New England Law Review: Volume 50, Number 1 - Fall 2015

NEW ENGLAND LAW REVIEW

VOLUME 50

Fall 2015

NEW ENGLAND LAW | BOSTON

Smashwords edition. Copyright © 2015 New England School of Law. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

Published by New England Law Review. Digitally published in ebook editions, for New England Law Review, by Quid Pro Books, at Smashwords. Available in major digital formats and at leading retailers and booksellers.

Quid Pro Books

Quid Pro, LLC

5860 Citrus Blvd., suite D-101

New Orleans, Louisiana 70123

www.quidprobooks.com

qp

Cataloging for Volume 50, Number 1:

ISBN 978-1-61027-815-7 (ePUB)

CONTENTS

NEW ENG. L. REV., Vol. 50, No. 1 (Fall 2015)

SYMPOSIUM ISSUE

DISCIPLINE, JUSTICE, AND COMMAND, IN THE U.S. MILITARY:

MAXIMIZING STRENGTHS AND MINIMIZING WEAKNESSES IN A

SPECIAL SOCIETY

FOREWORD

50 YEARS: THROUGH CHANGING TIMES THE NEW ENGLAND LAW REVIEW REMAINS A CONSTANT

Nicholas Baran

50 NEW ENG. L. REV. 1

SYMPOSIUM

INTRODUCTION TO DISCIPLINE, JUSTICE, AND COMMAND IN THE U.S. MILITARY: MAXIMIZING STRENGTHS AND MINIMIZING WEAKNESSES IN A SPECIAL SOCIETY

Victor M. Hansen

50 NEW ENG. L. REV. 13

DISCIPLINE, JUSTICE, AND COMMAND IN THE U.S. MILITARY: MAXIMIZING STRENGTHS AND MINIMIZING WEAKNESSES IN A SPECIAL SOCIETY

Rachel E. VanLandingham

50 NEW ENG. L. REV. 21

ON UNITY: A COMMENTARY ON DISCIPLINE, JUSTICE, AND COMMAND IN THE U.S. MILITARY: MAXIMIZING STRENGTHS AND MINIMIZING WEAKNESSES IN A SPECIAL SOCIETY

Elizabeth L. Hillman

50 NEW ENG. L. REV. 65

TO PROSECUTE, OR NOT TO PROSECUTE, WHO SHOULD MAKE THE CALL?

James E. Gallagher

50 NEW ENG. L. REV. 73

NOTE

A NEW ERA OF EYEWITNESS IDENTIFICATION LAW: PUTTING EYEWITNESS TESTIMONY ON TRIAL

Sara Conway

50 NEW ENG. L. REV. 81

COMMENT

WITHOUT A BRIGHT-LINE ON THE GREEN LINE: HOW COMMONWEALTH V. ROBERTSON FAILED TO CRIMINALIZE UPSKIRT PHOTOGRAPHY

Jeffrey T. Marvin

50 NEW ENG. L. REV. 119

New England Law Review (ISSN 0028-4823) is published quarterly by New England Law Review, New England Law | Boston, 154 Stuart Street, Boston, Massachusetts 02116-5616. New England Law Review maintains a Web site at http://www.NewEngLRev.com.

Individual issues of New England Law Review are available for $15.00. The annual subscription rate for domestic subscribers is $35.00 ($40.00 for foreign subscribers), payable in advance. Subscriptions are renewed automatically unless notice to the contrary is received. Address changes or other requests regarding subscriptions should be directed to the Business Managing Editor at (617) 422-7294, or by email at lawreview@nesl.edu

Back issues may be obtained from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209-1987. William S. Hein & Co., Inc. can be reached by telephone at (716) 882-2600, and by fax at (716) 883-8100. William S. Hein & Co., Inc. maintains a Web site at http://www.wshein.com. Recent issues may be obtained directly from New England Law Review. The Law Review is also available on LEXIS and WESTLAW, and individual articles from recent editions may be obtained from the Law Review’s website, On Remand, located at www.NewEngLRev.com.

The Law Review invites the submission of unsolicited manuscripts either through the mail or electronically. Directions for electronic submission are available on the Law Review’s website at http://www.nesl.edu/lawrev/submissions.cfm. Manuscripts should be sent to the attention of the Editor-in-Chief. Manuscripts submitted through the mail cannot be returned. The Law Review requests that submitting authors disclose any economic interests and affiliations that may influence the views expressed in submissions.

The citations in the Law Review conform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).

