Digital Commons Network^™

Redefining Refugee Resettlement: Repairing The Cracks In The Pathway To The American Dream, Chasyty L. Escobar

Western New England Law Review

Once the world leader in refugee resettlement, the United States has slowly but steadily obliterated its refugee resettlement program. Millions of people around the globe have been forced to seek refuge from violence and persecution in their native countries. The international consequences of the refugee crisis threaten economic stability and security.

This Note will outline the history and development of refugee resettlement in the United States from Ellis Island to the present, including an overview of the various government agencies and organizations involved in refugee resettlement. Through an in-depth analysis of the political, structural, and financial issues the country faces …

Criminal Law—Dreaming Of A Drug War Reckoning, Luke Ryan, Molly Ryan Strehorn

Western New England Law Review

Day after day, government officials across the United States make public statements celebrating various “victories” in our never-ending War on Drugs. These shallow statements overlook the true cost of this “war” and perpetuate the binary idea that there will eventually be a winner and a loser. If we continue down the path of war, nobody wins. The following article assesses the impact of this war by imagining a public official having a moment of contrition and acknowledging the errors of our ways.

Immigration Law—The $2 Cost Of Deportation For Black Immigrants, Aisatou Diallo

Western New England Law Review

The United States is a nation with protected borders and in order to protect the immigration laws control who may or may not come into the country. One way this is done is been by excluding individuals who have been convicted of crimes involving moral turpitude. There is no single definition of what a crime involving moral turpitude is, but over time the types of crimes held to involve moral turpitude have expanded. This article describes how this expansion of the types of crimes that are categorized as crimes involving moral turpitude have had a drastic impact on black immigrants …

Constitutional Law—Penalizing The “Unsightly”: An Argument For The Abolishment Of Laws Criminalizing Life-Sustaining Behaviors Among The Homeless, Carli Ross

Western New England Law Review

Thousands of people across the country suffer from homelessness. Instead of funding more shelters or dealing with the lack of subsidized housing, cities have chosen to rely on the criminal justice system to regulate homeless behavior. Homeless individuals are being punished with fines and potential jail time for sleeping, sitting, gathering, and camping in public. Not only does this practice contribute to the homelessness crisis in the United States, but it also creates an additional obstacle for homeless individuals. Additionally, relying on the criminal justice system is more costly than helping homeless individuals find a permanent shelter. The Ninth Circuit …

Sports Law—Sports Gambling In A Post-Murphy World: Ensuring Emerging Sports Gambling Laws Adequately Protect The Integrity Of College Sports, Matthew Dziok

Western New England Law Review

In 2018, the United States Supreme Court struck down the Professional and Amateur Sports Protection Act (PASPA), which prohibited states from authorizing sports gambling schemes. The Court in Murphy v. NCAA struck down PASPA on constitutional grounds, holding that the Act violated the anticommandeering doctrine of the Tenth Amendment. Before the Murphy decision, because of a grandfather provision in PASPA, Nevada was essentially the only state where it was legal to place a bet on a sporting event. Not surprisingly, after PASPA was struck down, numerous states have legalized sports gambling.

Perhaps one of the most important decisions state lawmakers …

Signs Inscribed On A Gate: The Impact Of Van Buren V. United States On Civil Claims Under The Computer Fraud And Abuse Act, Scott T. Lashway, Matthew M.K. Stein

Western New England Law Review

This Article addresses the impact of the U.S. Supreme Court’s June 2021 decision in Van Buren v. United States on what constitutes“ authorization” to access a computer under the Federal Computer Fraud and Abuse Act (CFAA)—a law that imposes both criminal and private civil liability for violations—and concludes that, so far, the Van Buren decision has not rendered the CFAA toothless. The Introduction briefly explains the history of the CFAA, a summary of why it was enacted, how organizations have relied upon it as an important tool to protect themselves from computer hackers and increased cybersecurity risks, and a Circuit …

Administrative Law—Defamation By The Nation: The Westfall Act And Scope Of Employment For Elected Officials, Sean Buxton

Western New England Law Review

Are members of Congress or the President immune from defamation suits? Officially, the law provides for no such immunity. However, a line of cases interpreting the Federal Tort Claims Act and the Westfall Act threaten to create such an immunity for all elected officials. In such a world, powerless people can be defamed by the most powerful officials in the country without any recourse in the court system to preserve their reputations.

