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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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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