Law Commons^™

Taking The Rule Of Law Seriously, Michele Cotton

University of Massachusetts Law Review

American legal scholars and jurists have given the rule of law their sustained attention, and the international community has treated it as an important measure of societal well-being. But still the rule of law is not taken seriously. For one thing, little effort has been made to craft a definition of the rule of law that is actually useful. And even when legal scholarship does try at empiricism that could illuminate the vitality of our rule of law, it generally starts from the wrong hypotheses and uses the wrong methods. It focuses on how to achieve “access to justice” and …

Dalliances, Defenses, And Due Process: Prosecuting Sexual Harassment In The Me Too Era, Kenneth Lasson

University of Massachusetts Law Review

This Article will likewise examine the prosecution of sexual harassment in what has come to be called the Me Too Era, not only by analyzing the constitutional application and limitations of due process, the promulgation of Title IX policies4 on campuses and their effect on public students and employees, and the limited remedies available to workers in private entities, but to suggest as well ways by which academics can move their message beyond theory and into pragmatic solutions with greater impact.

Massachusetts Has A Problem: The Unconstitutionality Of The Tax Deed, Ralph D. Clifford

University of Massachusetts Law Review

The predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the …

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

Faculty Publications

This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

The Problem Of Appropriations Riders: The Bipartisan Budget Bill Of 2013 As A Case Study, Irene Scharf

Faculty Publications

This article tells the story of the enactment of the bill containing Section 2013. It also provides context for Congress's widespread practice of inserting substantive provisions into appropriations bills, and argues that this practice is inappropriate and counterproductive. Enacted in haste, at the end of a lengthy and historically contentious legislative session plagued by threats of an unfunded government, Section 203 was slipped into a bill about a wholly different topic - "keeping the government open and functioning" - without input from key legislators or stakeholders. Hence, its difficulties were foreseeable.

Part II of this piece offers background about the …

The Efficacy Of Indefinite Detention: Assessment Of Immigration Case Law In Kiyemba V. Obama, Hansdeep Singh

University of Massachusetts Law Review

This note discusses the potential indefinite detention, also called preventative detention, of the Uighur detainees. Until early 2010, the U.S. Government had been unable to resettle seventeen Uighurs for over 5 years. In 2009, the Supreme Court, granted certiorari on the issue of whether federal courts have the authority to ―order the release of prisoners held at Guantanamo Bay 'where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.‘ However, on March 1, 2010, the Supreme Court vacated and remanded the case to the United States …

Supermax’S Kryptonite? Wilkinson V. Austin: The Due Process Challenge To Ohio’S Super-Maximum Security Prison, Adam Miller

University of Massachusetts Law Review

This note discusses the Supreme Court’s holding in Wilkinson that OSP’s system for inmate placement in its Supermax facility does not violate the Equal Protection Clause. Part II will summarize OSP’s purpose and condition, and will focus on Ohio’s New Policy regarding inmate placement. Part III will examine Supreme Court precedent and the Court’s conclusions of law in determining whether inmates have a protected liberty interest in avoiding assignment to OSP and the due process implications of the inmate selection process to OSP. Part IV will question the Supreme Court’s disregard of the adverse mental effects in inmates subjected to …

2007 National Lawyer’S Convention The Federalist Society And Its Federalism And Separation Of Powers Practice Groups Present A Panel Debate On Federalism: Religion, Early America And The Fourteenth Amendment, John Eastman, Marci Hamilton, William H. Pryor Jr.

University of Massachusetts Law Review

Transcript of the Federalist Society and its Federalism and Separation of Powers Practice Groups panel debate at the 2007 National Lawyers Convention including panelists Dean John Eastman of Chapman University School of Law, Professor Marci Hamilton of the Benjamin N. Cardozo School of Law, and moderated by Hon. William H. Pryor Jr. of the U.S. Court of Appeals, Eleventh Circuit.

State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit of state’s …

Self-Inflicted Wounds: How Military Regulations Prejudice Service Members, Kyndra Miller Rotunda, Ari Freilich

University of Massachusetts Law Review

This Article discusses two important facets of Military Regulation and veterans law. First, this Article explores how the Uniform Code of Military Justice treats veterans accused of committing self-injury. Thus, there is a prohibition on , including criminal prosecution of, attempted suicide, which this Article argues exacerbates the issues which many of our brave servicemen and women face upon returning home from combat, often carrying the burden of mental disorders such as post-traumatic stress disorder. Second, this Article delves into Air Force Regulations, which prohibits termination, without cause, once an officer reaches the rank of Major and has served at …

Resolving The Double Liability Problem: A Critique Of California's Mechanics Lien Statute, Terrence Nguyen

