- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
Advances in science have revolutionized crime detection, indelibly affecting Fourth Amendment jurisprudence. Forensic identification techniques are continually refined, and accordingly, the concomitant constitutional considerations continue to grow. As technological powers expand the use of deoxyribonucleic acid (DNA) evidence, society must grapple with technology’s effect on individual privacy. DNA identification is not physically invasive; therefore, an innocent person will find it increasingly difficult to demonstrate that his right to remain free from unwanted intrusions into his genetic privacy outweighs the government’s interest in collecting DNA evidence. In Commonwealth v. Draheim, the Massachusetts Supreme Judicial Court (SJC) considered which standard trial courts should use when considering a motion to compel DNA evidence in a criminal matter from someone who is not a suspect, defendant, or witness. The SJC held that a trial court must find probable cause to believe in the commission of a crime and determine whether the search will likely provide evidence that will help prove the defendant’s guilt or innocence.
In Draheim, the Commonwealth alleged that the defendant, Nina Draheim (Draheim), engaged in sexual intercourse with two teenage boys. The Commonwealth sought DNA samples from Draheim, her two children, and the two alleged victims. The test results could scientifically establish paternity, proving that the rapes occurred. . . .
The ease with which strangers may access personal information about others through the internet and other electronic sources has resulted in the conclusion that meaningful individual privacy no longer exists. This is felt nowhere more acutely than with personal medical records. Indeed, according to a 1999 Harris Equifax survey, “over 80% of public respondents felt they had ‘lost all control’ over their personal [medical] information.” This problem has led important players in the health care industry to conclude medical record privacy protection is “non-existent.” In response to this concern, fifteen percent of Americans engage in privacy-protective behavior to shield themselves from unwanted disclosure of health information, including giving healthcare providers inaccurate information, paying out-of-pocket for medical care normally covered by insurance, doctor-hopping to avoid consolidation of records, or even avoiding healthcare altogether. . . .
The statute of limitations for claims arising out of an alleged breach of fiduciary duty by members of a corporate board of directors is generally three years from the date the plaintiff knew or should have known of the alleged wrong. For certain equitable reasons, courts and legislatures have provided exceptions to this sometimes harsh rule by tolling the statute of limitations and permitting claims beyond the three year period. In Aiello v. Aiello, the Massachusetts Supreme Judicial Court (SJC) considered whether to apply either the complete domination test or the disinterested majority test in determining adverse domination to toll the statute of limitations when a majority of the board of directors dominated the decision making. The SJC announced that Massachusetts courts must apply the complete domination test when a corporate agent seeks to toll the statute of limitations. . . .
Although the Supreme Court of the United States almost never has trouble counting to five with respect to the ultimate disposition of a case, the Court often stumbles when attempting to agree on the appropriate rationale. If not resolved, this disagreement will lead to the Court’s announcing a plurality decision. The Court has handed down a steadily increasing number of plurality decisions throughout its history. Commentators have suggested a number of factors that might account for this increase, including ideological splits among the Justices, an increasingly heavy workload, more cases presenting socially volatile issues, a lack of leadership on the Court, and an increase in “substantive” reasoning in the Court’s decisions. Whatever the root causes might be, plurality decisions have become an undeniable part of the Supreme Court’s jurisprudence. . . .
There is a crisis in the mental health care system in the United States. Children with mental illnesses endure long waiting lists in order to gain access to short-term, fragmented, and inappropriate services instead of receiving longterm, individualized, and coordinated medical care. Inadequate care affects many aspects of a child’s life. A child with an untreated mental health disorder may endure unnecessary time in a hospital, delay in accessing medical treatment, misdiagnoses, difficulty in school, or removal from his family.
Children with serious emotional disturbances (SED) are particularly vulnerable to the problems in the mental health care system because a child with SED may require many different types of treatment throughout the different stages of his illness. During an emergency crisis, a child may need intensive inpatient treatment; however, when the child is no longer in an emergency situation, community-based or outpatient programs may be more appropriate. After receiving the appropriate treatment in the hospital, a child often becomes “stuck” in the hospital because appropriate outpatient programs are unavailable. The required services are frequently unavailable when the patient needs them, and children are hospitalized or institutionalized longer than necessary. . . .
