Article Preview: Morrow v. Balaski: When Good Intentions Go Bad

Contributing Editor: Heather Reid

Bullying, both in schools and online, has become a topic of national discussion. In response, many state legislatures have enacted anti-bullying statutes which prohibit bullying both on and off school property. These laws define bullying behavior and require schools to devise and adopt strategies for prevention and intervention. Notably, they do not provide victims of bullying with a private right of action against schools under the bullying statute.

The plaintiffs in Morrow v. Balaski brought such a cause of action, filing a 42 U.S.C. § 1983 claim against Blackhawk High School in Pennsylvania. Brittany and Emily Morrow claimed that the school’s inaction and failure to protect them from bullying by another student violated their substantive Due Process rights under the Fourteenth Amendment. Primarily, they argued the school had a “special relationship” with its students, therefore establishing a duty to protect them from dangerous situations. The Third Circuit disagreed with the plaintiffs, reaffirming that there is no “special relationship” between public schools and their students; absent that “special relationship,” a school has no duty to protect students from third party actions.

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Faculty Blog: Why You Should be Interested in Trusts and Estates Law

Suppose that S, scion of a prominent wealthy family but a bit of a ne’er do well, drunkenly and negligently wrecks his car, causing severe injury to innocent victim, V. V sues and wins a judgment against S, who is the beneficiary of a trust worth millions of dollars. Is V likely to collect on this judgment?

Not against the trust. Although S continues to benefit from the trust, the document that created it contains a “spendthrift clause.” Under the widely adopted Uniform Trust Code (UTC), a few simple words in the trust document numinously protect its corpus from claims of almost all third parties, including tort victims.

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Podcast: Professor Eldred and Behavioral Legal Ethics

We were joined by Professor Tigran Eldred, a Professor at New England Law | Boston, to discuss his work in behavioral legal ethics. Professor Eldred’s scholarship in this area was cited in a landmark legal ethics decision, United States v. Kentucky Bar Association. In addition, he blends this area into his Ethics class at New England Law. Professor Eldred explains the topic, the effect behavioral legal ethics has on lawyers, the United States v. Kentucky Bar Association decision, and his work integrating this field into the classroom.

You can learn more at this blog, which Professor Eldred coauthors.

Listen on our website here, or visit our PodOmatic page here.

You can also subscribe to our RSS feed here, or download on iTunes here.

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Faculty Blog: Creeping Doctrines / Shifting Fees

Too often the catch-all term “intellectual property”— useful in describing practitioner specialty areas, law school courses, and text books, among other things— serves a subtly insidious function. It suggests that those discrete bodies of law which it encompasses—roughly, copyright, trademark, patent, and trade secret law—have fundamental commonality. Not only, it implies, do those legal areas overlap, but more critically that those overlaps somehow count for more than any divergences.

This has a real effect on the development of the law. Courts are quick to presume that a rule applicable to one area of intellectual property ought to apply to all. The burden, it seems, is on one challenging such an extension to show why a given area of law, say trademark law, is distinct enough from another, such as patent law, so that a rule for one should not apply to another. The courts, for instance, over the past decade worked to extend a rule from a 2006 patent case that denies prevailing patent infringement plaintiffs entitlement to injunctive relief (eBay Inc v. MercExchange) to copyright and trademark law. We are now seeing that process inexorably repeat itself with respect to statutory fee-shifting.

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Faculty Blog: Memory Battles and National Human Rights Trials

This post originally appeared on the IntLawGrrls blog, available here.

I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former Peruvian President Alberto Fujimori and former Guatemalan leader José Efraín Ríos Montt. Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013, when the Guatemalan Constitutional Court pointed to procedural errors as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982–83.

While observing both trials, I was fascinated by the media coverage of these proceedings and how the local coverage of these historical trials impacted public debates outside of the courtroom. My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often forget the important role of media in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.

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Mass. Crim. Dig.: Commonwealth v. Thomas

Commonwealth v. Thomas, 469 Mass. 531 (2014)

I. Facts

In the early morning of July 6, 2006, a three-story Brockton house erupted in flames. The first-floor occupants were unharmed; however, second-floor residents and guests threw the children out the window to a passerby and then jumped themselves. Those on the third floor could not escape on their own. While firefighters saved three people, including the one-month-old baby, the baby’s mother was trapped in the bathroom and later died of smoke inhalation at the hospital.

Michelle Johnson rented the first-floor apartment. The defendant, Chiteara M. Thomas, and her boyfriend, Cornelius Brown, stayed in the first-floor apartment with Johnson. Prior to the fire, Johnson demanded that Thomas move out. The defendant, angry at being tossed out, repeatedly threatened “to kill Johnson and burn the house down.”

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On Remand: O’Neill, America the Eusocial

Consider the fern. A fern is composed of individual fronds. Each frond is composed of smaller, more intricate designs. What is fascinating is that on whatever scale you view it—a part of a frond, an entire frond, or a fern as a whole—the design is identical. Thus, a small part of the figure when enlarged reproduces the original figure; the figure of the fern is created by repeating the same pattern at smaller and smaller scales. In other words, the part contains the whole.

