Digital Commons Network^™

Administrative Due Process—Wounded Warriors And Due Process: The Cushman V. Shinseki Analogy, Dennis M. Carnelli

Western New England Law Review

Military service members and veterans receive various benefits arising from their military service. The Department of Veterans Affairs acts as the trustee for distribution of these benefits upon veterans’ transition to civilian society. Among these benefits is disability compensation for medical conditions incurred or aggravated by the veteran in the course of their military service. This compensation makes the veteran whole for each condition that can be traced back to the veteran’s service. In many cases, this compensation is the veteran’s sole source of subsistence when they return to civilian life. Until 2009, these benefits were not considered property interests …

Disability And The Law—Person V. Paper: Why Connecticut’S Iq Cutoff Score Is A Barricade To Self-Betterment, Kathleen D. Tetreault

Western New England Law Review

State-based supports and services are essential to improving the quality of life of many individuals with intellectual disabilities. However, access to vital assistance is often reserved for those who satisfy the state’s definition of "intellectual disability." On a national scale, Connecticut employs the most restrictive definition of intellectual disability, denying services to individuals with intensive needs simply because they have an IQ score above 69. Effectively, Connecticut quantifies the quality of life of individuals with intellectual disabilities.

This Note argues that Connecticut’s eligibility criteria is inconsistent with the best practices set forth by the American Association on Intellectual and Developmental …

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Western New England Law Review

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

Warriors, Machismo, And Jockstraps: Sexually Exploitative Athletic Hazing And Title Ix In The Public School Locker Room, Susan P. Stuart

Western New England Law Review

Sexually exploitative athletic hazing on boys’ athletic teams is an increasingly frequent feature in the news. The physical and psychological abuse of younger team members by those who are more senior is not just humiliating but dangerous. Indeed, some athletes are charged with crimes that are committed during hazing activities. More to the point, the features of sexually exploitative hazing have all the
earmarks of sexual harassment when team leaders use sexual assaults to keep younger members in their place by feminizing them or otherwise challenging their ability to conform to a hegemonic masculine sports stereotype. Athletic hazing’s part in …

Family Law—Childhood Morbid Obesity: How Excess Pounds Can Tip The Scales Of Justice In Favor Of Removing A Child From The Home And/Or Termination Of Parental Rights, Kristen E. Brierley

Western New England Law Review

Due to the growing epidemic of obesity in the United States, courts have begun addressing the issue of whether childhood morbid obesity is a life threatening condition, the existence of which violates states’ child abuse and neglect statutes, and warrants state involvement in the form of removal of the child from the home or termination of parental rights. Four states have thus far been presented with this question: Iowa, New Mexico, New York, and Pennsylvania. These courts, in deciding whether or not to remove a morbidly obese child from the home, have considered the weight and overall health and well-being …

More Homestead Protection And Predictability For Massachusetts Homeowners?: Examining The Expanded Coverage Under An Act Relative To The Estate Of Homestead, Justin H. Dion, Kathleen E. Dion, Jessica Morris

Western New England Law Review

A Declaration of Homestead is a powerful law that protects a homeowner’s equity in real estate and provides a financial shield to ward off potential creditor claims. Although initially drafted with good intentions, the Massachusetts homestead law was revised and modified over several decades, producing confusing and inconsistent interpretations. To complicate matters, due to the fact creditor-debtor disputes often end up in United States Bankruptcy Court, federal bankruptcy judges were often forced to make sense of the patchwork that comprised the Massachusetts state homestead law, and often produced outcomes that seemed inconsistent with the objective of protecting home equity. After …

Constitutional Law—From Goblins To Graveyards: The Problem Of Paternalism In Compelled Perception, Peter Ferony

Western New England Law Review

Advances in technology have enabled the government to convey its moral judgments in novel and emotionally powerful ways. The FDA’s recently promulgated graphic tobacco warning labels are one such instance of this development; state statutes that mandate sonograms for abortion-seekers are another. Taking this strategy even further, it is conceivable that the government, under the guise of informed consent— and facilitated by data-mining and psychological methodology—could effect a profound change on American decision-making.

This Note argues that when the government forces Americans to perceive emotionally manipulative messages the resulting infringement on freedom of thought violates the First Amendment. It further …

Bullying, Litigation, And Populations: The Limited Effect Of Title Ix, John G. Culhane

Western New England Law Review

During the past few years, the problem of school bullying has gained national prominence. Scholars, policy-makers, and media outlets have belatedly begun to address the long-term physical consequences of bullying for children, as well as the corrosive effect of this destructive conduct on the learning environment. Because the problem is complex and multi-factored, however, solutions remain elusive.

