Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 146

Full-Text Articles in Law

“That’S The Hate They’Re Giving Us, Baby, A System Designed Against Us.” The Restorative Justice Solution To The School-To-Prison Pipeline, Amanda Iocono May 2022

“That’S The Hate They’Re Giving Us, Baby, A System Designed Against Us.” The Restorative Justice Solution To The School-To-Prison Pipeline, Amanda Iocono

University of Massachusetts Law Review

The school-to-prison pipeline is one of the nation’s biggest challenges as students of color, LGBTQIA+ students, and students with disabilities are being funneled into prisons. Thousands of articles have been written on the existence of the school-to prison pipeline and potential solutions. Federal and state policies have shifted to combat the pipeline, but there is still a large proportion of our nation’s students being criminalized on account of their looks and behaviors. This Note argues that the school-to-prison pipeline is a systemic practice of the American education system, and the education system is functioning exactly as designed. The continued use …


Rage Against The Machine: Reducing Robocall Abuse To Protect At-Risk Consumers, Nicole Egan May 2022

Rage Against The Machine: Reducing Robocall Abuse To Protect At-Risk Consumers, Nicole Egan

University of Massachusetts Law Review

For most people, robocalls are nothing more than an annoying side-effect of owning a cell phone today. But a successful robocall scheme is still capable of wreaking financial and psychological havoc on its victims. Senior citizens and cognitively impaired individuals are often targeted by fraudulent phone calls or texts because they may have trouble understanding how to identify and protect themselves from robocall abuse. This Note proposes a collaborative solution to this problem by calling on the judiciary and legislatures to minimize the amount of robocalls received by American telephone consumers. By adopting a broader understanding of the law and …


Life’S Complexities: Rethinking Barnette, The Flag, Totalitarianism, And The First Amendment, Daniel Gordon May 2022

Life’S Complexities: Rethinking Barnette, The Flag, Totalitarianism, And The First Amendment, Daniel Gordon

University of Massachusetts Law Review

This article rethinks the meaning of the 1943 Barnette case and questions the canonical status of Justice Robert Jackson’s famous opinion for the majority. On the assumption that we have lost sight of the logic that had been used to uphold compulsory flag salute laws, the article traces the many state court opinions on this topic prior to World War II. Also brought under scrutiny is Jackson’s usage of the term “totalitarian” to describe flag salute laws, a quasi-theological term promoted first and foremost by the Jehovah’s Witnesses. Jackson’s opinion in Barnette, while rhetorically compelling, was out of sync with …


How To Expand Rape By Deception And Protect Consent, Ricardo Licea May 2022

How To Expand Rape By Deception And Protect Consent, Ricardo Licea

University of Massachusetts Law Review

The trend towards accepting the violation of consent as the underlying wrong addressed by rape law conflicts with the almost universal rejection of rape by deception. Rape by deception is limited to fraud in the factum, however the exclusion of fraud in the inducement finds no support under a consent framework. The principal objections to the expansion of rape by deception are that it will criminalize common behavior, that rape by deception produces only minor harm, and that self-protection is a viable alternative. Analogizing from the criminalization of deception to obtain money shows that the criminal deception statutes need not …


The President Who Cried Voter Fraud: A Recurring Theme Of Baseless Allegations, Alyssa F. Mccartney Feb 2022

The President Who Cried Voter Fraud: A Recurring Theme Of Baseless Allegations, Alyssa F. Mccartney

University of Massachusetts Law Review

In 2019, Pennsylvania enacted Act 77, the first update to the Pennsylvania Election Code in nearly eighty years. Passed on a bipartisan basis, the law included a measure that permitted “no reason” mail-in ballots. Act 77 allowed any registered voter to request a ballot by mail, fill it out in the applicable time frame, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update caused quite the controversy only a few months after it was passed. The primary election used the updated process for the …


