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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NELR Happenings: Spring Symposium Twitter Feed

In case you missed our Spring Symposium discussing Adam Tanner’s book “What Stays in Vegas: The World of Personal Data-Lifeblood of Big-Business – and the End of Privacy as We Know It,” our live twitter feed is now available! There, you can read the transcript of each panelists contributions and the discussion as it occurred during the event.

Thank you again to our panelists and all who attended!

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NELR Happenings: What Stays in Vegas — Spring 2015 Symposium

Join the New England Law Review for our spring book symposium on February 25th at 4:00 p.m. in the Cherry Room at New England Law | Boston. It will showcase Adam Tanner’s book “What Stays in Vegas: The World of Personal Data-Lifeblood of Big-Business – and the End of Privacy as We Know It,” which explores how American companies are threatening our privacy and gathering personal information without oversight.

The symposium will feature Adam Tanner, a fellow at Harvard University’s Institute for Quantitative Social Science, as well as feedback and commentary from a panel of prominent legal voices, including:

  • Professor David Abrams, Harvard University and Suffolk Law School
  • Professor Shaun Spencer, University of Massachusetts Law School
  • Rita Heimes, University of Maine 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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NELR Happenings: Volume 50 E-Board-Elect

The New England Law Review is proud to announce that we have elected our Executive Board members for Volume 50, for the 2015-2016 academic year:

Editor-in-chief Nicholas Baran
Managing Editor Zachary Blaes
Business Managing Editor Lauren DeMatteo
Executive Online Editor Brandon Arey

We hope everyone will join us in congratulating our newly elected E-board members. The Review is excited about our transition and knows Volume 50 will bring us great things!

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Article Preview: A Reliable and Clear-Cut Determination

Contributing Editor: Rebecca Mushlin

The Sixth Amendment provides a criminal defendant the right to confront adverse witnesses, but this right is not absolute. In Giles v. California, the U.S. Supreme Court held a defendant will lose his or her Sixth Amendment right, under the forfeiture by wrongdoing doctrine, if the prosecution proves the defendant intended and caused a witness not to testify. Yet, the Court has not established a procedure that the trial court should use when making a forfeiture determination.

The Court’s 2004 holding in Crawford v. Washington significantly diminished numerous exceptions to the Confrontation Clause, overturned most of the alternative tests, and made it more difficult for the prosecution to admit an out-of-court statement by an unavailable witness who the defense did not have an opportunity to cross-examine. Pre-Crawford, the forfeiture by wrongdoing doctrine was less prevalent because other tests allowed the prosecution to circumvent the Confrontation Clause.

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On Remand, Suzanne Donnelly, Acknowledging Foreseeable Consequences

Who bears the risk of injury when the driver of a vehicle suffering from a known seizure disorder gets into a collision: the driver who was unable to control the car, the injured third party, or the doctor who knew of the seizures but never warned the patient of the inherent risks? The Massachusetts Supreme Judicial Court (SJC) answered all of these questions in its recent decision, Medina v. Hochberg. There, the Court held that a physician owes no duty to a nonpatient third party to warn his patient not to drive due to risks associated with the patient’s health condition. Medina clarified the prior confusion among Massachusetts courts regarding the duty imposed on a physician to unrelated third parties and narrowed the scope of the Court’s earlier holding in Coombes v. Florio, which established a physician’s duty to nonpatient third parties when the physician has prescribed medication to the patient. Policy, rather than precedent, ultimately fueled the SJC’s decision-making process and led to the case’s outcome. The SJC was correct in its conclusion in Medina, but the Court should have utilized a more equitable method in ascertaining whether a physician should have a duty to a nonpatient third party, so plaintiffs with meritorious claims will not be automatically foreclosed from pursuing them. This Comment argues that although the SJC was correct in its holding, it should have employed a more flexible method evaluating the foreseeability of the harm to the injured party in determining the existence of a duty rather than precluding all plaintiffs in similar circumstances from engaging in a lawsuit.

Read more from the most recent On Remand article, a Comment by New England Law Review editor Suzanne Donnelly entitled Acknowledging Foreseeable Consequences: Medina v. Hochberg and Limiting Physicians’ Duties to Nonpatients here.

