Boston College Journal of Law & Social Justice
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Open Access journal
ISSN (Print) 2165-5235 - ISSN (Online) 2167-9088
Published by Boston College [8 journals]
- Post-Conviction Access to DNA Testing: Why Massachusetts’s 278A Statute
Should Be the Model for the Future
Authors: Theodore Tibbits
Abstract: With the recent rise of the Innocence Movement, many traditional police tools for evaluating forensic evidence have been called into question. Increasingly, science has proven that certain outdated forensic analyses are unreliable or invalid, shedding light on how these faulty analyses have contributed to numerous unjust convictions of innocent people. Deoxyribonucleic acid (DNA) technology, a subset of forensic analysis, has performed the counterpoint to this trend by exonerating many wrongfully convicted individuals. Access to DNA testing, however, is inconsistent from state to state. Massachusetts’s new 278A motion is a strong model for the correct implementation of a statute providing post-conviction access to DNA testing. States such as Pennsylvania, which has a plethora of barriers to post-conviction relief through DNA testing, should look to Massachusetts’s 278A statute as an example on which to base updated post-conviction statutes in order to provide the necessary justice to those who have been wrongfully convicted.
PubDate: Fri, 24 Jun 2016 11:52:13 PDT
- No Place to Call Home: Rethinking Residency Restrictions for Sex Offenders
Authors: Gina Puls
Abstract: Modern day sex offender legislation was first implemented in the early 1990s in response to a number of headline-grabbing incidents. Seeking to protect families and children, federal and state legislators passed regulations aimed at tracking, monitoring, and controlling released sex offenders. A key portion of these legislative developments include state and local level residency restrictions, which prevent sex offenders from living within an established distance—usually 1000 to 2500 feet—of various places where children gather, such as schools and daycare facilities. These laws have created enormous hardship for released sex offenders as they attempt to reintegrate into society, and the effectiveness of these laws has increasingly been rejected. This Note argues for the implementation of more sensible sex offender legislation, including prioritizing individualized assessments over blanket restrictions, making an exception to allow offenders to live with family, and providing resources to help offenders comply with restrictions. Sex offender legislation based upon false assumptions should no longer be the norm, and these reforms will help balance the goals of sex offender management with the empirical data about offender reintegration.
PubDate: Fri, 24 Jun 2016 11:52:10 PDT
- Probable Cause to Protect Children: The Connection Between Child
Molestation and Child Pornography
Authors: Nicholas Pisegna
Abstract: The federal Circuit Courts of Appeal are divided regarding whether probable cause to search for evidence of child molestation provides probable cause to search for child pornography. This Note examines the relationship among the decisions of the Circuit Courts of Appeal, delves into the empirical evidence regarding the relationship between child pornography and child molestation, and analyzes how the “flexible, non-technical” probable cause standard properly interacts with this relationship. In United States v. Colbert, the U.S. Court of Appeals for the Eighth Circuit concluded that, because of the “intuitive relationship” between child molestation and child pornography, a warrant to search for evidence of child pornography based solely on evidence of child molestation is supported by probable cause. This Note argues that the Eighth Circuit appropriately balances the elastic probable cause standard, the policy concerns related to crimes against children, and the nexus between child molestation and child pornography in concluding that probable cause to search for evidence of child molestation provides probable cause to search for child pornography.
PubDate: Fri, 24 Jun 2016 11:52:07 PDT
- An Opening for Civil Rights in Health Insurance After the Affordable Care
Authors: Valarie K. Blake
Abstract: Section 1557, the civil rights provision of the Affordable Care Act (“ACA”), is unmatched in its reach, widely applying race, gender, disability, and age discrimination protections across all areas of healthcare. This Article will explore the value added of a civil rights approach to combating health insurance discrimination when combined with other ACA anti-discrimination efforts that were designed to regulate the health insurance market. It will emphasize the role that section 1557 can play in combatting healthcare disparities and will explore the utility of disparate impact and disparate treatment claims to those cases. Lastly, the Article will posit that two doctrinal limits weaken a civil rights approach to health insurance equity. First, it is unclear to what extent economic rationality is a permissible defense to insurance discrimination. Second, civil rights doctrine focuses on formal equality, which is of limited use in health insurance, where healthcare distribution must necessarily be unequal. Despite these limitations, section 1557 and civil rights in general will play a critical role in health equity in post-reform healthcare.
