Digital Commons Network^™

Tinhatting The Constitution: Originalism As A Fandom, Stacey M. Lantagne

Faculty Scholarship

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves …

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 …

Margins Of Empire: The Sakhalin Koreans’ Long Saga Home, Timothy Webster

Faculty Scholarship

Migration carries with it many risks, from perilous journeys along risky corridors to hostile environments in one's adopted country. But what happens when migrants cannot return home? This Article examines the difficulties endured by Sakhalin Koreans, a group of ethnic Koreans who emigrated to Sakhalin Island during the Japanese colonial period and found themselves stranded in a foreign country (the Soviet Union) for the next half century. After recounting the migration of Koreans to Sakhalin, and analyzing lawsuits filed in Japan to repatriate them, it analyzes the infirmities of the international human rights system and the challenges of repatriating a …

Japan’S Transnational War Reparations Litigation: An Empirical Analysis, Timothy Webster

Faculty Scholarship

Negotiating war reparations is traditionally the province of the political branches, yet in recent decades, domestic courts have presided over hundreds of compensation lawsuits stemming from World War II. In the West, governments responded to these lawsuits with elaborate compensation mechanisms. In East Asia, by contrast, civil litigation continues apace. This Article analyzes eighty-three lawsuits filed in Japan, the epicenter of Asia’s World War II reparations movement. While many scholars criticize the passivity of Japanese courts on war-related issues, this Article detects a meaningful role for Japanese courts in the reparations process: awarding compensation, verifying facts, and allocating legal liability. …

The Minds Behind The Movement: The Role Of Academics In East Asia’S War Reparations Litigation, Timothy Webster

Faculty Scholarship

East Asia's war compensation litigation simultaneously unites diverse regional actors (lawyers, survivors, activists) and fray international relations (as recent verdicts from South Korea attest). However, one view of the merits of these lawsuits is that they have reconfigured transnational activism in East Asia, exhumed forgotten and suppressed histories of Japanese aggression, and on occasion compensated victims of World War II. This Article highlights the role of Chinese, Japanese, Korean, Taiwanese activists, lawyers and scholars in researching, filing, litigating and appealing over 80 lawsuits between 1972 and the present.

South Korea Shatters The Paradigm: Corporate Liability, Historical Accountability, And The Second World War, Timothy Webster

Faculty Scholarship

South Korea is currently revising its interpretation of Japanese colonialism, and the fallout from World War II more generally. In 2018, the Supreme Court of South Korea issued two opinions that staked new ground in this process of legal revision. First, by holding Japanese multinational enterprises legally liable for events that took place in the early 20th century, the verdicts fissure a wall of corporate impunity that courts in Japan, the United States and many Western jurisdictions have erected over the past three decades. Second, by situating the decisions within Korea’s own colonial past, the judgments advance a post-colonial jurisprudence …

Retooling Sanctions: China’S Challenge To The Liberal International Order, Timothy Webster

Faculty Scholarship

Professor Tom Ginsburg has produced yet another classic of transnational law, political science, and international relations. Democracies and International Law yields important insights into the democratic nature of international law but cautions that authoritarian states can apply these very legal technologies for repressive or anti-democratic purposes. Building on Ginsburg’s theories of mimicry and repurposing, this contribution highlights the role of both techniques in the creation of China’s economic sanctions program. On the one hand, China has developed a basic set of tools to impose economic sanctions—a key instrument in the liberal international toolkit—on foreign entities and persons. In so doing, …

Criminal Law—Under The Gun Of Rehaif V.United States: How State Legislatures And Courts Must Blunt The Effect Of Knowledge, Meaghan E. Collins

Western New England Law Review

For well over thirty years, courts across the nation maintained an interpretational unanimity in applying 18 U.S.C. § 922(g) in thousands of cases. This law specifies that a defendant commits a crime if they were previously convicted of a felony and then later possess a firearm in or affecting commerce. Under the original statutory interpretation, the government was only required to prove that a person knew of their possession of a firearm. However, in 2019, the Supreme Court of the United States overturned that traditional understanding. Under the more recent interpretation, the government is required to prove not only that …

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 …

Property Law—Horror, Inc. V. Miller: The Lurking, Underlying Work Beneath Crystal Lake!, Kenneth Stratton

Western New England Law Review

Horror, Inc. v. Miller highlights the tension in copyright law between authors and their grantees. In its decision, the District Court for the District of Connecticut found that screenwriter Victor Miller recaptured his Friday the 13th screenplay by exercising his termination rights. However, the end of the court’s opinion suggested film production company Horror, Inc. may have a claim to the hockey-masked “adult Jason” present in later films. This sets up a conflict between an author seeking to recapture the works they created and grantees who developed sequels based on that work. So, who controls Jason Voorhees?

This Note argues, …

Constitutional Law—Federal Courts: Is The Constitution A Sword?, Bruce K. Miller

Western New England Law Review

In Marbury v. Madison, Chief Justice Marshall proclaimed that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he [sic] receives an injury.” This pronouncement has shaped a widespread assumption that the rule of law under our Constitution entails a right to seek a judicial remedy when constitutional rights are violated. But, perhaps surprisingly, the Supreme Court has never squarely held that such a right exists. And some recent decisions, most particularly Whole Woman’s Health v. Jackson, decided in December of 2021, cast serious doubt …

Securities—Democratizing Equity Markets With And Without Exploitation: Robinhood, Gamestop, Hedge Funds, Gamification, High Frequency Trading, And More, Dennis M. Kelleher, Jason Grimes, Andres Chovil

Western New England Law Review

The stock trading frenzy of January 2021 brought a relatively new player in the securities markets into public consciousness—the platforms offering no- or low-commission trading that seek to appeal to young and less-experienced investors with a “fun” if not “delightful” user experience. Most prominent among these new brokers is Robinhood, with a slick mobile phone app, which claims that its platform will “democratize finance” by making investing cheaper and easier for the masses who have been looked down upon and locked out by the wealthy elites of Wall Street.

