Copyright (c) 2010 Western New England College School of Law All rights reserved. http://digitalcommons.law.wnec.edu Recent documents in Digital Commons @ Western New England College School of Law en-us Thu, 18 Mar 2010 01:55:14 PDT 3600 http://digitalcommons.law.wnec.edu/facschol/23 http://digitalcommons.law.wnec.edu/facschol/23 Mon, 15 Mar 2010 12:31:28 PDT Historically, most courts have sustained employer-imposed, gender-based dress codes. Two well-established exceptions to the rule exist for dress codes that either (1) objectify or sexualize women or (2) allow for flexibility of standards for male employees' appearance but require stricter rules for women. A third, still-evolving exception has recently developed regarding challenges to dress codes by transgender litigants.3 Despite this recent progress, however, the classical gender-based dress code -- requiring women to conform to feminine stereotypes and men to conform to masculine stereotypes -- has, up to the present, been sustained by a majority of the courts time and again. The author discusses two cases that offer insights as to why dress codes generally survive challenges, while also portending strategies for reversing this longstanding trend. Jennifer L. Levi http://digitalcommons.law.wnec.edu/facschol/22 http://digitalcommons.law.wnec.edu/facschol/22 Tue, 09 Mar 2010 13:29:46 PST The rule of law depends on a working separation of powers and transparency and accountability in government. If information is power, the ability of one branch of government to control information represents the ability to control federal legislation, policy, and decision-making. The Framers of the United States Constitution developed the Madisonian model of separated powers and functions, and a system of checks and balances to maintain those separations, with this in mind. History has shown a progressive shift of the power to control information toward the executive branch and away from the Legislature. Particularly when unified, one-party government precludes effective Congressional investigations and oversight, little recourse exists for accessing information. This article addresses an institutional design element that would increase transparency and accountability: periodic question-and-answer sessions between Congress and the President modeled on the United Kingdom's Prime Minister's Question Time. This article makes the case for such a measure in the U.S. by examining the comparative political history and legal norms of the U.K. and the United States, and the need for a Question Time to increase government transparency and efficiency. Sudha Setty http://digitalcommons.law.wnec.edu/facschol/21 http://digitalcommons.law.wnec.edu/facschol/21 Tue, 09 Mar 2010 11:41:56 PST On March 24, 2006, the Western New England College School of Law and School of Business jointly hosted the First Annual Academic Conference sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference capped a year of exciting developments at the Law and Business Center, which is the College's contribution to the entrepreneurship infrastructure in the greater Springfield, Massachusetts, area.Economists have understood for some time that small businesses are an important engine of economic development and vitality. Across the United States, 25 million small businesses employ more than half the country's workers, create approximately 75 percent of the nation's new jobs, and provide more than half of the private sector's economic output An important subset of the small business universe are businesses knnwn as "microenterprises," that is, those employing fewer than five employees and requiring less than $35,000 in start-up funds. These small firms play an important role in economic development, especially in low- to moderate-income communities. Program results and research provide solid evidence that the benefits of a rnicroenterprise program as part of a "welfare to work" strategy outweigh the risks and costs of such programs. There are approximately two million micro entrepreneurs in this country and many are in western Massachusetts. Eric J. Gouvin http://digitalcommons.law.wnec.edu/facschol/20 http://digitalcommons.law.wnec.edu/facschol/20 Tue, 09 Mar 2010 11:35:35 PST On March 30, 2007, the Western New England College School of Law and the School of Business jointly hosted the second annual academic conference on Current Issues in Community Economic Development, sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference promotes the two primary goals of the Law and Business Center: (1) to provide technical legal and business assistance to entrepreneurs and (2) to sponsor educational and outreach events focused on entrepreneurship and economic development. The Law and Business Center is a unique resource in Western Massachusetts. The combination of legal and business expertise sets the Law and Business Center apart, allowing it to provide services that other support organizations are unable to deliver. Eric J. Gouvin http://digitalcommons.law.wnec.edu/facschol/19 http://digitalcommons.law.wnec.edu/facschol/19 Tue, 09 Mar 