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Article I, section 8 of the Constitution promotes progress in the arts and sciences by granting inventors exclusive right to their discoveries for a limited time. For almost 100 years, courts have recognized the patentee’s right to exclude others from making and using the patented invention as the fundamental right bestowed by a patent, and have protected that right using injunctive relief. In MercExchange, L.L.C. v. eBay, Inc., the Federal Circuit Court of Appeals considered whether MercExchange, L.L.C. (MercExchange)
could enjoin eBay, Inc. (eBay) from continued use of methods covered by MercExchange’s patents. The court reversed the district courts denial of MercExchange’s motion for injunctive relief, holding that a patent presumptively entitles the patentee to injunctive relief against infringers of his patented invention, unless it would cause significant public harm. . . .
In 1999, smuggled aliens constituted fourteen percent of all apprehensions made at the U.S.-Mexico border [the border], up from nine percent in 1997. That number has increased as the human smuggling industry grows in popularity and necessity. Fearing they cannot safely make the journey across the border alone, illegal immigrants obtain the assistance of a ”coyote”—the Mexican term for smuggler—in order to secure passage across the border. Some immigrants willing to take the risk pay up to $1500 to the coyote; others, ultimately, pay with their lives.
As the United States spends more government funds to fortify the border, demand for human smugglers increases. According to United States immigration officials, the human smuggling industry grossed $9.5 billion in 2002 alone. . . .
The Double Jeopardy Clause prevents the government from subjecting an individual to multiple criminal prosecutions for the same offense. In so doing, it protects an individuals interest in the finality of acquittals and it protects him from suffering any prejudice from the stress and risks of additional proceedings. In Smith v. Massachusetts, the Supreme Court considered whether the trial judge could reexamine her mid-trial acquittal after the trial had proceeded past the defendants opportunity to present his case. The Court held that the Double Jeopardy Clause would not allow the judge to reconsider her initial acquittal because correcting her decision would cause Smith to suffer prejudice. . . .
Under the Supreme Court’s interpretation of Article III of the United States Constitution, a plaintiff must suffer an injury-in-fact in order to obtain standing in federal court. Recently, courts have relaxed this requirement and have awarded medical monitoring damages to plaintiffs who had not yet manifested any physical injury. In Sutton v. St. Jude Medical S.C., Inc., the United States Court of Appeals for the Sixth Circuit considered whether the plaintiff had standing to bring a claim for medical monitoring against the manufacturer of an implanted medical device, where the plaintiff suffered no physical injury. The court of appeals reversed the district court’s decision and concluded that the potential for future injury constituted an injury-in-fact. . . .
Medical advancements currently allow parents to undergo preconception or neonatal genetic testing to determine the likelihood of a childhood defect. The advent of genetic testing has compelled courts to develop novel causes of action based on traditional negligence principles to address these medical malpractice claims. Typically, courts recognizing such parental malpractice actions address them as either wrongful birth claims or wrongful conception or pregnancy causes of action.
A thorough lack of consistency in how jurisdictions consider these claims, however, permeates prenatal tort law and cultivates confusion. Some courts compartmentalize facts into specific prenatal causes of action yet diverge in their differentiations and in how they provide compensation to parental victims. Other jurisdictions recognize these parental claims exclusively under traditional negligence principles instead of a new set of prenatal legal rights. Conversely, a minority of jurisdictions prohibit either one or more of the prenatal causes of action or traditional negligence suits stemming from birth-related circumstances. . . .
It is hardly news that convicted sex predatorsespecially those who prey on young people and women occupy the lowest rung of society. This is not surprising; even among their fellow felons, who themselves are regarded as second-class citizens, sex predators are frequently stigmatized as an underclass within the notoriously hierarchical prison systems. And, when it comes time for a sex-offender to leave jail and return to the public, the individuals would be neighbors often protest, leaving authorities baffled as to where to place these pariahs. Indeed, even the rare judicial opinion that is sympathetic to sex offenders will go to great lengths to emphasize how heinous and despicable their crimes are.
The social stigmatization and moral opprobrium associated with sex crimes manifested itself in the legal system when, in the 1990s, state legislators became enamored with sexually violent predator (SVP) laws. SVP laws essentially were enacted to prevent already-convicted sex predator felons from actually being released to the outside world. The laws were not punishment for crimes already committed, because that would violate the Fifth Amendments Double Jeopardy Clause. Instead, the laws took a different tack by basing continued incarceration on the offenders potential for future behavior. SVP laws were, therefore, styled as a civil commitment statute, which operates under the premise that some people are simply too dangerous to be free, even if they have already served their sentence. Under the SVP laws, once the offenders prison term was completed, the individual would be re-tried in a civil suit under the authority of the new SVP law; if found to be dangerous, the offender would continue to be held in the state’s custody. . . .
