Faculty Blog: United States v. Texas

On April 18, the Supreme Court heard oral arguments in the case of United States v. Texas. The case involves the arguments put forward by twenty-six states, challenging the President’s November of 2014 Executive Action, which could have made around 5 million parents of citizens and lawful permanent residents (known as DAPA) eligible to apply to have their deportation deferred. It would also have slightly expanded the class of pre-existing eligibility for deferred action for childhood arrivals (DACA), already in effect since 2012. The mechanism through which executive action would take place is the President’s request that his subordinates within the prosecutorial arms of DHS to exercise their prosecutorial discretion in determining where and how to use and focus limited deportation resources. Congress enacted the Immigration and Nationality Act, tasking the agencies with enforcing immigration, but provides insufficient funds for the agencies to carry out their mandates. The Executive must then make decisions about how to prioritize those mandates. Neither DAPA nor the expanded DACA class confers anything other than the eligibility for certain persons to apply for time limited deferral from removal. With deferred action, under a different set of pre-existing regulations, passed under earlier Congresses and presidents, comes eligibility for work authorization.

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Contributing Author Profile: Eric J. Gouvin

Contributing Author: Christine L. Vana

The New England Law Review is honored to announce that Eric J. Gouvin will be contributing to On Remand this spring.

Gouvin, Dean of Western New England University School of Law, has contributed to corporate law scholarship and entrepreneurship education since 1991, when he first became a member of Western New England’s faculty. In addition to teaching numerous courses in corporate, transactional, and entrepreneurship law for the past twenty-five years, Dean Gouvin established both the Small Business Clinic and the Center for Innovation & Entrepreneurship at Western New England.

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Article Preview: Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports

Contributing Author: John Kulevich

Sports arose in the primitive era as activities used to train warriors for battle. They continue to this day, though for different purposes: as a form of recreation, as a profession, and as a form of relaxation for spectators watching them. While women who play sports have gradually gained some acceptance in society, they experience gender discrimination and inequality compared to their male counterparts, in the form of lower wages, fewer endorsements, and less media coverage. This is especially true in professional sports. Tanya Dennis, the author of Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports, proposes a new statute (the “Professional Sports Act of 2015”), which provides women protection against gender discrimination in professional sports, and explains why the current state of the law is not adequate.

For example, Title IX prevents gender discrimination in federally funded educational institutions, and this protection includes prohibition of gender discrimination in school athletics within those educational institutions. As a result of this protection from gender discrimination in school sports, women’s sports have become more popular and received more media attention. Nevertheless, Title IX does not apply to professional sports and therefore cannot protect women from gender discrimination in professional sports.

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Faculty Blog: The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama’s nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate’s constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments.

In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”

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Faculty Blog: Luis v. United States and a Right to Counsel for the Rich

By: David M. Siegel

The Sixth Amendment, which the Supreme Court has for over half a century interpreted to afford indigent criminal defendants a right to a lawyer at government expense, now also provides wealthy defendants something: protection from the government’s freezing their untainted assets (as opposed to those traceable to, or proceeds of, crime) to prevent retaining counsel of their choice. As principled—and protective of the Sixth Amendment—as this distinction may be, it reinforces something much more pernicious: there is now effectively a right of the rich to be free from impoverishment by the government, to protect their Sixth Amendment right to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice.

Luis v. United States, was quite simple: federal law permits pre-trial freezing of certain criminal defendants’ assets that are proceeds of the crime, traceable to the crime, or of equal value to either of the first categories. Ms. Luis allegedly obtained $45 million through health care-related fraud, but when indicted had only $2 million, which the government agreed was neither proceeds of nor traceable to the fraud. Freezing these funds, to satisfy what the government contended would be restitution upon conviction, would preclude her hiring counsel of her choice. If the Sixth Amendment truly conferred a right to hire counsel of one’s choice, then did it also prevent the government from vitiating this right by freezing all one’s resources with which to pay counsel? Yes, the Court found, although not for any reason that commanded a majority.

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Article Preview: One Step Forward Two Steps Back: The SJC’s Incorrect Decision in Commonwealth v. Gelfgatt Deprives Technology Users of Their Constitutional Rights

Contributing Editor: Cody Zane

The Fifth Amendment of the United States Constitution protects individual criminal defendants against self-incrimination. However, as the world continues to develop at such a rapid pace and technology becomes synonymous with everyday life, Fifth Amendment protections become clouded. In 2014, the Massachusetts Supreme Judicial Court (“SJC”), in Commonwealth v. Galfgatt, significantly reduced Fifth Amendments protections by failing to extend these rights to the defendant, who was compelled to produce decryption keys encrypting mortgage schemes. Specifically, the SJC lowered the evidentiary burden of reasonable particularity in its forgone conclusion analysis. Additionally, the SJC failed to apply Article 12 of the Massachusetts constitution in its analysis.

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Article Preview: The (Unfinished) Growth of the Juvenile Justice System

Contributing Editor: Amy Robinson

The juvenile justice system has made dramatic changes over the past thirty years. In three landmark cases, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Supreme Court recognized that juvenile offenders are different from adult offenders. These cases marked a shift in the way the judiciary understands the cognitive differences between juveniles and adults. However, despite advancements in the system, courts have failed to properly focus on the goal of rehabilitation.

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Faculty Blog: Drumpf ™?

TV host John Oliver made waves recently when he launched a campaign on his HBO show Last Week Tonight to “Make Donald Drumpf Again,” a reference to the Republican presidential frontrunner’s less-than-sonorous historic family name. As part of that 21-minute skit, which has been watched an astounding 21 million times on YouTube in just a few days, the host claimed to have filed for trademark protection for the term DRUMPF. Did he? Can he?

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Contributing Author Profile: Sonja West

Contributing Editor: Ryan Goodhue

Sonja R. West is an associate professor at the University of Georgia School of Law, which she joined in 2006. She teaches courses on Constitutional Law, Media Law, and the U.S. Supreme Court.

Sonja earned a B.A. in journalism and communication studies from the University of Iowa. Prior to attending law school, she worked as a reporter in the Midwest and Washington, D.C. She received her J.D. from the University of Chicago School of Law where she served as executive editor of the school’s Law Review.

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Contributing Author Profile: Clay Calvert

Contributing Editor: Aysha Warsi

Respected author and professor, Clay Calvert, will be a panelist at the New England Law Review’s Spring Symposium on February 11, 2016.

Professor Calvert earned his B.A. in Communication with distinction and Ph.D. in Communication from Stanford University. He also received his J.D. Order of the Coif from the University of the Pacific’s McGeorge School of Law. Professor Calvert is a member of the State Bar of California and the Bar of the Supreme Court of the United States.

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