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[acc_item title=”We, the Class: What the Founding Generation Can Tell Us About Adequate Representation in Class Action Litigation, by E. Samuel Geisler & R. Jason Richards”]

In many ways, Justice Story’s Bill of Peace stands as the keystone between the Founders’ demands for a fair trial, and later courts’ struggles to preserve judicial economy and fairness in class actions.  Years before Justice Story’s Commentaries on Equity Jurisprudence, Hamilton argued that courts of equity provided relief “in extraordinary cases, which are exceptions to general rules.”  Hamilton’s insistence on the value of chancellors foretells the flexibility future courts would require in accommodating class action litigation, especially where absent class members’ rights are adjudicated.

. . .

Hamilton’s insistence on the need for judicial flexibility, as implemented by Justice Story, should carry through with today’s judiciary. Consequently, courts must now take up the baton, applying—and sometimes adapting—Rule 23 safeguards in a way that negotiates the difficult balance between efficiency and fairness.  It is only then that courts can ultimately achieve adequate representation in the adjudication of non-identified, absent class members.

Read the full Article here.


[acc_item title=”Internet Minimum Advertising Price Policies: Why Manufacturers Should Be Wary When Implementing, by Alexander I. Passo”]

It has become common practice for manufacturers to implement policies to prevent retailers from advertising products at prices lower than those set by the manufacturers. What many manufacturers do not realize, however, is the potential for antitrust claims that may follow. Specifically, Internet Minimum Advertised Price (IMAP) policies can be a serious pitfall for the unwary and unadvised. This area of antitrust law has recently undergone dramatic changes, though it has yet to become uniform across all fifty states. Consequently, manufacturers should evaluate, with due diligence, whether enforcing an IMAP policy on a retailer is acceptable in each individual state before acting.

Read the full Article here.



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From Orphan Trains to Underground Networks: The Need To Get on Board with Adoption Reform

By Heather A. Bartel

The legal and social spheres of adoption in the United States are still evolving today through recent legislation, social welfare policies, and programs focused on the institutional care of dependent children, but the tracking of adoptions still proves to be difficult.  While the recent boom of social media and networking has given adoption a new voice, it has also enabled an underground, online marketplace for children to flourish, free from government regulation.  A Facebook spokeswoman claimed the activities occurring on its forum show “that the Internet is a reflection of society,” and individuals use Facebook “for all kinds of communications and to tackle all sorts of problems.”  The Internet has become a preferred method of transacting business on a large scale, but sensitive adoption matters require regulation that the digital marketplace does not currently support.

This Note will analyze whether current United States law is capable of resolving the emergence of an online, underground child network and its complex, inevitable issues.

Read the full Note here.

Time To Blow Up the Showup: Who Are Witnesses Really Identifying?

By Susan M. Campers

Despite recognizing the pitfalls of relying on suggestive pretrial eyewitness identifications, the United States Supreme Court in United States v. Wade upheld the admissibility of such identifications at trial, and issued a broad ruling that requires only some independent basis for the subsequent identification.  Although all pretrial identifications raise an issue as to suggestibility and reliability, show-up procedures have indisputably been acknowledged as the most vulnerable to false-suspect identification.  A showup is an identification procedure where an officer presents the witness with a single suspect and asks him or her whether that suspect is the perpetrator of the crime at issue.  Praised as a quick and easy method of confirming or negating police investigation leads, such advantages come at a heavy cost.  Preferably, showups are administered just moments after the commission of a crime, when the image of the perpetrator is presumably fresh in the witness’s mind.  Despite this ideal, showups are permitted at any point during an investigation when, under the totality of the circumstances, the identification is deemed sufficiently reliable.

Unfortunately, even when showups are deemed unreliable and thus inadmissible, witnesses are often permitted to make an in-court identification of the suspect.  Despite any good intentions of a witness, common sense reality remains: witnesses may not be identifying the perpetrator, but rather the innocent defendant forced to participate in an unduly suggestive show-up procedure.  Witnesses rarely comprehend the impact of a suggestive showup on their ability to make an accurate in-court identification. For this reason, in-court identifications are inescapably tainted by pretrial showup procedures.

Read the full Note here.


Tired of Tribunals: A Proposal To Combine Section 60L’s “Notice of Claim” Requirement with Certificates of Merit in Massachusetts Medical Malpractice Litigation

By Andrea L. Davulis

Medical malpractice litigation is complex, lengthy, and thus costly.  The cost of this type of litigation contributes, in various ways, to the soaring cost of health care in the United States, although the degree to which this occurs is hotly debated.  Tort reform efforts aimed at reducing medical malpractice lawsuits began in the 1970s; the reform of choice for some states, including Massachusetts, was the adoption of screening panels.  Although these panels differ in composition from state to state, all involve a panel of individuals that review a plaintiff’s evidence at an early stage in the litigation process and “screen out” the frivolous lawsuits, namely those that do not produce adequate expert witness support.  The underlying policy is that not having to defend against frivolous lawsuits will translate into suppressing the cost of medical malpractice litigation, which would in turn lower the cost of the medical malpractice insurance premiums charged to healthcare providers and so on up the chain.  Despite this well-intentioned goal, the bottom line is that these screening panels do not work.

