- 50th Anniversary
- Online Edition
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- Donahue Lecture Series
A conflict exists between the goals of the Massachusetts special education program and the requirements of the Massachusetts Comprehensive Assessment System (MCAS). The special education program in Massachusetts ensures that school systems identify and address the unique learning needs of each special education student. It acknowledges that some students learn at a pace different from the general population. In contrast, Massachusetts also requires that all students obtain a minimum score on the MCAS exam in order to receive a high school diploma. This minimum score is the same for both regular and special education students. Thus, a disparity exists between the Commonwealth’s policy requiring local school systems to acknowledge and treat the unique learning needs of special education students throughout their entire schooling, and its policy requiring special education students to pass MCAS at the same level as their regular education counterparts in order to graduate high school.
For many special education students, the Commonwealth’s shift from acknowledging to ignoring their unique educational challenges and limitations places an insurmountable hurdle between them and the diploma for which they may otherwise qualify. The result is that many special education students complete their schooling without a diploma to serve as evidence of their efforts, or even worse, simply give up hope of graduating and drop out of school. Without a high school diploma, these students will likely be stigmatized, unable to attend college, and unable to realize their aspirations. . . .
The most stunning and successful experiment in direct popular sovereignty in all history is the American jury. Properly constrained by its duty to follow the law, the requirement of jury unanimity, and evidentiary rules, the American jury has served the republic well for over two hundred years. It is the New England town meeting writ large. It is as American as rock ‘n’ roll.
The American jury “must rank as a daring effort in human arrangement to work out a solution to the tensions between law and equity and anarchy.” No other legal institution sheds greater insight into the character of American justice. Indeed, as an instrument of justice, the civil jury is, quite simply, the best we have. “[T]he greatest value of the jury is its ability to decide cases correctly.” We place upon juries no less a task than discovering and declaring the truth in each case. In virtually every instance, these twelve men and women, good and true, rise to the task, finding the facts and applying the law as they, in their collective vision, see fit. In a very real sense, therefore, a jury verdict actually embodies our concept of “justice.” Jurors bring their good sense and practical knowledge into our courts. Reciprocally, judicial standards and a respect for justice flow out to the community. The acceptability and moral authority of the justice provided in our courts rest in large part on the presence of the jury. It is through this process, in which the jury applies rules formulated in light of common experience to the facts of each case, that we deliver the best justice our society knows how to provide. . . .
For more information about Judge Young’s Donahue Lecture (which served as the basis for this article) please click here.
On January 31, 1994, Edward Borrero, age fifteen, and Terrance Robinson, age sixteen, attempted to rob an American Mail Box Etc. store in Silver Spring, Maryland. When a neighboring store owner intervened, Borrero shot and killed him and injured the American Mail Box store owner. The state charged both teenagers as adults, Borrero for murder and Robinson for felony murder. Borrero was sentenced to life in prison with the possibility of parole after fifteen years and Robinson, the accomplice to the shooting, was sentenced to twenty years in prison.
As of 2005, every state has a transfer statute that authorizes the state to prosecute juveniles like Borrero and Robinson in adult criminal court. A transfer statute is “[a] provision that allows or mandates the trial of a juvenile as an adult in a criminal court for a criminal act.” Transfer occurs in a number of different ways and each state’s statute is unique, but there are three basic models followed: prosecutor directed transfer, judicial discretion transfer, and automatic waiver.
In the mid-1990s, due to a number of highly-publicized cases involving juveniles committing serious crimes, forty-seven states and the District of Columbia enacted “get tough” policies to transfer more juveniles to adult criminal courts and bolster their potential sentences. States enacted tougher policies on juvenile crime to deter other juveniles from committing crimes. Florida’s philosophy exemplifies this ideology: “if you are old enough to do the crime, you are old enough to do the time.” Research indicates, however, that juvenile crime rates were decreasing before states passed “get tough” policies.
Studies suggest that transferring juveniles has neither a deterrent nor a rehabilitative effect. If a juvenile is transferred and convicted as an adult, forty-five states and the District of Columbia incarcerate the juvenile in the same facility with adults. Transferring juveniles and incarcerating them with adults increases the likelihood of recidivism because prisons can be schools for crime. Furthermore, juveniles housed in adult prison facilities not only face the harsh realities of adult prison life at young ages, but also have fewer educational opportunities than juveniles incarcerated in juvenile facilities. . . .
