Table of Contents - CORE · Motor vehicle liability insurance: The effect of no-fault concepts on the ra:te setting process Commissioner's power to regulate casualty insurance rates

Annual Survey of Massachusetts Law

Volume 1972 Article 3

1-1-1972

Table of ContentsBoston College Annual Survey of Massachusetts Law

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Recommended CitationBoston College Annual Survey of Massachusetts Law (1972) "Table of Contents," Annual Survey of Massachusetts Law: Vol. 1972,Article 3.

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TABLE OF CONTEN.TS

CHAPTER 1

SEARCH AND SEIZURE

§ 1.1 Introduction § 1.2 Warrantless entries on land § 1.3 Warrantless automobile searches §1.4 Warrantless arrest and search § 1.5 Plain view doctrine § 1.6 Sufficiency of affidavit § 1. 7 Sufficiency of search warrant

STUDENT COMMENT

§ 1.8 Warrantless automobile searches: The "automobile"

3 3 8

16 18 19 22

exception to the Fourth Amendment 23

CHAPTER 2

STATE AND LOCAL TAXATION

A. §2.1 §2.2 §2.3 §2.4 §2.5

PROPERTY TAXES Definition of real estate Agreements to grant exemptions Timely Appeals to Appellate Tax Board Separate assessment of restricted land Tax incentives for property used to control air pollution

B. CORPORATE EXCISE TAXES

36 37 38 38 39

§2.6 Manufacturing corporations 40 §2.7 Security corporations: Chatham Corp. v. State Tax

Commission 40 §2.8 Consolidated returns 42

C. PERSONAL INCOME TAXES

§2.9 Low income credit 43

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Boston College Annual Survey of Massachusetts Law: Table of Contents

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viii TABLE OF CONTENTS

D. SALES AND USE TAXES §2.10 Exemptions

E. INHERITANCE TAXES §2.11 Exemption for legacies to out-of-state charities §2.12 Filing procedures in federal estate tax cases

CHAPTER 3

WORKMEN'S COMPENSATION LAW

§3.1 Coverage of the Workmen's Compensation Act: Elimina-

44

46 46

tion of elective coverage categories 49 §3.2 Coverage of 'the Workmen's Compensation Act: En-

forcement of compulsory coverage 51 §3.3 Employee: Juror not considered employee of county 53 §3.4 Injuries to which the Act applies: Going and coming rule 54

CHAPTER 4

PARTNERSHIPS AND CORPORATIONS

A.

§4.1 §4.2

§4.3 §4.4

§4.5

§4.6 §4.7 §4.8

B. §4.9 §4.10

C. §4.11

COURT DECISIONS

Partnerships: What constitutes creditor or partner Corporations: Competition by former officers: Confi-

dential information: Fiduciary relationship Informal compensation agreements Authority of corporate officers to enter real estate

agreements: Lucey v. Hero International Corp. Liability of individual corporate officers for negligence

or nonfeasance Liability of corporations for civil contempt Corporate criminal liability Responsibility of a parent corporation for the criminal

acts of a subsidiary corporation

LEGISLATION Domestic charitable corporations: Legislative changes Professional corporations: Statutory amendments

STUDENT COMMENT Criminal liability of a corporation for the acts of its

agents: Commonwealth v. Beneficial Finance Company

61

63 65

66

69 71 71

74

75 81

82

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Annual Survey of Massachusetts Law, Vol. 1972 [1972], Art. 3

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TABLE OF CONTENTS

CHAPTER 5

INSURANCE LAW

A.

§5.1

§5.2

§5.3

§5.4 §5.5

§5.6

§5.7 §5.8 §5.9

§5.10

§5.11

JUDICIAL DECISIONS

Motor vehicle liability insurance: The effect of no-fault concepts on the ra:te setting process

Commissioner's power to regulate casualty insurance rates

Judicial review of the 1972 motor vehicle increased limits insurance rates

Taxation of insurance premiums: Sta:tus of dividends Unfair or deceptive act or practice: Exhaustion of ad

ministrative remedies Authority to write additional line of business: Adminis-

trative discretion Insurer's duty to defend and indemnify Fire insurance policy: Increase of hazard Motor vehicle liability insurance: Scope of "loading and

unloading" clause Motor vehicle liability insurance: Policy interpretation:

Scope of coverage and the effect of an "excess insurance" clause

Miscellaneous Cases

B. LEGISLATION

ix

93

95

96 97

99

100 102 105

106

108 109

§5.12 Unfair acts or practices 112 §5.13 Life insurance: Issuance to mentally retarded minors 114 §5.14 Termination of employment: Notice of continued group

coverage 115 §5.15 Preclusion of banking institutions from certain insurance

'activities 115 §5.16 Acts affecting motor vehicle liability insurance 116 §5.17 Miscellaneous Acts 118

