Statement Responding to the Current State of America in Solidarity with Our Black Community

June 3, 2020

Dear UMass Law Community:

In light of the recent killing of George Floyd, and the succeeding protests in both his and countless other Black men and women’s names, the UMass Law Review writes this statement in solidarity with the Black community and in support of our fellow Black law students. The purpose of our Law Review is to provide a forum for legal scholarship and debate, and we choose to use our platform to engender the dialogue these historic events require. After all, as Dr. Martin Luther King Jr. taught us, “[t]here comes a time when silence is betrayal.”

Our Law Review stands in unity with the Black community and all others who have called for action and change to our criminal justice system and government institutions that perpetuate these divisive inequalities. Acts of racism and violence cannot be reconciled with the mission and values of UMass Law (found here) including a respectful and collegial community that promotes and supports diversity in people and ideas and the pursuit of justice within and beyond the Commonwealth. In keeping with the mission at UMass Law, the UMass Law Review has dedicated itself to diversity, inclusion, and equity. We promise to seek out and publish scholarship highlighting issues of social justice, written by diverse legal scholars. As we move forward, we will translate this energy into the work we do, not only during our tenure as the Editorial Board for UMass Law Review, but into the future as practicing attorneys.

As law students, we are the future of the law. We vow to continue to pursue justice, to fight for change, and to demand equality for all under the law.

“There is one choice we can not make, we are incapable of making: we will not choose the path of submission and suffer the most sacred rights of our nation and our people to be ignored or violated. The wrongs against which we now array ourselves are no common wrongs; they cut to the very roots of human life.” Woodrow Wilson

Sincerely,
2020-2021 UMass Law Review Editorial Board

2020 Law Review Symposium Cancelled Due to COVID19 Precautions

Due to precautions put in place to contain COVID19, the UMass Law Review regrets to announce that our 2020 Law Review Symposium, which had been scheduled for Monday, March 23rd, has been cancelled.  The UMass Law Review editorial board would like to extend our gratitude to the faculty and staff of UMass Law who assisted in planning for the event and to the impressive collection of experts who were scheduled to participate in our forum regarding the academic and legal foundations of the Blue Economy.

Juvenile Justice Converges on Principles Leading to the International Harmonization of the Juvenile Justice System: Summary

By: Brittany Wescott ’20

The word “child” forces us to think about a particular class of persons. This class includes any human being below the age of eighteen.[1] Most legal systems around the world have decided this class deserves different treatment than adults when committing offenses because of their psychological immaturity.[2] The values representing this special treatment were enacted on a global scale in 1989 when the United Nations adopted the Convention on the Rights of the Child.[3] “This act brought to fruition a sixty-five year push for formal international legal recognition of the human rights of children.”[4] Both the United States and South Africa are members of the United Nations; however, South Africa has ratified the treaty while the United States has only signed the document even though member states may establish their own juvenile justice system.[5] Despite the lack of ratification on the part of the United States, it still moves towards the shared values of the international community.

Since the founding of the first juvenile court in Illinois in 1899, United States’ philosophy of how to treat child offenders has evolved from treating these offenders much in the same way as adults, to recognizing their inherent need for a different rehabilitative system.[6] Initially, the United States began establishing a type of “half-way” house for at risk youths; these were called Houses of Refuge and attempted to house “poor, destitute and vagrant youth who were deemed by authorities to be on the path towards delinquency.”[7] This was a step away from housing youthful offenders and adults together. Later, efforts made to rehabilitate youths under the doctrine of parens patriae failed. This doctrine gave the juvenile court parental authority over unruly children.[8] However, it was soon found that child offenders needed more than a strong hand, they needed help rehabilitating themselves and reintegrating into society as a productive member. Specifically, in Massachusetts the jurisdiction of the juvenile court includes children in need of services;[9] the care and protection of children;[10] offenders under the age of 18;[11] and neglected and delinquent children.[12]Recently, in 2018 an act was implemented that set out numerous Juvenile Justice reforms. This reform changed the minimum age of criminal liability for a child to twelve years old and under certain circumstances the court can retain jurisdiction until the age of twenty-two.[13] The new measures in Massachusetts have decriminalized several status offense crimes and requires a dismissal of the first minor misdemeanor committed by a juvenile.[14] Finally, restraints should only be used on child offenders in the court room under extreme circumstances.[15]

