Green Police

Starting in the late 20th century, one of the biggest obstacles in reducing climate change is the inability to decrease atmospheric levels of carbon dioxide produced by fossil fuels. The continuous extraction of fossil fuels are attributable to many big oil corporations such as Rosneft, Chevron, and Conoco Phillips. After many years of failed federal acts and legislation to confront this problem, some states started taking a stand against ExxonMobil, which is one of the biggest oil companies in the United States. Massachusetts Attorney General Maura Healey, along with sixteen other state attorney generals, are investigating Exxon for consumer and securities fraud due to Exxon’s alleged misrepresentation of financial and market risks caused by climate change. Particularly, the attorney generals’ investigations of ExxonMobil are centered upon the allegation that the company “knew about the connection of fossil fuels and climate change as far back as 1977, and planned internally around its impacts, while working publicly to discredit climate science.”

Although the Massachusetts Attorney General’s office and the other  states’ attorney generals are convinced that this investigation is not based on speculation, ExxonMobil disagrees and recently sued the Massachusetts Attorney General Maura Healey. ExxonMobil states that Healey’s investigation is violating their First Amendment right of free speech, Fourth Amendment right against unreasonable search and seizures, and for violating the Massachusetts statute of limitations. ExxonMobil also argues that the Healey is unable to sue them because ExxonMobil does not conduct business in Massachusetts and cannot be hailed into a Massachusetts court. Interestingly, several other state attorney generals, including Texas, have sided with ExxonMobil and wrote to Maura Healey along with the sixteen other attorney generals, advising them to drop the investigation.

As a society we must think of the implications of this investigation into fossil fuel companies. One significant repercussion of this investigation is the further divide between big business and environmentalists. Nevertheless, this further political rift between the two is very small compared to what is at stake for our environment. We can no longer sit idly by as corporate greed destroys our Earth. It is time for those companies that are responsible for climate change be held accountable because money isn’t the only green thing that is important.

Mary Serreze, ExxonMobil Sues Attorney General Maura Healey Over Climate Fraud Probe, MassLive.com, http://www.masslive.com/politics/index.ssf/2016/06/exxonmobil_sues_ag_maura_heale.html.

David Hasemyer, Exxon Sues a Second Attorney General To Fight Off Climate Fraud Probe, Insideclimatenews.org, https://insideclimatenews.org/news/16062016/exxon-sues-massachusetts-attorney-general-climate-change-fraud-investigation.

Is it Finally Time for Reform in College Football? Are Scholarships Enough?

With the college football season underway, a lot of people are becoming familiar with names like Lamar Jackson, Deshaun Watson, JT Barrett, and Christian McCaffrey. These young men share a lot in common. They are the faces of their universities’ football teams; Heisman Trophy hopefuls, the center of Sports Center debates, and the reason thousands of fans buy tickets to games. What else do they have in common?  They don’t receive a dime of the profits that the NCAA and its affiliated universities and colleges receive. A lot of you are probably thinking that these athletes are on scholarship; they receive a free education at some of the most prestigious schools across the country in order to play the sport they love. Well this is true, but is a scholarship really enough, considering that the NCAA is annually raking in over a billion dollars annually?

The truth of the matter is that colleges, universities, and the NCAA do exactly what they aim to protect their student athletes from. The NCAA was created in order to protect the integrity of college sports and protect its athletes from exploitation of their athletic prowess for the financial gain of others. The truth of the matter is the NCAA and its colleges and universities are using these kids to obtain billion dollar television contracts, sell tickets, sell apparel, and receive endorsements from the likes of Nike, Under Armor and Adidas. Every Saturday, these young men take the field and fans gather in order to see them. They want the highlight catches by the standout wide receiver, they want the late game winning drive by the Heisman hopeful quarterback, and they want the glory of being involved in something that is bigger than themselves. Let me tell you, these kids flat out deliver. College football players deliver because they put in the work, work that totally devours their lives. Under the law, these kids should be considered employees and should be offered compensation and the protections that come with employment.

Football is a dangerous sport; at any given time a player’s career could be over in the blink of an eye. They deserve to make a little money that they can use however they see fit. Today these student-athletes often struggle to afford to eat and buy clothes. In extreme cases players have been left homeless. For schools making a profit off of their college football programs, something should be done to compensate these employees who are putting in countless hours each day to bring a profit to their employer.

The NCAA and its affiliated colleges and universities have complete control over these athletes. In order to remain eligible to play football in college, the students must attend classes, maintain a certain GPA, and not receive any sort of financial compensation for their athletic prowess. In order for their coaches to actually let them play, they have to attend practice, go to weightlifting sessions, study periods, and team meetings. The test for employment is one of control. It looks to determine how much control an employer has over an employee in their everyday life. Here, it is quite obvious the NCAA is very much in control of these players’ daily lives.