PubDate: Fri, 24 Jun 2016 11:52:03 PDT
- A New Constitutive Commitment to Water
Authors: Sharmila L. Murthy
Abstract: Cass Sunstein coined the term “constitutive commitment” to refer to an idea that falls short of a constitutional right but that has attained near-constitutional significance. This Article argues that access to safe and affordable water for drinking, hygiene, and sanitation has attained this status and that national legislation is needed to realize this new constitutive commitment. Following the termination of water to thousands of households in Detroit, residents and community organizations filed an adversary complaint in Detroit’s bankruptcy proceedings seeking a six-month moratorium on the disconnections. The bankruptcy court dismissed the case, accurately finding that “there is no constitutional or fundamental right either to affordable water service or to an affordable payment plan for account arrearages.” The widespread protests and outrage at the Detroit water shutoffs suggest, however, that people perceive access to water as a right. Although affordable access to water for essential needs falls short of a constitutional right, it could implicate substantive due process, which reflects its near constitutional status. An analysis of American history, culture, and law demonstrates how access to water for drinking, hygiene, and sanitation could be protected under the right to life. This Article argues that legislation is needed to implement a new constitutive commitment to water and proposes numerous policy options that would not only make moral and economic sense, but also would ensure that all Americans have affordable access to safe water for drinking, hygiene, and sanitation.
PubDate: Fri, 24 Jun 2016 11:52:00 PDT
- From Homicidal Youths to Reformed Adults: Parole Hearing Procedures for
Juvenile Homicide Offenders in Diatchenko v. District Attorney for the
Authors: Paula Trahos
Abstract: In 2013, the Supreme Judicial Court of Massachusetts, following a United States Supreme Court case, Miller v. Alabama, held that all juvenile homicide offenders would have an opportunity for parole after serving fifteen years in prison. Subsequently, the Supreme Judicial Court of Massachusetts, in Diatchenko v. District Attorney for the Suffolk District, held that juvenile homicide offenders are entitled to representation by counsel at parole hearings, funds for expert witnesses, and can be granted judicial review of parole board decisions. The majority afforded these additional procedures with the intention of providing juvenile homicide offenders with a meaningful opportunity for release. The dissent argued that the majority overstepped their judicial boundaries and entered the executive realm by combining criminal sentencing with parole hearing procedures. This Comment argues that the majority appropriately granted juvenile homicide offenders parole hearing procedural protections.
PubDate: Wed, 06 Apr 2016 06:57:52 PDT
- No Fracknation Without Representation: Stripping Away a City’s Right to
Regulate the Stripping Away of Its Natural Resources in State Ex Rel.
Morrison v. Beck Energy Corp.
Authors: Derek Rocha
Abstract: In 2011, the city of Munroe Falls, Ohio sought to prevent Beck Energy Corporation from drilling for gas or oil within its city limits until the company complied with the city’s relevant municipal ordinances. Pursuant cases sought to resolve whether Munroe Falls’ municipal ordinances were a valid exercise of the city’s home-rule power. The Ohio Supreme Court determined that the local ordinances conflicted with state law, which regulated oil and gas production within Ohio. The court held that the state law preempted the local ordinances as they sought to regulate oil and gas production in a similar manner. In response, the concurring and dissenting opinions expressed concern that the plurality opinion demonstrated a rigid deference towards preemption at the expense of traditionally recognized areas of municipal authority. This Comment argues in favor of the concurring and dissenting opinions, which rightly cautioned against the preemption of all local regulations by state law when dealing with ultrahazardous and locally impactful activity.
PubDate: Wed, 06 Apr 2016 06:57:46 PDT
- A Tort Report: Christ v. Exxon Mobil and the Extension of the Discovery
Rule to Third-Party Representatives of Decedents in Wrongful Death and
Authors: Jeremy McManus
Abstract: On June 23, 2015, the Wisconsin Supreme Court allowed representatives of deceased employees of a tire manufacturing facility to use the “discovery rule” to extend the statute of limitations for their wrongful death and survival suits associated with the decedents’ forced benzene exposure at the facility, provided they could show the information necessary for making their claims had not been available upon diligent effort within the statute’s timeframe. The majority reasoned that public policy is in favor of allowing meritorious claims to be heard, there is no significant difference between direct victims and representatives to render an extension untenable, and the preservation of existing barriers to stale claims being heard will allow for the smooth extension of the discovery rule. This Comment argues in favor of the majority’s approach, as it best protects the ability of all tort victims to recover damages they are owed.
PubDate: Wed, 06 Apr 2016 06:57:32 PDT
- The Big Stink About Garbage: State v. McMurray and a Reasonable
Expectation of Privacy
Authors: Brittany Campbell
Abstract: On March 11, 2015, the Supreme Court of Minnesota affirmed a lower court decision against David Ford McMurray, who was found guilty of third-degree possession of a controlled substance and sentenced to twenty-four months. McMurray was charged after Hutchinson, Minnesota police searched through his garbage and found evidence of methamphetamine. The majority held that a warrantless search of the defendant’s garbage was reasonable under the federal and state constitutions because a person has no reasonable expectation of privacy in garbage set out for collection on the side of a public street because garbage is readily accessible to other members of the public. The dissenting judge persuasively opined that there is, in fact, a reasonable expectation of privacy when an individual places his or her garbage at the curb for collection because household waste contains personal information that most individuals expect will remain private. This Comment argues that the dissent’s approach better understands the private nature of waste, the opinion’s troubling repercussions for disadvantaged communities, and the potential for broader government intrusion.