University of Massachusetts Law Review

California’s mechanics lien statute allows a sub-contractor to file a lien on a homeowner’s property when a direct contractor, for whom the sub-contractor worked, has failed to pay the sub-contractor. The statute compels the homeowner to pay the sub-contractor even when the homeowner has paid the direct contractor in full. This Note argues that California’s mechanics lien statute is too broad, because the statute does not provide any exception for a homeowner who has paid the direct contractor in full. Specifically, this Note argues that California’s mechanics lien statute violates public policy, as well as constitutional, and contract principles. This …

Social Networking And Student Safety: Balancing Student First Amendment Rights And Disciplining Threatening Speech, John L. Hughes Iii

University of Massachusetts Law Review

As the use of social media increases and becomes an integral part of nearly every student's life, problems arise when student expression on these sites turns into threats against the school or other students, implicating both student safety and the speaker's right to free speech. Facing a lack of Supreme Court precedent, school officials need guidance on whether and how to take action when a student makes threats on social network - how to prevent any danger at school while respecting the student's right to free speech. This note develops an approach that combines the Supreme Court's Watts "true threat" …

What's Love Got To Do With It?: The Corporations Model Of Marriage In The Same-Sex Marriage Debate, Jeremiah A. Ho

Faculty Publications

The time may come, far in the future, when contracts and arrangements between persons of the same sex who abide together will be recognized and enforced under state law. When that time comes, property rights and perhaps even mutual obligations of support may well be held to flow from such relationships. But in my opinion, even such a substantial change in the prevailing mores would not reach the point where such relationships would be characterized as "marriages". At most, they would become personal relationships having some, but not all, of the legal attributes of marriage. And even when and if …

The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber

Faculty Publications

Part II briefly sets out the historical context of juvenile delinquency proceedings before and after the landmark U.S. Supreme Court case In re Gault. Part III discusses the two current approaches to assessing the validity of a juvenile's waiver. Part IV examines three inadequacies with the parent/guardian advisor: (1) the standardless approach with which courts assess their appropriateness; (2) the inadequacy with which adults understand Miranda; and (3) the conflicts of interest that arise in this context. Part V analogizes to the abortion and paternity contexts to support the argument that lawyers should act as primary advisors to …

What's Competence Got To Do With It: The Right Not To Be Acquitted By Reason Of Insanity, Justine A. Dunlap

Faculty Publications

An acquittal by reason of insanity is sufficiently adverse and is in many ways more akin to a conviction than to an outright acquittal. Although not technically punishment, it involves substantial infringement of rights. The legal literature has devoted significant space to the issue of a criminal defendant’s competence to stand trial and to the issue of the insanity plea. The problem of a pretrial insanity acquittal of an incompetent defendant, on the other hand, has not been extensively examined. In undertaking that task, this article will, in Part II, review the law and practice of competency determinations. Part III …

Preemption By Fiat: The Department Of Labor's Usurpation Of Power Over Noncitizen Workers' Right To Unemployment Benefits, Irene Scharf

Faculty Publications

This Article starts with the premise that the right to unemployment insurance benefits is a property right protected by the Fifth and Fourteenth Amendments to the United States Constitution, which apply to noncitizen unemployment applicants as well as to United States citizens. Given this assumption, certain actions being taken by the United States Department of Labor ("DOL") violate both procedural and substantive due process as well as the Administrative Procedure Act ("APA"). The challenged actions involve the DOL's issuance of internally-created missives, termed Unemployment Insurance Program Letters ("Program Letters"), that purport to interpret the meaning of a requirement under federal …

What Process Is Due?: Unaccompanied Minors' Rights To Deportation Hearings, Irene Scharf, Christine Hess

Faculty Publications

Thousands of foreign-born children enter the United States every year. Many, particularly those crossing at the Mexican border, arrive without legal immigration status and unaccompanied by adults. Once here, these children have certain rights under the Constitution and the immigration laws of this country. Their primary right is to a deportation hearing. Under the current procedures used by Immigration and Naturalization Service (INS), however, these children are encouraged to waive that right and "elect" voluntary departure. The voluntary departure process requires that they admit to having entered the country illegally, choose the country to which they will return, and leave …

How Are You Going To Keep Them Down On The (Collective) Farm After They’Ve Seen Chicago?: A Minor’S Right To Political Asylum Against His Parents’ Wishes, Michael G. Hillinger

Faculty Publications

“Children’s rights” is a nebulous phrase subsuming two very different issues: the extent to which children can assert the same rights against the state as adults, and the extent to which the state can limit a parent’s power over his child. In cases involving the issue of children’s rights , the Supreme Court has defined those rights in a relatively restrictive fashion. On the one hand, the Supreme Court has recognized that children have constitutional rights independent of those enjoyed by their parents. On the other hand, it has frequently held those rights to be either less than those afforded …