University of Massachusetts Dartmouth
University of Massachusetts, School of Law: Scholarship RepositoryNot a member yet
570 research outputs found
Sort by
Perils of the Reverse Silver Platter Under U.S. Border Patrol Operations
Full text linkIn 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 been inadmissible had it been obtained by state actors. This Article explores the approaches and rationales employed by states on this question and the legal implications thereof, particularly in light of sometimes constitutionally dubious Border Patrol activities, the “border search exception” to the Fourth Amendment to the U.S. Constitution, and the broader significance of states choosing to sacrifice their own constitutional principles and rights of their citizens in the interest of prosecutorial convenience
Harmful Reporting
Full text linkTitle IX is used in many ways; perhaps most prominent and controversial is its use to address issues of sexual harassment and sexual assault on college campuses. The regulations governing that use have just been changed, with the Department of Education issuing new final regulations on xx. The recent spotlight aside, an aspect of Title IX that has gotten too little attention has been the move towards having all or nearly all university employees categorized as “mandatory reporters.” A mandatory reporter is one who must report an allegation of sexual assault to the university’s Title IX coordinator. This report must be made even if it is against the wishes of the student who discloses that she or he was the victim of the assault.
This widespread use of mandatory reporters, perhaps counterintuitively, confers harm on the individual disclosing the assault. It also does not achieve the intended goals, one of which is often stated as making it known that the institution takes sexual assault very seriously. Moreover, anointing all employees, including non-supervisory faculty members, as mandatory reporters actually drives down student desire to disclose. This in turn prevents student survivors from getting the support they need in order to have equal education opportunities regardless of sex, which is the core purpose of Title IX. Therefore, having a wide-spread mandatory reporting requirement not only inhibits disclosure but may itself be a violation of Title IX.
Other phenomena presently influence the willingness to disclose or report sexual assault. The #MeToo Movement and the Harvey Weinstein trial reveal much about the challenges and trauma associated with disclosing and reporting. Further, some state legislatures have codified mandatory reporting and others have considered or will consider it. There are better ways to comply with Title IX and protect survivors and those ways must become more widespread
Cartoon Contracts and the Proactive Visualization of Law
Full text linkContracts 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 narrative have been used to communicate contract terms to all parties, but particularly to contractors who are illiterate or lessthan-fully literate in the language of the instrument. The goal of this Article is to apply the lens of visual legal rhetoric and visual literacy to the current visualization movement in Proactive Law and Legal Design in their efforts to promote visual, non-verbal communication in contracts through cartoon, comic book, and highly pictorial legal instruments. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context • Immediate Verbal Context • Visual Cultural Context • Mise en Scène and Arrangement • Visual Rhetoric, Ethics and Professionalism This Article analyzes whether highly visual contracts and legal instruments fulfill the potential for greater access to and understanding of contract terms particularly with audiences whose language skills and cultural experience might make the comprehension and acceptance of purely verbal contracts more difficult. When visuals can overcome barriers in communication that words alone cannot, contracts and other legal instruments can be made more universal in their application, interpretation, performance, and enforcement
The Development of Intellectual Disabilities in United States Capital Cases and the Modern Application of Moore v. Texas to State Court Decisions
Full text linkAlthough 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 capital defendant IQ test scores. Despite this requirement, some state courts still delivered opinions contrary to the Court’s Atkins and Hall holdings, prompting the Court to offer yet more guidance in 2017. In Moore v. Texas I, the Court established that states must evaluate intellectual disabilities in capital defendants according to current medical standards, which include: (1) using the diagnostic criteria outlined in the DSM-5 or AAIDD-11; (2) focusing on adaptive deficits, not strengths; and (3) prohibiting determinations of intellectual disability from being based on functioning in prison. In 2019 the Court determined in Moore v. Texas II that the analysis undertaken by the Texas Court of Criminal Appeals continued to offend Court precedent. Given the long history of some state courts disregarding clear holdings of the Supreme Court, this Article examines how state courts have interpreted Moore I and Moore II
From Nucleotides to Nuanced Law: The Value of an Incremental Approach to Experimentation in State-Level Genetic Anti-Discrimination Legislation