The Powerpoint Channel, Lynn M. Lopucki Feb 2022

The Powerpoint Channel, Lynn M. Lopucki

University of Massachusetts Law Review

This Article is the first to present a comprehensive theory and style for using PowerPoint to teach law. The theory is that presentation software adds a channel of communication that enables the use of images in combination with words. Studies have shown that combination to substantially enhance learning. The style is based on an extensive literature regarding the use of PowerPoint in teaching law and other higher education subjects as well as the author’s experimentation with PowerPoint over two decades. The Article states fourteen principles for slide or slide sequence design, provides the arguments from the literature for and against …


Taking The Rule Of Law Seriously, Michele Cotton Feb 2022

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 …


From Nucleotides To Nuanced Law: The Value Of An Incremental Approach To Experimentation In State-Level Genetic Anti-Discrimination Legislation, Katelyn Fisher Jun 2021

From Nucleotides To Nuanced Law: The Value Of An Incremental Approach To Experimentation In State-Level Genetic Anti-Discrimination Legislation, Katelyn Fisher

University of Massachusetts Law Review

A person’s genetic information tells a detailed story of what someone looks like, who her relatives are, and even what illnesses she may develop. This information, as enlightening as it may be, can be especially damaging when utilized in a discriminatory way. This Note explores how the protections under the Genetic Non Discrimination Act of 2008 will no longer be sufficient for protecting individuals from genetic discrimination as the use of genetic information becomes more commonplace. The questions become: Where do we start? How and where should protections that extend to circumstances not covered by GINA be created in a …


A Breath Of Fresh Air: A Constitutional Amendment Legalizing Marijuana Through An Article V Convention Of The States, Ryan C. Griffith, Esq. Jun 2021

A Breath Of Fresh Air: A Constitutional Amendment Legalizing Marijuana Through An Article V Convention Of The States, Ryan C. Griffith, Esq.

University of Massachusetts Law Review

Criminal enforcement of anti-marijuana laws by the United States federal government has been non-sensical for more than twenty years. Culminating, ultimately, in an anomaly within American jurisprudence when California legalized marijuana in 1996 in direct violation of federal law, yet the federal government did little to stop it. Since then, a majority of states have followed California and legalized marijuana. Currently, thirty-six states and the District of Columbia have legalized medical marijuana despite federal law. Every year billions of dollars are spent on the federal enforcement of anti-marijuana laws while states collect billions in tax revenue from marijuana sales. Even …


Perils Of The Reverse Silver Platter Under U.S. Border Patrol Operations, D. Anthony Jun 2021

Perils Of The Reverse Silver Platter Under U.S. Border Patrol Operations, D. Anthony

University of Massachusetts Law Review

In the face of expanding U.S. Border Patrol operations across the country, that agency often acquires evidence during its searches that is unrelated to immigration or other federal crimes but may involve state crimes. States are then faced with the question of whether to accept such evidence for state prosecutions when it was lawfully obtained by federal agents consistent with federal law but in violation of the state’s own search and seizure provisions. Sometimes referred to as “reverse silver platter” evidence, states have come to widely varying conclusions as to the admissibility of federally obtained evidence that would clearly have …


Biometric Data Regulation And The Right Of Publicity: A Path To Regaining Autonomy Over Our Commodified Identity, Lisa Raimondi Jun 2021

Biometric Data Regulation And The Right Of Publicity: A Path To Regaining Autonomy Over Our Commodified Identity, Lisa Raimondi

University of Massachusetts Law Review

This Note explores how a right of publicity action might be used to address present day concerns regarding biometric data ownership rights where an individual’s likeness can essentially be bought and sold. As social networking and use of the internet has grown, so has the opportunity for people to engage with others and share their lives. However, that opportunity also comes with risk. More and more, people are required to accept the terms of use and privacy policies detailing how their biometric data will be collected and stored if they want to download and use certain technological applications. Most of …


Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray Jun 2021

Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray

University of Massachusetts Law Review

Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand. There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential …


The Development Of Intellectual Disabilities In United States Capital Cases And The Modern Application Of Moore V. Texas To State Court Decisions, Dr. Alexander Updegrove Jun 2021

The Development Of Intellectual Disabilities In United States Capital Cases And The Modern Application Of Moore V. Texas To State Court Decisions, Dr. Alexander Updegrove

