University of Massachusetts Dartmouth
University of Massachusetts, School of Law: Scholarship RepositoryNot a member yet
570 research outputs found
Sort by
Affirmative Confusion: A Proposed Paradigm Shift in Higher Education Disciplinary Proceedings
Get PDFThis Note examines the codification of affirmative consent statutes in New York and California as well as the language of Title IX of Education Amendments of 1972, with the ultimate goal of demonstrating that the two statutory constructions cannot co-exist without jeopardizing accused students’ due process rights. During the course of a college or university disciplinary proceeding in an affirmative consent jurisdiction, the potential exists for a burden shift onto the accused student to affirmatively prove consent was obtained. Such a shift directly conflicts with Title IX mandates for prompt and equitable treatment. This Note proposes that in order to mitigate any confusion created by the aforementioned conflict between affirmative consent statutes and Title IX, a policy shift in college and university disciplinary proceedings is necessary. Rather than require an accused student to face a panel of peers and administrators in a hearing forum designed to decide the student’s responsibility, this Note proposes an investigatory model as a more appropriate format for adjudicating sexual assault cases on college campuses. The investigatory model allows colleges and universities to conduct comprehensive interviews and investigations in a less contentious, less formal setting, allowing schools to gather and contest necessary facts to make an informed decision on responsibility and sanctions, while more effectively honoring accused students’ due process rights
The Law of the Groves: Whittling Away at the Legal Mysteries in the Prosecution of the Groveland Boys
Get PDFThis Article tells the legal story of one of the South’s most infamous trials – the Groveland Boys prosecution in central Florida. Called “Florida’s Little Scottsboro,” the Groveland case garnered international attention in 1949 when four young black men were accused of the gang rape of a white woman in the orange groves north of Orlando. Several days of rioting, Ku Klux Klan activity, three murders, two trials, and three death penalty verdicts followed, in what became the most infamous trial in Florida history. The appeals of the trial reached the United States Supreme Court, with the NAACP’s Thurgood Marshall serving as lead defense counsel in the re-trial of the case. The case reads like a Hollywood movie, but with the underpinnings of a classic 20th century southern courtroom drama. This Article looks not only at the history of the Groveland prosecutions, but undertakes a legal analysis of the trial court decisions made by the trial judge. While the historiographical narrative of the Groveland trials is one of racism and a “legal lynching,” many of the legal decisions made by the trial court were, in fact, surprisingly consistent with legal precedent of the time. Nevertheless, the tragic outcome of the Groveland case inflicted a permanent scar on the reputation of the Florida criminal justice system
Extracting Medical Injury Information from the Legal System to Improve Patient Safety in the Health System: A Social Utility Approach
Get PDFAs many as 400,000 people die each year, and a million are injured, by preventable medical injuries sustained in the U.S. health system. Collection of data to enhance understanding of how unintended medical injuries happen is an essential part of harm-reduction strategies. While health system data collection and reporting processes have improved in recent years, the scope and intractability of the medical injuries problem demands new efforts. The legal system could contribute valuable medical injury data to patient safety efforts but current practices largely prevent it. In medical malpractice claims where parties settle, case information is routinely protected from disclosure by confidentiality agreements thus any medical injury information is inaccessible. Parties who litigate may convince a court to seal their case files, thereby keeping data out of investigator’s reach. Insurers have extensive claim files, rich with information, but provide access only at their discretion. Most notably, fewer than 3% of patients who are injured in the health system ever bring a claim. Therefore, a vast pool of medical injury information lies dormant, never developed through legal claims. This Note argues that the tort system’s social utility purpose would be better served if more information about medical harm were exposed. Though numerous barriers would need to be overcome, data of value to the health system, and the patients who depend on it, could be extracted from (1) out-of-court settlements, (2) sealed court records, (3) medical malpractice insurance claims, and (4) by stimulating medical malpractice claims to create a larger data pool
Fall 2016 Newsletter: The Docket
Get PDFCopy of the Fall 2016 issue of the UMass Law Library Newsletter, The Docket
Ulysses: A Mighty Hero in the Fight for Freedom of Expression
Get PDFJames Joyce’s Ulysses was a revolutionary novel, and this much is common knowledge. What is not common knowledge is how useful Ulysses was in pushing the boundaries of freedom of expression. This masterpiece of literature opened the door for modern American free speech jurisprudence, but in recent years has become more of an object of judicial scorn. This Article seeks to educate legal scholars as to the importance of the novel, and attempts to reverse the anti-intellectual spirit that runs through modern American jurisprudence, where the novel is now more used as an object of mockery, or as a negative example
Beyond Punks in Empty Chairs: An Imaginary Conversation with Clint Eastwood’s Dirty Harry—Toward Peace Through Spiritual Justice
