Article Preview: Without a Bright-line on the Green Line

Contributing Editor: Tanya Dennis

The “right to be let alone” is a privacy right derived predominately from property rights. As time went on, these privacy rights expanded to include intangible property rights borrowing aspects of law from libel and slander, nuisance, and intellectual property. However in 1890, well before the availability of cell phone cameras, spy technology, and portable electronics devices, Samuel Warren and Louis Brandeis predicted a decline in these privacy rights.

In 2004, the Massachusetts legislature enacted its Peeping Tom Statute, An Act Relative to Unlawful Sexual Surveillance, to further protect privacy rights in light of modern technology. Despite this newly enacted law, the Massachusetts’ Supreme Judicial Court (“SJC”) declined to criminalize upskirt photos taken on public transportation because the conduct did not fall within the statute. In Commonwealth v. Robertson, the SJC held that secretly photographing under the skirts of female passengers on public transportation did not violate the statute’s prohibition against secretly photographing a nude or partially nude person. If such an invasion of privacy is not a recognized privacy right in Massachusetts, then what is and where do we draw the line?

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Contributing Author Profile: Steven Gariepy

Contributing Editor: Robin Craig

In today’s ever-changing environment, it is important to understand the interconnectedness of military and civilian life, the role law has in governing the use of military force, and how the U.S. government seeks to reduce civilian casualties in active combat environments.

Having been deployed in Afghanistan, Lieutenant Colonel Steven Gariepy draws on his first-hand military experience to confront these issues and how the U.S., and its NATO allies, address the legal and humanitarian complications related with military action. Presenting on topics, including “International Humanitarian Law in Practice” and “Mitigating Civilian Casualties in Afghanistan: The Applicability of International Human Rights Law during Military Operations,” Lieutenant Colonel Gariepy applies practical knowledge and experience to complex, multi-layered issues in a manner his audience can understand.

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Article Preview: “The Near-Term Employment Prospects of American Law School Graduates”

Contributing Editor: Sara J. Conway

As the spring semester quickly approaches there is one issue near and dear to every law student’s heart—employment. It is no secret that the job market for American law school graduates suffered greatly during and in the immediate aftermath of the 2007 recession. As the economy slowly recovered, the legal job market quickly improved. However, as is so often the case, reporters sensationalized the negative and failed to account for the improved employment forecasts. Armed only with continued coverage depicting the job market as “grim,” current law students and recent graduates might understandably lose hope in their career prospects.

Professor Teich’s upcoming article “The Near-Term Employment Prospects of American Law School Graduates” fills in the gaps that reporters have missed. Professor Teich delves into the pre and post-recession employment data and presents a series of fact-supported statements that will likely quell the fears of prospective students and recent graduates. Professor Teich argues that within two years there will likely be a shortage of newly licensed lawyers. How is this possible?

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Article Preview: “Reforming Civil Asset Forfeiture”

Contributing Editor: Greg Mosher

Citizens who own property in Massachusetts, or pass through Massachusetts, are at a greater risk of having their property taken and sold by the Commonwealth than in almost any other state. As if Due Process no longer applies, the Commonwealth presumes the property itself guilty, seizes it, sells it, and uses the cold hard cash to pad police and prosecutor budgets.

In Reforming Civil Asset Forfeiture: Ensuring Fairness and Due Process for Property Owners in Massachusetts, Charles Basler champions civil asset forfeiture laws that are nobler than The Commonwealth’s. He explains that among the states, the Commonwealth of Massachusetts is an outlier. This is not because Massachusetts is the archetype of change or on the cutting edge of social justice, but because its civil asset forfeiture law is unusually similar to federal laws of yore that were repealed some time ago.

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Contributing Author Profile: Elizabeth Hillman

Contributing Editor: Justin Amos

Elizabeth L. Hillman currently serves as Provost of UC Hastings College of Law, where she teaches courses in Constitutional Law, Wills & Trusts, and Military Law. She has, over her career, amassed a wealth of expertise in military justice, constitutional law, and gender and equality in the law. A graduate of Duke University, Provost Hillman served as a space operations officer and orbital analyst in the United States Air Force. Prior to joining the UC Hastings faculty in 2007, Provost Hillman taught at the Air Force Academy, Yale University, and Rutgers University School of Law at Camden. She became Provost at UC Hastings in 2013.

Provost Hillman’s scholarship spans such topics as military law, history, and culture. She has published two books, Military Justice Cases and Materials (2d ed. 2012, LexisNexis, with Eugene R. Fidell and Dwight H. Sullivan) and Defending America: Military Culture and the Cold War Court-Martial (Princeton University Press, 2005), as well as numerous articles, chapters, and reports. She has also testified as an expert witness at trial, before Congressional committees, and before the U.S. Commission on Civil Rights.

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Faculty Blog: Refugees, Migrants, and State Responsibility

Anyone who has followed the recent refugee crisis will notice the interchangeable use of the terms “migrant” and “refugee” to describe the people fleeing Syria, Iraq and North Africa, who are attempting to find safety and a better life in Europe. Depending upon your source of news, you might also hear the almost belligerent use of phrases and words like “economic migrant” and “opening the floodgates.”

It was Hannah Arendt who used the term “scum of the earth,” to describe not the refugees fleeing Nazi control during World War II, but the treatment they received as they metaphorically washed up on shores of neighboring countries. She was describing the phenomenon that transpires when one country or regime has designated some people as inferior, and how everyone else then views them that way — needy, dangerous, and likely to cause a run on resources.

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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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