Full text linkA 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 way that results in comprehensive protections against genetic discrimination? This Note proposes that an effective way to achieve comprehensive protection is through incremental change in genetic anti-discrimination law at the state level before legislative change is attempted at the federal level. It argues that experimentation in the laws at the state level will allow for thorough and meaningful protections by allowing the concerns regarding genetic discrimination in the individual states to catalyze their legislative responses and will allow the states to learn from other states in determining effective paths for its own genetic non-discrimination legislation. Finally, this Note will explore potential legal frameworks that states could use as a model for genetic anti-discrimination legislation
Fall 2021 Newsletter: The Docket
No full textLink to the Fall 2021 issue of the UMass Law Library Newsletter, The Docket
The Unwritten Rules of Liberal Democracy
Full text linkThis 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 inAmerican history. This is largely a tale about the parlous state of “unwritten rules” in a thoroughly politicized polity. Part I traces out two of the most important stages in this development. Liberal democracy depends not only on governmental institutions and officials but, indirectly, on the personal qualities those officials bring to their duties and responsibilities. Nowhere is this more important than at the top of the Executive Branch of government, where personality disorders of the President may take on constitutional significance. “Crazytown”—as it has been called—is thus the subject of Part II.7 Finally, Part III considers the roles of both “Input Controls” and “Output Controls” in protecting liberal democracy against the threat of authoritarian tyranny. For purposes of discussion, a proposed constitutional amendment is introduced and defended. This is an important intellectual exercise, for “without the constant effort to repair and construct liberal institutions of government . . . it is only a matter of time before one or another zealot will seize the chance to impose his private nightmare on the rest of us.
Now I Know My “ACBs”: The Right to Literacy Following an Incremental Path
Full text linkIt 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. There is not much pushback to the argument that education and literacy are important. But questions remain: How much education is necessary to claim that literacy is a right? Is literacy important enough to shine brightly on the national consciousness
Two First Amendment Futures: Consumer Privacy Law and the Deregulatory First Amendment
No full textAfter decades of calls for comprehensive consumer privacy laws in the United States, they are nearly here. The debates surrounding these laws, however, have paid scant attention to the inevitable First Amendment challenges. These challenges will occur in the context of the “deregulatory First Amendment,” the Supreme Court’s decades-long expansion of First Amendment limits on economic regulations. Scholars have compared this deregulatory agenda to the judicial excesses of the Lochner era. The First Amendment, however, has even greater deregulatory potential today because contemporary economic and social activity depend upon exchanges of information. Accordingly, First Amendment challenges to consumer privacy laws will bring us to a crossroads. One path forward would continue the Court’s deregulatory trajectory, drawing largely on the Court’s recent decisions in Sorrell v. IMS Health, Inc. and Reed v. Town of Gilbert. That path would further constrain the administrative state by treating all consumer data flows as “speech” for First Amendment purposes and using the Court’s recent approach to content discrimination to subject most consumer privacy laws to strict scrutiny, rather than the intermediate scrutiny that has applied to commercial speech for decades. An alternative path, however, would resolve challenges to consumer privacy laws under established First Amendment doctrine. That traditionalist path would treat consumer data as commodities rather than speech, analyze typical consumer privacy laws as imposing no more than incidental burdens on speech, and preserve the intermediate scrutiny standard for commercial speech regulations. The consequences of this choice will reach far beyond consumer privacy law and could jeopardize many of the regulatory tools on which the modern administrative state depends
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
Full text linkA 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 has grown over time, to the point now where it is the dominant view expressed by the Justices in free speech cases. Even where the majority has in recent years found limits to free speech rights (including in cases involving student speech, public employee speech, and speech related to foreign terrorist organizations), several Justices have advocated a Millian framework and arguably followed the exceptions that Mill outlined when advocating the Harm Principle for free speech. Through textual analysis of illustrative cases we demonstrate the growth of Mill’s influence on the Supreme Court and where the Justices have deviated from what Mill advocated