Except as otherwise provided, the author of each article in this issue has granted permission for reprinting for classroom use, provided that: (1) copies are distributed at or below cost; (2) author and journal are identified; (3) proper notice of copyright is affixed to each copy; and (4) the user obtains permission to make such copies from the Law Review or the author.

New England Law Review is printed by Joe Christensen, Inc., 1540 Adams Street, Lincoln, Nebraska 68521, (800) 228-5030.

Postage is paid at Boston, Massachusetts, and additional mailing offices. POSTMASTER: send address changes and corrections to New England Law Review, New England School of Law, 154 Stuart Street, Boston, MA 02116-5616.

NEW ENGLAND LAW | BOSTON

FACULTY

ANNE M. ACTON, Professor of Law and Director of the Law Library, B.A., M.L.S., J.D.

GARY M. BISHOP, Professor of Law and Director of Legal Research and Writing, B.A., J.D.

ELIZABETH M. BLOOM, Associate Professor of Law and Director of the Academic Excellence Program, B.A., J.D.

DAVALENE COOPER, Professor of Law, B.A., M.A., J.D.

ROBERT A. COULTHARD, Academic Excellence Professor and Director of Bar Examination Preparation Services, B.A., J.D., LL.M.

BARBARA DORTCH-OKARA, Professor of Law, B.A., J.D.

ALLISON M. DUSSIAS, Professor of Law, A.B., J.D.

TIGRAN W. ELDRED, Professor of Law, A.B., J.D.

RUSSELL ENGLER, Professor of Law and Director of Clinical Programs, B.A., J.D.

LISA R. FREUDENHEIM, Visiting Academic Excellence Professor, B.A., J.D.

LAWRENCE M. FRIEDMAN, Professor of Law, B.A., J.D., LL.M.

JUDITH G. GREENBERG, Associate Dean and Professor of Law, B.A., J.D., LL.M.

VICTOR M. HANSEN, Professor of Law, B.A., J.D., LL.M.

DINA FRANCESCA HAYNES, Professor of Law, B.A., J.D., LL.M.

WILTON B. HYMAN, Professor of Law, B.A., J.D., LL.M.

PETER J. KAROL, Associate Professor of Law, B.A., J.D.

ILENE S. KLEIN, Clinical Law Professor, B.A., J.D.

LISA J. LAPLANTE, Associate Professor of Law and Director of the Center for International Law and Policy, B.A., M.Ed., J.D.

WAYNE K. LEWIS, Visiting Professor of Law, B.A., J.D.

ERIC A. LUSTIG, Professor of Law and Director of the Center for Business Law, B.S., M.S., J.D., LL.M.

PETER M. MANUS, Professor of Law and Co-Director of the Center for Law and Social Responsibility, B.A., J.D.

CARYN R. MITCHELL-MUNEVAR, Clinical Law Professor, B.A., J.D.

GARY L. MONSERUD, Professor of Law, B.A., J.D., LL.M.

JOHN F. O’BRIEN, Dean and Professor of Law, B.A., J.D., LL.M.

KENT D. SCHENKEL, Professor of Law, B.A., J.D., LL.M.

DAVID M. SIEGEL, Professor of Law and Co-Director of the Center for Law and Social Responsibility, B.A., J.D.

JORDAN M. SINGER, Professor of Law, A.B., J.D.

CHARLES W. SORENSON, JR., Professor of Law, B.A., M.A., J.D.

PAUL F. TEICH, Professor of Law, A.B., J.D.

MONICA TEIXEIRA DE SOUSA, Professor of Law, B.A., J.D.

J. RUSSELL VERSTEEG, Professor of Law, A.B., J.D.

ADJUNCT PROFESSORS OF LAW

ALEX AFERIAT, Lecturer on Law, B.S., J.D.

HON. GERALD ALCH, Adjunct Professor of Law, A.B., LL.B.

HON. FRANK J. BAILEY, Lecturer on Law, B.S.F.S., J.D.

DAVID BARON, Lecturer on Law, B.A., J.D.

ROBERT J. BAUM, Adjunct Professor of Law, B.S., J.D.

LAURA C. BICKEL, Lecturer on Law, B.A., J.D.

RACHEL BISCARDI, Lecturer on Law, B.A., J.D.

ERIC KEMPTON BRADFORD, Lecturer on Law, B.A., J.D.

DENNIS CALCAGNO, Lecturer on Law, B.A., J.D.

ADRIENNE E. CAMIRE, Lecturer on Law, B.A., J.D.