CHAPTER 6

COMMERCIAL LAW

A. BANKING LAW

§6.1 Massachusetts motor vehicle certificate law 120 §6.2 Massachusetts Fair Credit Reporting Act: Differences

from federal law 121

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§6.3 Sex discrimination in granting mortgage loans 122 §6.4 Protection of consumers against careless and erroneous

billings 122 §6.5 Prohibition against selVing as a director or officer of

more than one banking institution 123 §6.6 Issuance of credit cards by savings banks 123 §6.7 Trustee process legislation 123 §6.8 Late charges in mortgage transactions 124 §6.9 Residential mortgages: Certification of title 124 §6.10 Other Statutory developments 125 §6.11 Savings banks: Negotiable orders of withdrawal 126 §6.12 Constitutionality of repossession and replevin: Fuentes v.

Shennn 129 §6.13 Constitutionality of trustee process: Schneider v. Mar-

gossian 130 §6.14 Authority of national banks to provide travel agency ser-

vices 131

B. UNIFORM COMMERCIAL CODE

§6.15 Contracts for the sale of securities: Statute of Frauds 132 §6.16 Forged indorsements 136 §6.17 Bill of lading as evidence of condition of merchandise:

Plastileather Corporation v. Aetna Casualty and Surety Company 137

§6.18 Prospective profits as an element of damages 137

CHAPTER 7

CRIMINAL LAW AND PROCEDURE

A. IDENTIFICATION

§7.1 Introduction 139 §7.2 Independent origin of in-court identifications: Admissi-

bility of inculpatory gestures: Right to counsel at photographic showing 140

§7.3 Kirby v. Illinois: A limitation on the right to counsel 145

B. OTHER DEVELOPMENTS

§7.4 Right to a speedy trial:. Delay prior to arrest or indict-ment: Application for a speedy trial 148

§7.5 Pretrial disclosure of alibi defense 153

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TABLE OF CONTENTS

C. STUDENT COMMENT

§7.6 Constitutional right of indigent accused of felony to free typewritten transcript. of probable cause hearing:

xi

Commonwealth v. Britt 155 §7.7 Grand jury minutes: Disclosure: "Particularized Need"

rule 168 §7.8 Criminal discovery: Alibi-notice statutes 184 §7.9 The defense of diminished capacity 207

CHAPTER 8

TRUSTS AND ESTATES

§8.1 §8.2

§8.3 §8.4

§8.5

§8.6 §8.7 §8.8 §8.9 §8.l0

§8.11

§8.12

Fiduciary accounting: Allowance: Book values Fiduciary accounting: Allowance: Future interests: Tax

clause Estates: Joint tenancy: Simultaneous death Interpretation of wills: Meaning of "issue:" Adopted

child Interpretation of wills and trusts: Adopted child: Vested

rights Reciprocal wills: Contracts New regulation: Short statute of limitations: Creditors New legislation: Real estate: Expense of administration New legislation: Interest on legacies: Trust distributions New legislation: Charitable trusts and private founda-

tions New legislation: Lapsed legacies: Meaning of "relation:"

Adopted children Other legislation

CHAPTER 9

PROPERTY

221

224 227

229

235 240 243 244 245

245

246 247

§9.1 Regulation of payment of fees to banks' attorneys 248 §9.2 Restrictions: Common scheme 251 §9.3 Easement: Use by motor vehicles 255 §9.4 Encroachments 256 §9.5 Statute of Frauds 259 §9.6 Mortgage foreclosure: Notice to second mortgagee 259

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xii TABLE OF CONTENTS

§9.7 First refusal in lease §9.8 Jurisdiction of nonresident §9.9 Tax taking: Notice to mortgagee

C HAP T E R 10

260 261 261

CONSUMER LAW

§10.1 Introduction 262 §10.2 Credit cards: Issuance, charges and liability 262 § 10.3 Credit: Definition: Criteria 265 §10.4 Credit: Truth-in-lending 267 §10.5 Debt collection: Due process: Wage exceptions 270 §10.6 Unfair and deceptive practices: Remedies 271 §10.7 Unfair and deceptive practices: Inclusions: Landlord

and tenant 275 §10.8 Unsafe products 276

CHAPTER 11

REGULATION OF CABLE ANTENNA TELEVISION SYSTEMS

§ 11.1 Introduction 279

I. OvERVIEW OF THE REGULATORY SYSTEM

§11.2 The Massachusetts statute 281 §11.3 The FCC regulations 283

II. THE LICENSING PROCESS

§11.4 Area to be served 285 §1l.5 The application process 286 §1l.6 The issuance of licenses 287 §11.7 Certification of the license by the FCC 291 §11.8 Appeals to the Commission: Judicial review 294 §11.9 Assignment and transfer of licenses 296