In McConnell v. FEC, the Supreme Court largely rejected the plaintiffs claims that the Bipartisan Campaign Reform Act of 2002 (BCRA), commonly known as McCain-Feingold, violated the First Amendment. In deferring to the congressional judgment declaring additional restrictions on the financing of campaigns for federal office necessary, the Court read its own First Amendment case law narrowly, but adhered to the fundamentals laid down in Buckley v. Valeo, its landmark precedent from 1976. In so doing, the Court once again left federal campaign finance law as a hodge-podge of limitations and loopholes. Moreover, a general lack of enthusiasm from Congress, the President, the courts, and the Federal Election Commission (FEC) assures the continued influence of big money in the national political scene. . . .
The headline reads, ”Bush Marks School Laws 2nd Anniversary: White House uses visit to announce budget increases.” In the photograph just below the headline, George Bush is sitting on a wooden bench with three black children. On the blackboard behind them someone has printed the words “No Child Left Behind” with white chalk in large block letters. Many children have printed their own names in colorful chalk hues beside and beneath the large block letters. The President wears a dark blue suit and red tie for this photo opportunity and the three children are dressed in white tops and dark pants, apparently a school uniform. The caption beneath the photograph reads, ”President Bush listens to Khadijah McCain at Laciede Elementary School in St. Louis, as schoolmates Damien Goolsby and Darlet Horton watch.” The lead paragraph of the piece says that the President visited St. Louis to celebrate the anniversary of one of his ”signature domestic achievements” and to “trumpet two schools he believes have begun to live up to the promise of the No Child Left Behind Act” . . . .
For more information about Professor Lawrence’s Donahue Lecture (which served as the basis for this article) please click here.
Although Nathaniel Hawthorne has forever immortalized the crime of adultery as an icon of Massachusetts’ Puritan heritage, most are surprised to learn that adultery is still a crime in the Commonwealth—a felony, in fact, carrying a maximum sentence of three years in state prison. The most recent successful prosecution under this statute took place just over twenty years ago in Commonwealth v. Stowell. Despite admission by the Supreme Judicial Court that the crime had “fallen into a very comprehensive desuetude,” the court upheld the conviction, explaining that the statute remained a judicially enforceable expression of public policy.
Criminal statutes originally enacted in most states reflected the colonial understanding of adultery as primarily an offense against morality and, to a somewhat lesser extent, as an injury to the innocent spouse. Although many states have since repealed or modified these statutes, there are currently twenty-three states that continue to recognize adultery as a crime. Generally, modern adultery statutes prohibit sexual intercourse between a married person and an individual other than his or her spouse. These statutes, however, vary significantly by state as to elements of the offense, how and when the state may prosecute, and the punishment prescribed.
Criminal statutes prohibiting adultery have traditionally withstood constitutional challenge as a reasonable state regulation that does not infringe upon any liberty interest. Nevertheless, the United States Supreme Court’s 2003 decision in Lawrence v. Texas has recently reinvigorated debate over the viability of morality legislation and the extent to which the fundamental right to privacy will protect adult consensual sexual relationships. . . .
Few would disagree with doctors who claim that the high cost of medical malpractice insurance premiums is unsustainable. The disagreement among legislators and those in the medical community, however, revolves around the cause of the high medical malpractice insurance premiums. Many Republicans, insurance companies, and members of the medical community point to frivolous lawsuits and increasing jury awards for plaintiffs as the cause of doctors’ exorbitant premiums. One proposed solution caps non-economic damages plaintiffs may receive for pain and suffering in medical malpractice cases. This proposed remedy to the medical malpractice crisis is embodied within the Help, Efficient, Accessible, Low-Cost, Timely Health Care (HEALTH) Act of 2004. In May 2004, the Republican led House of Representatives passed the HEALTH Act, a bill that caps plaintiffs’ noneconomic damages at $250,000.
In contrast, the American Association of Trial Lawyers, as well as many Democrats and consumer watch groups, claim that lawsuits and high damage awards are not to blame for doctors’ increasing insurance premiums. These groups point instead to other factors, such as the cyclical nature of the insurance industry and the losses insurance companies have incurred in the stock market, as the cause for rising medical malpractice insurance premiums. . . .