PubDate: Wed, 06 Apr 2016 06:57:25 PDT
- “Slurring” the Lines Between Insensitivity and Hostility:
Boyer-Liberto v. Fontainebleau Corp. and the Evaluation of Title VII
Racial Harassment Claims
Authors: Kayla Acklin
Abstract: On May 7, 2015, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, held in favor of Reya C. Boyer-Liberto, an African American cocktail waitress employed by defendant Fontainebleau Corporation, who claimed racial harassment in violation of Title VII by fellow employee, Trudi Clubb. In Boyer-Liberto v. Fontainebleau Corp., the majority based its analysis on Clubb’s use of a racial epithet, twice in a twenty-four hour period, which they determined was severe or pervasive enough to create a racially hostile work environment, even in isolation. The separate concurring and dissenting opinions emphasized the majority’s departure from precedent established in Harris v. Forklift Systems, Inc. and Faragher v. City of Boca Raton. Both the concurrence and dissent were concerned that the majority’s decision would increase segregation in the workplace, which would be counterproductive to Title VII’s purpose, and would lead to an increase in frivolous employment litigation.
PubDate: Wed, 06 Apr 2016 06:57:18 PDT
- More Carrot, Less Stick: Workplace Wellness Programs & The Discriminatory
Impact of Financial and Health-Based Incentives
Authors: Emily Koruda
Abstract: In recent years, more and more employers are turning to workplace wellness programs to combat rising health care costs by rewarding employees for improving their health-related behaviors and penalizing those who do not attain measureable health outcomes. Yet these wellness programs run counter to the goals of improving the overall health and livelihood of employees when they shift health care costs onto the employees who need lower premiums the most. There is little evidence that these programs can avoid being discriminatory. This Note analyzes the disparate impact of workplace wellness programs on low-income individuals, individuals with disabilities, and certain racial minorities. It explains how employers utilize wellness programs as a subterfuge for discriminatory cost-shifting—in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964—that decreases access to, and affordability of, quality health care services. This Note argues that, in order to rectify the discriminatory effects of these programs, the Equal Employment Opportunity Commission must issue explicit guidance and exercise its power effectively as an enforcer of anti-discrimination law. Additionally, the Health Insurance Portability and Accountability Act must be modified to better define “voluntariness” within the realm of incentives and penalties.
PubDate: Tue, 01 Mar 2016 14:05:26 PST
- Make Him an Offer He Can’t Refuse: The Concerning Practice That
Effectively Ends Collective Litigation and How to Fix It (Without the
Authors: Daniel Fishman
Abstract: In certain American jurisdictions, collective action lawsuits are severely limited through rules that enable a defendant to make a settlement offer worth the entirety of the plaintiff’s damages and thus moot his or her claim, regardless of whether the offer is accepted. In collective litigation, if the settlement offer is made prior to a motion for class certification, the defendant may end the litigation with minimal costs for the defendant, but with minimal justice for the represented class. This practice of mooting collective actions prior to a motion for class certification leaves the class without a representative, case, or settlement money, effectively ending collective litigation as an avenue of justice. Eliminating collective litigation takes an essential tool out of the hands of individuals seeking to enforce their rights against powerful and unified defendants in areas such as civil rights, environmental justice, and employment law. This Note advocates for either the U.S. Supreme Court to remedy this issue through its jurisprudence or for an amendment to the Federal Rules of Civil Procedure to prevent courts from mooting collective cases with unaccepted settlement offers prior to class certification, either through the traditional rulemaking process or through legislative action.
PubDate: Tue, 01 Mar 2016 14:05:22 PST
- Victim Protection or Revictimization: Should College Disciplinary Boards
Handle Sexual Assault Claims?
Authors: Erica Coray
Abstract: Colleges and universities that receive federal funding are legally required to respond to all sexual assault complaints on their campuses. Numerous laws and guidance documents address the specific obligations of higher education institutions in their responses to complaints; however, many colleges and universities have failed to meet these obligations. This Note examines the requirements colleges and universities must comply with when responding to sexual assault complaints. It then highlights three high-profile mishandlings of sexual assault cases by colleges and universities and analyzes the benefits and drawbacks of allowing campus disciplinary committees to independently respond to sexual assaults. This Note then suggests that law enforcement should be integrated into the campus response procedures, specifies particular procedural changes that are necessary in campus disciplinary proceedings, and suggests alternative penalties to ensure institution compliance. Finally, this Note addresses proposed legislation aimed at improving the response of institutions to sexual assault on college and university campuses.