This article examines and compares two approaches to dealing with bullying. First, litigation is considered as a way of responding to the most serious cases. Suing school districts that allow bullying to go unchecked can be helpful: victims are often entitled to compensation, …

Uncommon Courage—Roderick Jackson As Sine Qua Non For The Right To Sue For Retaliation Under Title Ix, Curt L. Hamakawa

Western New England Law Review

In 1999, Roderick Jackson was hired by the Birmingham City Schools to teach drivers’ education and coach the girls’ basketball team at Ensley High School. Soon after arriving and preparing for his first season, Coach Jackson began to notice things that did not sit right with him; things that had nothing to do with the team but rather, with how the team was treated. The girls’ team did not receive the same funding, and they did not have the same access to facilities and equipment as the boys.

Upset by the discriminatory treatment of his team, Jackson expressed his concerns …

Taxing Colonel Sanders: Re-Examining Constitutional Nexus Through The Lens Of Kfc V. Iowa, James F. Murtha

Western New England Law Review

Over twenty years ago, the Supreme Court of the United States decided that an entity must have a “physical presence” within a state before that state’s taxing authority can require the entity to pay state taxes. Since this physical presence requirement was created, a deep divide among state courts has shaped a confusing landscape surrounding two issues with the requirement. First, the states disagree on what constitutes physical presence within a state. Some state courts have held that mere economic presence in a state is sufficient for a state to assert its tax jurisdiction. Second, the states disagree on whether …

Why Massachusetts Should Not Relegate Parents To “Legal Strangers”1: A Survey Of The Myriad Interpretations Of The Icpc, Matthew E. Christoph

Western New England Law Review

The Interstate Compact on the Placement of Children (ICPC) is a well-intentioned statute that has led to anomalous and irrational results in courts across the country. The ICPC’s aim is to ensure that foster care placements by state agencies of children across state lines preliminary to adoption or placement in foster care are in the child’s best interests. However, certain courts have drastically expanded the ICPC’s reach to cover parental foster care placements. This Article discusses the split in case law, the reasons for limiting the ICPC in Massachusetts, and options for nervous courts, attorneys, and state agencies when sending …

Criminal Law—An Embezzlement Intermezzo: Scheming To Side-Step Toussie V. United States’S Continuing Offense Test, Andrew P. O'Shea

Western New England Law Review

Though federal statutes of limitations normally act as predictable time bars on prosecution, if a crime is a continuing offense then the statute will be tolled until the last act in furtherance of the crime is complete. Recently, a split has emerged among the federal circuit courts, and even within the Federal District Courts of Massachusetts, as to whether the crime of embezzlement is a continuing offense when it is performed as a passive scheme, such as via automated deposits into a checking account.

The author argues that embezzlement, as codified in 18 U.S.C. § 641, should never be considered …

Symposium: Introduction: The Fortieth Anniversary Of Title Ix, Erin E. Buzuvis

Western New England Law Review

The five articles in this Symposium issue reflect on harassment and bullying in schools, the equal treatment of a high school girls basketball team, and an annotated bibliography on the subject. The articles speak to the effectiveness of Title IX legislation.

You’D Be Okay If You Weren’T So Gay: Ending The Special Treatment Of Lgbt Students Under Title Ix, Daniel B. Weddle

Western New England Law Review

An illogical and cruel legal fiction has taken hold in the sexual harassment jurisprudence: Title IX, the statute specifically designed to prohibit harassment based upon sex, does not apply to harassment based upon sexual orientation. Although harassment based upon failure to fulfill gender stereotypes is considered discrimination based on sex, harassment based on sexual attraction to members of one’s own sex is not discrimination based on sex. If you wonder how sexual attraction is not sex but effeminate characteristics are sex, you are not alone. This article critiques the legal fiction that leaves gays without protection from harassment that, if …

A Bibliography Of Title Ix Of The Education Amendments Of 1972, Christine I. Hepler

Western New England Law Review

Title IX provides that no person shall be excluded from participation in any educational program or activity that receives federal funding. This legislation is credited with bolstering the participation rates of girls and women in athletics. Although athletics are not explicitly addressed in the statutory language, Title IX requires schools to offer male and female students equal opportunities to play sports, to give male and female athletes their fair share of athletic scholarship money, and to treat male and female athletes equally in all other respects, including equipment, facilities and coaching. Proponents of Title IX claim that participation in sports …