Article Preview, Editor Blog, Uncategorized

Article Preview: Moral Courage in Indigent Defense

Why do some individuals act more ethically than others, even in similar situations? This is the question Professor Tigran Eldred explores in his article, Moral Courage in Indigent Defense. Professor Eldred narrows this question to a familiar domain from his past work, the many ethical challenges that defense lawyers are confronted with while representing indigent… Continue reading Article Preview: Moral Courage in Indigent Defense

Article Preview, Behavioral Legal Ethics, Editor Blog, New England Law Review, Symposium

Article Preview: Ain’t Misbehaving: Behavioral Ethics and Rest’s Model of Moral Judgment

Lawyers and law students are taught how to spot ethical issues through analysis of hypothetical situations. When it comes to recognizing our own ethical mistakes, there appears to be a disconnect between the ability to apply that knowledge to theoretical situations and to use it to resolve situations in practice. In their article Behavior Ethics and the Four-Component Model of Moral Judgment and Behavior, authors Milton C. Regan, Jr. and Nancy L. Sachs respond to Associate Dean Catherine Gage O’Grady’s analysis of the “dynamics that can affect new lawyer’s ability to recognize that they have made a mistake and their willingness to acknowledge it to others.” As both O’Grady and the authors point out, these kinds of mistakes can have significant ethical implications if the mistaken attorney cannot or will not acknowledge the impact of her error. In order to assist in the process of acknowledgment and avoid ethical issues, Regan and Sachs propose a framework for guiding these issues to their appropriate conclusion. Regan and Sachs find value in the union of psychology and ethics to guide the thinking of a new lawyer deciding whether to acknowledge her mistake to others and the ethical violations that can arise from that choice.

Article Preview, Behavioral Legal Ethics, Editor Blog, Law School, New England Law Review, Symposium, Uncategorized

Article Preview: Lawyers, Impression Management and the Fear of Failure

Lawyers often struggle to recognize and learn from their mistakes. Associate Dean Catherine Gage O’Grady has made the argument in her Article, A Behavioral Approach to Lawyer Mistake and Apology, that this is a result of cognitive biases, and offered insight about how law firms might respond to facilitate learning, professional growth, and stronger ethics. In his Response Article, Lawyers, Impression Management and the Fear of Failure, Donald C. Langevoort not only supports O’Grady’s position, but also presents additional reasons to pay close attention to the insight provided by Associate Dean O’Grady.

Article Preview, criminal law, Criminal Procedure, Due Process, Editor Blog, Juvenile Law, New England Law Review, Policy, prosecutors, School Reform, Student Writing, transitional justice

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.

Article Preview, Editor Blog

Article Preview: “Mature Person Preferred”

Contributing Editor: John Mara
The Fair Housing Act was passed in 1968 with the purpose of outlawing discrimination by a property owner when renting or selling a dwelling based on “race, color, religion, sex, familial status, or national origin.” Section 3604(c) of the Fair Housing Act, which deals specifically with discriminatory advertising practices, prohibits housing advertisements through any medium that show “any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” Since the passage of that act, applying section 3604(c) has become more difficult due to issues such as internet advertising and First Amendment challenges. This Note examines the federal court system’s interpretation of section 3604(c) of the Fair Housing Act. To determine whether an advertisement has violated section 3604(c), the courts use the “ordinary reader” test to determine whether an “ordinary reader would understand an advertisement to suggest a preference for or against a protected group.” In Ragin v. New York Times Company, the Second Circuit interpreted the term “preference” to mean “any ad that would discourage an ordinary reader of a particular race.” The Seventh Circuit also equated the word “preference” with discouraging an ordinary reader in Jancik v. Department of Housing & Urban Development. However, in Miami Valley Fair Housing Center, Inc. v. Connor Group, the Sixth Circuit declined to follow the Second and Seventh Circuits, ruling that the terms “preference” and “discourage” are not synonymous, and therefore the ordinary reader standard should apply any time an ordinary reader would believe an advertisement indicates a preference. These three decisions created a circuit split on the issue of whether the ordinary reader test applies to advertisements that discourage readers, or merely show a preference.

Article Preview, Editor Blog

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.

4th Amendment, Article Preview, Criminal Procedure, Editor Blog, Fourth Amendment

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.

Article Preview, criminal law, Criminal Procedure, Editor Blog, Sixth Amendment

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.

Article Preview, Editor Blog

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.

Apprendi, Article Preview, Editor Blog, Sixth Amendment, Student Writing

Article Preview: Money Makes All the Difference: Why Corporate Defendants Are Not Entitled to the Sixth Amendment Jury Trial Right’s Full Protection by Allison Reuter

Contributing Editor: Kevin Mortimer
Personal interests and motivations differ from person to person. The consequences of a criminal conviction are life-altering and may include moral condemnation, retribution, and incarceration. Corporations, on the other hand, typically have one motivation: maximizing profit. Corporations, with their “vast size, wealth, and power,” do not possess a conscience. They will never face the moral condemnation, imprisonment, or death penalty that so many human beings fear. Rather, corporations face criminal fines that are often treated as “a mere cost of business or a slap on the wrist.” These fines do not serve the purpose of moral condemnation or retribution, but rather serve mere regulatory functions.