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The Constitution of the Commonwealth has never been more significant for the rights of individuals than in the past thirty years. Although the greater impact has been on the rights of criminal defendants, the Constitution’s influence on civil relationships has been substantial, as indicated most particularly by Goodridge v. Department of Public Health on the right to same-sex marriage.
In 1980, this law review published my article comparing the treatment of similar provisions of the Federal Constitution and the State Constitution. My current effort is, in a sense, an updating of the 1980 article. Before 1980, there were only a handful of cases that foretold the impending impact of the Supreme Judicial Court’s independent treatment of provisions in the State Constitution that had parallels in the Federal Constitution. For example, Commonwealth v. Soares barred racial discrimination in the use of peremptory challenges to prospective jurors well before the Supreme Court did so in Batson v. Kentucky. . .
For more information about Chief Justice Wilkins’s Donahue Lecture (which served as the basis for this article) as well as photos and audio from the event, please click here.
This issue of the Suffolk University Law Review acknowledges, and celebrates, the 230th anniversary of the Massachusetts Constitution of 1780. It is appropriate to do so.
Not so long ago, state constitutions were considered static documents, principally intended to structure the branches of state government and define their authority. Where the constitutions provided guarantees for basic citizens’ rights, the guarantees were considered to be limitations on the power of government. Many other rights afforded citizens in state constitutions were taken to be aspirational, subject to implementation as matter of policy by the executive and the legislature, but not as independent sources of duties that were enforceable against the executive and the legislature in the courts.
It was also thought that, when the United States Supreme Court established the federal rule on basic guarantees set forth in the Bill of Rights to the United States Constitution, particularly in the areas of the Fourth and Fifth Amendments, state supreme courts should adopt the federal rule under cognate provisions of their state constitutions. This analysis could be colloquially styled the “lock-step” school of interpretation. . . .
Over forty years’ worth of popular culture has led most Americans to believe that they have a “right to an attorney” upon arrest. We have watched this familiar scene unfold in countless movies and television shows: the police close in on the lone (and undoubtedly guilty) suspect, pin him against a wall, slap on the cuffs, and triumphantly recite his “Miranda warnings,” which apparently include the right to counsel. Technically, officers here are referring to a suspect’s limited Fifth Amendment right, upon “clearly” and “unambiguously” invoking it, to the presence of an attorney before custodial interrogation by the police. This idea would probably strike most people as extremely sensible—that, upon arrest, you should have the opportunity to speak with a lawyer even if you cannot afford to hire one. However, the “right” guarantees neither access to a lawyer to explain the procedural complexities of a criminal case, nor unbiased, professional advice on whether it is prudent to waive any constitutional protections. Rather, Miranda only guarantees the right, once affirmatively invoked, to not be asked questions by the police outside the presence of an attorney. As a practical reality in Massachusetts, that opportunity rarely ripens until after an arrestee is transported to court and a lawyer is appointed to represent him. . .
This article argues that even if states ought to defer to the Supreme Court concerning the meaning of cognate constitutional provisions, such deference is not required in considering the reach of prophylactic rules. Such rules, while constitutional in status, are not vessels of constitutional meaning. Rather, they are a pragmatic means to implement more open-ended constitutional norms and thus, by design, are adjustable where necessary to improve their fitness for that task. The Supreme Court makes such adjustments, and there is no reason why states should not also be able to do so where local conditions suggest the need for a more protective rule. A state’s expansion of a prophylactic rule leaves untouched the meaning of the underlying federal principle, along with the Supreme Court’s prerogative to decide what that meaning is. This article analyzes such rule expansions under Massachusetts law to develop this point concretely. . .
One of the enduring issues in zoning law is how to resolve appeals involving the grant of zoning special permits or other discretionary decisions made by the municipal boards that have jurisdiction over some aspect of the private use of land. While their decisions are made in public, and the appeals of these decisions are also decided by a public process, such as a court or an administrative agency, the resolution of these appeals without litigation or administrative appeal poses challenges because resolution without adjudication traditionally requires some confidentiality in order to encourage frank conversation about how a settlement might be achieved. . .
On August 29, 2007, a grease fire in West Roxbury killed two members of the Boston Fire Department. According to media reports of the autopsy results, the firefighters were under the influence of alcohol and drugs at the time of their deaths, and presumably, when they responded to the fire that claimed their lives. In the wake of this tragic accident, public and political support for mandatory, random drug testing of safety-sensitive personnel has grown in Massachusetts. House Bill 2210—An Act Relative to Public Safety Employees (House Bill 2210)—addresses that increased concern, authorizing random drug and alcohol testing of all publicly and privately employed public safety personnel within the Commonwealth. The current debate over random drug testing of fire department personnel echoes a debate that took place almost twenty years ago over drug testing of Boston police officers—a practice the Supreme Judicial Court denounced in its deeply divided Guiney v. Police Commissioner of Boston opinion. . .
In District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for self-defense. In doing so, the Court settled the long-debated question of whether the Second Amendment applies outside the context of state-organized military institutions. The National Rifle Association heralded the decision as a major victory for gun owners across America. Others saw Heller differently, with one scholar arguing that the decision likely demands little change to the nation’s existing gun laws.