Journalist E. Jean Carroll discovered the potential for such an immunity when she brought a defamation suit against President Donald Trump after he denied her allegations of rape …

Gerrymandering, Entrenchment, And “The Right To Alter Or Abolish”: Defining The Guarantee Clause As A Judicially Manageable Standard, James R. Brakebill

Western New England Law Review

The Guarantee Clause provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” Based on its original public meaning, the guarantee of a republican government protects core political rights and contains readily ascertainable standards founded on majority rule and a prohibition of minority-party entrenchment. The Supreme Court failed to develop a standard for adjudicating partisan gerrymandering claims because the Equal Protection Clause and the “one person, one vote” framework are fundamentally incompatible with the harms associated with partisan gerrymandering. Such claims involve harms to majority rights that strike at the core of …

Constitutional Law—Loyalty, Money, And Business: The New Price For A Presidential Pardon, Zachary J. Broughton

Western New England Law Review

The President of the United States, pursuant to Article II of the Constitution, has the sole power to issue pardons that free individuals of the confines and limitations of federal prosecution and conviction. In his only term as President so far, Donald Trump issued approximately 143 pardons. Several of those pardons were directed to those who attempted to interfere with the 2016 presidential election by way of lying to investigators and members of Congress and by tampering with evidence and witnesses. Many other pardons issued by President Trump were given only to those who had close ties to the Republican …

Property Law—The Importance Of Intellectual Property Education In A Knowledge Economy, John J. Diffley, Diane R. Sabato, Richard H. Kosakowski

Western New England Law Review

Entrepreneurs, inventors, and innovators can be faced with an overwhelming amount of information and guidance when they plan their business startup. One area that is often neglected is the business’s intellectual property. In fact, it is critical to attend to the protection of IP early in the startup process. Entrepreneurs and others need to know what to protect, as well as when and how to protect it.

In the United States, IP accounts for thirty-eight percent of Gross Domestic Product, while IP and other intangible assets make up ninety percent of the market value of all S&P 500 companies. Increasingly, …

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Western New England Law Review

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

“Nasty” Woman And “Very Happy Young Girl”: The Political Culture Of Women In Donald Trump’S America, John Baick

Western New England Law Review

Discussions of gender and politics in the present day must include a consideration of the charged atmosphere of our political culture. Americans were embroiled in culture wars for much of the twentieth century—conflicts that included the right of women to vote, the civil rights of African Americans and other minority groups, and the meaning of sexuality. New debates have been added in the last few years—many of which center on gender, sexuality, and race. The culture wars have reached a fevered peak with the election and administration of Donald Trump. Yet Trump himself does not represent a new front in …

Intellectual Property—Mickey Mouse’S Intellectual Property Adventure: What Disney’S War On Copyrights Has To Do With Trademarks And Patents, Kaitlyn Hennessey

Western New England Law Review

This Article explores the copyright and trademark laws underlying Disney’s characters in light of Mickey Mouse’s looming copyright expiration. The Article maps the history of copyright extension from the Copyright Act of 1909 (the governing law when Mickey Mouse came to be) to the “Mickey Mouse Protection Act” (the current governing law on copyright expiration), finding further extension of copyright protection to be unlikely and, ultimately, unappealing. This Article takes the position that further extension is unlikely given that the political climate for such reform has changed and that the policy tensions underlying extended protection weigh in favor of limiting …

The Long Road To Power For Women In Politics, Timothy Vercellotti

Western New England Law Review

A century after women won the right to vote they remain significantly under-represented in federal and state elected office in the United States. Why do women, who comprise more than half of the population in the United States, still fall far short of that proportion in Congress and in state governorships? Political science research suggests there are multiple explanations, ranging from women’s views on whether they are prepared to run to institutional and social constraints. The situation may be changing, however, given the record-setting number of women who ran for federal and state offices in the 2018 election cycle. Women …

Constitutional Law—Original Explication: A Democratic Model For The Interpretation Of Modern State Constitutions, Jorge M. Farinacci-Fernós

Western New England Law Review

Most discussions about methods of constitutional interpretation in the United States are limited to the federal Constitution and mostly center on that document’s open-ended clauses, its secret drafting history, the unreliability of the records of its creation, and its seemingly anachronistic nature, among other characteristics that seem unique to it. This federal-centric approach has overlooked the important differences between the U.S. Constitution and many state constitutions adopted in more recent times.