PubDate: Tue, 01 Mar 2016 14:05:19 PST
- The Impact of Interior Immigration Enforcement on Mixed-Citizenship
Authors: Michael J. Sullivan et al.
Abstract: In this article we trace the expansion of interior immigration enforcement measures since the 1990s, focusing on the period after the creation of the U.S. Department of Homeland Security (DHS) in 2003. We consider the rationale for the escalation of enforcement during this period, as well as the expansion of enforcement to include local and state law enforcement agencies. Detailing in particular the role of local jails, private corrections corporations, and the communities that are financially dependent on the prison industry, the article also examines who benefits economically and politically from these changes. Throughout, we consider how the expansion of immigration enforcement has affected U.S. citizen children and spouses of unauthorized immigrants. We question whether U.S. Immigration and Customs Enforcement (ICE) is fulfilling its mandate to de-emphasize enforcement against parents, guardians, and children given that the number of detentions and removals in these categories continues to increase. We discuss how this is imposing unnecessary costs and burdens on ICE’s citizen stakeholders while benefiting private corrections corporations.
PubDate: Tue, 01 Mar 2016 14:05:15 PST
- Toward a New Separation of Church and State: Implications for Analogies to
the Supreme Court Decision in Hobby Lobby by the Decision in Obergefell v.
Authors: Vincent J. Samar
Abstract: In June 2015, in Obergefell v. Hodges, the Supreme Court of the United States determined that there is a fundamental right to marriage that extends to same-sex couples. This Article analyzes the Obergefell decision in light of the Court’s 2014 decision in Burwell v. Hobby Lobby regarding religious protections that might by analogy be afforded under state Religious Freedom Restoration Acts. In particular, the article considers whether a government official may claim the right to religious freedom to deny issuing marriage licenses to same-sex couples. Additionally, the article suggests that a new standard for the separation of church and state may be required. Although the 2015 decision prevents the government from denying marriage to same-sex couples, the decision does not directly affect private businesses that choose not to provide services for same-sex weddings. It may, however, have an important indirect effect if laws are already present that prohibit sexual orientation discrimination. Therefore, the article explores possible avenues for protection from private discrimination and considers the questions that remain in the wake of the Obergefell decision.
PubDate: Tue, 01 Mar 2016 14:05:11 PST
- Rx for Costly Credit: Deferred Interest Medical Credit Cards Do More Harm
Authors: Allison J. Zimmon
Abstract: Various health care providers offer patients medical credit cards that charge high rates of deferred interest. As the cost of medical care and patient responsibility for out-of-pocket costs continue to rise, patients have turned to medical credit cards for help footing the bill. Unfortunately, because they fail to pay off their balances before the end of the promotional period, many patients find themselves unexpectedly responsible for deferred interest charges at rates well above those associated with general-purpose credit cards. Medical credit cards fall outside the protection of many federal credit laws regulating consumer credit. This Note argues that the Consumer Financial Protection Bureau (CFPB) should ban deferred interest medical credit cards through the exercise of its rulemaking power. Short of a total ban on deferred interest medical credit cards, the CFPB should use its rulemaking power to expand the reforms it recently levied on GE CareCredit to the entire medical credit card industry.
PubDate: Tue, 19 May 2015 12:27:15 PDT
- Compromising Equality: An Analysis of the Religious Exemption in the
Employment Non-Discrimination Act and its Impact on LGBT Workers
Authors: Erik S. Thompson
Abstract: On November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (“2013 ENDA”), a bill that attempted to incorporate both sexual orientation and gender identity as protected classes under Title VII of the Civil Rights Act of 1964. The 2013 ENDA was an important initiative that addressed a long history of employment discrimination against gay, lesbian, bisexual, and transgendered employees. The bill, however, provided a broad exemption for religiously affiliated organizations operating in secular fields. This religious exemption excluded a significant number of organizations hiring secular-in-function employees from the bill’s prohibition of discriminatory practices. Although Congress dismissed the 2013 ENDA in September 2014, the history of the bill suggests that future attempts by Congress to pass a similar antidiscrimination bill will likely offer the same broad exemption for secular-in-function but religious-in-name organizations. This Note examines the religious exemption issue and suggests that religiously affiliated but secular-in-function organizations be subject to a bona fide occupational qualification to enable them to practice their faith without undermining the very purpose of the proposed legislation.
PubDate: Tue, 19 May 2015 12:27:14 PDT