There is no clear way on how this can be done especially when the vast majority of athletic programs run at a deficit. But for the NCAA and its affiliated colleges and universities to control the exclusive rights to profit off of the students is wrong. Why not let them gain a little celebrity by making some extra cash doing off season appearances, such as signing autographs and starring in commercials?  The fact of the matter is action needs to be taken because the student-athletes are being exploited for their athleticism by the one entity they depend on to protect them. There is no easy solution and any reform would most likely throw off the system completely but something has to be done because the system in place now is not just.

The Future of SEO: Impact Google May Have on Future Online Advertising

Advertising has greatly evolved with the expansion of the internet. Years ago, advertising consisted of taking out a billboard, calling the local newspaper, taking out a section or a page, the yellow pages, etc. However, advertising has recently expanded to the internet with the use of websites, search engines, and even social media.

When we are interested in a specific product, we might go online, open google, and give them a quick search. We look for websites, google places page, reviews, and maybe even look at websites such as Yelp if we’re really looking for something.

Companies use ‘search engine optimization,’ or SEO, to increase their appearance in search engine results. These searches pick up a company’s website, social media profiles and channels, articles, and news articles. One way to increase visibility online is by the use of a Google product known as AdWords. AdWords is a pay-per-click program which allows a company to advertise on Google search results using specific keywords related to their business. When someone searches for that keyword in a local area, the company website appears first in the results. The company, however, only ‘pays for the click’ if the website is clicked on. Seems simple. Well it is, but could be expensive for the company owner.

SEO companies specializing in expanding their clients’ presence online have found ways to optimize while using non-ad Google search results. e-ventures Worldwide, LLC, an SEO company doing just this, however, has filed a lawsuit against Google for manually removing a total of 365 websites belonging to their clients from search results. By going around the algorithm and not advertising with AdWords itself, e-ventures Worldwide was able to save money for their client while still enhancing the company’s name online. Google, as you can imagine, was not happy.

According to their complaint, e-ventures Worldwide claims Google had an anti-competitive, economic reason for manually banning their clients’ websites from appearing in Google searches. Such claim was plausible enough to prevail in a Motion to Dismiss filed by the plaintiffs. Google claims that their ban is because e-ventures Worldwide violated guidelines set in place to prevent manipulations of the search rankings. However, Google claims that they have a right to remove any website at their own discretion. Under Google’s broad power of removal, “any website owner that attempts to cause its website to rank higher, in any manner, could be guilty of ‘pure spam’ and blocked from Google’s search results, without explanation or redress.”

Such discretion given to Google seems too broad. Google could have discriminatory reasons to remove a company from search results, without the company being aware or given notice of such removal. This decision could have a great impact on small, local businesses trying to make a name for themselves. e-ventures Worldwide may not be the only company manipulating the algorithm to increase their presence online in order to avoid paying AdWords. Google, if successful in this suit, could control the future of advertising.

The Ballad of a 4L: What Doesn’t Kill You Makes You More Efficient

It was a muggy August evening in 2013 when I hustled into the lobby of UMass Law School for my first day of orientation. I was sweating, running late due to traffic coming up Route 195 from my office. After hurrying up the stairs two at a time, I slid into a seat in the large lecture hall, surrounded by 80 other 1Ls.  While waiting anxiously for the session to start, I fidgeted with the brief I had prepared. When Dean Bilek stood up to address our newest class of UMass Law students, she looked around at all of us and smiled. “You’re all getting just a small taste of what your classmates going to school at night will go through…”

Working full time and going to law school part-time at night and on the weekends is nothing short of grueling. It requires us to wear many different hats simultaneously. Not only are we employees, bosses, and co-workers, but we are also parents, partners, and friends. Somewhere in all of that, we are also students.  Night student life requires us to work an eight hour day, drive to school, and sit in class until 9:30 at night before returning to whatever far flung corners of the state from which we come. In order to fulfill scholarship requirements and pro bono obligations, we use up vacation time, or give up our one day off a week, because Saturdays have been sacrificed to early morning classes and afternoons studying in the library. When asked what our plans are for the summer, we either “take a break” by only working our day jobs, or we punish ourselves even further by taking summer classes in an effort to complete our degrees in a shorter period of time. I cannot count the number of times I’ve arrived home at 10:00PM after class, dropped my heavy backpack on the floor and burst into tears, because the thought of having to pack a lunch and get ready for work the next day was almost too much to bear amid the overwhelming exhaustion of the daily night student grind. More often than not, I’ve felt like a ship passing in the night to both roommates and classmates, tenuously connected to campus when the reality of life beyond school reemerges well after sunset. A professor once asked a group of us if we’d attended the ABA accreditation open meeting, an opportunity for students to interact with the site team and exemplify the diversity of the UMass Law student body. We all looked around at each other. “It started at 4:30? I don’t get out of work until 5:00.”