University of Massachusetts Law Review

Although in 1989 the Supreme Court of the United States initially held that the Eighth Amendment did not prohibit executing persons with intellectual disabilities in Penry v. Lynaugh, in 2002 it subsequently reversed this decision in Atkins v. Virginia, citing changing state legislation. Since the Atkins decision, state courts have interpreted the Court’s Atkins provisions in a variety of ways, some more faithfully than others. As a result, the Court provided additional clarification in its 2014 and 2015 Hall v. Florida and Brumfield v. Cain decisions, ruling that states must apply a Standard Error of Measurement of +5/-5 to all …


Now I Know My “Acbs”: The Right To Literacy Following An Incremental Path, Gregory J. O'Neill Oct 2020

Now I Know My “Acbs”: The Right To Literacy Following An Incremental Path, Gregory J. O'Neill

University of Massachusetts Law Review

It is a tragic irony that a nation with enormous wealth will not provide the most basic of education rights to its citizens. Despite continual judicial and legislative measures to ensure access to education, or a facsimile thereof, no judicial or legislative body has taken the step to ensure that literacy is a fundamental right for the citizens of the United States. The issue has been, and continues to be, presented to both Congress and the courts. While Congress has passed legislation to some degree, both institutions have largely failed to ensure the population receives the fundamental right of literacy. …


Meat Wars: The Unsettled Intersection Of Federal And State Food Labeling Regulations For Plant-Based Meat Alternatives, Shareefah Taylor Oct 2020

Meat Wars: The Unsettled Intersection Of Federal And State Food Labeling Regulations For Plant-Based Meat Alternatives, Shareefah Taylor

University of Massachusetts Law Review

Due to technological advances and the rise in popularity of plant-based meat alternatives (i.e., Beyond Meat, the Impossible Burger, etc.), nearly thirty states have proposed or enacted legislation to limit which foods can be labeled with terms that have traditionally been used to describe products derived from animal carcasses (i.e., meat, burger, sausage, etc.). Fueled in many places by the cattle industry, the states’ legislation proposes stricter guidelines than the federal counterparts in an attempt to specifically prohibit plant-based, cell-based (lab-grown meat), and even insect-based products from being labeled in meat-associated terms. To date, lawsuits have been filed by opponents …


The Unwritten Rules Of Liberal Democracy, Charles W. Collier Oct 2020

The Unwritten Rules Of Liberal Democracy, Charles W. Collier

University of Massachusetts Law Review

This Article is set amidst the distinctly unsettled and unsettling state of governmental practices, legislative policy, and presidential politics of contemporary America. Immediacy, too, introduces its own uncertainty—as compared to the comfortable vantage point of the distant future. But, as I shall argue, there is no realistic alternative to beginning in medias res. To address these issues as they inherently demand, the usual precedents and protocols and precautions must be set aside—if they are not already “gone with the wind.”6 Since the 2016 Presidential Election, and even before, threats to liberal democracy have emerged, in plausible form, as never before …


The First Sale Doctrine And Foreign Sales: The Economic Implications In The United States Textbook Market, Garry A. Gabison Oct 2020

The First Sale Doctrine And Foreign Sales: The Economic Implications In The United States Textbook Market, Garry A. Gabison

University of Massachusetts Law Review

This Article investigates the impact of the Kirtsaeng decision. After discussing the first sale doctrine, this Article presents the issues around implementing a worldwide first sale doctrine. International treaties attempt to ensure that authors can benefit from their work by affording them similar protections in different jurisdictions. But a worldwide first sale exhaustion limits the ability of copyright holders to profit from their work because it allows the author to compete with its own work that had been priced differently in different jurisdictions. Finally, this Article tests whether, in the United States, the price of textbooks has been affected by …


Massachusetts At The Forefront: How To Protect The Most Vulnerable Group In A Post-Legal Sports Betting World—Ncaa Student-Athletes, Dave Wilson Feb 2020

Massachusetts At The Forefront: How To Protect The Most Vulnerable Group In A Post-Legal Sports Betting World—Ncaa Student-Athletes, Dave Wilson

