- 50th Anniversary
- Online Edition
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- Donahue Lecture Series
In the United States, a criminal suspect held in police custody may refuse to answer questions during an interrogation, but if a suspect waives this right, anything he says during questioning can be used as evidence against him at trial. The government bears the burden of proving that the suspect waived these rights voluntarily and free of coercion. The government traditionally satisfied its burden by presenting testimonial evidence that the police informed the suspect of his rights, that the suspect understood those rights, and that the suspect voluntarily spoke to the police. In Commonwealth v. DiGiambattista, the Massachusetts Supreme Judicial Court (SJC) held that if the police fail to electronically record a suspects custodial interrogation and later proffer the statements as evidence at trial, a defendant may request, and will be granted, a jury instruction allowing the jury to weigh the voluntariness of the alleged statements with caution. . . .
Employment discrimination remains a difficult and stubborn workplace problem for both employees and employers. Some of this wrongful conduct reminds us of terrible historical events. For example, in one case black workers reported being compared to slaves and monkeys. In another case, black workers complained about repetitive racial slurs, acts of intimidation, and assaults with bats. One Florida case included complaints from black workers about a hangmans noose, prominently displayed in the companys stockroom where it remained for many years. A black worker was told that the noose was used to hang blacks.
These cases, along with equally offensive acts of sexual harassment, remind us that American workers retain a strong taste for discrimination. Discrimination is occurring at every level, from the shop floor to the boardroom. Despite the extensive array of laws prohibiting discriminatory employment practices, discrimination remains a fixture in the workplace. This reality humiliates employee victims and exposes employers to liability. This liability, in part, forces employers to consider ways of limiting discriminatory behavior in the workplace. Many employers have decided that the costs and harm associated with discrimination can be controlled by zero tolerance rules. Along with these rules, employers often provide education and training about Title VII of the Civil Rights Act of 1964 (Title VII), and the employers expectations with respect to workplace behavior. Employers often discharge violators of zero tolerance rules on the first offense. . . .
”In truth, I am as distressed as the Court is,” Justice Antonin Scalia wrote in his dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey, “about the ‘political pressure’ directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions.” ”How upsetting it is,” he continued, “that so many of our citizens . . . think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”
Scalia’s understanding of the judicial role is a familiar one. Social movements may protest long and loud for recognition of their constitutional claims, but judges are not supposed to heed them. Rather, they are supposed to follow the law, as best they can determine what the law is. As Chief Justice Rehnquist once explained, although judges are clearly as influenced by public opinion as anyone else living in the world, they are not supposed directly to respond to the claims of social movements. . . .
For more information about Professor Balkin’s Donahue Lecture (which served as the basis for this article) please click here.
Computer systems that record data about automobile functioning have been inseparable components of many airbag systems since the early 1970s. With the full support of government agencies, the promise and utility of these ”black boxes” initially lay in acquiring a more accurate picture of seatbelt use, airbag functioning, and highway safety at-large. Later, increased ability of automobile manufacturers to read the data from black boxes transformed a triggering mechanism for airbags into a powerful weapon used by manufacturers to defeat product liability claims by customers who blamed driving accidents on their cars. Courts slowly began to piece together jurisprudence on the admissibility and probative value of black box data in civil litigation, using a variety of federal and state evidentiary standards for expert testimony. In 2000, however, a private company began to retail a device that allows anyone with a laptop computer running the Windows operating system to plug into the black box and download all of the stored driving data; suddenly, retrieving black box data became as easy as downloading from the Internet and the need for “expert” evidentiary standards was thrown into doubt. . . .