And yet, we night students contribute a wealth of professional experiences to this law school community, carefully developed before we even had the opportunity to step on campus. We are taskmasters and we are efficient-mostly because we don’t have a choice.  And yet, we excel. We are Public Interest Law Fellows and Law Review Editors. We are TAs and interns and 3:03 student attorneys. For four or five years, we wear many different hats. But when we walk across that stage to accept our degree, we are all wearing the same hat: graduate. Attending law school at night while working full-time may have almost killed us, but when we come out of it alive, it is with the confidence that we really can do anything.

Cape Cod Town Rebels Against “Starter Castles”

The tiny, rural Cape Cod town of Truro is tackling a big problem. Troubled by the trend for property owners to tear down modest, older seaside homes and replace them with behemoths referred to as “McMansions” or “starter castles,” some residents are pressing the town to enact limits on the size of new homes.

Truro, the narrow “wrist” of Cape Cod, is home to only 2,000 souls. The town boasts beaches that lure families and surfers, a charming harbor, restaurants that bustle during summer, and a vibrant arts community.

Seventy percent of Truro was absorbed into a national park in 1961 when President John F. Kennedy established the Cape Cod National Seashore to protect the fragile Cape environment. Within Truro’s National Seashore district are 200 privately-owned properties. About three-quarters are modest cottages and homes with less than 2,500 square feet of living space. Advocates for an amendment to Truro’s zoning bylaw view these properties at risk of being demolished and replaced by residential mammoths.

Two Truro residents, John Marksbury and Chuck Steinman, watched and worried as they saw modest, older homes torn down and replaced. They launched a grassroots organization named “Save Truro’s Seashore,” and spearheaded efforts to change the town’s zoning bylaw to restrict the size of newly-constructed homes. With numerous 3-acre lots, Truro’s Cape Cod National Seashore properties could succumb to the trend in destination resorts toward developer-owned vacation rentals, according to the “Save Truro’s Seashore” website. Marksbury said new buyers of properties in the National Seashore zoning district have deciphered local zoning weaknesses and are building homes of 4,000 square feet or larger.

Truro is one of a number of waterfront vacation destinations struggling to manage how to regulate the size of new dwellings. Residents of the Martha’s Vineyard town of Chilmark were inspired to take action after watching new home size mushroom over a period of years. The tipping point occurred when Adam and Elizabeth Zoia tore down a small home and replaced it with a 8,500 square foot home and two “accessory” buildings with a total of 20,000 square feet of space. The newly released documentary film, “One Big Home,” lays out how development has gobbled up open space on Martha’s Vineyard. Shot over twelve years by Massachusetts filmmaker and carpenter, Thomas Bena, “One Big Home” chronicles how mansionization spurred Chilmark residents to reign in new home size through the unpredictable process of direct democracy known as town meeting action.

Limiting how large an owner may build a home can uncover a clash of values: The right to control private property on one hand and a community’s desire to maintain its cultural heritage, community character, open space, and healthy environment on the other. Massachusetts land use attorney and planning expert, Joel Russell, wrote, “Good planning requires a balance between protecting property rights and protecting public welfare.”

In Massachusetts, the number of people living in each home is dropping while, at the same time, house size is expanding. The average size of a Massachusetts home in 1950 was 800 square feet; by 2000 18% of new homes were over 3,000 square feet. The growing size of homes has significant “collateral” effects. Large dwellings use more energy, produce more pollution, and eat up land at high rates.

In Truro, the proposed zoning amendment would limit the square footage of livable floor space relative to the size of a property. For example, on a lot less than one-half acre, the maximum house size would be 2,500 square feet. A zoning special permit process would be offered under certain conditions to permit larger homes, but the maximum size home allowed on any lot would be 4,500 square feet—if the bylaw amendment passes. Advocates for this zoning change acknowledge that zoning laws place limits on what people can do with their property and that the law must be fair and reasonable.