2010 11:28:25 PST Despite the sea of change in possibilities for creating lawful relationships for many gay, lesbian, bisexual, and transgender individuals, most jurisdictions do not allow them to marry or enter into any comparable legal status. The vast majority of states either by statute or state constitutional amendment actually prohibit marriage for same-sex couples. And, even when couples can marry or enter into a comparable legal status, they are faced with uncertainty regarding what effect, if any, will be accorded to that status should they travel or move. Given the legal challenges that same-sex couples face, the need for high-quality estate planning for same-sex couples is greater than ever. Jennifer Levi http://digitalcommons.law.wnec.edu/facschol/18 http://digitalcommons.law.wnec.edu/facschol/18 Tue, 09 Mar 2010 11:14:49 PST The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, the authors assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a dialogue. This dialogue served to articulate the broad constitutional principles set forth in Supreme Court precedent. AEDPA has effectively ended the conversation, because under AEDPA federal courts lack the power to resolve emerging constitutional issues in the context of state prisoners' federal habeas petitions. Now that only Supreme Court precedent can provide the basis for federal habeas relief under AEDPA, it is more important for open questions to be presented to the Supreme Court. Unless cert is sought and granted in cases arising out of state criminal proceedings, constitutional criminal doctrine may be frozen. Current certiorari practice is out of step with this reality. The authors' analysis of the procedural posture of criminal cases in which certiorari was granted by the Supreme Court over the past twelve years demonstrates that, since 1995, the Supreme Court's certiorari grants in criminal cases have been tilting away from federal prisoners' direct appeals and towards state prisoners' federal habeas and (to a lesser degree) state court direct appeals. Because the Court is not, as a general matter, using certiorari grants in state prisoners' federal habeas cases to develop doctrine, it appears that certiorari from state court direct appeals is poised to become the primary vehicle for such development. Yet an empirical analysis of certiorari petitions filed in the October 2006 Supreme Court term reveals a gap between this opportunity for doctrinal development and practitioners' current certiorari-seeking behavior. The authors coded 347 "paid" certiorari petitions and a sample of 300 in forma pauperis petitions, categorizing cases by procedural posture. Although certiorari grants in federal prisoners' direct appeals are declining dramatically, the leading category of cert filings remains federal prisoners' direct appeals. Given that there are far more state criminal proceedings each year than federal prosecutions, we argue these trends demonstrate an opportunity to file more and better certiorari petition. The authors urge the criminal defense community to close this "cert gap," both to ensure a better standard of review for individual clients and to promote continued development of the law. Giovanna Shay http://digitalcommons.law.wnec.edu/facschol/17 http://digitalcommons.law.wnec.edu/facschol/17 Tue, 09 Mar 2010 11:01:23 PST The state secrets privilege is a common law evidentiary privilege, which enables the government to prevent disclosure of sensitive state secrets in the course of litigation. The privilege has never been clarified by statute; Congress undertook reform efforts in 2008 out of concerns that the Bush administration overreached in its claims of privilege by seeking more dismissals during the pleadings stage, and that courts have not used a uniform standard to assess those claims. This Article considers the modern application of the privilege in Scotland, England, Israel, and India--an analysis that contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative analysis is necessary to fully understand the transnational implications of the U.S. application of the state secrets privilege that have recently come to light in litigation involving both the United States and England. Sudha Setty http://digitalcommons.law.wnec.edu/facschol/16 http://digitalcommons.law.wnec.edu/facschol/16 Tue, 09 Mar 2010 09:38:53 PST Dietary supplements, including vitamins, minerals, herbs, and amino acids have become increasingly popular with consumers. These products create significant regulatory challenges for the Food and Drug Administration (FDA), the federal agency charged with supervising the safety of these products. In 1994, Congress enacted the Dietary Supplement Health and Education Act (DSHEA), which provides the FDA with limited authority to regulate covered products.In June 2005, just over a decade after the passage of DSHEA, the New York State Task Force on Life & the Law published a comprehensive report dealing with dietary supplement safety entitled "Dietary Supplements: Balancing Consumer Choice Safety." This author reviews the report. Barbara A. Noah