University of Massachusetts Law Review

Change is coming to sports gambling in the United States. No longer is it restricted to Nevada casinos or your “friendly” neighborhood sports bookie. The individual states have spoken, with state after state passing legislation authorizing legalized sports betting. It is clear that there is an appetite for legal sports gambling in this country. But how did we get here? And what will the ramifications be? This Note first analyzes the keystone sports gambling case, Murphy v. NCAA, and its impact on the destruction of the Professional and Amateur Sports Protection Act, which was commonly viewed as a federal ban …


Dalliances, Defenses, And Due Process: Prosecuting Sexual Harassment In The Me Too Era, Kenneth Lasson Feb 2020

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.


Absolute Freedom Of Opinion And Sentiment On All Subjects: John Stuart Mill’S Enduring (And Ever-Growing) Influence On The Supreme Court’S First Amendment Free Speech Jurisprudence, Eric T. Kasper, Troy A. Kozma Feb 2020

Absolute Freedom Of Opinion And Sentiment On All Subjects: John Stuart Mill’S Enduring (And Ever-Growing) Influence On The Supreme Court’S First Amendment Free Speech Jurisprudence, Eric T. Kasper, Troy A. Kozma

University of Massachusetts Law Review

A majority of Justices on the contemporary U.S. Supreme Court have increasingly adopted a largely libertarian view of the constitutional right to the freedom of expression. Indeed, on issues ranging from campaign finance to offensive speech to symbolic speech to commercial speech to online expression, the Court has struck down many laws on free speech grounds. Much of the reasoning in these cases mirrors John Stuart Mill’s arguments in On Liberty. This is not new, as Mill’s position on free speech has been advocated by some members of the Court for a century. However, the advocacy of Mill’s position …


Recommendations For Improving Firearms Vetting In Massachusetts, Robert C. Devine Jun 2019

Recommendations For Improving Firearms Vetting In Massachusetts, Robert C. Devine

University of Massachusetts Law Review

The United States is in a state of conflict over the ability to obtain firearms as well as their use in highly publicized mass shootings. On December 14, 2012, Adam Lanza obtained several firearms that were lawfully owned by his mother, but were improperly secured. Lanza killed his mother that morning and then drove a short distance to the Sandy Hook Elementary School in Newtown, Connecticut where he murdered twenty-six people, many of whom were small children. Lanza eventually turned a gun on himself before being confronted by responding officers. Though mass shootings are often headlines in this country, the …


Criminalizing Work And Non-Work: The Disciplining Of Immigrant And African American Workers, Shirley Lung Jun 2019

Criminalizing Work And Non-Work: The Disciplining Of Immigrant And African American Workers, Shirley Lung

University of Massachusetts Law Review

The realities of low-wage work in the United States challenge our basic notions of freedom and equality. Many low-wage workers share the condition of being stuck in jobs toiling excessive hours against their will for less than poverty wages in autocratic workplaces. Yet the racial politics of immigration and labor are often used to stir hostility between low-income United States citizens—especially African Americans—and undocumented immigrants. Perceived competition for jobs and racist stereotypes are exploited by opportunistic politicians and employers as well to produce frictions between workers who face similar conditions. Still, there is a strong basis for undocumented and African …


The Commerce Clause, The Preposition, And The Rational Basis Test, James M. Mcgoldrick Jr. Jun 2019

The Commerce Clause, The Preposition, And The Rational Basis Test, James M. Mcgoldrick Jr.