Despite its landmark decision that the Second Amendment protects an individual right, the Heller Court failed to protect the full scope of that right, as read by the Court itself. A strong theme throughout the decision is that the Second Amendment’s original purpose was to protect Americans’ ability, if the need arose, to resist the tyranny of their federal government. Heller’s holding, however, is limited to the Second Amendment’s protection of a right to self-defense, and the Court indicated that it would allow limitations on the types of firearms protected by Amendment, even though such limitations would render its original purpose unachievable. Moreover, the Court avoided setting the standard of review for Second Amendment violations, further allowing for infringement of its original purpose.
This Note examines the conflict between Heller’s reading of the Second Amendment’s original purpose, on the one hand, and its holding about self-defense and dicta on the Amendment’s limitations, on the other. Part II.A outlines the Supreme Court’s pre-Heller Second Amendment cases. Part II.B examines Heller, focusing on its holding, as well as its interpretation of the Second Amendment’s purposes and its dicta on the Amendment’s limitations. Part II.C introduces the federal machine gun ban, a law that is presumably constitutional under Heller. Part III.A argues that the limitation that Hellerallows on the types of firearms that citizens may lawfully possess fundamentally frustrates the Court’s own reading of the Second Amendment’s original purpose. Part III.B highlights the Court’s use of circular reasoning to support this specific restriction on the Second Amendment. Part III.C argues that the Second Amendment, as a fundamental right, should enjoy the protection of strict scrutiny. It then applies this standard to the federal machine gun ban, concluding that the law would be unconstitutional as the Court has previously applied that standard. Part III.D argues that in implementing Heller, federal courts seeking to render a truly originalist interpretation of the Second Amendment would rely on the Heller Court’s broad reading of the Amendment’s purposes rather than its dicta on the Amendment’s limitations. . .
This Note begins by describing the process for seeking benefits as a disabled veteran in the United States. It next examines how PTSD due to sexual assault is subject to a higher level of scrutiny in the benefit application process. The Note then considers the prevalence of MSA in the armed forces and the veracity of victims’ claims. It goes on to describe the clinical connection between MSA and PTSD. Lastly, it catalogs the obstacles to successful disability claims that the veterans disability application process presents.
This Note then analyzes the application process and suggests areas for improvement. Continued vigilance is necessary to abandon the outmoded stereotypes of sexual assault and this Note commends the Department of Defense (DOD) for taking important steps to that end. Unifying the veterans’ disability application process would provide fair and equal treatment of PTSD claims regardless of cause. The fact-finding process within the Board of Veterans’ Appeals (BVA) should be reformed to ensure the Board does not delegate its fact-finding responsibilities to the medical professionals it turns to for evidence. Finally, the contemporaneous proof requirement bars PTSD claims with an otherwise sound clinical basis—a profile that fits many claims based on MSA—and federal regulations should acknowledge this fact. . .
This Note argues that, absent objection at trial, the Massachusetts courts should review admission of objectionable evidence as potential ineffective assistance of counsel, rather than as error under the miscarriage of justice standard. Part II.A discusses the impact of the Melendez-Diaz decision on Confrontation Clause jurisprudence and posits that the Massachusetts courts will apply the miscarriage of justice standard to unpreserved claims of error based on Melendez-Diaz. Part II.B.1 begins a discussion of the evolution of appellate review in Massachusetts, describing the state’s traditional rule of finality. Part II.B.2 examines the emergence of review for a substantial risk of a miscarriage of justice and ineffective assistance of counsel as exceptions to the traditional rule. Part II.B.3 recounts the Massachusetts courts’ struggle to define the limits of miscarriage of justice review. Lastly, using appeals based on Melendez-Diaz as illustrative examples, Part III argues that the Massachusetts courts’ current approach is inconsistent with the traditional meaning of “miscarriage of justice,” misunderstands the distinction between the miscarriage of justice and ineffective assistance of counsel standards, and undermines the role of counsel in our legal system. . .
The striped bass has long been a symbol of America’s coastal bounty. During his maiden voyage into the Chesapeake Bay in 1608, Captain John Smith observed of the striped bass, “I myself at the turning of the tyde have seen such multitudes that it seemed to me that one mighte go over their backs drisho’d.” Despite historical accounts of a seemingly limitless resource, even the earliest colonists had the foresight to limit their harvest of striped bass. Most notably, in 1639, the striped bass became the impetus for America’s first fisheries law when the General Court of the Massachusetts Bay Colony banned the practice of fertilizing cornfields with the discarded frames of the fish.
Part II.A of this Note traces the development of coastal fisheries law, both from state and federal perspectives, and explains how migratory fish have historically been subject to conflicting management schemes upon crossing the arbitrary demarcation between state and federal waters. Part II.B details current striped bass legislation and offers insight into the fish’s lifecycle in order to illustrate the unique challenges of managing a species that knows no jurisdictional boundaries. Part II.C describes the federal government’s renewed interest in conserving the striped bass population, exhibited most recently in a 2007 executive order that reiterated the ban on harvesting striped bass in federal waters. Part II.D examines the standards that govern preemption of state law under the Supremacy Clause, with a focus on cases that address the hierarchy of state and federal fisheries regulations. Finally, Part III explains how and why the federal government should preempt state laws that allow the commercial harvest of striped bass in order to prevent another population crash. . .