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The Fallibility Of The Brandenburg Test Through The Lens Of The Capitol Insurrection, Lauren M. Hausman

Western New England Law Review

This Article explores the insurrection that occurred at our Capitol in relation to the Brandenburg test. The paper seeks to discuss whether free speech has gone too far, whether Brandenburg needs reform, and how we could effectuate such changes. While the Article certainly has political undertones, sincere efforts were made to present the facts in a more neutral fashion. Despite the political nature of the Article, I wholeheartedly believe that discussing the insurrection is critical to not only our nation’s history, but to the law.

Papers? Please.: Fourth Amendment Rights Of Pretrial Detainees’ Papers, Brendan Riley

Western New England Law Review

In 1984, the Supreme Court in Hudson v. Palmer, held that prisoners have no reasonable expectation of privacy within their jail cells and are not entitled to Fourth Amendment protections against unreasonable searches and seizures. The Court’s reasoning was focused on the security needs of penal institutions and ensuring they were not compromised by an inmate’s privacy rights. While this decision definitively answered the question concerning privacy rights of convicted prisoners, it left open the interpretation of the Fourth Amendment privacy rights of pretrial detainees. Since Hudson, courts across the country have varied on the constitutional guarantee of privacy rights …

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 …

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 …

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 …

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—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 …

Constitutional Law—I Beg Your Pardon: Ex Parte Garland Overruled; The Presidential Pardon Is No Longer Unlimited, Zachary J. Broughton

Western New England Law Review

President Trump’s August 2017 pardon of Joseph Arpaio for his contempt of court conviction raised the constitutional question of whether there are any limitations to the president’s pardoning power. In the 1867 seminal case, Ex parte Garland, the Supreme Court opined that the president is the only person who can limit the pardon power, and that a pardon can be issued before, during, or after conviction. Since the late 1800s, however, several cases handed down by the Supreme Court have, in some way, identified a limitation to the pardon power. Therefore, this Note argues that the president’s pardon power is …

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 …

Robert L. Stern And Eugene Gressman: Supreme Court Practice, Robert B. Mckay

Western New England Law Review

No abstract provided.