These new views on the jurisdiction of the Juvenile Court and treatment of child offenders are not so new in South Africa. In 2008, South Africa passed the Child Justice Act which establishes presumptions as to the minimum age of criminal capacity, advocates for arrest or punishment by confinement only for crimes such as theft or fraud, and holds the same belief that restraints should only be used on a child offender under exceptional circumstances.[16]

It is clear that the United States, specifically Massachusetts, and South Africa share values relating to the treatment of juveniles in the world of criminal law. These reforms are moving in the direction of a shared international understanding of how to treat child offenders: break the child out of the cycle, which comes from the understanding that “if a child enters the system at a young age, they will be less likely to break free of the system as they approach adulthood.”[17] However, this reform will only overload diversion programs like South Coast Youth Courts,[18] which now has a larger populace it must try to help.

[1] G.A. Res. 44/25, Convention on the Rights of the Child, Art. 1 (Nov. 20, 1989).

[2] Juvenile, Merriam-Webster, https://www.merriam-webster.com/dictionary/juvenile (last visited Oct. 21, 2019).

[3] 28 Int’l Legal Materials 1448 (1989).

[4] Id.

[5] See G.A. Res. 44/25, supra note 1, Art. 40(3); see also Gene Griffin & Paula Wolff, The Convergence of U.S. Juvenile Justice Policies and the U.N. Convention on the Rights of the Child, B.U. Int’l L.J. (Oct. 29, 2015), http://www.bu.edu/ilj/2015/10/29/the-convergence-of-u-s-juvenile-justice-policies-and-the-u-n-convention-on-the-rights-of-the-child/.

[6] See Juvenile Justice History, Ctr. on Juv. and Crim. Just., http://www.cjcj.org/Education1/Juvenile-Justice-History.html (last visited Nov. 1, 2019).

[7] Id.

[8] Id.; see also Clemens Bartollas, United States, in International Handbook on Juvenile Justice 301, 303 (Donald J. Shoemaker ed., 1996).

[9] Mass. Gen. Laws ch. 119, § 39E (2012).

[10] Mass. Gen. Laws ch. 119, § 24 (2008).

[11] Mass. Gen. Laws ch. 119, § 52 (2018); Mass. Gen. Laws ch. 218, § 60 (1992).

[12] Mass. Gen. Laws ch. 218, § 60 (1992).

[13] Mass. Gen. Laws ch. 119, § 54 (2019); S. Rep. No. 189-2371, at § 73 (2017­–2018) (Before the amendment was made to the definition of a delinquent child in M.G.L. ch. 119, § 54, the minimum age a child could be charged with a crime was seven.). See also Mass. Gen. Laws ch. 119, § 52 (2018); Spring 2018 Criminal Justice Reform Bill, Commonwealth of Massachusetts, https://www.mass.gov/files/documents/2018/05/15/FINAL%20CRIMINAL%20JUSTICE_0.pdf (last visited Nov. 1, 2019) [hereinafter Spring 2018 Criminal Justice Reform Bill].

[14] Spring 2018 Criminal Justice Reform Bill; see also Wallace W. v. Commonwealth, 482 Mass. 789, 790 (2019).

[15] Mass. Gen. Laws ch. 119, § 86(b) (2018).

[16] Child Justice Act 75 of 2008, §§ 7, 11, 20, 30, 33 (S. Afr.).

[17] Brianna Hill, Massachusetts Raises Minimum Age of Criminal Responsibility, 39 Child. Legal Rts. J. 168, 168 (2019).

[18] South Coast Youth Courts, http://www.southcoastyouthcourts.org/ (last visited Nov. 22, 2019).

Meet the E-Board: Chris Lanen, 2019-2020 Technology Editor

Chris Lanen is a 4L part-time/night student and the Technology Editor for the UMass Law Review.  In addition to attending law school, Chris works as Manager of Government Relations for Raytheon Integrated Defense Systems out of Portsmouth, Rhode Island. Chris’s previous employment experiences have included service as a legislative aide in the Washington office of U.S. Senator Jack Reed, finance director for Congressman Jim Langevin’s successful 2010 re-election campaign, and a variety of roles providing government and public relations, crisis communications, and advertising consulting services to for-profit and non-profit clients.  Chris also serves on the boards of the Rhode Island Manufacturers Association and Boys Town New England as well as the Government Affairs Committee for the Greater Providence Chamber of Commerce.