Congress has made patent law pursuant to the constitutional power to promote the progress of science by securing, for a limited time to inventors, the exclusive right to their discoveries. Antitrust laws, however, ensure that a free economy best promotes the public wealth, and competition should rule the markets of trade. Occasionally, these two principles intersect; this article will examine one intersection: the issue of tying the sale of two products, specifically when the first product is patented.
Tying occurs when the seller conditions the sale of the tying product on the purchase of the second tied product. According to the Court in 1949, “tying arrangements serve hardly any purpose beyond the suppression of competition.” To date, tying has been challenged under four areas of the law: improper extension of a patent under the patent misuse theory; unfair competition under section five of the Federal Trade Commission Act; contracts which tend to create a monopoly under section one of the Sherman Act; and contracts which tend to create a monopoly under section three of the Clayton Act. This article will focus on the first challengeable area, patent tying. . . .
The sentiments embodied in the above statements, unfortunately, represent the everyday reality in some criminal specialty and treatment courts across the country. Over the past ten to fifteen years, many judges, court officials, legislators, academics, and other policy-makers confronted with rising recidivism and failed attempts to rid society of “the criminal element,” embarked upon a campaign to address social problems thought to lead to criminal activity. The so-called specialty courts or “problem-solving courts” are the embodiment of the therapeutic and restorative justice movements at work. Hundreds of criminal court systems around the country have implemented various forms of courts which offer the promise of “specialized justice,” to address a myriad of social issues, including drug addiction, domestic violence, sexual dysfunction, nuisance crimes, and homelessness. An unintended and, as yet, largely ignored consequence of this burgeoning movement, however, may spell a threat to our adversary system. The standard premise behind these courts is the emasculation of the traditional role of the criminal defender as a zealous advocate fighting against the system. Despite the importance of defenders insuring courts adhere to principles of substantive and procedural due process, the defender in specialty courts becomes, in most instances, a collaborator. He collaborates with the judge and prosecutors, thereby taking on a role that works to diminish the effectiveness of the defender overall, decreases the confidence defendants have in the outcome, and supports a culture of ineffectiveness and under-representation. More importantly, citizens most in need of justice and traditionally overrepresented in the criminal justice system may be adversely affected the most by this turn of events. Statistics and research from specialty courts indicate that indigent criminal defendants and those from racial and ethnic minority groups are often over-represented in specialty courts, thus bearing more than their fair share of the danger of indifferent representation. . . .
On any given evening, new reports warn Americans and the World of a spectrum of potential natural and man-made disasters which, if realized, could result in widespread devastation. These threats include a bioterrorist attack, an outbreak of an avian flu pandemic, or an onset of intense and more frequent tropical storms resulting from global warming. In 2003, President Bush moved twenty-two agencies into the Department of Homeland Security (DHS), including the Federal Emergency Management Agency (FEMA) which was previously an independent agency whose director held a cabinet-level post. DHS was designed to serve as a new central location for the federal government’s crisis-incident response systems. Critics argue, however, that DHS is too focused on counter-terrorism and that disaster management is losing out.
August 29, 2005 began the first significant test of DHS’s emergency response. Hurricane Katrina, one of the most destructive hurricanes in U.S. history, struck the Gulf Coast region. Katrina was also the most costly natural disaster in U.S. history, causing injury and damage to a region the size of Great Britain. Damage from the storm surpassed the devastation of both Hurricane Camille in 1969 and Hurricane Andrew, which struck Florida in 1992. While there were isolated acts of sheer heroism and courageous rescue, by nearly all accounts, the government’s response mechanisms for evacuation, shelter, provision of basic necessities, and maintenance of civil order failed miserably in the first week after the storm’s landfall. . . .
