UMass Dartmouth Open Journals System
Not a member yet
994 research outputs found
Sort by
The Waters are Rising! Why Isn\u27t My Tax Basis Sinking? Why Coastal Land Should be a Depreciable Asset in Light of Global Warming and the Rise in Sea Level
Full text linkDepreciation deductions are the Internal Revenue Code\u27s method of allowing taxpayers to take deductions on long-term investments. Unlike normal deductions, depreciation requires the taxpayer to apportion the expense over the life of the asset. While most assets used for the production of income may be depreciated, the Internal Revenue Service and courts have never allowed land to be depreciated. The treatment of land as a non-depreciable asset is deeply rooted in the idea that it does not have a useful life -- it lasts forever. However, global temperature has risen rapidly over the past fifty years and is expected to grow even faster in the future. This causes ice caps to melt and oceans to expand, which leads to a rise in sea level. The rise in sea level means that many coastal property owners will see a decrease in their property size as the sea inundates the dry land. This is because the public trust doctrine converts navigable waters into public property. As such, coastal property is now a wasting asset because private lands are becoming public once they are underwater. This note argues that in light of global warming, coastal property should be a depreciable asset. By looking at existing tax doctrine and drawing comparisons to other types of depreciable property, this note explains why coastal property should be depreciable and how this change could be implemented under existing tax policy. Finally, this note argues that even if coastal property is not depreciable, coastal property owners should, in the alternative, be allowed to take depletion deductions
Resolving the Double Liability Problem: A Critique of California\u27s Mechanics Lien Statute
Full text linkCalifornia’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 Note proposes an amendment to the statute to protect ordinary homeowners from the risk of double liability
The Veterans Clinic and Legal Education: A Conversation with Professor Steven Berenson
Full text linkThis Article is a conversation between Professor Berenson and the UMass Law Review, discussing both his experience setting up the Clinic and the Clinic’s achievements. Part II provides a brief introduction to Professor Berenson’s work and how he started the TJSL Veterans Clinic. Part III considers veterans particular legal needs and how the Clinic addresses these issues. The Article concludes with some remarks from Professor Berenson regarding the future of the Clinic, and the overall movement of law schools toward greater practical education
Negative Portrayal of Vaccines by Commercial Websites: Tortious Misrepresentation
Full text linkCommercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites
Extracting Medical Injury Information from the Legal System to Improve Patient Safety in the Health System: A Social Utility Approach
Full text linkAs 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
Criminalizing Work and Non-Work: The Disciplining of Immigrant and African American Workers
Full text linkThe 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 American low-wage workers to unify. Both communities have experienced a deeply fraught relationship to freedom and coercion in which criminalization has figured prominently. This Article examines the similar attributes between two regimes of criminalization. The first regime is the Immigration Reform and Control Act of 1986 (“IRCA”), which has resulted in the criminalization of work for undocumented immigrants. IRCA, enacted more than thirty years ago, was the first time that Congress prohibited employers from hiring workers who are unauthorized to work in the United States. The second regime is the criminalization of non-work (i.e., the condition of being unemployed or of quitting one’s job to search for better employment elsewhere) for black workers in the post-Civil War South through the enforcement of vagrancy laws. A crucial feature of the Black Codes enacted after the Civil War to comprehensively restrict freed black men and women were vagrancy statutes that provided the coercive apparatus for pushing freed black men and women into forced labor. This Article juxtaposes the two enforcement regimes and brings together two areas of literature to draw attention to intersecting features of criminalization. Foremost, the criminalization of work and non-work become instruments of employer control in which state power is placed into private hands to fracture worker unity, to terrorize workers, and to discipline workers. Further, both regimes of criminalization have depended on racialized narratives and stereotypes to rationalize criminalization. This Article draws these historical parallels with the hope that such a perspective can help build meaningful alliances between undocumented immigrants and African Americans to take apart systems of criminalization that advance exploitation, immobility, and inequality
The President Who Cried Voter Fraud: A Recurring Theme of Baseless Allegations
Full text linkIn 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 first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. Explaining a new process comes with challenges, but when you tack on a President purposely fanning the flames of doubt, mail-in ballots proved to be a tough sell. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that was already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.” This article aims to address Trump’s relentless allegations of voter fraud—something that was sadly not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results were fair, free, and unaffected by alleged fraud. Although President Trump refused to concede in hopes of the United States Supreme Court intervening, he lacked any standing and could not offer substantial evidence to support his claims. In short, these frivolous lawsuits were an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs
Less Litigation, More Business Purpose: Leveraging Dispute Prevention to Preserve Business Relationships
Full text linkStrong interorganizational relationships play an essential role in business relationships. Soft skills associated with negotiation and communication are key to dealing with disagreements in these relationships. However, many companies do not invest in these aspects of their business relationships until conflicts arise. Dispute resolution provides helpful processes for managing these disputes, but companies can avoid conflict before it arises by investing in dispute prevention. Dispute prevention represents a change in the existing paradigm, yet it poses numerous benefits. By implementing a dispute prevention mechanism, such as a Standing Neutral, companies can invest in strong interorganizational relationships and improve their ability to flexibly respond to changing circumstances, allowing them to save time and money while maintaining focus on their business purpos
Say Sorry and Save: A Practical Argument for a Greater Role for Apologies in Medical Malpractice Law
Full text linkThis article examines both the potential benefits and detriments of the use of an apology in a legal setting. This article uses the specific environment surrounding a medical malpractice case to help illustrate how and why an apology should or should not be proffered by the Defendant. Ultimately, the reader of this article should have a solid understanding of how an apology can be admissible as evidence in the litigation of a medical malpractice lawsuit