Get PDFThis Article is based on a presentation at the 2012 conference on “Struggles for Recognition: Individuals, Peoples, and States” co-sponsored by Mercer University, the Concerned Philosophers for Peace, and the Carnegie Council for Ethics in International Affairs, and it seeks to help combat our human tendency to demonize the Other and thus to contribute in some small way to the reduction of unnecessary conflict and violence. The discussion takes the form of a conversation in a bar between four imagined protagonists, who have participated in the conference, and Clint Eastwood’s Dirty Harry, who is having a bad day questioning his immersion in a violent world. Their conversation touches on many different areas including political philosophy, jurisprudence, psychology, political conversation, international relations, legal history, comparative law, and even theology. Thus the conversation ranges from Francis Fukuyama’s notorious thesis, expounded in his 1992 book The End of History and the Last Man, about the ideological superiority of liberal democracy (and the paradigmatic type of human beings who inhabit liberal democracies at the end of History) to the values underlying medieval animal trials and The Confessions of Saint Augustine, and it culminates in an apocalyptic thought experiment involving a literal last man
The Long and Winding Road : Reflections on America\u27s War(s) on Terrorism and Counterterrorism Efforts Post 9/11
Get PDFSeptember 11, 2001 was surely evil incarnate. But out of the shadows and embers of such devilish devastation, going forward, for society to “endure”‖, let alone “prevail”, a “lasting good” must emerge; an enduring immutable and sustainable commitment to peace and non-violence. And, of course, any “lasting good”‖, however utopian or pragmatic would surely require destruction and eradication of terrorism in all of its diverse incarnations; the eradication and destruction of the machinery of terrorism wherever it is found. Long range, it must be the goal, aspiration and belief that out of the seeds and memory of 9/11 there might come a new sense of hope and optimism among all nations. A new beginning in which nations seek to resolve differences in a calm, ordered and peaceful way; that ultimately out of the memory of that fateful day might come greater understanding between nations and faiths; and above all that there may come justice and prosperity for the poor and dispossessed, so that people everywhere can see, at least, the chance of a better future through the hard work and creative power of the free citizen, not the violence and savagery of the fanatic
When Condoms Fail: Making Room Under the ACA Blanket for PrEP HIV Prevention
Get PDFGiven the alarming upward trend in HIV infection rates and the downward trend in condom usage, we need a new approach to HIV prevention in the United States. One such approach, HIV Pre-Exposure Prophylaxis (commonly known as “PrEP”), has the potential to significantly reduce HIV incidence. The FDA recently approved a daily dose of Truvada® — an antiretroviral drug that suppresses the virus in HIV-positive individuals — for daily use by high-risk HIV-negative individuals to prevent infection. Despite an effectiveness above ninety percent and significant regulatory momentum, this pharmacological prevention modality has proven difficult to implement. In this Article, I address the social, legal, and policy challenges that will shape future implementation of this potentially game-changing HIV prevention modality. I develop a framework for understanding these challenges by dividing them into two dimensions: acceptability and accessibility. I argue that self-imposed, individual, and institutional stigma affects PrEP acceptability among high-risk groups and among healthcare providers. In addition, I discuss the accessibility barriers of cost, prior authorization, and policy exclusions. One solution to overcoming these challenges is mandating benefits for, and eliminating accessibility hurdles to, PrEP under The Patient Protection and Affordable Care Act, as well as mandating PrEP coverage through state action. Health content regulation, although controversial particularly after the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, will be necessary both to ensure that PrEP treatment reaches the populations most at risk of spreading the virus and to overcome antiquated assumptions about HIV prevention
The Wicked Smaht Kids: Seeking an Adequate Public Education for Gifted Elementary and Secondary Students in Massachusetts
Get PDFThis Note argues that the Massachusetts legislature underserves highly intellectually gifted students by neither identifying nor supporting the unique needs of such a population. The legislature is both enabled by the state constitution and charged by the Education Reform Act to provide an adequate education to all elementary and secondary students. The stated intent of the Commonwealth’s education directive purports to provide every child “the opportunity to reach their full potential,” when in reality there are only statutory entitlements and procedural safeguards for those who qualify for federal mandates due to qualifying disabilities. This issue is ripe for judicial interpretation and/or legislative review to identify and support this population of students. This Note proposes that legislation should be adopted that identifies gifted students and encourages local school districts to provide opportunity for challenge and engagement matched to their unique potential. Such proposed legislation has numerous public policy advantages
Practicing the Joy of Gospel
No full textBook review of “The Gospel of Happiness: Rediscover Your Faith Through Spiritual Practice and Positive Psychology” by Christopher Kaczor