- Online Edition
- Print Edition
- Donahue Lecture Series
- Archived Mastheads
The American court system recognizes marriage as one of the most highly regarded institutions. More often than before, couples cohabitate without getting married, either by choice or because the law affords them no other option. As traditional stigmas against cohabitation lessen in contemporary society, courts are more apt to recognize new rights and protections for both heterosexual and homosexual unmarried couples. Furthermore, domestic partnerships, civil unions, and marriage create significant opportunities for homosexual couples, a group traditionally denied all marital benefits.
Courts have not yet extended the spousal privilege regarding adverse testimony and confidential communications to these nontraditional couples. Traditionally, only a husband and wife claimed this privilege. Recently, states such as Vermont and Massachusetts made the marital privilege available to same-sex couples in civil unions or marriages. Yet, courts continually deny the privilege to unmarried cohabitating couples, both heterosexual and homosexual. Courts commonly agree that such couples are not entitled to the benefit of the spousal privilege without taking on the responsibilities and duties of marriage. The justification for this broad application fails to consider the vast number of homosexual couples who do not marry because state law prohibits it, rather than because they want to avoid the responsibilities of the institution.
This Note sets forth a proposal suggesting courts extend the spousal privilege to nontraditional couples, as determined on a case-by-case basis. Part II examines the history of the marital privilege, its flexibility with regards to a constantly changing society, and how courts historically denied the privilege to unmarried cohabitating couples. An exploration of changes in the institution of marriage itself suggests that the privilege’s theory that the government should protect marriage at all costs is no longer relevant. Finally, Part II examines how, despite the recognition of gay marriage and civil unions in select states, laws such as The Defense of Marriage Act (DOMA) still impede the application of the privilege to homosexual couples, to whom courts should already guarantee the right.
Part III of this Note analyzes how changing attitudes towards cohabitation indicate courts’ potential willingness to extend more privileges and benefits to unmarried couples as a way of protecting these new family units. Part III also examines the remaining impediments to the privilege’s extension and how these barriers lead to uncertainty regarding benefits courts should extend to such couples. While the courts continue to deny the spousal testimony privilege to unmarried cohabitating couples, a shift in societal focus on these relationships, rather than the institution of marriage alone, suggests the spousal testimony privilege may also be applied to such couples. . . .
The recent steroid controversy in professional sports may only be the beginning of this nation’s relationship with physical and cognitive enhancement drugs. The market for enhancement drugs is growing at an alarming rate, raising serious ethical, legal, and social issues for our society. Healthy students at every educational level are increasingly turning to “cognitive performance enhancers,” such as Ritalin, to increase their focus, bolster concentration, and gain a competitive edge over other students. Consequently, schools will soon be forced to supervise and regulate performance-enhancing drugs to ensure a fair and safe environment for students.
Public schools traditionally focused on protecting students from derailing their lives by abusing drugs and alcohol. School districts typically employ various learning programs and prevention procedures, such as random drug testing, to detect and prevent illegal drug use. Schools could use these existing programs, particularly the drug testing policies, as a blueprint to educate and prevent students from using performance-enhancing drugs.
Historically, schools struggled to institute drug and alcohol testing programs because such testing is considered a search under the Fourth Amendment, which ensures “[t]he right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures . . . .” The right to be free from unreasonable searches applies to all individuals in America, but the Supreme Court has developed exceptions to the Fourth Amendment to permit “reasonable searches and seizures” in the public high school setting. Balancing the government’s interest in safety against the students’ privacy concerns, the Court determined that a school’s desire to prevent and deter drug use can outweigh student privacy interests.
This Note explores the history of suspicionless drug testing and performance-enhancing drug abuse in public high schools. Specifically, this Note argues that public high schools across the country should implement performance-enhancing drug regulation and education programs to prevent students’ illicit use of performance-enhancing drugs. Further analysis focuses on the ethical, health, and legal concerns stemming from the use of performance-enhancing drugs, particularly steroids and Ritalin. Finally, this Note recommends steps that state school districts should take to ensure a fair and safe school environment, free from drug-induced scholastic and athletic achievements and the influence of performance-enhancing drugs. . . .
The Tenth Amendment reserves state sovereignty where the federal government is not constitutionally authorized to act. Although states have the right, under the Tenth Amendment, to challenge federal regulatory schemes that “commandeer” state legislatures, it is unclear whether private citizens have standing to pursue such claims. In Medeiros v. Vincent, the First Circuit Court of Appeals considered whether lobsterman Stephen Medeiros had standing to bring a Tenth Amendment “commandeering” claim against the Atlantic States Marine Fisheries Commission (ASMFC) and the Rhode Island Department of Environmental Management (DEM). Following Supreme Court precedent, the First Circuit held that private citizens do not have standing to challenge federal legislation under the Tenth Amendment. . . .