ERIC B. CARRIKER, Adjunct Professor of Law, A.B., J.D.

ADAM CEDERBAUM, Lecturer on Law, A.B., J.D.

JOHN F. COHAN, Lecturer on Law, B.S., J.D.

GARY S. COOPER, Adjunct Professor of Law, B.S., J.D., M.P.A.

HON. ROBERT J. CORDY, Lecturer on Law, A.B., J.D.

ANDREW P. CORNELL, Lecturer on Law, B.A., J.D.

FRANK C. CORSO, Adjunct Professor of Law, B.A., J.D.

HON. JOHN J. CURRAN, JR., Adjunct Professor of Law, A.B., J.D.

THOMAS H. DAY, Lecturer on Law, A.B., J.D.

WILLIAM DELKER, Lecturer on Law, B.A., J.D.

WAYNE F. DENNISON, Lecturer on Law, A.B., M.P.A., J.D.

JOAN COLE DENSBERGER, Lecturer on Law, B.S., M.P.H., J.D., LL.M.

ANNE-MARIE DINIUS, Lecturer on Law, B.S., J.D.

MICHAEL JOSEPH DONOVAN, Adjunct Professor of Law, B.A., J.D.

NADINE NASSER DONAVAN, Lecturer on Law, B.A., J.D.

MICHELE DORSEY, Adjunct Professor of Law, B.A., J.D.

MICHAEL DUFFY, Lecturer on Law, B.A., J.D.

KRISTIN DZIALO, Lecturer on Law, B.A., J.D.

DAWN D. EFFRON, Adjunct Professor of Law, B.A., J.D.

AMANDA EKEY, Lecturer on Law, B.A., J.D.

TYSON R. ENCE, Lecturer on Law, B.S., J.D.

R. PAUL FAXON, Lecturer on Law, B.A., J.D.

BRIAN FLAHERTY, Lecturer on Law and Reference Librarian, B.A., M.L.S.

FRANK GISO III, Lecturer on Law, B.A., J.D.

ROBERT GOLDSTEIN, Lecturer on Law, J.D., LL.M.

HON. SYDNEY HANLON, Lecturer on Law, A.B., J.D.

DIMITRY S. HERMAN, Lecturer on Law, B.A., J.D.

PATRICIA A. JONES, Adjunct Professor of Law, A.B., M.A., J.D

GLENN S. KAPLAN, Adjunct Professor of Law, B.S., J.D.

NANCY E. KAUFMAN, Adjunct Professor of Law, B.A., J.D.

PETER KAUFMAN, Adjunct Professor of Law, B.S., M.B.A., J.D., LL.M.

JOHN KIERNAN, Adjunct Professor of Law, A.B., J.D.

VINCENT LAU, Lecturer on Law, B.A., J.D., M.A.

HON. MARK E. LAWTON, Adjunct Professor of Law, B.A., J.D.

ANDREW LELLING, Lecturer on Law, B.A., J.D.

HON. STEPHEN M. LIMON, Adjunct Professor of Law, A.B., J.D.

DAVID LONDON, Lecturer on Law, B.A., J.D.

HON. DAVID A. LOWY, Adjunct Professor of Law, B.A., J.D.

GRETCHEN LUNDGREN, Lecturer on Law, B.A., J.D.

MAUREEN A. MACFARLANE, Lecturer on Law, B.A., M.A., M.S., J.D., M.E.L.

HON. GORDON A. MARTIN, JR., Adjunct Professor of Law, A.B., LL.B.

KRISTIN MCCARTHY, Lecturer on Law and Associate Director of the Law Library, B.A., J.D., M.L.S.

CLARE MCGORRIAN, Lecturer on Law, B.A., J.D.

ALAN R. MILLER, Adjunct Professor of Law, B.A., J.D., LL.M.

DAVID MONAHAN, Lecturer on Law, B.A., J.D.

SHEILA H. MONDSHEIN, Adjunct Professor of Law, B.A., J.D.

HALIM MORIS, Lecturer on Law, B.S., J.D.

FRANCIS MORRISSEY, Lecturer on Law, B.A., J.D.

MATTHEW MOSCHELLA, Lecturer on Law, B.A., M.S.W., J.D.

WENDY J. MURPHY, Adjunct Professor of Law, B.A., J.D.

GARETH ORSMOND, Lecturer on Law, B.A., M.M., J.D.

CINDY TK PALMQUIST, Lecturer on Law, B.A., J.D.