A patent entitles its owner to exclude others from making, using, offering for sale, selling, or importing a patented invention. A permanent injunction is perhaps a patent owner’s most powerful tool to enforce the right to exclude. For almost a century, patent owners relied on a presumption that they were entitled to a permanent injunction upon a finding of validity and infringement of a patent. The Supreme Court, however, recently rejected the so-called “general rule” in favor of permanent injunctions in eBay Inc. v. MercExchange, LLC.
In the post-eBay era, patentees and accused infringers face a new issue in the already complex arena of patent litigation. Specifically, courts may now more often deny a patentee’s request for a permanent injunction, despite finding the patent to be valid and infringed. After eBay, accused infringers may try to persuade the courts to exercise discretion to impose a compulsory license rather license that allows an infringer to continue practicing the patented invention upon payment of a royalty to the patentee. The courts, however, have not yet identified the factors to consider when determining whether to deny an injunction and grant a compulsory license. . . .
The Federal Rules of Civil Procedure were enacted in 1938 to “secure the just, speedy, and inexpensive determination of every action.” The Federal Rules provide three avenues for challenging the sufficiency of a party’s evidence presented at trial: a Rule 50(a) pre-verdict motion for judgment as a matter of law (JMOL), a Rule 50(b) post-verdict renewed motion for JMOL, and a Rule 59 motion for a new trial. In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., the United States Supreme Court considered whether a party may challenge the sufficiency of evidence on appeal where the party lost on a pre-verdict motion for JMOL, but neither renewed that motion nor moved for a new trial after the verdict. The Court held that a party’s failure to make either post-verdict motion in the district court precluded appellate review of the sufficiency of the evidence. . . .
Substantive rules typically state the rights and duties as among citizens, and disclose the circumstances where courts redress violations of those rights and duties. Procedural laws, on the other hand, are rules of procedure that have been adopted by courts and legislatures, and that instruct persons on how to bring a controversy before a court, and how to proceed in that court to obtain redress. A workable description of procedural rules is that they prescribe the mechanics of litigation.
The substance-procedure distinction comes up in various areas of our law. Choice of law is a good example. Who can forget Erie Railroad Co. v. Tompkins from our first year of law school? In Erie, the U.S. Supreme Court held that where federal court jurisdiction is grounded on diversity of citizenship, the federal court must apply the substantive law of the forum state as the rule of decision, and can apply federal common law only as to matters of procedure. . . .
For more information about Justice Jacobs’s Donahue Lecture (which served as the basis for this article) please click here.
For many decades the definition of marriage lay at the backwater of family law analysis. This began to change over a decade ago when the Supreme Court of Hawaii ruled favorably on an attempt by same-sex couples to obtain marriage licenses, prompting the United States Congress to respond by enacting the “Defense of Marriage Act.” Since then, state legislatures in a few states have conferred some of the benefits of marriage on same-sex couples entering into civil unions or domestic partnerships. For example, the New Jersey Supreme Court ruled that same-sex couples must be accorded equal treatment under the law with opposite-sex couples who choose to marry, but left it to the legislature to decide if this meant marriage or some other marriage-like status. Meanwhile, Canada, a common law country, redefined marriage to include same-sex couples, and several other countries did the same. In the United States, as discussed below, the Massachusetts Supreme Judicial Court (SJC) has rewritten the common-law definition of civil marriage by a judicial decision. . . .
Juliana McCormick was the lone female carpenter on a major construction project in Boston that connected two of the city’s major subway lines. While working on the project, McCormick’s co-workers sexually harassed her. When she complained of the harassment to her supervisor, the male employees retaliated against her. Her supervisor assigned McCormick projects where she was forced to work in isolation and to do physically demanding work against her doctor’s orders. The initial discrimination and subsequent retaliation wore on her. She was unable to sleep, cried constantly, noticed substantial changes in her moods, and, in her words, just “shut down.”
Fortunately, the law provides protection for employees who suffer abuse similar to McCormick’s. Indeed, the law protected McCormick, because the actions taken against her occurred in the workplace and directly affected her employment. Massachusetts, however, needs to address its retaliation standard to ensure that all those who confront illegal discrimination and are unlawfully retaliated against for doing so, are provided the same level of protection as McCormick. . . .