Unsurprisingly, the American public is cynical toward lawyers and the government. While Senators, the President, and members of the executive administration all strive to improve our country, many times continuous political bickering leaves a distaste in the public’s opinion. The process of confirming a nominee to the Supreme Court serves as such an example. At first glance, the confirmation process appears to be a series of petty arguments between politicians with a mutual dislike for one another. Sadly, much of the media exacerbates this negative image by depicting the President announcing a candidate followed by a number of Senators, many of whom represent a different political party, immediately expressing their disagreement with the selection. A series of senatorial debates follow concerning the implications of this nominee sitting on the bench for life, swaying colleagues toward one political side versus another. Interestingly, many politicians admit the necessity of working together to focus on resolving the issues at hand rather than simply debating party ideals. Often times, however, these admissions seem to be made in vain and reiterated after each political battle. Are they just comments, or was work performed at a much more complicated level than we realize? Despite the differences of opinion, and the occasional strong remarks, the system functions effectively and continues to evolve. Still, we must always be prepared to take action as society evolves due to tragedies, changes in the environment, breakthroughs in science, and countless other reasons. Fortunately, the Framers drafted the United States Constitution to account for such change and keep the co-equal legislative, executive, and judicial branches of government in check with one another. Goals may not be accomplished as swiftly as some would prefer, but in most instances we find that issues are rightfully thought through and thoroughly debated, at least with respect to the task of selecting Supreme Court Justices. . . .
Over the past few decades, corporate America has accrued influence and power in a most unlikely arena: the nation’s prison system. States and the federal government, citing economic and logistical advantages, have enlisted corporations to construct, staff, and operate their correctional facilities. As the federal inmate population skyrockets, the federal government’s reliance on prison corporations has become pronounced in recent years. The industry’s success produced controversy, as critics have argued that the corporations’ focus on profitability compromises inmate welfare. The news media reports of abusive conditions in private prisons corroborate these suspicions.
Coincident with the rise of private prisons, inmates began suing private prison employees for alleged constitutional violations. These inmates filed suit pursuant to Bivens, a cause of action that exposes “federal agent[s] acting under color of [their] authority” to monetary damages for violating an individual’s constitutional rights. The lower courts were divided on whether the inmates could maintain these suits, some allowing the claims and others barring them. The courts’ dissention appears inevitable given the Supreme Court’s tendency to “explain its approach to Bivens claims in a variety of ways” since it first implied the cause of action in 1971. Recently, in Correctional Services Corp. v. Malesko, the Supreme Court complicated matters further by drastically limiting the circumstances under which courts may extend the Bivens action. Divergent interpretations of this decision and its predecessors gave rise to the current split among lower courts.
This Note begins by surveying the history of private prisons and explaining the federal government’s recent move toward privatization. After reviewing various remedies available to inmates, this Note examines the evolution of the Bivens remedy. It then explores key decisions by three courts regarding whether inmates held in private prisons may sue prison employees under Bivens. Finally, this Note argues that courts should extend Bivens to privately-incarcerated federal inmates, but concludes that a recent Supreme Court decision regarding Bivens may foreclose this option. . . .
The United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A seizure of the person occurs when a law enforcement officer takes control of a person by physical force or show of authority, effectively restraining that person’s ability to move. In United States v. Smith, the Court of Appeals for the First Circuit considered whether an encounter between two police officers and a man waiting for a bus constituted an unlawful seizure. In determining that an unlawful seizure did not occur, the court of appeals reviewed the district court’s factual findings using the “clearly erroneous” standard, while assessing its ultimate conclusions of law de novo. . . .
The Gay and Lesbian Advocates and Defenders (GLAD) seeks to end privileged places in law based on sexual orientation. The first Justice Harlan, dissenting in Plessy v. Ferguson, stated that we do not have classes of citizens in our Constitution. But of course we do. We eventually recognize those classes and then seek to dismantle laws reinforcing those distinctions. As Justice Ginsburg explained in United States v. Virginia, “the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Some people—most notably African-Americans and women—have had the opportunity to challenge laws and practices denying the Constitution’s promises of equality and liberty, and in so doing created the legal and cultural architecture of civil rights. We are now grappling with another group of Americans—gay, lesbian, bisexual, and transgender Americans—who are asking this country to live up to its foundational constitutional promises of “liberty and justice for all,” and to provide formal equality under the law without regard to whether one has a same-sex or different-sex sexual orientation. . . .
For more information about Ms. Bonauto’s Donahue Lecture (which served as the basis for this article) please click here.