PETER PERRONI, Lecturer on Law, B.A., J.D.

GERALD A. PHELPS, Adjunct Professor of Law, B.S., M.S., J.D., LL.M.

HON. MICHAEL J. POMAROLE, Lecturer on Law, B.A., J.D.

JACQUELYN REDMOND, Lecturer on Law, B.A., J.D.

HON. ROBERTO RONQUILLO, JR., Adjunct Professor of Law, B.A., J.D.

HON. JAMES P. ROONEY, Lecturer on Law, A.B., J.D.

DAVID RUSSMAN, Lecturer on Law, B.A., J.D.

ELIZABETH SAHATJIAN, Lecturer on Law, B.A., M.A. J.D.

FRANK J. SCHARAFFA, Adjunct Professor of Law, A.B., LL.B., LL.M.

THOMAS SHACK III, Lecturer on Law, B.A., M.B.A., J.D.

CARLA SPIVACK, Lecturer on Law, B.A., J.D., Ph.D.

HON. CHARLES T. SPURLOCK, Lecturer on Law, B.S., J.D.

JENNIFER SUNDERLAND, Lecturer on Law, B.A., J.D.

VINCENT M. TENTINDO, Adjunct Professor of Law, A.B., J.D.

GARY OWEN TODD, Lecturer on Law, B.A., J.D.

MARIA ELENA VIGNOLI, Lecturer on Law, B.L., M.A., LL.M.

LAUREN VITALE, Lecturer on Law, B.A., J.D.

ADRIENNE WALKER, Lecturer on Law, B.A., J.D.

HON. CHARLES E. WALKER, JR., Lecturer on Law, B.A., J.D.

HON. RICHARD E. WELCH III, Adjunct Professor of Law, B.A., J.D.

DONNA WHITE, Lecturer on Law, A.B., J.D., LL.M.

TIMOTHY L. WILLIAMSON, Lecturer on Law, B.A., J.D.

BETH A. WOLFSON, Lecturer on Law, B.A., J.D.

LEGAL RESEARCH AND WRITING FACULTY

ANTHONY ABELN, Instructor of Legal Writing, B.A., M.A., J.D.

LAURA MANNION BANWORTH, Instructor of Legal Writing, B.A., J.D.

DAVID M. BAE, Instructor of Legal Writing, B.A., J.D.

DAVID N. BRODSKY, Instructor of Legal Writing, A.B., J.D., LL.M

ELAINE M. BUCKLEY, Adjunct Professor of Legal Writing, B.A., J.D.

BETH PIRRO COOK, Instructor of Legal Writing, B.A., J.D.

CURTIS B. DOOLING, II, Instructor of Legal Writing, B.A., J.D.

GINA GOMBAR, Instructor of Legal Writing, B.A., J.D.

TERESA M. HARKINS LA VITA, Instructor of Legal Writing, B.A., J.D.

DOUGLAS R. HYNE, Instructor of Legal Writing, B.A., J.D.

C. VERED JONA, Instructor of Legal Writing, B.A., J.D.

LISA JOHNSON, Adjunct Professor of Legal Writing, B.A., J.D.

MICHELLE R. KING, Adjunct Professor of Legal Writing, B.A., M.P.H., J.D.

LUKE H. LEGERE, Instructor of Legal Writing, B.A., J.D.

CATHERINE LIZOTTE, Instructor of Legal Writing, B.S., J.D.

PAULA F. MANGUM, Adjunct Professor of Legal Writing, B.A., J.D.

NANCY L. MCPHEETERS, Adjunct Professor of Legal Writing, B.S., J.D.

NOREEN A. MURPHY, Adjunct Professor of Legal Writing, B.A., J.D.

PETER J. RIORDAN, Instructor of Legal Writing, B.A., M.B.A., J.D.

STEPHANIE M. SIMMONS, Instructor of Legal Writing, B.A., J.D.

JOSEPH F. STANTON, Adjunct Professor of Legal Writing, B.A., J.D.

HILLARY W. STEINBROOK, Instructor of Legal Writing, B.A., J.D.

MARK D. SZAL, Instructor of Legal Writing, B.A., J.D.

SIDRA VITALE, Instructor of Legal Writing, B.S., J.D.

DAVID W. WATERFALL, Instructor of Legal Writing, B.A., J.D.

