Archives

April 2013

• April 22, 2013 Twenty-First Century Fingerprinting: Supreme Court in King to Determine Privacy Interest in Arrestee DNA

  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.

March 2013

• March 19, 2013 Loss of Chance, Probabilistic Cause, and Damage Calculations: The Error in Matsuyama v. Birnbaum and the Majority Rule of Damages in Many Jurisdictions More Generally

  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.

February 2013

• February 25, 2013 Disclosure and Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation

  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.

• February 25, 2013 Genetic Engineering, Self-Replicating Technologies–and Used Books: Intellectual Property Law in 2013

  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.

  
  This piece looks at a different sector of the Court’s docket. Not coincidentally, Suffolk University Law Review Online begins as courts are paying increased attention to issues of high technology.
  
• February 25, 2013 Obviously Obvious: Federal Circuit Reverses District Court’s Decision That Online “Shopping Cart” Patents Are Nonobvious as a Matter of Law—Soverain Software LLC v. Newegg Inc.

  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.

• February 25, 2013 Supreme Judicial Court in Lopez Permits Interference Discrimination Claim Against Third Party Without Proof of Discriminatory Intent

  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.”

• February 25, 2013 The Ninth Circuit’s En Banc Rehearing of Cotterman: What’s on Your Laptop?

  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.