Blatant Discrimination within Federal Law: A 14th Amendment Analysis of Medicaid’s IMD Exclusion

A discriminatory piece of Medicaid law, the institution for mental diseases (IMD) exclusion, is denying people with serious mental illness equal levels of treatment as those with only primary healthcare needs. The IMD exclusion denies the use of federal funding in psychiatric hospitals for inpatient care. This article discusses the history and collateral implications of the IMD exclusion, then examines it through the lens of the Equal Protection Clause of the Fourteenth Amendment, argues that people with severe mental illness constitute a quasi-suspect class, and that application of intermediate scrutiny would render the IMD exclusion unenforceable

Towards an Understanding of Critical Race Theory: Dispelling False Claims and Misrepresentations

The Article discusses critical race theory as a paradigm shift, and further dispels the notion that it promotes a form of Marxism. With the rise of political attitudes toward seeking legislation to denounce CRT, it is incumbent upon those in legal studies to investigate and bring the value of CRT into the forefront. The purpose of this Article is to open a new discussion on these issues, rooted in promoting cultural competency in the legal profession

Neither a Borrower nor a Lender Be: Analyzing the SEC’s Reaction to Crypto Lending

In June 2021, the largest U.S.-based crypto exchange, Coinbase, announced plans to allow its customers to earn 4% interest on deposits of certain cryptoassets through a new “Coinbase Lend” program. Despite a positive reaction from its customers, on September 7, 2021, Coinbase announced it had received a notice from the Securities and Exchange Commission (SEC) to the effect that the Commission had preliminarily concluded that the proposed Lend program was a security and that Coinbase would be in violation of the federal securities laws if it proceeded. The threat of enforcement caused Coinbase to terminate the program. Shortly thereafter, in the wake of several state enforcement actions, the SEC also announced a settlement with BlockFi that terminated its crypto lending program in the U.S. Neither of these actions conclusively explained the test that the SEC was using to determine when a crypto lending program involves the issuance of a security. This article considers the appropriate test for evaluating crypto lending programs and concludes that in many cases, the appropriate test should look at whether there are “notes” that fit within the definition of security. This article suggests that the SEC is applying the federal securities laws too broadly without offering sufficient explanation for its interpretations and that the Coinbase Lend program in particular should not have been shuttered. The article concludes that continuing regulatory uncertainty as to the scope of the federal securities laws is depriving U.S. citizens of potentially valuable opportunities

The Perfect Storm: A Look at the Robinhood Shutdown and the Shady Security Practices of Payment for Order Flow, Gamification, and Clickwrap Agreements

SEC guidelines and Federal Courts have stated, and recently upheld, that brokerdealers do not owe a fiduciary duty to retail investors if they do not provide them with investment advice, but this opens up retail investors to significant and costly mistreatment by financial institutions with no avenue for recourse. Using payment for order flow, gamification, and click-wrap agreements by broker-dealers creates a conflict of interest between themselves and the retail investors they act on behalf of. This article argues that retail investors should have an avenue of recourse against financial institutions when they breach their duty to these investors by failing to act in their best interest. This article will focus on the Robinhood shutdown, the recent Best Interest regulation, and how the practices mentioned above can harm retail investors if misused. Additionally, this article will explore the current SEC standing on these practices and certain financial institutions’ perceptions of them. Lastly, it will pose the implementation of a broad fiduciary duty on those financial institutions and brokers that use these practices

Fall 2023 Newsletter: The Docket

Link to the Fall 2023 issue of the UMass Law Library Newsletter, The Docket

Forced to Play and Forced to Pay: The Indigent Counsel Fee in Massachusetts as a Cost of Being Charged with a Crime