Unlike their federal counterpart, several state constitutions contain substantive policy provisions and were drafted through highly democratic, public, participatory, and popular creation processes. As a result, a different interpretive …

Constitutional Law—Supervising Consumption: The Argument For Supervised Injection Facilities As A Valid Exercise Of States’ Police Power, Jennifer H. Diggles

Western New England Law Review

From medically assisted treatment to syringe exchange programs, the harm reduction movement has emerged as an evidence-based practice in response to the growing opioid epidemic. The supervised injection facility is a harm reduction measure that has proven effective in reducing overdose deaths and the spread of infectious diseases. Various countries around the world have initiated these programs and realized the benefits, and several states in the U.S. have proposed legislation to allow for such facilities as part of a broader approach to the opioid problem. Potential implementation of these facilities, however, is challenged on the basis that they would violate …

Child Protection Law—Care And Protection Of Walt: Reexamining The Scope Of Judicial Authority In The Enforcement Of The Reasonable Efforts Requirement, Tara Morrison

Western New England Law Review

When the state removes a child from the custody of his or her parents, the delicate balance between parents’ rights and the state’s obligation to protect the child comes into play. Because termination of parental rights is irrevocable, it is often referred to as the “death penalty” of family law. Historically, parents with intellectual disabilities have been denied the opportunity to parent through eugenics and sterilization, a horrific history that finds modern articulation through the removal of children from parents based on presumptions of neglect.1 When a child protection agency removes a child from parental care, without providing the support …

Constitutional Law—Puerto Rico And The Ambiguity Within The Federal Courts, Claribel Morales

Western New England Law Review

The island of Puerto Rico has a rich culture and a storied history. This history is also plagued by legal and political ambiguity, which is still visible in recent Federal and Supreme Court jurisprudence. The purpose of this Article is to conceptualize the complicated legal and political relationship between Puerto Rico and the United States—from Puerto Rico’s colonial inception to the Insular Cases, which defined Puerto Rico’s status as a territory to its current political stalemate. Further, these decisions created a familiar Plessy v. Ferguson-type legal doctrine in the form of second-class citizenship for the inhabitants of Puerto Rico. …

Bioethics—“Who Do They Think They Are?”: Protecting Terminally Ill Patients Against Undue Influence By Insurers In States Where Medical Aid In Dying Is Legal, Mary C. Deneen

Western New England Law Review

Medical aid in dying has been a controversial topic in the United States for decades. Many contentious issues have arisen with the recent enactment of various state medical aid in dying statutes. Are physicians violating their Hippocratic Oath to patients when prescribing lethal medications? Do insurance coverage limitations inappropriately steer patients toward medical aid in dying? Are terminally ill patients unduly influenced into prematurely ending their lives? Whether or not one agrees with these laws, there is an obvious need for certain protections in place to safeguard vulnerable patients from undue influence in states where medical aid in dying is …

Women, Politics, And Gender Inequality, Joya Misra

Western New England Law Review

Women’s representation in United States politics has increased but remains substantially lower than in many other countries. This Article first examines the structural impediments to higher levels of women’s representation, including how gender stereotypes may limit women’s electoral success. Then, the focus shifts to how women’s representation may and may not result in different kinds of policy priorities. Finally, the Article takes a more intersectional approach to consider how variations among women impact political priorities and approaches.

Military Law—Redefining Corroboration: The History, Intent, And Effect Of Congress’S Direction To Change How Confessions Are Corroborated In Military Courts, Seth M. Engel

Western New England Law Review

Since at least the seventeenth century, courts have required that confessions or admissions be corroborated by independent evidence to be admissible at trial. After the United States Court of Appeals for the Armed Forces decided United States v. Adams, a case interpreting the military’s version of the corroboration rule, Congress quickly took action in response. Within months, Congress passed a law directing the President to rewrite the military’s corroboration rule, and a new rule was subsequently promulgated. Why was Congress so intent on overruling a military appellate court’s interpretation of an ancient and obscure rule of evidence? What was wrong …

First Amendment Law—Free Speech And Higher Education: Can Public Colleges And Universities Use “Safe Space” Policies To Restrict Speech On Campuses?, John L. Magistro Iv

Western New England Law Review

The freedom to speak openly, without fear of reprisal, is one of the great defining characteristics of our country. Nowhere is this freedom more crucial than the arena of higher education. Whether seeking a degree in the arts or sciences, philosophy or physics, students who venture off to college share one thing in common—their thirst for knowledge. However, this pursuit of knowledge can, and does, cause students to confront unfamiliar, uncomfortable, and sometimes unpleasant material. In college classrooms, cafeterias, and quads across the country, students have begun seeking shelter from thoughts and ideas that might make them uncomfortable. Lately, these …

First Amendment Law—The Regulation Of Religious Lobbyists: A Spiritual Battle For The Soul Of Democracy, Nicholas Melvin Smith

Western New England Law Review

Governmental transparency is among the most fundamental requirements of a democracy. This belief is the backbone of codes of ethics amongst both states and the federal government. Codes of ethics universally apply to state employees, as well as those attempting to influence policy. We call these influencers lobbyists. Every state regulates the actions of lobbyists. Some states have broad, sweeping language that requires lobbyists to report a great deal of information to the state, which is then made public to voters, while other states allow for express exemptions to keep certain actions out of the public eye.