The relative complexity of the fern is thus the same regardless of scale. An object with this quality is referred to as being “scale insensitive.” The French-American mathematician Benoit Mandelbrot first described this concept. Mandelbrot had expanded on the work of Lewis Richardson, a mathematician who had discovered problems in trying to measure the coastline of England. If you view the coastline from an orbiting satellite, it would generally appear jagged, but you would see some stretches that appear smooth. With a view from an altitude of 5,000 meters, however, you would find that the smooth parts are actually mostly jagged, with some smooth parts. You would obtain the same results at successive levels of magnification—that is, a photo taken from ten centimeters above the coastline will reveal the same relative degree of jaggedness and smoothness as a picture taken from outer space. Mandelbrot described this phenomenon as a “fractal”: “[A] geometric shape that can be separated into parts, each of which is a reduced-scale version of the whole.”

Read more from the most recent On Remand article, America the Eusocial by Timothy P. O’Neill here.

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On Remand: Cantor, Municipal Zoning Regulation and Medical Marijuana in Massachusetts

By citizen’s petition at the November 2012 state election, Massachusetts voters approved The Humanitarian Medical Use of Marijuana Act (the “Medical Marijuana Act”) authorizing the medical use of marijuana in the Commonwealth. Regulations promulgated by the state Department of Public Health (“DPH”) require persons and entities operating under the Medical Marijuana Act to “comply with all local rules, regulations, ordinances, and bylaws,” among numerous other provisions. Given that Massachusetts has 351 cities and towns functioning under Home Rule authority and decentralized zoning, a wide range of municipal responses to the Medical Marijuana Act and DPH Regulations have emerged. Some municipalities have taken a completely hands-off approach, declining to specifically regulate the medical use of marijuana as a matter of land use control; others have sought to erect barricades, attempting to shut out all such use. While this local control presents challenges to proponents seeking to locate medical marijuana treatment facilities (as it does to developers in general), it exemplifies Massachusetts’ traditional zoning practice—unless a local bylaw or ordinance directly conflicts with state law, it will be upheld under the dual principles of home rule and decentralized zoning.

This Article will address some of the municipal responses to the Medical Marijuana Act and DPH Regulations in the context of the particulars of Massachusetts home rule and zoning law.

Read more from the most recent On Remand article, Municipal Zoning Regulation and Medical Marijuana in Massachusetts by Patricia A. Cantor, Esq., here.

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Faculty Blog: Texas v. United States

Judicial opinions are written to persuade. Perhaps this is the reason why Judge Hanen’s opinion in Texas v. United States resorts to truncated arguments, neglecting to discuss the opposing position. Furthermore, nowhere in the opinion does the judge indicate the devastating effect that the opinion will have on the people involved. Instead of focusing on the families that are at risk of being ripped apart through deportation as a result of his decision, Judge Hanen portrays the battle as an abstract political one between states that “bear the brunt of illegal immigration” while the (incompetent?) “powers that be” in the capitol are “rubberstamp[ing]” applications to avoid deportation or giving them only a “pro forma review.” No matter how long an opinion is—and this one is more than 120 pages long—it will sound polemical instead of persuasive if it does not recognize the other side’s arguments.

Among other things, Judge Hanen’s opinion holds illegal the decision by Jeh Johnson, Secretary of the Department of Homeland Security, to limit removal actions against some parents of citizens and permanent residents. The United States had claimed that this decision was not subject to judicial review under the federal Administrative Procedure Act on the grounds that it was a discretionary prosecutorial decision. Judge Hanen disagreed, holding that it was reviewable because, among other things, the statute used the term “shall” in relation to deportation instead of “may.” The judge’s handling of this one small point—the interpretation of “shall” in the statute—is illustrative of his failure to voice the United States’ argument in any but the weakest way. Similarly, his reluctance, in discussing this point, to recognize what is at stake for the families involved may show his fear that doing so would make the reader less sympathetic to his position.

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Article Preview: Letting the Exception Swallow the Rule

Contributing Editor: Matthew Ezepek

The Fourth Amendment of the United States Constitution and Article Fourteen of the Massachusetts Declaration of Rights protect criminal defendants from unreasonable searches and seizures. To protect these rights, police officers are generally required to obtain an arrest warrant before a suspect can be arrested or a search warrant before a suspect or his property can be searched. One of the most highly protected areas under the Fourth Amendment is an individual’s home, and courts are extra cautious to ensure an individual’s rights are not infringed upon in his or her home.

Two seminal Supreme Court decisions discuss the warrant requirements to arrest suspects in private dwellings. In New York v. Payton, the Supreme Court ruled that police can lawfully enter a suspect’s home with a valid arrest warrant and a reasonable belief that the suspect is inside. A later case, Steagald v. United States, held that the rule in Payton did not extend to the homes of third parties and held a search warrant, in addition to the arrest warrant, is necessary to enter a third party’s home. What did not appear to be answered was who has standing to challenge such a violation.

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