Upon graduating, Chris intends to practice at the intersection of government and business, including the fields of legislative advocacy, government contracts, corporate, and administrative law.  As a member of the UMass Law Review, Chris’s independent scholarly work has focused on reforms to U.S. Department of Defense data rights acquisition policy.

Chris resides in Cranston, Rhode Island, with his wife Kelly and their dog Louis.

Meet the E-Board: Lauren McCarthy, 2019-2020 Business Editor

Lauren McCarthy ’20 is a 3L student and 2019-2020 Business Editor of the UMass Law Review.  The summer after her first year of law school, Lauren worked as a judicial intern at the United States District Court for the District of Massachusetts.  This past summer, Lauren achieved her goal of working in Washington, D.C., where she was a participant in the Koch Internship Program through the Charles Koch Institute.  Through this experience, Lauren worked as a legal intern at the Competitive Enterprise Institute where she assisted with legal research and writing, specifically for administrative law petitions to the U.S. Department of Energy and the U.S. Department of Transportation.

In addition to serving on the editorial board for the UMass Law Review, Lauren is also  President of the UMass chapter of the Federalist Society.  Currently, she is active in the Mashpee Wampanoag Legal Services Clinic in which she provides legal services for members of the Mashpee Wampanoag Tribe.

Upon graduation, Lauren hopes to work in both government and politics.

Meet the E-Board: Aleah Fisher, 2019-2020 Executive Articles Editor

Aleah Fisher ’20 is a 3L student and the Executive Articles Editor of the UMass Law Review.  Prior to law school, she studied political science and criminal justice at Fitchburg State Universtity where she received a Pre-law bachelor’s degree. At Fitchburg State, Aleah was involved in Moot Court and was fortunate enough to make it to the final day of the national competition. In addition to attending law school, she works as a research assistant in the law school’s library. She is also currently an intern with the District Attorney’s office in the Attleboro District Court.

Upon graduating, Aleah intends to pursue her passion for child advocacy. She hopes to work in either the juvenile justice system, for the Department of Children and Families, or for the Department of Youth Services. As a member of the UMass Law Review, Aleah’s independent scholarly work has focused on advocating for comprehensive sex education in special education classrooms.

Aleah is one of five and currently lives in Leominster, Massachusetts, with her parents and two youngest brothers.

 

Meet the E-Board: Flannery Rogers, 2019-2020 Managing Editor

Flannery Rogers ’20 is a 3L full-time day student and the Managing Editor of the UMass Law Review. She is also a Public Interest Fellow and a member of the UMass National Moot Court Team. She plans to work as a public defender after graduating and hopes to enter the criminal appellate practice later in her career.

Prior to attending law school, Flannery received a Master of Science from the London School of Economics and Political Science in Law, Anthropology and Society. Her dissertation examined the conflict between public and private conceptions of the political subject in both biotechnological and revolutionary discourse. This segued nicely into her next career—six years as an oyster farmer in Waquoit Bay on Cape Cod. Flannery also serves as a Town Meeting Member and as a member of the Charter Review Committee for the Town of Falmouth. She lives in Woods Hole, Massachusetts and wishes she had more time to go sailing.

Meet the E-Board: Mary Brigh Lavery, 2019-2020 Editor-in-Chief

Originally from Dillsburg, Pennsylvania, Mary Brigh Lavery ’20 is currently a 3L student in the dual Juris Doctor/Master of Public Policy degree program and Editor-in-Chief of the UMass Law Review. This past summer she was a 2019 Rappaport Law and Public Policy Fellow and interned for the Massachusetts Caucus of Women Legislators. In the summer of 2018, she worked for the Commonwealth of Pennsylvania Governor’s Office of General Counsel in the Department of Health.

Mary Brigh is passionate about tackling women’s issues and advocating for women’s rights. As a member of UMass Law Review, Mary Brigh has focused her research on reformed nondisclosure agreements and how states can pass NDA legislation in light of the #MeToo Movement. In addition to Law Review, she is a member of the National Moot Court Team awarded Best 2018 Regional Brief, an Evidence teaching assistant, and assistant to the Dean of the Public Interest Law Program.

Mary Brigh plans to stay in Massachusetts upon graduation and work in government relations.

