Editor Blog

Article Preview: Courts and Informal Constitutional Change in the States

The Constitution is at the heart of our state and individual rights and is the foundation of our very nation.  When considering constitutional law, the Federal Constitution is the document that most frequently comes to mind.  However, each individual state has its own state constitution that governs its residents simultaneously with the Federal Constitution.  As… Continue reading Article Preview: Courts and Informal Constitutional Change in the States

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Article Preview: Re-Reading Alafair Burke’s The Ex

There can be no doubt that the legal profession is frequently depicted in popular culture. Take a look at the front page of any major newspaper, and you will invariably find stories depicting the latest political development, sensational trial, or other legal phenomena. But in recent decades, law-and-literature, as a discipline, has been described as… Continue reading Article Preview: Re-Reading Alafair Burke’s The Ex

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.

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Article Preview: “The Near-Term Employment Prospects of American Law School Graduates”

Contributing Editor: Sara J. Conway
As the spring semester quickly approaches there is one issue near and dear to every law student’s heart—employment. It is no secret that the job market for American law school graduates suffered greatly during and in the immediate aftermath of the 2007 recession. As the economy slowly recovered, the legal job market quickly improved. However, as is so often the case, reporters sensationalized the negative and failed to account for the improved employment forecasts. Armed only with continued coverage depicting the job market as “grim,” current law students and recent graduates might understandably lose hope in their career prospects. Professor Teich’s upcoming article “The Near-Term Employment Prospects of American Law School Graduates” fills in the gaps that reporters have missed. Professor Teich delves into the pre and post-recession employment data and presents a series of fact-supported statements that will likely quell the fears of prospective students and recent graduates. Professor Teich argues that within two years there will likely be a shortage of newly licensed lawyers. How is this possible?

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Article Preview: “Reforming Civil Asset Forfeiture”

Contributing Editor: Greg Mosher
Citizens who own property in Massachusetts, or pass through Massachusetts, are at a greater risk of having their property taken and sold by the Commonwealth than in almost any other state. As if Due Process no longer applies, the Commonwealth presumes the property itself guilty, seizes it, sells it, and uses the cold hard cash to pad police and prosecutor budgets. In Reforming Civil Asset Forfeiture: Ensuring Fairness and Due Process for Property Owners in Massachusetts, Charles Basler champions civil asset forfeiture laws that are nobler than The Commonwealth’s. He explains that among the states, the Commonwealth of Massachusetts is an outlier. This is not because Massachusetts is the archetype of change or on the cutting edge of social justice, but because its civil asset forfeiture law is unusually similar to federal laws of yore that were repealed some time ago.

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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.

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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.

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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.