University of Massachusetts Law Review

In Gonzales v. Raich, the United States Supreme Court upheld the application of the federal Controlled Substances Act to bar the use of state-grown marijuana for instate personal medical use. In so doing, the Court ratified the expansion of Congress’ commerce power beyond any known limits. It abandoned the “substantial effects” test that it had used since 1937 and applied the “rational basis” test. This Article traces the historical development of Congress’ enumerated powers from the earliest cases, emphasizing the expansive view of commerce power found in Gibbons v. Ogden. From that strong beginning for the commerce power, the …


A Conspiracy Of Life: A Posthumanist Critique Of Appoaches To Animal Rights In The Law, Barnaby E. Mclaughlin Feb 2019

A Conspiracy Of Life: A Posthumanist Critique Of Appoaches To Animal Rights In The Law, Barnaby E. Mclaughlin

University of Massachusetts Law Review

Near the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that,

since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, …


Reflections At The Silver Anniversary Of The First Trans-Inclusive Gay Rights Statute: Ruminations On The Law And Its History -- And Why Both Should Be Defended In An Era Of Anti-Trans 'Bathroom Bills', Katrina C. Rose Feb 2019

Reflections At The Silver Anniversary Of The First Trans-Inclusive Gay Rights Statute: Ruminations On The Law And Its History -- And Why Both Should Be Defended In An Era Of Anti-Trans 'Bathroom Bills', Katrina C. Rose

University of Massachusetts Law Review

In 1993, Minnesota became the first state to enact a sexual orientation civil rights statute that also provides protections for transgender people. At the twenty-fifth anniversary of that achievement, the intricate history underlying the statute remains underappreciated. The pioneering status of the 1993 state statute, as well as that of the 1975 Minneapolis trans-inclusive ordinance upon which it was based, now typically are recognized. The degree to which radical agitation against politically moderate interests did not sabotage trans-exclusive gay rights but, instead, gave birth to trans-inclusive gay rights is still largely misunderstood. The degree to which that earliest trans rights …


"Black Lives Matter" As A Claim Of Fundamental Law, David B. Mcnamee Feb 2019

"Black Lives Matter" As A Claim Of Fundamental Law, David B. Mcnamee

University of Massachusetts Law Review

In this Article, I argue that we should understand #BlackLivesMatter as a claim on the Constitution—a very special kind of constitutional claim, on the Constitution as fundamental law. It is a paradigmatic contemporary example of this category of constitutional law for citizens, one that reaches back past the roots of the American Revolution and underlies the logic of popular sovereignty at the core of our system. Section I develops a conceptual sketch of fundamental law and its features. Section II then turns to the content of “Black Lives Matter” as a constitutional principle and traces its position in the arc …


Manifest Disregard In International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, Or Ugly, Chad R. Yates Jun 2018

Manifest Disregard In International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, Or Ugly, Chad R. Yates

University of Massachusetts Law Review

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in …


Massachusetts Attorney's Oath: History That Should Not Be Repeated, Jared A. Picchi Jun 2018

Massachusetts Attorney's Oath: History That Should Not Be Repeated, Jared A. Picchi

University of Massachusetts Law Review

Massachusetts proudly boasts that it has one of the oldest versions of the Attorney’s Oath in the United States. However, the Oath contains phrases that reflect both gender and religious biases. The use of the masculine form within the text, as well as the reference to God, reflect the nation’s history of intolerance and ignorance. These phrases exclude a large portion of the legal community and act as a distraction from the true purpose of an attorney’s oath, which is to remind incoming lawyers of their ethical obligations. This Article focuses primarily on the need for Massachusetts to adopt a …


Massachusetts Has A Problem: The Unconstitutionality Of The Tax Deed, Ralph D. Clifford Jun 2018

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 …


Denial Is Not An Option, Or Is It? How The Turkish Denial Of The Armenian Genocide Blocked Recovery In The United States, Samuel E. Plutchok Jun 2018

Denial Is Not An Option, Or Is It? How The Turkish Denial Of The Armenian Genocide Blocked Recovery In The United States, Samuel E. Plutchok

University of Massachusetts Law Review

Many articles have been written on the Armenian Genocide, both in the context of how to obtain Turkish recognition and how to obtain monetary relief in the courts of the United States. This Article summarizes the issues with the Movsesian III holding with regards to lack of precedent and the Ninth Circuit’s failure to follow the Supreme Court’s trend of limiting preemption. This Article then analyzes related decisions from four other circuits, demonstrating a clear circuit split on judicial understanding of the 5-4 Supreme Court ruling in Garamendi. This Article provides a roadmap to a friendly forum for victims of …