Introducing the 2019-2020 UMass Law Review Editing Team

Editorial Board:
Editor-in-Chief: Mary Brigh Lavery
Managing Editor: Flannery Rogers
Articles Editor: Aleah Fisher 
Notes Editor: Rob Devine
Business Editor: Lauren McCarthy
IT Editor: Chris Lanen
Lead Editors:
Rob Ball
Ryan Kelly
Brittany Wescott
Dave Wilson
Associate Editors:
Thomas Martin Remo Brennan
Rick Connors
Nicholas DeMarco
Jocelyn Frawley
Molly Hyland
Eve M. Madden
Alyssa McCartney
Gregory J. O'Neill
Abigail Peckham
Lisa Raimondi
Samantha Reid
Ashley Taylor Rix
Spencer Schneider
Matthew R. Stevens
Shareefah Taylor
Laura Trevino

CANNABIS LAW IN MASSACHUSETTS: WHETHER THE TOWN APPROVAL APPARATUS PUNISHES COMMERCIAL CANNABIS OPERATORS

Towns and cities are the first gatekeepers in the commercial cannabis licensing process.[1]After a potential cannabis business entity finds a suitable location usually in a mixed use industrial zoning area,[2]the entity must request a host agreement from the town and city.[3]If approved, then the entity submits a cannabis licensing application to the Massachusetts Cannabis Control Commission (“CCC”) for final review.[4]Upon approval from the CCC, the cannabis business entity may open a cannabis business at the location permitted by the town or city.[5]Currently, only two cannabis retail stores are open in Massachusetts.[6]Because a town’s approval is the first step in the licensing process, the town ultimately controls the possibility for any cannabis business.[7]

Although local control of businesses is often a positive method to allow residents to exercise authority over their properties and taxes, local cannabis regulations may lead to arbitrary and capricious business approvals for commercial cannabis operators.[8]This begs the questions of what business entities should receive the town’s approval and how should this decision process be made.[9]When a town is looking at the potential of millions of dollars in tax revenue per year, this decision might be too overwhelming to be made at the local level.[10]In order to avoid the potential for arbitrary and capricious behavior at the local town level, the CCC should provide for oversight of the initial town approval process to allow all applicants an equal opportunity and prevent nepotism.[11]Therefore, the CCC should create guidelines for applicants to appeal a town approval as these town approvals currently lack an appeals process or transparency on the decision making process.[12]

For commercial cannabis operations in town and cities, the profits outweigh the potential disadvantages.[13]The cannabis retail sales tax will create an astonishing tax resource for state and town necessities,[14]and commercial cannabis operations will regulate the industry to stop the dangers of black market sales and of private residential cannabis cultivation.[15]Thus, because the town cannabis approval apparatus can be arbitrary and capricious to commercial cannabis operators, a rational approach is recommended for town cannabis commercial approval through a robust CCC state oversight and appeals process.[16]

[1]Regarding Laws Governing Adult Use Marijuana in Massachusetts. Massachusetts Government Homepage on the Cannabis Control Commission(2018), https://mass-cannabis-control.com/cnb-faqs/#toggle-id-1.

[2]Fall River Town Zoning Bylaws (2018).

[3]Regarding Laws Governing Adult Use Marijuana in Massachusetts. Massachusetts Government Homepage on the Cannabis Control Commission(2018), https://mass-cannabis-control.com/cnb-faqs/#toggle-id-1.

[4]Id.

[5]Id.

[6]Id.

[7]Id.

[8]But seeFranson v. City of Woburn, 2016 WL 4778392 (Mass. Land Ct. Sept. 14, 2016) (spot zoning ruled legal and not arbitrary and capricious).

[9]Id.

[10]Id.

[11]Id.

[12]Regarding Laws Governing Adult Use Marijuana in Massachusetts. Massachusetts Government Homepage on the Cannabis Control Commission(2018), https://mass-cannabis-control.com/cnb-faqs/#toggle-id-1.

[13]Legal Pot Shops in Mass. Sold More Than $2.2 Million in Their First Week, (Nov. 27, 2018), https://www.wbur.org/news/2018/11/27/northampton-leicester-recreational-marijuana-sales.

[14]Id.

[15]Cannabis is Legal in California: What’s Different? https://www2.calstate.edu/csu-system/news/Pages/Cannabis-Is-Legal-in-California—What-Has-Changed.aspx(Apr. 20, 2018).

[16]But seeFranson v. City of Woburn,2016 WL 4778392 (Mass. Land Ct. Sept. 14, 2016) (spot zoning ruled legal and not arbitrary and capricious).