While Chilmark, Massachusetts, was successful in curbing unlimited new house size by amending its zoning bylaw in 2013, it is unclear how the Truro effort will fare. Voters will determine their community’s future at Truro’s spring 2017 town meeting.

photo

This newly constructed 9,570 sq. ft. Truro house sleeps 22 people, has a home theatre, 7 bedrooms, 8 bathrooms, an outdoor recreation complex and private beach. It’s available to rent. (Credit: Save Truro’s Seashore, savetruroseashore.org).

Related Film:

Thomas Bena’s One Big Home: www.onebighomethemovie.com

Sources:

Sarah Gardner, The Impact of Sprawl on the Environment and Human Health, in Urban Sprawl: A Comprehensive Reference Guide (David Soule ed. 2006).

John Ives, Truro Opens a Debate on Limiting the Size of Houses, Provincetown Banner, (Aug. 14, 2016), http://provincetown.wickedlocal.com/news/20160814/truro-opens-debate-on-limiting-size-of-houses.

John Marksbury, Preserving an American Treasure in Truro, Provincetown Banner (Jul. 21, 2016).

Joel Russell, Massachusetts Land-Use Laws–Time for a Change. 54 Land Use Law & Zoning Digest 3 (2002).

Save Truro’s Seashore, Market Trends (2016), http://www.savetruroseashore.org/market-trends.

Save Truro’s Seashore, Our Proposed Zoning Amendment (2016), http://www.savetruroseashore.org/our-proposed-zoning-amendment.

Mark Shanahan, Filmmaker Focuses on Vineyard’s Big ‘Starter Castles,’ Bos. Globe (Aug. 26, 2016), http://www.bostonglobe.com/metro/2016/08/26/big-houses-vineyard-draw-filmmaker-attention/R9HPKAVQIipEbbXRnbWSoM/story.html.

Remy Tumin, Hearing on Large Chilmark Home Airs Neighbors Claim of Violations, Vineyard Gazette (Jul. 26, 2012),

https://vineyardgazette.com/news/2012/07/26/hearing-large-chilmark-home-airs-neighbors-claim-violations.

Town of Truro Town, About Truro (2016), http://www.truro-ma.gov/about.

DON’T QUIT YOUR DAY JOB: Imputed Income as it Applies to Voluntary Impoverishment

Often, the breakdown of a relationship that produced a child is accompanied by obligations to pay child support. Child support is a hotly debated point of contention, both in and out of court, and can lead to emotional and financial turmoil for both parties. Courts apply Child Support Guidelines to determine which parent is the obligor (paying parent) and which one is the non-obligor (receiving parent). In most cases, the obligor parent is the non-custodial parent. Pursuant to the Child Support Guidelines, the obligor is required to pay an amount commensurate with his or her income. Oftentimes, the obligor parent believes this amount is too high and, in some cases, believes that becoming underemployed or unemployed will reduce his or her child support obligation. This is commonly referred to as voluntary impoverishment. However, this is not recommended, as the courts have incorporated the practice of imputing income to payor parents who have been found to be voluntarily underemployed or unemployed for the purposes of avoiding child support obligations.

Courts do not recognize a presumption that a reduction in salary is a purposeful attempt to avoid paying child support obligations. Thus, the burden is on the non-obligor parent to prove that the obligor parent is voluntarily under- or unemployed. The court will not impute income to a parent who is involuntarily under- or unemployed because punishing people who have been laid off is in contravention to public policy. Additionally, a recent Massachusetts Appeals Court decision added another provision to the attribution of income when the court held that income cannot be imputed to an under- or unemployed obligor parent unless the court makes a factual finding that the spouse is not engaged in a reasonable job search.

However, a parent’s obligation to his or her children is a well-established bulwark of family law in every state. Income attribution is appropriate in cases where an obligor parent voluntarily reduces their salary by becoming under- or unemployed, notwithstanding their ability and capacity to earn a higher income through reasonable effort. In these cases, the trial judge will not use actual income but the earning capacity of the obligor parent to determine child support obligations. Judges calculate earning capacity using a totality of the circumstances calculation. Factors considered include previous work history and salary, education, training, age, current job market, and efforts to secure employment.  Wide discretion is given to the trial judges through statute and case law that permit them to make assumptions based on these factors and their decisions will only be vacated upon abuse of discretion.

What about an obligor spouse that is voluntarily impoverished because of a good faith reason, such as returning to school, retirement, staying home to raise small children, wanting a less stressful environment, or just plain happiness? Even in these cases, the decision to change positions or become unemployed is not left to the sole discretion of the obligor spouse. Instead, courts have consistently held that those reasons “must be balanced against his [or her] obligations to support his [or her] former family.” Courts will not punish children for the decisions of the obligor parent. The exception to this is when an obligor parent is suffering from a physical or mental disability making full-time work virtually impossible. In these cases, courts will not impute income.