http://digitalcommons.law.wnec.edu/facschol/15 http://digitalcommons.law.wnec.edu/facschol/15 Tue, 09 Mar 2010 09:21:23 PST Dietary supplments--vitamins, minerals, herbs, amino acids, and sundry other substances--have soared in popularity over the past decade, resulting in a $20 billion industry with over 1,000 manufacturers marketing 29,000 products. These products present vexing regulatory challengs for the Food and Drug Administration (FDA), and, for many years, the agency struggled to formulate an effective regulatory approach. In 1993, the FDA published a notice that summarized its safety concerns associated with various categories of dietary supplements and delineated the rather aggressive regulatory recommendations of an agency task force.Congress quickly reacted to these proposed regulatory initiatives. In 1994, it enacted the Dietary Supplement Health and Education Act (DSHEA), which sharply limits the FDA's express authority to regulate covered products. Purporting to balance concerns about the safety of supplements and consumer freedom to purchase them, DSHEA's highly deregulatory approach won effusive praise from commentators who profess strong faith in the ability of consumers to make intelligent choices about supplement use. Other observers remain dubious, however, that the typical consumer will exercise informed skepticism when it comes to claims about the safety and utility of these products. Barbara A. Noah http://digitalcommons.law.wnec.edu/facschol/14 http://digitalcommons.law.wnec.edu/facschol/14 Tue, 09 Mar 2010 08:48:28 PST Children deserve optimal medical care. Although prescription drugs play a prominent and essential role in pediatric health care delivery, health care providers often must make prescribing decisions for their young patients based on imperfect or absent safety and efficacy data for pediatric populations. The safe and effective use of prescription drugs in children depends on a thorough understanding of the physiologic differences between children and adults. Currently, only one-third of drugs prescribed to children have been studied for safety and efficacy in pediatric populations. Until relatively recently, the Food and Drug Administration (FDA) made surprisingly little effort to improve the quality or quantity of clinical research data for this patient group. Recent agency efforts to encourage pediatric drug research have generated mixed results and created unintended consequences. The development, prescribing, and safety evaluation of prescription drugs for children will require that the FDA and health care providers examine current practices, acknowledge their shortcomings, and consider creative solutions to the challenges associated with gathering additional data through pediatric drug research. Barbara A. Noah http://digitalcommons.law.wnec.edu/facschol/13 http://digitalcommons.law.wnec.edu/facschol/13 Tue, 09 Mar 2010 06:09:44 PST A number of developments have firmly stablished the role of clinics in legal education, allowing law school clinicians greater latitude in designing programs consistent with law school curricular values and priorities. Consequently, current law school clinical offerings are comprised of richly varied structures and goals. A myriad of goals fall under the general rubric of clinical legal education. Among the most widely cited goals are providing practical skills training in a real world context, instilling a public interest ethos in students, advancing social justice, encouraging the critique of the law and legal institutions, inculcating high standards of ethics and professionalism and imparting the habit of self-reflective lawyering. Lauren Carasik http://digitalcommons.law.wnec.edu/facschol/12 http://digitalcommons.law.wnec.edu/facschol/12 Mon, 08 Mar 2010 12:56:22 PST Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society's rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons--closed institutions holding an ever-growing disempowered population--most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which these ordinary norms can be encouraged, lawsuits, which bring judicial scrutiny behind bars, and which promote or even compel constitutional compliance, accordingly take on an outsize importance. Over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act ("PLRA") cast shadows of constitutional immunity, contravening our core commitment to constitutional overnance. The PLRA's obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences. Giovanna Shay http://digitalcommons.law.wnec.edu/facschol/11 http://digitalcommons.law.wnec.edu/facschol/11 Mon, 08 Mar 2010 12:32:23 PST In the last several years, the Supreme Court has decided a number of important challenges to the government's conduct of its "War on Terror." Brought on behalf of persons alleged to be "enemy combatants," many of whom were detained at Guantánamo Bay, these suits challenged the prisoners' indefinite detention, asserted their right to access federal courts, and questioned the legality of the tribunals created to adjudicate the charges against them. The debate about the detainees' access to