III. ENFORCEMENT PROCEEDINGS

§11.10 Administrative action: Revocation and suspension 297 §11.11 Judicial action: Injunctive relief; Suit on the bond;

and CriIninal proceedings 298 §11.12 Conclusion 299

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TABLE OF CONTENTS

C HAP T E R 12

EVIDENCE

§ 12.1 Criminal identification evidence § 12.2 Privilege against self-incrimination §12.3 Juvenile delinquency proceedings §12.4 Criminal discovery §12.5 Statutory Changes

TORTS

A. §13.1 §13.2 §13.3 §13.4 §13.5 §13.6

B. §13.7

§13.8 §13.9

C. §13.1O

§13.11

§ 13.12

D. § 13.13 §13.14 §13.15

§13.16 §13.17

C HAP T E R 13

NEGLIGENCE

Negligence: Foreseeability: Dramshop liability Negligence: Sudden emergency Liability of a corporation and its officers for negligence Business invitees: Social guests: Distinctions Child care centers: Duty of proprietors Landlord and tenant: Duty to repair

WRONGFUL DEATH

Wrongful death: Conscious suffering: Statute of limi-tations

Wrongful death: Damages Wrongful death: Stillborn and liveborn fetus

IMMUNITY

Governmental immunity: School committee; school teachers

Landowners: Limitation of liability: Land made avail-able for public use

Immunity: Professional societies and committees

MISCELLANEOUS

Trade secrets Strict liability: Blasting operations Bailments: Automobile parking facilities: Disclaimers

of liability Schools: Corporal punishment Torts of minors: Parental responsibility

E. STUDENT COMMENT

xiii

301 310 312 313 318

320 321 322 323 324 325

328 330 331

332

333 333

333 335

336 336 337

§13.18 Trade secrets: Jet Spray Cooler, Inc. v. Crampton 337

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xiv TABLE OF CONTENTS

C HAP T E R 14

CONTRACTS

A.

§14.1 §14.2

B.

§14.3 §14.4

C.

§14.5 §14.6

D.

§14.7

FORMATION

Testamentary contracts Husband's liability for loan to wife where proceeds are

used for their mutual benefit

PERFORMANCE AND BREACH

Performance of brokerage contract Breach of confidential fiduciary relationship

DEFENSES

Defenses to testamentary contracts Municipal contracts for legal services

REMEDms

Builder's remedies for buyer's breach of construction contract: Contract price or quantum merit

C HAP T E R 15

MEDICAL MALPRACTICE

357

359

360 362

364 365

367

§15.1 Introduction 370 §15.2 Minors: Consent to medical treatment 370 §15.3 Immunity: Charities and emergency treatment 374 §15.4 Statute of limitations in medical malpractice cases 379 §15.5 Evidentiary uses of medical treatises, periodicals, pam-

phlets, etc. in medical malpractice cases 381 §15.6 Conclusion 386

STUDENT COMMENT

§15.7 Planning for unplanned child litigation 387

C HAP T E R 16

STATE AND LOCAL GOVERNMENT

§ 16.1 Introduction 409

8



A.

§16.2 §16.3 §16.4 §16.5

B.

§16.6 §16.7

TABLE OF CONTENTS

VOTING AND ELECTIONS

Student voting Durational residence requirements Initiative and referendum Religious restriction on candidacy for election as

trustee of public charitable trust

REVENUE SHARING

State and Local Fiscal Assistance Act of 1972 Other developments

C. MISCELLANEOUS CASES

§16.8 §16.9 §16.1O §16.11 §16.12

Power of local governing bodies to summon witnesses Public records Review of town by-laws by the Attorney General Municipal liability for contracts and torts Standards of conduct for public officers

CHAPTER 17

xv

409 412 413

416

418 421

422 424 426 430 432

TAX ASPECTS OF URBAN REDEVELOPMENT CORPORATIONS

§17.1 Introduction 435 § 17.2 Evolution of the urban redevelopment corporation 435 § 17.3 Exemptions from real and personal property taxes 443 § 17.4 The excise tax 444 §17.5 The contract payment 447 §17.6 The incentive effect of Chapter 121A 448 §17.7 The administration of the Chapter 121A payments 449 § 17.8 A reappraisal 453