The Eleventh Amendment prohibits private individuals from suing nonconsenting states in federal court. Congress, however, may abrogate a state’s Eleventh Amendment immunity under certain conditions. In Toledo v. Sanchez, the United States First Circuit Court of Appeals examined whether the Eleventh Amendment prevented a disabled student from suing a state university for damages under Title II of the Americans with Disabilities Act (ADA). The court held that the state could not assert the Eleventh Amendment as an affirmative defense to a private action brought under Title II of the ADA because Congress validly abrogated state sovereign immunity within the parameters of its Fourteenth Amendment enforcement power. . . .
In 1984, Congress enacted the Sentencing Reform Act (SRA) with the purpose of restoring fairness, consistency, and proportionality to the practice of sentencing in the federal courts. Pursuant to the SRA, Congress adopted the Federal Sentencing Guidelines (Guidelines)—an elaborate system of sentencing recommendations intended to assist federal judges in imposing criminal punishment. The Guidelines were binding authority on federal courts until a 2005 Supreme Court decision relegated them to an advisory role. In United States v. Jimenez-Beltre, the First Circuit Court of Appeals considered the influence of the Guidelines on the practice of federal sentencing in their modified capacity. The First Circuit held that the Guidelines are still an important factor that should be given adequate consideration in the sentencing process. . . .
The latter half of the twentieth century generated a commercial environment friendly to dispute resolution outside the judicial arena. Evolving as a creature of contract, arbitration arose from the ashes of failing business relationships to promote efficiency, economy, and finality in disagreements by placing an ultimate resolution in the hands of a third-party neutral. Federal and state governments fostered this movement by codifying arbitration standards and adopting uniform policies favoring this form of dispute management. Arbitration awards are generally unavailable for review because the process remains a private risk-management tool. Statutes provide the primary limitation on substantive inquiry into an arbitrator’s decision. Typical grounds for vacatur include corruption, fraud, awards procured by undue means, evidence of partiality, procedural deficiencies resulting from arbitrator misconduct, or arbitrators’ excessive use of power. Interestingly enough, errors of law, even those so egregious as to indicate a disregard for substantive governing principles in a particular jurisdiction, are not grounds for statutory vacatur in most jurisdictions.
A recent movement within the United States circuit courts, however, produced a common-law category of award vacatur suitable for situations in which an arbitrator acts in “manifest disregard of the law.” This trend also influences arbitration in state courts as an increasing number of jurisdictions entertain the common-law “manifest disregard” standard to evaluate vacatur requests. Courts supporting this movement prohibit arbitrators from functioning in a “legal vacuum,” and thus act in a supervisory capacity by catching material errors even where parties waived adherence to applicable principles of law. Typically, in examining whether an arbitrator “manifestly disregarded” the law, courts employ a two-part analysis, coupling the clarity of an applicable legal principle and the degree to which it was known and ignored by the arbitrator. Critics of this practice note the difficulty in uniformly applying the “manifest disregard” standard and point to its erosion of the finality and legitimacy of arbitration proceedings.
The inconsistent treatment of the “manifest disregard” standard among the states may result from judicial and legislative failure to define the standard consistently. To alleviate this obstacle, many states, including Massachusetts, prefer strict adherence to statutorily prescribed occasions for vacatur. Jurisdictions have reacted to the eroding finality of arbitration awards in four specific ways: reducing the “manifest disregard” standard to mere words that lack force; creating a “manifest disregard” subheading within the common-law realm of arbitration evaluation; utilizing the “manifest disregard” standard while disguising it as another statutory ground for vacatur; and legislatively providing for substantive review of particular errors via statute, including those made in “manifest disregard” of the applicable law.
This Note analyzes the efficacy of applying a common-law “manifest disregard of the law” award vacatur ground in jurisdictions that have not yet adopted it. Additionally, it explores the implications of applying “manifest disregard of the law” in Massachusetts, particularly in light of the state’s long history of preserving the autonomy and integrity of arbitrators’ awards. Part II begins by exploring the arbitration process and the general expectations created by entering into agreements to arbitrate. Part II continues by describing arbitration’s success as a method of alternative dispute resolution in the United States, due largely to the legitimacy and finality associated with the arbitration process. Parts II.D and II.E discuss the origin of “manifest disregard of the law,” its place in the federal common law associated with award vacatur, and its various applications in state courts. Part III examines the benefits and disadvantages of applying the “manifest disregard” standard to arbitration appeals. Part III.B weighs the practical difficulties in applying “manifest disregard” analysis to vacatur claims, and Part III.C suggests evaluating “manifest disregard” allegations using a misconduct-focused standard. . . .