordable Care Act (ACA) requires each state to create its own health insurance Exchange, however, if a state refuses to do so, then the Secretary of Health and Human Services (HHS) is authorized to “establish and operate such Exchange within the State.” Sec. 18041(c)(1).” (p. 5). Only sixteen States and the District of Columbia created their own Exchanges, while thirty-four States utilize the federal Exchange administered by the Department of Health and Human Services. (p. 6).

The tax credits, which are authorized by IRC sec. 36B, are allowed to “applicable taxpayers” who obtain health insurance through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care act….” (p. 5). The IRS addressed the availability of tax credits to individuals acquiring health insurance through an HHS Exchange by adopting the definition of “Exchange” as used in an HHS regulation, 45 CFR sec. 155.20, which provided that taxpayers are eligible for a tax credit if they are enrolled in an Exchange which serves the individual market, “regardless of whether the Exchange is established and operated by a State… or by HHS….” (p. 6).

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Faculty Blog: Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation

On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society. Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

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Faculty Blog: Recent Supreme Court Term: Zivotofsky v. Kerry

In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

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