When indigent defendants in Massachusetts are charged with a crime and receive a court-appointed lawyer, they are also charged something else: a fee. This $150 fee is imposed on criminal defendants by the state as soon as they receive a constitutionally guaranteed free legal defense. The Article focuses on this inherent contradiction and identifies its far-reaching effects in undermining individuals’ constitutional protections. Massachusetts’s indigent counsel fee chills the right to counsel, creating a straightforward result for indigent individuals who are faced with a choice between paying for a free lawyer and not disclaiming their constitutional right to one. The deeper problem is that this fee cuts across the presumption that every person is innocent until proven guilty. The Article then argues that the presumption of innocence is violated by obliging individuals to pay, or alternatively perform community service for free, by virtue of the state\u27s decision to bring criminal charges against them. Therefore, being charged with a crime already carries consequences and signals that the defendant is no longer considered fully innocent in a flagrant violation of the premise of a just legal system. There should be no grey area concerning the interpretation of either the presumption of innocence or for constitutional rights. There should be no fee for having been dragged into the criminal justice system by the government\u27s unilateral decision

Spring 2022 Newsletter: The Docket

Link to the Spring 2022 issue of the UMass Law Library Newsletter, The Docket

Taking the Rule of Law Seriously

American legal scholars and jurists have given the rule of law their sustained attention, and the international community has treated it as an important measure of societal well-being. But still the rule of law is not taken seriously. For one thing, little effort has been made to craft a definition of the rule of law that is actually useful. And even when legal scholarship does try at empiricism that could illuminate the vitality of our rule of law, it generally starts from the wrong hypotheses and uses the wrong methods. It focuses on how to achieve “access to justice” and privileges quantitative approaches and the supposed “gold standard” of the randomized controlled trial over the qualitative assessment that is necessary to hold ourselves accountable for the rule of law. However, it is nonetheless possible to derive a workable, consensus definition of the rule of law from the varied and elaborate concepts offered by legal scholars and jurists, which would provide a metric that could be used as the basis for more directly relevant research. Further, some of the research that has already been done about what goes on in our courtrooms does suggest what work evaluating the extent to which we are achieving the rule of law would look like. Such research must be done if we intend to ensure a fundamentally important mechanism for achieving many of our most cherished values, including equal treatment and social justice. We have to take the rule of law seriously if we intend to uphold those values

Rage Against the Machine: Reducing Robocall Abuse to Protect At-Risk Consumers

For most people, robocalls are nothing more than an annoying side-effect of owning a cell phone today. But a successful robocall scheme is still capable of wreaking financial and psychological havoc on its victims. Senior citizens and cognitively impaired individuals are often targeted by fraudulent phone calls or texts because they may have trouble understanding how to identify and protect themselves from robocall abuse. This Note proposes a collaborative solution to this problem by calling on the judiciary and legislatures to minimize the amount of robocalls received by American telephone consumers. By adopting a broader understanding of the law and enacting stricter regulatory measures concerning automated calls and text messages, this Note theorizes that the unfair impact of robocalls on these targeted communities would decrease. After all, robocalls are a favorite tool used to illegally defraud unwitting recipients, many of whom are elderly or cognitively harmed. Rather than tasking telephone consumers with protecting themselves from phone fraud, the government should take responsibility and stop robocallers from evading the law in the first place

An initial examination of computer programs as creative works

Products from many domains (art, music, engineering design, literature, etc.) are considered to be creative works, but there is a misconception that computer programs are limited by set expressions and thus have no room for creativity. To determine whether computer programs are creative works, we collected programs from 23 advanced graduate students that were written to solve simple and complex bioinformatics problems. These programs were assessed for their variability of expression using a new measurement that we designed. They were also evaluated on several elements of their creativity using a version of Cropley and Kaufman’s (2012) Creative Solution Diagnosis Scale that was modified to refer to programming. We found a high degree of variation in the programs that were produced, with 11 unique solutions for the simple problem and 20 unique solutions for the complex problem. We also found higher ratings of propulsion genesis and problematization for the complex problem than for the simple problem. This combination of variation in expression and differences in level of creativity based on program complexity suggests that computer programs, like many other products, count as creative works. Implications for the creativity literature, computer science education, and intellectual property law, particularly copyright, are discussed