federal courts has continued in Congress, with the passage of the Military Commissions Act (MCA), and in the lower courts, with challenges to the MCA.This article discusses issues surrounding litigations of these cases. Giovanna Shay http://digitalcommons.law.wnec.edu/facschol/10 http://digitalcommons.law.wnec.edu/facschol/10 Mon, 08 Mar 2010 12:19:31 PST Journalist Silja Talvi's Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System ("Women Behind Bars") is an engaging overview of issues affecting incarcerated tions involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars furthers the goal of increasing awareness about the growing population of women prisoners. Giovanna Shay http://digitalcommons.law.wnec.edu/facschol/8 http://digitalcommons.law.wnec.edu/facschol/8 Mon, 08 Mar 2010 11:42:24 PST The concept of "thinking like a lawyer," the focus of traditional law school study, takes too narrow a view of how lawyers practice and the range and reach of legal work. Although critical legal thinking is important, it is merely one component of effective lawyering. In addition to learning how to "think like a lawyer," law school is the place where students learn the language of the law. The author states that law schools should take advantage of the best known and most effective approach to learning a new language--the immersion method and that the primary characteristic of the immersion method is teaching language and culture in contextualized combination. By creating an engaging learning environment where law students become fluent in the language and practice of effective and compassionate problem solving, the health and well-being of individual lawyers and the legal profession will improve. Beth Cohen http://digitalcommons.law.wnec.edu/facschol/7 http://digitalcommons.law.wnec.edu/facschol/7 Fri, 05 Mar 2010 14:23:45 PST One of the key hallmarks of a democratic nation is that there are no secret laws. In the post-September 11, 2001 era, the George W. Bush administration relied on national security concerns and the unitary executive theory of presidential power as justifications for maintaining secret legal policies that govern parts of the war on terrorism that affect serious issues of human rights and civil liberties. These legal policies sometimes staked out positions that are at odds with legislation, treaties, and court decisions--but the parameters of the executive branch legal policies were sometimes unknown because of the lack of public disclosure. Administration critics decried the use of secret legal policy, and called for the disclosure of legal opinions generated by the Department of Justice Office of Legal Counsel. Some opinions were disclosed in the waning days of the Bush administration, others were disclosed early in the Obama administration, and still others remain unpublished and unknown. This Article considers the call for disclosure and concludes that it is feasible, desirable, and realistic to expect the timely disclosure of most Office of Legal Counsel opinions. This Article recognizes the historical pattern of politicization of executive branch legal policy during a war or armed conflict, then analyzes how secrecy in the development and implementation of legal policy runs afoul of the rule of law, compromises the quality of legal policy being generated by the Office of Legal Counsel, and undermines public confidence in the integrity of executive branch constitutional interpretation. This Article uses both a historical and a comparative analysis to critique the use of secret law; first, by considering how the United States has historically dealt with the development of executive branch legal policy in wartime; second, by illustrating how other nations that face severe national security threats maintain greater transparency and accessibility for legal policy related to national security matters; and third, how the use of unitary executive theory to support nondisclosure is at odds with historical practice and the rule of law. Sudha Setty http://digitalcommons.law.wnec.edu/facschol/6 http://digitalcommons.law.wnec.edu/facschol/6 Fri, 05 Mar 2010 14:13:06 PST The author explores the issues surrounding, and the arguments against, secret law by providing an international comparative perspective. As an example of secret law, Professor Setty cites the lack of transparency surrounding the Bush Administration Department of Justice's Office of Legal Counsel (OLC) March 2003 torture policy memorandum, which was kept secret for years before being declassified and disclosed in April 2008 in response to a Freedom of Information Act lawsuit. Professor Setty examines the justifications given for nondisclosure, such as arguments that disclosure is incompatible with prioritizing national security. In brief, Professor Setty rejects such a formulation, stating "[t]he claim that national security threats require secret law and an unprecedented lack of transparency is undermined by comparison with other nations." To make this point, the Issue Brief describes how other nations that face severe national security threats---such as