However, Robinhood’s claims of “democratization” have all the hallmarks of manipulation …

Criminal Law—Give Me Freedom!: How Ambiguous Federal Supervised Release Conditions Undermine The Purpose Of The Sentencing Reform Act, Igor V. Bykov

Western New England Law Review

Vagueness, as the word suggests, is inherently uncertain. This Note addresses the issues of vagueness presented by unclear supervised release conditions, as well as discusses the split of authority pertaining thereto. Specifically, the condition discussed throughout the Note prohibits defendants from frequenting places where controlled substances are illegally present. Because federal appellate courts differ as to the condition’s meaning and its application, the existing circuit split will be thoroughly discussed. The main issues with the condition demonstrate a lack of attentiveness and forethought of the sentencing judges that ultimately impose undue hardships onto the defendants wishing to enter back into …

Land Use—Developments In Massachusetts Zoning And Urban Planning Law, 2018 To The Present, Robert M. Twiss

Western New England Law Review

The Massachusetts Appeals Court has actively interpreted zoning and urban planning law during the past three years. These decisions have produced significant developments in zoning and planning law through the applications of the law to a variety of factual scenarios. The appellate courts have reversed board and lower court decisions on relatively minor distinctions from prior cases.

During the past three years, the Massachusetts Supreme Judicial Court (SJC) handed down published decisions involving what constitutes a “public use” of property taken by eminent domain, lack of standing claimed by an abutter, the definition of educational institutions under the Dover Amendment, …

Foreword, Edward J. Markey

Western New England Law Review

On October 29, 2021, the Western New England Law Review hosted its annual Symposium: Post Pandemic Digital World: Platforms, Algorithms, Cybersecurity, and Justice. This event aimed to begin a larger conversation about approaches to regulation of digital platforms, at a time when they are rapidly gaining significance, and the issues they create are becoming increasingly complex.

Today, people are more dependent on technology to work and communicate with one another. Social media and financial platforms are at the center of these financial communications. While these platforms, on their face, are a brilliant way to connect the world, many of these …

The Big Tech Accountability Act: Reforming How The Biggest Corporations Control And Exploit Online Communications, Ben Clements

Western New England Law Review

A handful of global corporations have taken control of the internet, the dominant medium of modern communication and commerce, and have used that control to create and sell databases of personal information of Americans and to systematically amplify dangerous disinformation and violence on an unprecedented scale. This has created a growing threat to our democracy and our people.

While our elected officials and many in the media claim to recognize the danger, a corporate-friendly First Amendment absolutism and misguided fears about chilling voices on the internet have preempted any serious effort at reform or regulation. Neither the First Amendment nor …

Online Content Policy: What Legislative Proposals Aiming To Rein In “Big Tech” Need To Grapple With, Shoshana Weissmann

Western New England Law Review

There are endless proposals in Congress aimed at fixing the problems with “Big Tech.” Introduced over the last four years, each one hopes to solve problems such as the spread of misinformation online, the spread of unlawful content online, or even the removal of constitutionally protected speech from internet platforms.

Unfortunately, these various pieces of legislation that hope to regulate social media regularly fail to grapple with all kinds of problems, such as First Amendment barriers to action. Further, they fail to recognize that social media is not the cause of many of the problems that legislators seek to solve. …

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 …

Criminal Law—Words Matter: Discouraging Suicide Through The Aid Of Legislation, Nicole Belbin

Western New England Law Review

Scholars criticized the manslaughter conviction of Michelle Carter almost as soon as the case was decided. Much of the criticism surrounding the case called for legislative action as the appropriate course of action. Fast forward a few years and Massachusetts is prosecuting another girlfriend for encouraging her boyfriend to kill himself. In response, Massachusetts has proposed legislation during the 2021 session aimed at criminalizing encouraging or assisting suicide, seeking to join several states that already have taken this approach. This Article considers the cause of suicide, recognizing it as a mental illness, and examines the societal harm associated with suicide. …

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 …

When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions To Vaccination Mandates By Private Colleges And Universities, Ronald J. Colombo

Western New England Law Review

Numerous colleges and universities have imposed COVID-19 vaccination mandates upon their students. Most of these mandates also include language purporting to recognize medical and religious exemptions. With regard to religious exemptions, some are unjustly discriminatory. Most notably, some give preference to students who are members of organized religions over students who are not. And even facially neutral exemptions can be administered in an unjustly discriminatory way by, for example, giving preference to one set of religious denominations over another, or by engaging in “religious profiling” (whereby students of a particular denomination are held completely beholden to the beliefs of that …

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, …

Constitutional Law—Answering Justice Barrett’S Fulton Prompt: The Case For A Narrow Reconsideration Of Free Exercise, Andrew Lavender

Western New England Law Review

In Fulton v. City of Philadelphia, the Supreme Court, for the second time in three years, considered a case involving the conflict between First Amendment religious, speech, and associational freedoms and the civil rights of the LGBTQ community. And, for the second time, the Court arrived at an apparent compromise, issuing a narrow, factual ruling in favor of the party seeking an exception from antidiscrimination law while avoiding any firm precedent that might create a broader exception.

In addition to this substantive dodge, the Court also “sidestep[ped] the question on which certiorari had been granted: whether to overrule Employment …