Because the federal …

Immigration Law—This Land Is My Land, Or Is It?: Statutes Of Limitation Within The Context Of The Immigration And Nationality Act, Lisa Marquardt

Western New England Law Review

This Article proposes a unique perspective on the problem of the undocumented population within the borders of the United States. It seeks to reframe the immigration discussion from one that maligns the undocumented as criminals to one that identifies them as simple trespassers who are entitled to a defense based on a statute of limitations. The Author’s point of view is from her experience as an immigration law and criminal defense practitioner.

Higher Education Law—The Negative Effects Of Student Loans: A Plea For Impacted Students, Kelly A. Bednarz

Western New England Law Review

Throughout the United States, college enrollment has overwhelmingly increased, reaching its peak in 2010 with approximately twenty million students. Due to the expanded accessibility to attend college through the Department of Education’s higher education programs, the ability to attend college is no longer solely for the elite. This rapid growth, however, has created additional challenges. Despite the evolving higher education demand, government regulations and oversight have mostly remained stagnant. Colleges began to capitalize and take advantage of this market, prompting the rise of for-profit colleges. In 2012, about 12 percent of students attended for-profit colleges, as opposed to the 0.2 …

Constitutional Law/Reproductive Justice—Breaking The Trap: How Whole Woman’S Health Protects Abortion Access, And The Substantive Due Process Clause’S Rebuke Of Anti-Abortion Regulations, Chelsea M. Donaldson

Western New England Law Review

The Fourteenth Amendment’s Substantive Due Process Clause is a powerful sword that protects certain rights and liberties. Most of these non-fundamental rights are examined underneath the “rational basis” standard of constitutional review. Despite being a right protected underneath the Substantive Due Process Clause, abortion stands alone in using a unique form of constitutional review: Planned Parenthood v. Casey’s “undue burden” standard.

The striking down of Roe v. Wade’s trimester analysis, and the subsequent creation of the “undue burden” standard, resulted in a catastrophic tidal wave of targeted regulations against abortion providers (TRAP laws). One such TRAP law, House Bill 2 …

Marijuana/Constitutional Law—State Ballot Reforms 2016: The Ramifications On Probable Cause In Massachusetts With Legal Marijuana Cultivation In The Home, Jacob T. Winniman

Western New England Law Review

2016 was a monumental year for state sovereignty regarding marijuana regulation. A total of nine states voted on marijuana reforms, with five deciding whether to legalize recreational use. Among them, Massachusetts voters came together in a display of democracy to end their decades long prohibition on recreational marijuana possession, distribution, and cultivation with a “Yes” on Question 4. By doing so, Massachusetts, as well as California, Alaska, and Nevada, joined the four other states in the Union to have legalized recreational marijuana, Colorado, the District of Columbia, Oregon, and Washington. As Massachusetts implements their marijuana reform, law enforcement faces a …

Bankruptcy Law—Rethinking The Discharge Of Late-Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo

Western New England Law Review

The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if the …

Foreword: Symposium On Gender & Incarceration, Giovanna Shay

Western New England Law Review

The articles in this Symposium edition include four pieces on gender and incarceration. The first by Jen Manion discusses the gendered history of punishment itself. The second by Rachel Roth addresses reproductive justice issues in prison, including access to abortion for incarcerated women and the use of restraints in labor. Carol Strickman, of Legal Services for Prisoners with Children, writes about family ties, visitation, and parent-child programs. Finally, Terry Kupers describes how incarceration and the threat of prison sexual violence shapes gender roles, particularly toxic masculinity.

Bridging The Justice Gap With A (Purposeful) Restructuring Of Small Claims Courts, Victoria J. Haneman

Western New England Law Review

Lack of access to justice affects not only the poor, but also working-class and middle-income individuals unable to afford attorney rates. This Article presents a roadmap to both access and justice by reimagining the workings of United States’ small claims. Given that small claims cases constitute a significant number of all civil cases, expanding the jurisdiction of these courts in a way that speaks to individual access is a workable and pragmatic approach. In an effort to broaden jurisdiction while also carving restrictions to curb abuse, the Author offers that small claims courts may assist with bridging the justice gap …