Obligor parents who are trying to avoid paying child support should understand that taking action to become (and remain) voluntarily impoverished will put the obligor parent in a more precarious financial situation. Courts will not reduce their child support obligations. The result is a lower paying job or no job at all with the same child support obligations. If an obligor parent does not put the best interests of the child first, the courts will compel him or her to do so. The message from the courts is clear: the rights of the child are paramount.

The Massachusetts state laws governing child support are: M.G.L. ch. 19, 208, 209, 209c.

Sources:

Charles P. Kindregan and Christina M. Knopf, Attributing Income in Massachusetts Domestic Relations Cases, Massachusetts Bar Association (Dec. 2012), http://www.massbar.org/publications/lawyers-journal/2012/december/attributing-income-in-massachusetts-domestic-relations-cases.

Child Support Guidelines, § IIH and G.L. c. 208 § 53(f).

Renee Lazar, Do Not Change Jobs to Lower Your Child Support in Massachusetts, Law Offices of Renee Lazar (Dec. 21, 2015), http://www.reneelazarlaw.com/blog/2015/12/do-not-change-jobs-to-lower-your-child-support-in-massachusetts.shtml.

Ulin v. Polansky, Mass App. Ct. 11-P-1450 (2013).

David W. Griffin, Earning Capacity and Imputing Income for Child Support Calculations: A Survey of Law and Outline of Practice Tips, 26 Journal of the American Academy of Matrimonial Lawyers 365 (2014), http://www.aaml.org/sites/default/files/MAT208_4.pdf.

Kristina Otterstrom, Child Support and Figuring Your Fair Share: Imputed Income, Lawyers.com, http://family-law.lawyers.com/child-support/imputed-income-in-child-support-calculations.html.

Annette T. Burns, What’s Necessary to Prove Imputed Income for a Spouse?, Annette T. Burns Attorney at Law (Feb. 11, 2011), http://heyannette.com/whats-necessary-to-prove-imputed-income-for-a-spouse/.

Cyber Law and the Tallinn Manual 2.0

The desire for mankind to become more interconnected has posed a multitude of new legal issues that cross multiple jurisdictional boundaries. Internationally, cyber topics have gained notoriety as humanity has developed new technologies used in the cyber realm. The cyber world is rampant with reports of child pornography, human-trafficking, and child grooming. There are an abundance of computer crimes like purchasing anonymous credit cards, bank accounts, encrypted telephones, and false passports, or identify theft. And these are only increasing in frequency as humans become more technologically interconnected. Even more concerning to some is the threat of the takeover of information networks and computers through cyberspace to execute acts of terrorism.

The legality of many issues within cyberspace are undefined and uncertain when compared to other international legal practice areas. In fact, common definitions for many cyber terms are malleable like: cyber security, cybercrimes, cyber defense, cyberattacks, and cyber warfare. As this field develops, there have even been disagreements about the proper terms themselves. The biggest questions surround the lack of a unique international legal framework to identify what is and is not acceptable behavior in cyberspace.

The Tallinn Manual, written by a group of international experts, examines how international law applies to cyber conflicts and cyber warfare. The project was initiated by the NATO Cooperative Cyber Defence Centre of Excellence though it does not represent the views of the Centre, the sponsoring nations, or NATO. The Tallinn Manual focuses particularly on jus ad bellum and international humanitarian law. Jus ad bellum, the law of wars, are those ‘rules’ to consult before engaging in war, whereas international humanitarian law focuses on jus in bello, the limitations to acceptable wartime behavior. The scope of the Tallinn Manual also touches on related subjects such as the law of state sovereignty, and the law of sea within the context of cyber topics.

The excitement for this practice area comes with the expected release of the Tallinn Manual 2.0. This second edition is planned to focus on providing guidance on applying existing international norms to the cyber context, similar to the first Tallinn Manual. However, it will expand the scope considered in the original Tallinn Manual and it will address cyber issues during peacetime international law. The focus here will be the challenges of daily cyber operations that do not rise to the level of armed attacks. It will touch on related subjects such as State responsibility, the law of the sea, international telecommunications law, space law, diplomatic and consular law, and human rights law within the context of cyber topics.

The Director of both editions is Professor Michael Schmitt, a Senior Fellow at the Centre, from the United States Naval War College in Newport, RI, and the University of Exeter in the United Kingdom. Professor Schmitt is an international law scholar, with a long list of accolades and contributions to international law.

The Tallinn Manual 2.0 is expected to be released in the latter part of 2016.