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Articles 1 - 14 of 14
Full-Text Articles in Law
Fall 2018 Newsletter: The Docket, Emma M. Wood
Fall 2018 Newsletter: The Docket, Emma M. Wood
Law Library Newsletter
Copy of the Fall 2018 issue of the UMass Law Library Newsletter, The Docket.
Manifest Disregard In International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, Or Ugly, Chad R. Yates
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
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
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
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 …
Ganging Up On Immigration Law: Asylum Law And The Particular Social Group Standard - Former Gang Members And Their Need For Asylum Protections, Claudia B. Quintero
Ganging Up On Immigration Law: Asylum Law And The Particular Social Group Standard - Former Gang Members And Their Need For Asylum Protections, Claudia B. Quintero
University of Massachusetts Law Review
The Refugee Act of 1980 was a significant piece of legislation for the development of asylum law, and the United States’ commitment to human rights and humanitarian concern for the struggles of refugees worldwide. The Act recognized the urgent needs of persons fleeing persecution in their homelands, asylees, and their need for protection and resettlement. The protections afforded in the Act extended to asylum seekers that were persecuted on the basis of (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion. However, Congress did not define “membership in a particular social group” …
Too Clever By Half: Commanding The Nonuse Of State Authority To Regulate Health Benefits In The Aca, Michael F. Ryan
Too Clever By Half: Commanding The Nonuse Of State Authority To Regulate Health Benefits In The Aca, Michael F. Ryan
University of Massachusetts Law Review
Prior to the enactment of the Patient Protection and Affordable Care Act (ACA), state legislatures routinely passed laws requiring health insurance carriers to cover certain health care services or providers. At the behest of the insurance industry, Congress attempted to use the health reform law as a vehicle to reign in state-specific “mandated benefit” laws. That being said, the ACA does not prevent states from enacting mandated benefit laws; in fact, the statute expressly permits states to enact such laws. Instead, Congress created a significant barrier to continued state-specific regulation of health insurance benefits. Specifically, 42 U.S.C. § 18031(d)(3)(B)(ii) (Section …
The Profit And Loss Report On Animal Rights: How Profit Maximization Has Driven The Stagnation Of The Legal Identification Of Animals As Property, Anthony M. Doss
The Profit And Loss Report On Animal Rights: How Profit Maximization Has Driven The Stagnation Of The Legal Identification Of Animals As Property, Anthony M. Doss
University of Massachusetts Law Review
The concern for the wellbeing and humane treatment of animals continues to grow in the United States. However, while public opinion on how animals should be treated has largely changed, the legal classification for animals has not. Nonhuman animals today, just as in centuries past, keep only a property classification in the law. This classification, which we humans assign to furniture, jewelry, and paper plates, comes with a set of legal rights held exclusively by the owner of the property. These rights bestow upon the owner the abilities to sell, use, and destroy the property as they see fit with …
Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard
Going To The Clerk’S Office And We’Re Not Going To Get Married, Alicia F. Blanchard
University of Massachusetts Law Review
Same-sex marriage is a controversial topic subject to great debate. The Supreme Court in 2015 federally recognized the legality of same-sex marriages in Obergefell v. Hodges. Despite this ruling, some people looked for any reason to denounce the holding. Perhaps none were more vocal than those who rejected same-sex marriage on the basis of their religious tenets. Miller v. Davis provided people who were morally opposed to same-sex marriage a platform to support their concerns grounded in a First Amendment right to freedom of religion. The question is how far does one’s freedom of religion extend? Does freedom of religion …
Pirate Tales From The Deep [Web]: An Exploration Of Online Copyright Infringement In The Digital Age, Nicholas C. Butland, Justin J. Sullivan
Pirate Tales From The Deep [Web]: An Exploration Of Online Copyright Infringement In The Digital Age, Nicholas C. Butland, Justin J. Sullivan
University of Massachusetts Law Review
Technology has seen a boom over the last few decades, making innovative leaps that border on science fiction. With the most recent technological leap came a new frontier of intellectual property and birthed a new class of criminal: the cyber-pirate. This Article discusses cyber-piracy and its interactions and implications for modern United States copyright law. The Article explains how copyright law, unprepared for the boom, struggled to adapt as courts reconciled the widely physical perceptions of copyright with the digital information being transferred between billions of users instantaneously. The Article also explores how cyber-piracy has made, and continues to make, …
Changing The First Lady’S Mystique: Defining The First Lady’S Legal Role And Upending Gender Norms, Ashlee A. Paxton-Turner
Changing The First Lady’S Mystique: Defining The First Lady’S Legal Role And Upending Gender Norms, Ashlee A. Paxton-Turner
University of Massachusetts Law Review
This Article explores the lack of formal guidelines governing the First Lady by first considering the history of the role and how the three branches of government have typically dealt with the role. Attention is also given to the possible intersection with the anti-nepotism statute when and if the First Lady acts as an advisor to the President. This Article then goes on to suggest that this lack of formality has allowed gender norms to govern the role. In an era where women’s rights have resurfaced as a central theme in political discourse, this Article concludes by suggesting some possible …
Truth Seeking: The Lenahan Case And The Search For A Human Rights Remedy, Margaret B. Drew
Truth Seeking: The Lenahan Case And The Search For A Human Rights Remedy, Margaret B. Drew
Faculty Publications
Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan …
Creativity Revisited, Ralph D. Clifford
Creativity Revisited, Ralph D. Clifford
Faculty Publications
The University of New Hampshire's Scholarship Redux Conference invited a reexamination of an earlier work of IP scholarship to address what has happened in the area since the time of its original publication. As my contribution to the Conference, I revisited my 1997 article that discussed the consequences of the increasing sophistication of artificial intelligence ("AI") on the production of new copyrightable or patentable works as well as the follow-up article I published in 2004 that focused expressly on copyright law. The primary call of the conference was to discuss the "legal predictions [that were] right -- or wrong!" In …
Ferpa Close-Up: When Video Captures Violence And Injury, Richard J. Peltz-Steele, Kitty L. Cone
Ferpa Close-Up: When Video Captures Violence And Injury, Richard J. Peltz-Steele, Kitty L. Cone
Faculty Publications
Federal privacy law is all to often misconstrued or perverted to preclude the disclosure of video recordings that capture students victimized by violent crime or tortious injury. This misuse of federal law impedes transparency and accountability and, in many cases, even jeopardizes the health, safety, and lives of children. When properly construed, however, federal law is no bar to disclosure and, at least in public schools, works in tandem with freedom of information laws to ensure disclosure. This Article posits that without unequivocal guidance from federal administrative authorities, uncertainty regarding the disclosure of such recordings will continue to linger, jeopardizing …