India, Israel, and the United Kingdom---maintain transparency and public accessibility for national security legal policy. Professor Setty observes that the Obama administration appears committed to greater transparency, yet the author concludes by urging "serious consideration of structural reform to ensure objectivity, transparency, and political accountability at OLC from administration to administration." Sudha Setty http://digitalcommons.law.wnec.edu/facschol/5 http://digitalcommons.law.wnec.edu/facschol/5 Fri, 05 Mar 2010 13:44:57 PST This article examines the major Supreme Court rulings since the late 1960s that have directly addressed Aid to Families with Dependent Children (AFDC), commonly known as welfare. The Supreme Court decided cases, such as King v. Smith, Shapiro v. Thompson, and Goldberg v. Kelly, in favor of welfare recipients. The outcomes of these cases suggest that while the Supreme Court viewed welfare policy as a negotiation between federal and State governments, it reserved a special role for the judicial branch in protecting equal rights. The judicial understanding of the relationship between federal and state government power within welfare policy ranged from "cooperative federalism," (expanding powers of the national government in areas traditionally left to the states) to fiscal conservatism (privileging state power and proffering a hands-off approach). These conceptual rubrics do not follow a linear narrative nor offer a story of change over time; instead they are competing approaches that can be implemented by the Supreme Court simultaneously. While the historical arch from the Civil Rights Era to the present normally presents a story of expanded liberties and freedoms to the socially disenfranchised, the lens of the Supreme Court welfare decisions narrates a much different story. Instead, we see the devolution of racial liberalism, the intensification and expansion of poverty, and the rise of social conservatism so familiar by the mid-1980s. Here, Black women became both the symbolic scapegoat and the site of social policy surveillance. At the apex of this symbolic/social policy convergence were national attacks on the stereotyped "welfare queen" in particular, and any redistribution of national resources to the poor, in general. Part I of this paper examines Supreme Court case law on welfare policy through the lens of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Part II surveys the Supreme Court case law on welfare policy through the lens of federalism. Finally, Part III reviews much of the same case law contrasted through the lens of fiscal conservatism. Through these lenses, it is clear that the seemingly value-neutral Supreme Court was not at all immune to the changing political landscape of the nation over the last forty years. Bridgette Baldwin http://digitalcommons.law.wnec.edu/facschol/4 http://digitalcommons.law.wnec.edu/facschol/4 Fri, 05 Mar 2010 13:26:35 PST This Article considers the need to help students develop a cohesive philosophy of lawyering and suggests some ideas and methods to help introduce these concepts and concerns to students. Although this Article focuses primarily on aspects of the legal research and writing curriculum and pedagogy as well as professional development programs that can enhance the curriculum, the concepts are applicable and transferable to other subjects and courses. The purpose of this Article is to explore the issues raised by a conscious decision to help students consider and develop a beneficial philosophy of lawyering in areas including the development of legal research and writing curriculum and professional development programs. Beth Cohen http://digitalcommons.law.wnec.edu/facschol/3 http://digitalcommons.law.wnec.edu/facschol/3 Fri, 05 Mar 2010 13:04:51 PST First-year law students arrive for their first day of classes with varying perceptions about the practice of law and what it means to be a lawyer. Although some students have first-hand knowledge of the profession based on their work in a law office or from family members who are attorneys, many students base their entire conception of what it means to be a lawyer on images from popular media. The authors discuss how they used a literary account to acquaint students with an authentic picture of litigation, while still teaching the rudiments of legal research and writing. The book used was Damages, Barry Werth's account of a medical malpractice case. This Article details the use of Damages in the first-year legal research and writing program at Western New England College School of Law. Section I of this article describes the pedagogical objectives achieved by using the book and reviews the literature about the best practices in teaching. Section II describes the substance of the book and, briefly, how the book was used both to teach discrete topics and as a source of legal research and writing assignments. Section III details the evaluation of the use of the book and how it served to achieve teaching goals. Finally, Section IV provides the authors' conclusions and plans for the future. Myra Orlen