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Article Preview: “Defense Witnesses Need Immunity Too: Why the Supreme Court Should Adopt the Ninth Circuit’s Approach to Defense Witness Immunity” by Alison Field

Contributing Editor: Nadine Petsuck

Immunity is an important tool for prosecutors. The ability to offer immunity from prosecution to witnesses in criminal cases gives the prosecutor a bargaining chip by which to secure valuable testimony. The federal use-immunity statute, 18 U.S.C. § 6002, grants federal prosecutors exclusive authority to request from the court an order granting a witness limited immunity in a proceeding when the witness exercises his or her Fifth Amendment rights. This immunity protects the witness against the government’s use of such testimony to prosecute the witness thereafter.

In contrast, the defendant’s resources to encourage or protect the testimony of a witness who “takes the Fifth,” are almost nonexistent. No corresponding statutory provision is granted; unless the court compels a grant of immunity, the prosecution will rarely seek immunity for a defendant’s witness. Further, courts are often reluctant to afford defense witness immunity due to the exclusive grant of statutory authority and often impose difficult standards to obtain such relief.

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Article Preview: The Time Is Now: Proposed Judicial and Legislative Solutions to Restrict the Disparate Impact Caused By Employer Use of Credit Checks by Taylore Karpa

Contributing Editor: Gregory Moss

This article concerns employers’ use of credit checks to determine whether an applicant should be hired and how such conduct should be regulated. Under some circumstances, using credit checks to determine who to hire negatively impacts minorities at a disproportionate rate. Studies show a correlation between credit and race, revealing that minority groups, namely African Americans and Latinos, tend to have a pattern of proportionately worse credit than non-minority groups. Employers increasingly use credit scores as a factor when making employment decisions, causing many people’s credit score to take a hit. Consequently, people with poor credit have a tougher time finding work, thereby subjecting them to a vicious cycle of being unable to establish financial security from a paying job, negatively impacting their credit and reducing their perceived employability. As a result, the Massachusetts legal community has proposed legislation to remedy this discriminatory practice.

Karpa argues that although the proposed bills are a step in the right direction, they either fail to provide adequate protection or fall short of recognizing the full extent of the problem. Karpa contends that currently Massachusetts case law neglects to resolve the problem of employers using credit checks in making hiring decisions for two reasons. First, the issue has not been formally recognized by the Court as a discriminatory practice because a case of this nature has yet to be brought before a Massachusetts court. Second, discrimination claims only concentrate on protected classes which Massachusetts recognizes only as race, religion, gender, age, and disability. Socio-economic rank is not a protected class. Karpa argues that all is not lost; over the years Massachusetts discrimination law has expanded in its recognition of additional classes of protected groups, eventually accommodating gender, disability, and age as immutable characteristics protected and subject to the laws regarding disparate impact.

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Podcast: Commonwealth v. Vacher

Today, we are discussing a recent Mass. Crim. Digest blog post on Commonwealth v. Vacher, decided August 14, 2014. The Mass. Crim. Digest, formerly known as the Massachusetts Criminal Digest, was the New England Law Review’s online case-summary database that provided citable, straightforward summaries of recent criminal law cases decided by the Massachusetts Supreme Judicial Court, or SJC. In 2014 the Mass. Crim. Digest was retired, though summaries of cases decided by the SJC under Articles 12 and 14 of the Massachusetts Declaration of Rights are still provided through our editor blog.

We are joined by a Volume 49 Comment and Note Editor, Catherine Flaherty, to discuss her Mass. Crim. Digest blog post about Commonwealth v. Vacher, citation of which is 469 Mass. 425, again decided August 14, 2014. Catherine, thank you for joining me today.

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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Article Preview: Constitution Interpretation and Technological Change by Allen R. Kamp

Contributing Editor: Alessandra Perna

Two experiences inspired Allen R. Kamp to write this article. The first was a lecture by Professor Randy Barnett at the 2011 Loyola Constitutional Law Conference that focused on the meaning of “commerce” around the time of the Constitutional Convention. The second was a Colbert Report skit in which Colbert impersonated Paul Revere warning about the British while firing his guns and blowing his horn. These two experiences led Kamp to research how the Supreme Court has looked at technology and how the Constitution’s meaning of words have changed because of it.

Kamp discusses the rules that guide the Supreme Court when interpreting the Constitution in regard to technological change. Kamp looks at the First, Second, and Seventh Amendments of the Constitution, in addition to the Commerce Clause, and how certain—namely conservative—justices go beyond the literal language of the Constitutional text when dealing with technological change. Ultimately, there is no united philosophy when dealing with technological change and therefore the Court’s interpretive approach is ad hoc.

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