C HAP T E R 18

CONSTITUTIONAL LAW

§18.1 The eligibility of political candidates to be listed on election ballots 455

§18.2 . Criminal law: Constitutionality of flag desecration and motorcycle helmet statutes 457

§18.3 Constitutional privilege to protect information sources: Recent developments 458

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xvi TABLE OF CONTENTS

§ 18.4 Criminal procedure: Prosecutorial duty to disclose exculpatory infonnation: Hannless error doctrine: Immunity statutes 462

§18.5 Abortion: The interaction between legal doctrine and medical technology 467

§18.6 Miscellaneous cases 469

STUDENT COMMENTS

§18.7 Criminal contempt: Right to trial by jury and prohibi-tion of multiple punishments for single offenses 473

§18.8 Statutory prohibition of promotional games in the re-tail fuel industry: Mobil Oil Corp. v. Attorney Gen-eral 500

§18.9 Standing to assert third party rights: Eisenstadt v. Baird 511

C HAP T E R 19

MASSACHUSETTS UNIFORM SECURITIES ACT

§19.1 §19.2 §19.3 §19.4 §19.5 §19.6

Introduction Summary of the New Act Changes from prior law: Exemptions Changes from prior law: Conflict of laws Changes from prior law: Other significant changes Conclusion

C HAP T E R 20

CIVIL PROCEDURE

§20.1

§20.2 §20.3 §20.4 §20.5 §20.6

Trustee process: Constitutional and procedural develop-ments

The Massachusetts Appeals Court Class actions Personal jurisdiction: Extent and application Judicial review of administrative actions Limitations imposed on exercise of jurisdiction: Re

ligious controversies

521 522 525 530 531 534

535 540 544-551 555

558

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TABLE OF CONTENTS xvii

STUDENT COMMENT

§20.7 Interlocutory appeals from orders denying class action certification: The injunction theory: The dilemma of the class action plaintiff denied class certification 560

C HAP T E R 21

ENVIRONMENTAL LAW

§21.1 Introduction

A. Am POLLUTION CONTROL

§21.2

§21.3 §21.4 §21.5 §21.6

B.

§21.7

C.

§21.8 §21.9 §21.10

D.

§21.11 §21.12 §21.13

The Massachusetts implementation plan: Introduction and Background

Regulations of general applicability The six specifically regulated pollutants Other provisions Enforcement

WATER POLLUTION CONTROL

The Federal Water Pollution Control Act Amendments of 1972

ENVIRONMENTAL IMPACT STATEMENTS: MEPA

MEPA: Introduction MEPA Section 61 MEPA Section 62

OTHER MASSACHUSETTS LEGISLATIVE DEVELOPMENTS

Wetland protection procedures Coastal marine resources Other developments

C HAP T E R 22

LAND USE LAW

§22.1 Zoning plans: Adoption: Special zoning boards and

578

578 583 584 596 597

602

605 606 609

612 614 614

curative statutes 616

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xviii TABLE OF CONTENTS

§22.2 Zoning regulations: Amendment: Timing and content of notice 617

§22.3 Denial of building permit: Proposed amendment as basis 620

§22.4 Zoning regulation coverage: Provisions for sewage fa-cilities 622

§22.5 Flood plain zoning 623 §22.6 Definition of terms: "Lot" and "Farm" 627 §22.7 Appeal by city council from board of appeal decision 629 §22.8 Zoning appeals: Judisdictional requirements 629 §22.9 Accessory uses 630 §22.10 Nonconforming uses: Expansion of use: Billboard regu-

lation 632 §22.11 Special permits 637 §22.12 Variances 640

CHAPTER 23

PUBLIC UTILITIES

STUDENT COMMENT

§23.1 Public utility rate regulation: Standards of judicial re-view in Massachusetts: Effects of inflation on the regulatory process: Management prerogatives 646

C HAP T E R 24

JUDICIAL CONDUCT AND PROFESSIONAL RESPONSIBILITY

§24.1 Introduction 670

A.

§24.2 §24.3 §24.4

B.

§24.5 §24.6 §24.7

PROFESSIONAL RESPONSIBILITY

The Code Canons of Ethics and related Disciplinary Rules Disciplinary enf~rcement

JUDICIAL CONDUCT

Introduction The Canons and related Rules Code Enforcement

670 671 675

676 677 678

12



C.

§24.8

§24.9

TABLE OF CONTENTS

STUDENT COMMENTS

Consti:tutional processes for the discipline of judges in Massachusetts

Non-constitutional processes: Judicial self-discipline in Massachusetts: In Re DeSaulnier

XIX

679

703

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1972 Annual Survey of

Massachusetts Law

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