FOREWORD

50 Years: Through Changing Times the New England Law Review Remains a Constant

NICHOLAS BARAN*

50 NEW ENG. L. REV. 1 (2015)

INTRODUCTION

As then-Massachusetts Governor John A. Volpe wrote in the inaugural issue of the Portia Law Journal, the goal of the new law review was simple: to add to laurels already achieved in the field of legal writing.¹ Massachusetts, he continued, is proud of its leadership in the field of legal education, and it is most gratifying to see the Portia Law School moving forward in this tradition as evidenced not only by the establishment of this law review, but by the successful achievements of many of [this] fine school’s graduates.²

The Portia Law Journal was soon making strides in the legal community and being recognized for its excellence. This was not new for the law school—in fact it was the first institution solely dedicated to the education of women.³ Fifty years later, and after a name change in 1969,⁴ the New England Law Review continues to strive for excellence in the field of legal scholarship. As it seeks to expand its reach throughout the legal community, its members today hold true to the tradition of excellence with which the publication was founded.

I. Looking Back: A Reflection on What Was

A. Laying the Groundwork for Success and Scholarship

From the beginning, the members of the publication sought the best and the brightest contributions from the legal community. In the first issues, published in the fall of 1965 and spring of 1966, the Portia Law Journal featured contributions from United States Senator Claiborne Pell and future United States Senator (then Attorney General for Massachusetts) Edward W. Brooke.⁵ The Portia Law Journal was focused on publishing content that was timely and relevant, and its members sought to devote its pages to the discussion of important legal issues. After the United States Supreme Court decided Griswold v. Connecticut, the Portia Law Journal published an article analyzing the legal justification for the Court’s decision.⁶ But recent Supreme Court case law was not the only issue featured in the Portia Law Journal. Issue Three included an article discussing the need for law to protect clean water supplies throughout the country.⁷ The Portia Law Journal also attracted notable contributors. In particular, it published a piece from future Governor of Massachusetts, Michael Dukakis.⁸ Then a member of the Massachusetts House of Representatives, Dukakis’s piece addressed the disdain the people of the Commonwealth had for the legislature and its antiquated structure; he proposed action to reshap[e] and moderniz[e] the legislature in the Commonwealth.⁹ Dukakis was not the only elected leader the Portia Law Journal published in Volume 3—that volume also featured an adapted speech from then-Vice President of the United States Hubert Humphrey discussing change in local government.¹⁰ From its infancy, the Portia Law Journal sought to publish authors who would go on to become agents of change in Massachusetts and the nation. The Journal was moving forward [Massachusetts’] tradition [of leadership in legal education] . . . .¹¹ It started off strong and would continue to grow stronger in the years to come.

B. New Name—Same Purpose

In 1969, Portia Law School became New England School of Law.¹² Now the New England Law Review, the publication maintained its mission to publish articles relevant to contemporary issues, including such topics as wiretapping, the U.S. Constitution, and the relevant state and federal laws controlling government surveillance.¹³ Indeed, constitutional issues and Supreme Court cases remained a staple within the New England Law Review’s pages: from desegregation of public schools,¹⁴ and the Establishment Clause,¹⁵ to reviewing entire Supreme Court terms,¹⁶ and the right to free speech on college campuses.¹⁷

In 1974, the tenth anniversary volume of the Law Review featured the co-founder and Dean of the Delaware Law School, Alfred Avins, who offered commentary on the legal issues surrounding integration.¹⁸ Volume 10 also published an article by a Mississippi inmate.¹⁹ Louis X. Holloway’s piece took a prisoner’s view of conjugal visitation in a southern prison—and how the structure of these visits was a form of racial oppression of the African American prisoners.²⁰ This article brought these issues to light from the perspective of a man living them. In essence, this article reflected the history of the law school and its mission—to create opportunities for those who might otherwise be excluded from the larger legal discourse.²¹

Staying true to its roots in making a difference in the legal community, the New England Law Review sought to shed light on the legal issues affecting the American people. In Volume 12, this included a discussion focusing on how the lending practices of financial institutions contributed to the deterioration of urban areas in America.²² The quality of the scholarship published in the Law Review also attracted young local professionals to submit articles on relevant legal issues.²³

Into its second decade, the Law Review was publishing important work by notable public figures. In 1981, Congressman John Joseph Moakley contributed a foreword for the Law Review’s fourth issue.²⁴ This piece introduced the Law Review’s Spring Symposium, which focused on administrative agencies.²⁵ Congressman Moakley noted, the articles and notes appearing in this volume will serve a more substantive purpose than simply to entice the curiosity of legal scholars.²⁶ Here, the Law Review was