Faculty Blog, Teixeira de Sousa

Left-to-Work for Less

Missouri voters gave the American labor movement a very welcome bit of good news earlier this month when by a 2-1 margin they refused to become the 28th state in the nation to adopt right-to-work legislation in the private sector.  Coming on the heels of the U.S. Supreme Court decision in Janus v. AFSCME, which held… Continue reading Left-to-Work for Less

Editor Blog, Uncategorized

Article Preview: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape

Most people know that, in 2016, Terrence “Hulk Hogan” Bollea was awarded $140 million by a Florida jury after successfully suing Gawker Media, LLC for invading his privacy when it released a video of Hogan having sex with a friend’s wife. However, it often goes overlooked that Hogan was also successful in a separate cause… Continue reading Article Preview: Intentional Infliction of Emotional Distress & The Hulk Hogan Sex Tape

4th Amendment, 5th Amendment, 6th Amendment, Constitution, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff

By: Victor M. Hansen  The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application. Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.

4th Amendment, 5th Amendment, 6th Amendment, Constitution, criminal law, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Friedman, New England Law Review, Privacy, U.S. Supreme Court

Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless

By: Lawrence M. Friedman  The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned. The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”

4th Amendment, 5th Amendment, 6th Amendment, criminal law, Criminal Procedure, Due Process, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: Williams v. Pennsylvania Raises Major Concerns About U.S. Justice System

Professor Eldred wrote that this latest decision is a missed opportunity by the Court that could undermine the long-term value of the decision, particularly when, as Professor Eldred notes, there was significant literature and research in this area available to the Court. Here, I want to address another issue raised by the facts of the case that should alarm anyone concerned about the fairness of our criminal justice system—namely, the role of the prosecutor. While I can’t say that this was another missed opportunity by the Court to address the question since it was not directly before the Court, the troubling story recounted by the facts of the case serves as an important backdrop and raises important questions about the quality of justice in death penalty and other cases. In its recounting of the facts of the case, the Court noted that the prosecutor assigned to the murder case against Williams sent a two-page memorandum to the district attorney requesting approval to seek the death penalty. The then-district attorney, later Chief Justice of the Pennsylvania Supreme Court, approved the request by writing: “Approved to proceed on the death penalty.” The case before the Court was about whether the district attorney who penned that approval could some 30 years later sit as one of the justices on the court called upon to vacate William’s stay of execution. The Supreme Court also noted a number of Brady violations that the prosecuting attorney allegedly committed in the case, as well as the fact that none of this information—the prosecution memo and approval by the district attorney or the possible Brady violations—came to light until the Philadelphia Court of Common Pleas ordered the district attorney’s office to produce previously undisclosed files, many years after Williams’ trial.

1st Amendment, Affordable Care Act, Constitution, Faculty Blog, Fourteenth Amendment, New England Law Review, U.S. Supreme Court, Uncategorized

Faculty Blog: Zubik v. Burwell: The Supreme Court Punts on Religious Nonprofits’ Challenge to the Affordable Care Act Contraceptive Coverage Opt-Out

Last month, the U.S. Supreme Court declined to weigh in on the merits of religious nonprofit organizations’ challenge to the Patient Protection and Affordable Care Act’s contraceptive coverage religious opt-out regulations. The regulations allow religious nonprofits to avoid the legal responsibility of covering contraceptives in their health insurance plans by providing notice that they object to doing so on religious grounds. The petitioners in the cases consolidated in Zubik v. Burwell claimed that furnishing this notice imposed a substantial burden on their religious exercise. In a per curiam opinion, the Court noted that supplemental briefing that addressed whether contraceptive coverage could be provided to the petitioners’ employees without the required notice had revealed the feasibility of such an option. The Court remanded the cases for investigation of this option, without making a decision on the plaintiffs’ Religious Freedom Restoration Act (RFRA) claim.

Faculty Blog, Free Speech, Karol, New England Law Review, publicity rights, Trademark, USPTO

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?

1st Amendment, Contributor Profile, Editor Blog, First Amendment, Free Press, Free Speech, New England Law Review, Policy, Privacy, Sonja West, Symposium, West

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.

1st Amendment, Clay Calvert, Editor Blog, First Amendment, Free Press, Free Speech, New England Law Review, Privacy, publicity rights, Symposium

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.

1st Amendment, Amy Gajda, Editor Blog, First Amendment, Free Press, Free Speech, New England Law Review, Privacy, publicity rights

Contributing Author Profile: Amy Gajda

Contributing Editor: Shannon Boyne
Amy Gajda is currently an Associate Professor of Law at Tulane University Law School and is internationally recognized for her expertise in the areas of information privacy, media law, torts, and higher education law. In 2013 she was awarded the Felix Frankfurter Award for Distinguished Teaching, Tulane University Law School’s highest teaching honor. She has chaired the Association of American Law Schools’ Sections on Mass Communication and Defamation and Privacy. Ms. Gadja also led the Association for Education in Journalism and Mass Communication’s Law and Policy Division.