As medical technologies and legal theories have advanced, conscience clauses have likewise evolved to protect the rights of medical providers. Generally, a conscience clause is any legislation that allows a medical provider to refuse to perform certain services because of a moral objection. Recently, in addition to protecting physicians, legislators have started expanding the reach of conscience clauses to protect pharmacists. As legislators increasingly focus on protecting pharmacists who exercise their moral objections by refusing to fill prescriptions, conscience clauses protecting pharmacists’ actions are also receiving increased attention.
A conscience clause does not mandate the action or inaction of medical providers, rather, it grants legal protection to those providers after they act. By granting this protection, the conscience clause denies a remedy to those parties harmed by the moral decisions of their medical provider. If conscience clause protection denies recovery, the only option for the injured party may be to claim that the statute itself is unconstitutional.
A constitutional conflict of this nature requires an examination of the Fourteenth Amendment. It provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although the Fourteenth Amendment protects individuals from discrimination and the deprivation of due process, a violation of these rights must result from state action in order to bring a proper constitutional challenge. Identifying state action where a state passively permits private behavior is not an easy task, but is exactly what any constitutional challenge to a conscience clause requires.
This Note will examine whether, by protecting pharmacists from legal repercussions, a State acts for purposes of a Fourteenth Amendment violation. Current case law reveals that courts generally do not accept arguments claiming the State has acted by passing statutes that merely permit an action to occur. There is some case law, however, recognizing state action where the State has established a custom or practice of adopting otherwise passive legislation. This theory, combined with the Supreme Court’s requirement for a fact-specific analysis, may persuade a court to declare unconstitutional the conscience clause in question. . . .
Congress enacted the Americans with Disabilities Act of 1990 (ADA) to protect disabled individuals from societal discrimination. The ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities unless doing so would impose an undue hardship on their businesses. In D’Angelo v. Conagra Foods, Inc., the Eleventh Circuit considered whether an employee who is erroneously regarded as disabled by his or her employer is entitled to a reasonable accommodation. The court determined that the explicit language of the ADA mandates that employers provide reasonable accommodations to qualified individuals with disabilities even if the qualification is due to an error in judgment. . . .
The admissibility of character evidence by defendants in self-defense cases to prove that the victim was the first aggressor varies among jurisdictions. All federal courts allow such evidence, but its admissible form is confined to reputation or opinion evidence. The majority of states also allow some form of victim character evidence in self-defense cases. Among these states, the form in which such evidence is admissible varies considerably, as some states have adopted the Federal Rules of Evidence, others have not, and still others have adopted portions of the federal rules. Two states that have not adopted the Federal Rules of Evidence are Illinois and Massachusetts.
In the recent case of Commonwealth v. Adjutant, the Massachusetts Supreme Judicial Court created a new common-law rule of evidence allowing defendants asserting self-defense claims to offer specific act evidence of past violent acts initiated by the victim and unknown to the defendant at the time of the incident. The court’s approach is unique in its exclusive adoption of specific act evidence and its non-requirement of contemporaneous knowledge. The court’s decision, however, lacked complete instructions to trial courts as to the application of the new rule. Most notably, the court failed to state whether the prosecution is permitted to offer specific act evidence against the defendant if the defendant chooses to offer such evidence against the alleged victim. The court also failed to specify whether admissible prior instances of conduct must be of a certain nature, have resulted in a criminal conviction, or have occurred within a certain period of time with respect to the current indictment. As a result, the dissenting justice exhorted that the majority’s decision will result in unfair prejudice to victims with violent pasts, jury distraction, confusion, delay, and inconsistency within the jurisdiction’s case law. . . .
The Americans with Disabilities Act of 1990 (ADA) protects qualified individuals with disabilities from employment discrimination by requiring employers to provide those individuals with reasonable accommodations in the workplace. An employer’s failure to provide reasonable accommodations to a disabled employee constitutes discrimination unless the employer can demonstrate that doing so would impose an undue hardship on his or her business. In Williams v. Philadelphia Housing Authority Police Department, the Third Circuit Court of Appeals considered whether an employee who is “regarded as” disabled is a qualified individual entitled to reasonable accommodations the way those who are actually disabled qualify. The court concluded that reasonable accommodations should extend to “regarded as” disabled employees pursuant to the plain language and meaning of the ADA, its legislative history, and pertinent case law. . . .