judicially created rule in Massachusetts

1983In Morash & Sons v. Commonwealth, 363 Mass. 612, 619-624 (1973), we expressed our view that the judicially created doctrine of governmental immunity from tort liability was “logically indefensible,” but we declined then to abolish it ourselves as we deemed “the comprehensive approach available to the Legislature [to be] the preferable course.” See also Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 662 (1975).

1983In Morash & Sons v. Commonwealth, 363 Mass. 612, 619-624 (1973), we expressed our view that the judicially created doctrine of governmental immunity from tort liability was "logically indefensible," but we declined then to abolish it ourselves as we deemed "the comprehensive approach available to the Legislature [to be] the preferable course." See also Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 662 (1975).

2019When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula." Lewis v. Lewis , 370 Mass. 619 , 628, 351 N.E.2d 526 (1976).

2019When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula." Lewis v. Lewis , 370 Mass. 619 , 628, 351 N.E.2d 526 (1976).

1983In Morash & Sons v. Commonwealth, 363 Mass. 612, 619-624 (1973), we expressed our view that the judicially created doctrine of governmental immunity from tort liability was “logically indefensible,” but we declined then to abolish it ourselves as we deemed “the comprehensive approach available to the Legislature [to be] the preferable course.” See also Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 662 (1975).

1983In Morash & Sons v. Commonwealth, 363 Mass. 612, 619-624 (1973), we expressed our view that the judicially created doctrine of governmental immunity from tort liability was "logically indefensible," but we declined then to abolish it ourselves as we deemed "the comprehensive approach available to the Legislature [to be] the preferable course." See also Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 662 (1975).

1982"The general rules of the common law, founded as they are upon `justice, fitness and expediency,' are designed to meet and be susceptible of being adapted `to new institutions and conditions of society ... [and to] new usages and practices, as the progress of society in the advancement of civilization may require.'" Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), quoting Commonwealth v. Temple, 14 Gray 69 , 74 (1860).

1982“The general rules of the common law, founded as they are upon ‘justice, fitness and expediency,’ are designed to meet and be susceptible of being adapted ‘to new institutions and conditions of society . . . [and to] new usages and practices, as the progress of society in the advancement of civilization may require.’” Commonwealth v. Gallo, 275 Mass. 320, 333 (1931), quoting Commonwealth v. Temple, 14 Gray 69 , 74 (1860).

2015The Commonwealth’s argument rests on the plurality opinion of Justice O’Connor in Massachusetts v. Oakes, 491 U.S. 576, 582 (1989), joined by three other Justices, which concluded that “overbreadth analysis is inappropriate if the statute being challenged has been amended or repealed.” Justice O’Connor reasoned: “Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression.

2014Id. at 159-60 (footnotes omitted; italics in original).

2000Utils., 405 Mass. 115, 119 (1989).

2000See Walker v. Butterworth, supra at 1079 n.6 (as to sanity, “the burden of proof is strictly a judicially created standard in Massachusetts”); Boston Gas Co. v. Department of Pub.

1993Jean W. v. Commonwealth, 414 Mass. 496, 501 (1993).

1993Onofrio v. Department of Mental Health, 408 Mass. 605, 609 (1990), S.C., 411 Mass. 657 (1992). 7 E.

1993Onofrio v. Department of Mental Health, 408 Mass. 605, 609 (1990), S.C., 411 Mass. 657 (1992). 7 E.

1990See Irwin v. Commissioner of the Dep’t of Youth Servs., 388 Mass. 810, 816 (1983).

1987We note that the trustee’s equal protection argument relies primarily on Trimble v. Gordon, supra, which invalidated an intestacy statute, not a judicially created rule.

1987Cf. Trimble v. Gordon, 430 U.S. 762, 774 (1977). [9] We note that the trustee's equal protection argument relies primarily on Trimble v. Gordon, supra , which invalidated an intestacy statute, not a judicially created rule.

1986Id. at 541-542 , quoting Desist v. United States, 394 U.S. 244, 248 (1969).

1986Id. at 541-542 , quoting Desist v. United States, 394 U.S. 244, 248 (1969).

1983See, e.g., Markham v. Allen, 1946, 326 U.S. 490, 494 ; 13 Wright, Miller & Cooper, Federal Prac. & Proc. sec. 3610.

1982The judicially created doctrine insulating landowners from liability utilized a concept of “status” to bar recovery for all trespassers, in a way that departs from the “fundamental concept that a man is liable for injuries caused by his carelessness,” Rowland v. Christian, 69 Cal. 2d 108,113 (1968).

1982The judicially created doctrine insulating landowners from liability utilized a concept of "status" to bar recovery for all trespassers, in a way that departs from the "fundamental concept that a man is liable for injuries caused by his carelessness," Rowland v. Christian, 69 Cal.2d 108, 113 (1968).

1978The early attitudes which gave birth to the doctrine of assumption of risk in employer-employee cases were explored by Mr. Justice Black in a case under the Federal Employers’ Liability Act, 45 U.S.C. § 54 (1970): “Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts . . . to insulate the employer as much as possible from bearing the ‘human overhead’ which is an inevitable part of the cost — to someone — of the doing of industrialized business.” Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 58-59 (1943).

1978The early attitudes which gave birth to the doctrine of assumption of risk in employer-employee cases were explored by Mr. Justice Black in a case under the Federal Employers' Liability Act, 45 U.S.C. § 54 (1970): "Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts ... to insulate the employer as much as possible from bearing the `human overhead' which is an inevitable part of the cost — to someone — of the doing of industrialized business." Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 58-59 (1943).