- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
On November 18, 2010, Anna Jaques Hospital in Newburyport, Massachusetts revealed its new hiring policy. Under the policy, the hospital will not hire any prospective employees who test positive for nicotine. Anna Jaques Hospital’s policy is part of a national trend among private employers that have instituted tobacco-free employment policies and tobacco surcharges on health insurance. Many employers have gone even further, instituting policies that target not only potential employees, but also current employees, who must attempt to quit using tobacco or face termination. . . .
In the wake of the September 11, 2001 terrorist attacks, the protection of U.S. national security became the impetus for far-reaching legal action. In response to recent U.S. national security measures, legal scholarship has continuously examined the use of military force, and the legal justifications and constraints surrounding such action. One particular area of this debate focuses on the controversial use of unmanned aerial vehicles (UAVs), or drones, and the legality of carrying out UAV-targeted strikes against alleged members of Al Qaeda throughout the Middle East and Asia-Pacific regions. . . .
In early labor and employment law history, employers enjoyed unfettered power under the at-will employment doctrine, which allowed employees to be terminated for any reason, so long as they were not hired for a fixed term. Seeking to remedy the harsh conditions imposed on working men, Congress altered the employment dynamics by equalizing the previously employer dominated at-will employment relationship. Congress enacted the National Labor Relations Act (NLRA) to safeguard employee rights and prevent abuse by employers who enjoyed greater bargaining power. Considered the heart of the NLRA, section 7 codifies the protections guaranteed to private sector employees—including the right to engage in protected concerted activity. Congress simultaneously created the National Labor Relations Board (NLRB) to ensure proper administration and enforcement of the NLRA and to provide employees with a forum to voice alleged violations. . . .
Modern concepts of property ownership are deeply rooted in centuries of Anglo-American jurisprudence. The earliest form of concurrent property ownership—joint tenancy—dates back to the early thirteenth century; from the first references, joint tenancy included the hallmarks of the modern estate: undivided interest in the entire estate and the right of survivorship. By the fourteenth century, English law recognized that husbands and wives could hold property in a special manner—distinct from a joint tenancy—while still including the right of survivorship and an undivided interest in the whole. . . .
Congress passed the Prison Litigation Reform Act (PLRA) in 1995. Since that time, no provision of the PLRA has created more confusion than the limitation-on-recovery provision, or § 1997e(e), commonly referred to as the “physical-injury requirement.” The provision reads: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Because the statute itself does not define physical injury, the provision leaves the task of defining the phrase to the courts. . . .
Legal literature, periodicals, and judicial decisions have spilled much ink on the propriety and scope of the admissibility of expert opinion testimony on the reliability of eyewitness identifications. In the interim, the scientific community continues to stockpile evidence that consistently concludes that eyewitness identifications are unreliable. Many researchers contend that the most effective countermeasure to unreliable eyewitness testimony is the admission of expert testimony. Nevertheless, courts across the country continue to preclude the admission of expert testimony regarding the accuracy of eyewitness accounts. . . .
A sixteen-year-old female may decide to give birth and become a mother, but she cannot independently obtain an abortion or marry the father of her child. A young mother may relinquish rights to her child without judicial intervention, but that same teenager may not decide independently with which parent she wishes to live. The passage of the Twenty-Sixth Amendment highlighted inconsistencies in the law that allowed eighteen-year-olds to fight for their country but deprived those same individuals of the right to vote for the politicians who sent them to war. Although this debate changed the way many individuals feel, society has failed to fully integrate young people into the legal and social worlds currently populated only by adults. Similar inconsistencies still remain regarding minors’ abilities to choose with whom they wish to live.
The United States Supreme Court decided Meyer v. Nebraska in 1923 and established the fundamental rights to marry, to establish a home, and to raise children. By 1944, the Supreme Court limited these rights for minors in Prince v. Massachusetts. Since the Prince decision, a patchwork of federal and state laws has impacted a minor’s right to determine his or her living situation. The time has come to make sense of the patchwork and provide consistent results for minors in the family-law system. . .
The Supreme Court has long stressed the importance of providing equal education opportunities to children. Additionally, the Court has emphasized that the Due Process Clause prohibits school personnel from removing a student for violating its code of conduct “absent fundamentally fair procedures to determine whether the misconduct has occurred.” The rights of disabled children to receive an equal education, including fundamental procedural-due-process rights, have developed considerably in the past three decades.
Efforts to ensure disabled students receive the same opportunities as their nondisabled peers are reflected in both federal and state laws. The first congressional breakthrough occurred with the passage of the Education for All Handicapped Children Act of 1975 (EHA). Over time, amendments improving the EHA were made, and it is now better known as the Individuals with Disabilities Education Act (IDEA). . .
In the wake of the Great Depression, Congress enacted the Securities Act of 1933 (1933 Act) and the Securities Exchange Act of 1934 (1934 Act). Together, the Acts provide the Securities and Exchange Commission (SEC) with broad authority over the securities industry, and institute methods for holding those who commit securities fraud liable. Section 15 of the 1933 Act and section 20(a) of the 1934 Act establish controlling person liability, a mechanism for establishing secondary liability against corporate directors and officers for securities fraud committed by their subordinates. Section 15 of the 1933 Act merely permits controlling person liability to be pursued if very limited types of securities fraud have been committed. As a result, pursuing a controlling person liability claim under section 20(a) of the 1934 Act has historically been both the SEC and private litigants’ preferred course of action as it broadly allows for secondary liability to be attached to any underlying security claim within the Act.
While drafting both Acts, Congress consciously refrained from defining the term “control” because it believed that courts could effectively apply the term depending on the given facts of a case. Therefore, varying standards of controlling person liability have evolved throughout the judicial system, including within federal circuit and district courts. Recently, in continuing efforts to protect investors, Congress has enacted a substantial piece of legislation that may help shed light on the inconsistent application of controlling person liability: the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). . .
Wind power is now the fastest growing source of alternative energy in the United States, due in part to desires to increase utilization of cleaner energy and to withdraw from dependence on foreign energy. Studies have shown that if properly harnessed, the United States has enough wind-energy potential to provide well over the amount of electricity currently consumed nationally. Capitalizing on this potential, thirty-eight states currently maintain utility-scale wind projects, with fourteen states amassing over one thousand megawatts (mW) of energy from these projects. Although all current wind power generated in the United States is produced through land-based operations, the country is pursuing offshore projects—specifically the perpetually delayed Cape Wind project located off the coast of Massachusetts. If the United States wants to continue expansion of wind power both efficiently and lucratively, it must develop a regulatory scheme designed, updated, and maintained specifically for this growing market.
The United States does not have any centralized regulatory, statutory, or administrative authority designed specifically to address wind energy. Potential wind projects—often-called wind farms—must traipse through a mire of local, state, and federal regulations, few of which provide regularity or guidance from project to project. On the federal level, an amalgamation of statutes governs various facets of a wind project’s evolution: permitting, development, decommission, taxation, and rights to opposition are all governed by many different laws. In addition, states generally have their own radically different approaches to handling wind power. Many states even allow cities and towns to pass their own ordinances for handling wind power, which often result in moratoriums or competition between neighbors for lucrative turbine leases. Without any national voice or approach to the development of wind technology, the United States is at a dramatic disadvantage to countries that have taken a proactive approach to wind technology’s introduction. . .