We cannot have evidence-based policymaking if policymakers refuse to change their minds when confronted with the actual facts, and instead cling to false stories. Yet, as my friend, Second Circuit Judge Pierre Leval pointed out to me, “the best way to know you have a mind is to change it.”
Hopefully, our copyright laws will change too; not to become weaker or stronger, but rather to become effective, become evidence based, become less an ideological or quasi-religious cause, and become more of a tool for doing good and avoiding harm.
Described by Justice Alito as “perhaps the most important criminal procedure case that this Court has heard in decades,” the Supreme Court’s decision in Maryland v. King will have far-reaching Fourth Amendment implications. In 2008, the Maryland General Assembly passed the Maryland DNA Collection Act, amending a 2002 statute that expanded police authority to collect DNA samples from those arrested for certain offenses. Under the statute, samples are collected at the time of arrest, but can only be analyzed once the arrestee has been charged and arraigned. Once collected, the DNA sample is immediately processed, submitted to the FBI’s Combined DNA Index System database (CODIS), and compared against other samples.
This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma.
A quarter century ago, the Lexington, Kentucky Veterans Affairs (VA) Medical Center pioneered a risk management program now known as “disclosure and offer.” Its guiding principal was that patients injured by malpractice should be told about the incident and “made whole” without having to litigate. After a patient suffered an injury that the VA judged to have been caused by a departure from the standard of care, the VA contacted the patient and, along with an attorney of his choosing, invited him to meet with VA staff.
Supreme Court cases reflect changing times. Suffolk University Law Review began in 1967, the year of Loving v. Virginia, a civil rights case that struck down state laws barring interracial marriage. In 2013, the Court has before it cases to determine the validity of federal and state laws limiting same-sex marriages.
Litigation is expensive, plain and simple. In a typical patent-infringement dispute, defending a case from start to finish—that is, from the complaint to the appeal—may cost a company upwards of a million dollars. Accordingly, the defendant-company will often choose to pay the patent holder a licensing fee instead of advancing its case to trial.
In Lopez v. Commonwealth, police officers sued the Commonwealth of Massachusetts and the Division of Human Resources (HRD), alleging HRD engaged in racial discrimination by creating and administering a multiple-choice examination for candidates seeking promotion to police sergeant that resulted in a disparate impact on minority candidates. The plaintiff class included all African-American and Hispanic police officers employed by civil service municipalities throughout Massachusetts who took the police sergeant promotional examination in the years 2005-2008 and were not “reached for promotion.”
On Friday, April 6, 2007, Howard Cotterman and his wife, Maureen, drove across the border from Mexico, seeking reentry to the United States at the Lukeville, Arizona Port of Entry (POE). A primary inspection of Cotterman’s passport revealed an alert due to Cotterman’s 1992 conviction for sex offenses involving a minor, and a Customs and Border Protection (CBP) officer conducted a secondary inspection of the Cottermans’ vehicle.