When Antje Croton took her three-month-old daughter, Clara, on a trip from New York to Berlin in December 2003 to visit family in Germany, she never could have imagined the ordeal that she would encounter upon her return to JFK airport. The wife of a United States citizen, Croton was awaiting approval of her application for permanent residency when she made the trip. Fearful that unauthorized travel plans would disrupt the grueling process of becoming a permanent resident, Croton took her travel document to an immigration official in New York to verify its validity well before her planned departure. After the immigration official confirmed the validity of the travel documents, Croton and her daughter went to Germany, only to return three days before Christmas to a hear a border security agent tell her that the original immigration official was wrong, more added Christmas stress, her Advanced Parole had expired in July 2003, and she would have to leave the country. Poorly treated in a detention center for eighteen hours, Croton compared the ordeal to her former home of communist East Berlin and blamed the bureaucratic confusion on the recent Department of Homeland Security takeover of the Immigration and Naturalization Service (INS), and the United States government’s concern for safety rather than innocent people’s rights and needs. Although pressure from national media resulted in a federal ruling that allowed Antje Croton to remain in the United States, she and many others like her continue to believe that a
nation with such high regard for family values should not be so quick to tear immigrants and their families apart. . . .
The law of special education for pre-kindergarten through high school students has made significant progress in programming opportunities for disabled children in a relatively short period of time. A major issue, however, remains unresolved. Namely, what must a school do to provide a free appropriate public education (FAPE), and how should the federal courts define that standard. . . .
Recording a suspect’s entire interrogation provides substantial protection of the suspect’s rights as well as the rights of the police officers involved. Contrary to stated concerns, in jurisdictions that routinely record interrogations, recording has not led to a decrease in confessions or productivity. In fact, recording in these jurisdictions has resulted in more convictions and plea bargains, as well as fewer claims of police misconduct and coerced confessions. Both prosecutors and defense attorneys support mandatory recording because it captures what really happens in the interrogation room. According to a 1992 Department of Justice study, ninety-seven percent of police departments that videotape suspects statements find it to be a useful practice. . . .
2003 proved to be a watershed year for the United States Supreme Court. In that year, the Court took a stand after almost twenty-four years of silence on one of the most contentious issues in the history of the United States Constitution. The issue was whether or not state universities could use race-based criteria to determine the admissibility of applicants. Whether in the selection of government funded contractors, employees, or students applying to educational institutions, programs that employ such criteria, commonly called affirmative action programs (AAPs), have a long history that dates back to the post-Civil war era. Their goal has traditionally been to remedy the unfair effects of systemic prejudice, most notably racism and sexism. In Grutter v. Bollinger, the Court ruled that state university AAPs are constitutional under the equal protection clause of the Fourteenth Amendment, as long as they are narrowly tailored to achieve the compelling government interest of cultivating racial and ethnic diversity on campus. . . .
Indian gaming is big business. In 2004, Indian gaming facilities grossed over $19.4 billion and, since 1995, revenue increases have topped 10% each year. Currently, over 200 tribes operate more than 400 gaming facilities in twenty-eight states.
Along with impressive numbers, Indian gaming presents complex legal, social, and economic questions to tribes, states and the federal government. Despite eye-popping growth, critics continue to debate whether gaming is truly advantageous for Indian tribes. Tribal sovereignty suffered at the hand of Indian gaming as tribes subjected themselves to increased federal and state regulation in order to conduct gaming. Casino development has also reshaped tribal identity, changing the way tribes perceive themselves. Economically, while some Indian casinos have cashed in, other tribes have seen only limited profits. . . .
The Organized Crime Control Act of 1970 added Chapter 96 to Title 18, entitled Racketeer Influenced and Corrupt Organizations (RICO), to address corrupt individuals and the economic organizations they use to further their illegal goals. To establish a crime pursuant to 18 U.S.C § 1962(c), the government must prove that an enterprise exists and that the enterprise is involved in a general pattern of racketeering activity. The First Circuit Court of Appeals considered in United States v. Cianci whether Vincent Cianci (Cianci), Frank Corrente (Corrente), Richard Autiello (Autiello), the City of Providence (City), and various officers, agencies and entities of Providence, formed an enterprise under the RICO statute. The First Circuit upheld the defendants’ RICO convictions because it determined that their control over the City of Providence and its agencies and officers sufficiently established that a RICO enterprise existed. . . .