. . .

This Note explains the reasons for the adoption of Massachusetts’s medical malpractice tribunal system, the goals it sought to achieve, how it has been implemented, and how its goals have not been met.  It further explains Section 60L’s pre-suit notification procedures instituted in 2012 and then explores the use of certificates of merit, which is an alternative used in liquor liability litigation that offers a framework for reworking the tribunal system.  This Note concludes with a specific proposal to replace the tribunal system with a process combining the positive aspects of the pre-suit notification procedure with the use of certificates of merit.

Read the full Note here.

Airline Consolidation: A Study of the American-US Airways Merger, Other Major Mergers from the Past Two Decades, and Their Effect on Consumers

By Simon Kurash

The merger between AMR, Corporation (American) and US Airways (USAir) attracted wide media attention as well as a multitude of Congressional hearings.  The board of directors for each airline approved the merger, so the last hurdle appeared to be a challenge from the Department of Justice (DOJ).  The DOJ contended that the two airlines merging would severely harm consumers.  In response, the two airlines put forward three main defenses: the merger is complementary, the merger has significant customer benefits, and the merger enhances competition in the airline industry.  Subsequently, the DOJ announced a proposed settlement that would divest slots and gates at highly concentrated airports around the country to low cost carrier airlines (LCCs).  However, the DOJ did not address the airports where American and USAir would hold over sixty percent of the market share and instead primarily focused on the East Coast corridor between Washington, DC and Boston.11 This Note will argue that the DOJ settlement with American-USAir did not go far enough to protect consumers in Boston, Charlotte, and Washington, DC.

. . .

Part II.A of this Note will discuss the traditional definition of competition.  Part II.B will then discuss airline deregulation and merger guidelines.  Part II.C will sample past mergers by examining their effects on consumers and the industry as a whole.  Part II.D will discuss LCCs and their interaction with megacarriers.  Next, Part III will analyze these concepts by focusing on the recent merger between American and USAir.  Finally, Part IV will conclude that the merger between American and USAir will ultimately hurt consumers.

Read the full Note here.

Stop Letting Them Get Away with Murder: The Need To Limit the Use of Head of State Immunity as a Defense for War Crimes and Crimes Against Humanity

By Aoife F. Martin

Historically, heads of state, both sitting and former, enjoyed absolute immunity because there was no distinction made between immunity afforded to a head of state and the immunity afforded to a sovereign.  Over time, however, international law slowly evolved to allow the prosecution of former heads of state for certain acts, particularly war crimes and crimes against humanity.  International courts holding current and former heads of state accountable, as well as the weakening of head of state immunity generally, have received both criticism and praise.

This Note will explore the emerging issue of sitting head of state immunity.  Part II.A discusses sovereign and diplomatic immunity, from which head of state immunity has evolved.  Part II.B discusses various theories of head of state immunity in international law.  Part II.C details one of the most famous instances where a head of state faced prosecution.  Part II.D describes the ratification of the Rome Statute, a treaty establishing a permanent international court and international criminal laws, and how it changed the scope of head of state immunity.  Part II.E reviews the four instances where an international court has pursued charges against sitting heads of state.  Part III.A then explores the arguments for and against continuing to narrow the legal concept of head of state immunity.  Part III.B further argues that despite some of the potential political ramifications, allowing international courts to indict sitting heads of state is ultimately a positive trend.

Read the full Note here.

Renewable Energy Policy in Massachusetts: How the Commonwealth Should Build Upon the Success of the Green Communities Act of 2008

By Kurt S. Stiegel

Thanks in part to the [Green Communities Act of 2008 (GCA)], the renewable energy industry in Massachusetts is thriving at an all-time high; the Commonwealth, however, must build upon this success by simplifying certain processes and creating further incentives for continued development.  Massachusetts already ranks among the nation’s leaders in installed solar capacity, due to ambitious policy goals supported by aggressive subsidy and incentive programs that should be continued and strengthened.  Although Massachusetts streamlined the permitting process for the largest capacity wind energy projects, this consolidated process should also be available to smaller capacity projects.

Part II.A of this Note will discuss the ways states and local governments regulate and promote renewable energy through permitting, siting, incentives and subsidies for developing renewable energy.  Part II.B will then analyze the policies implemented in Massachusetts through the GCA, subsequent legislation, and regulations.  Part II.C will focus on the permitting and siting of wind in Massachusetts and pending legislation to streamline those procedures.  Part II.D will then consider the various incentives and subsidies available for solar energy development in Massachusetts.  Part II.E will discuss various constitutional challenges to state and local renewable energy policies.  Part III will analyze and propose further steps Massachusetts can take to build upon the successes of the GCA to continue promoting renewable energy development.  Part IV will then conclude that the Commonwealth’s renewable energy policy is still evolving and, by building upon the successes of the GCA, Massachusetts will continue to lead the nation in this renewable energy development.

Read the full Note here.