Academic literature on the topic 'Massachusetts. Laws, Statutes'

This article scrutinizes the emergence and transformation of school bullying as a novel form of legally cognizable transgression in twenty-first century America, with the goal of highlighting an incipient shift away from the logic of individual intent that dominated twentieth-century criminological thinking. Through a survey of bullying definitions employed in various state statutes and an intensive examination of the genealogy of a seminal 2010 Massachusetts law, the article explores the shifting relationship between competing modes of carving out a determinate legal offense from the formerly colloquial concept of bullying. Specifically, it demonstrates that bullying legislation may be divided into laws focused on the culpability of individual offenders and those structured around broader, but less personal, social and institutional conditions. Massachusetts’ anti-bullying legislation in turn serves as an illustration of a broad trend marking the ascendency of this second, depersonalized, mode of defining transgression. The article concludes by considering the larger implications for criminal law of this new legislative attitude, which displaces the subjective individual as the central figure of morally salient transgression and legal intervention.

“We ‘re going to take the Marlboro Man to court. “— Florida Governor Lawton ChilesDespite overwhelming epidemiological evidence that cigarette smoking causes cancer, and that addictive nicotine in tobacco keeps smokers smoking, our legal system has yet to allow a recovery against the tobacco industry for the massive harms it knowingly causes. Plaintiff smokers have sought recovery, only to be thwarted by affirmative defenses of assumption of the risk and contributory negligence, preemption of their claims by federal cigarette labeling laws, the difficulty of proving that cigarette smoking causes cancer, and the enormous resources of the $45 billion per year tobacco industry.After forty years of unsuccessful lawsuits against the tobacco industry, a new plaintiff has come forward. In 1994, Florida and Massachusetts passed legislation enabling the states to bring suit against the tobacco industry to recover Medicaid costs of treating smoking-related illnesses.

So contended Edmund Burke in the House of Commons, during a May 1770 speech that ridiculed the government's American policy. It was not the first time Burke raised the subject of this 1543 statute. He had asked—rhetorically—during debates two weeks before, “The Act of Henry VIII. Did you mean to execute that?” He then answered his own question, the scorn beneath it probably apparent to all. “You showed your ill will to America, at the same time you dared not execute it.” Burke hoped that by shaming the ministry he might be able to push through a set of resolutions condemning its policies, which could open the way for a new approach to imperial management. He failed, but that did not mean he had been wrong about the futility of threatening to resurrect an old statute to intimidate protesting Americans.

Kunal Parker's “State, Citizenship, and Territory” can be read in at least two ways. Read one way, it tells an important story about how regulation of the poor was driven upward in Massachusetts during the nineteenth century, from the localities to the state. In the seventeenth century, Massachusetts had imposed primary responsibility for care of the poor on its towns. But during the eighteenth century, with the growth of a landless, wandering population, town poor relief budgets came under increasing pressure. The towns responded by lobbying the Massachusetts legislature to pass a series of statutes that made it more and more difficult to acquire a town settlement. People who fell into need in Massachusetts but who had not acquired a town settlement became state paupers for whom the state, rather than any town, was fiscally responsible. As it became more and more difficult to acquire a town settlement, the number of state paupers increased, shifting a portion of the fiscal burden of poor relief from the towns onto the state.

A sexual assault trial requires a court to balance evidentiary privileges enacted by a state legislature against a criminal defendant's constitutional trial rights. State legislatures enact various privileges which either limit or prohibit the discovery of confidential communications in criminal trials. Such statutes reflect a firmly based legislative effort to protect citizens’ private and personal confidences from unwarranted public scrutiny. When a defendant charged with sexual assault seeks to compel discovery of the victim's privileged medical, psychiatric, or counseling records, a conflict inevitably arises. States and victims assert that courts must respect statutory assurances of confidentiality; defendants assert that their constitutional right to a fair trial and their right to confront the witnesses and evidence against them mandates disclosure. Resolution of this pressing conflict requires a careful balancing of both the state's and defendant's interests on a case by case basis.

College-aged adults are an overrepresented group in the uninsured population of the United States, and traditionally underserved minorities are disproportionately affected. Students with private health insurance are often functionally uninsured as well, since most schools refuse to accept this traditionally elite calling card on campus. Consequently, the large uninsured and functionally uninsured populations often rely on school-sponsored health insurance plans for access to care. These plans have uneven coverage, limited benefits, exclusions and high co-pays and deductibles, and provide little health care security for their beneficiaries. Further, schools and insurance companies have profited substantially from these student plans, raising the possibility of a conflict of interest, with school-sponsored plans that may be focused on financial benefits to schools rather than the health of students. In addition, these plans may violate public policy and consumer protection laws by charging those who do not enroll in school-sponsored plans higher prices and by disingenuously claiming "competitive" rates when advertising to students. Public efforts at a student mandate, such as in Massachusetts, although successful in increasing the number of students with health insurance, have failed to provide adequate access to care. A focused policy must be put into place to ensure that students can effectively and efficiently access needed health care services on campus. In support of this effort, a proposed statute is provided herein. This bill would amend the Higher Education Opportunity Act to create a student health insurance mandate. School-sponsored plans, as well as private plans with comparable coverage, would be required to fulfill a minimum standard benefits plan. Reasonable exclusions and limitations would be allowed, based on standard practices in commercial health insurance plans. The statute would require a minimum percentage of premiums to be spent on health care, with any excess rebated to students. It would also require schools to accept a student's private health insurance for campus services to avoid forcing students to pay more than once for care. As part of this mandate, a portion of the surplus retained by schools billing private insurers would be allocated to create health insurance scholarships for uninsured students. Finally, the definition of "cost of attendance" would be adjusted to ensure that financial aid calculations take into account health insurance premiums.

Photo 3701647 © Jeremy Swinborne | Dreamstime.com INTRODUCTION Among the many unclear issues as interpretations of Employment Division v. Smith arise in the context of vaccination mandates is a simple question: Does any exception to a law at all (whether for a group or an individual) render a law not “generally applicable and religion-neutral” in the eyes of the current Supreme Court? I. Background Prior to Employment Division v. Smith,[i] Sherbert v. Verner[ii] set forth the free exercise test which called for strict scrutiny requiring a compelling state interest and the use of the least restrictive means to achieve the state interest when a law poses a substantial burden to the exercise of religion. Sherbert had a broad holding that prior to Smith applied to laws whether neutral on their face or not, and whether the asserted discrimination was intentional or not. One issue with Sherbert was that judges were not especially adept at judging the sincerity of beliefs and the importance of religious rituals to individuals, making it difficult to determine whether a law imposed a “substantial burden” on the practice of a religion. Employment Division v. Smith holds that laws that are generally applicable and religion-neutral need not be justified by a compelling government interest even if they do have the effect of (unintentionally) burdening a religious practice.[iii] Smith, decided in 1990, altered and narrowed judicial discretion in evaluating neutral laws that may impede the free exercise of religion. Justice Scalia aligned free exercise with other First Amendment rights.[iv] He also alleviated the need for judges to determine the burden on and the sincerity of religious beliefs in instances of neutral laws. “Smith therefore diminished judicial power to grant religious citizens exemptions from their civic obligations...”[v] Yet a carveout was maintained for laws that have a “mechanism for individualized discretion”; strict scrutiny still applies to those. Lukumi[vi] (1993) reaffirmed yet distinguished Smith. In Lukumi, the law in question was adopted to ensure that a religious group would be rendered unable to sacrifice animals. The law had numerous exemptions (clearly people may kill animals for many non-essential reasons like hunting and fishing for sport, etc.) and the lawmakers seemed to have the intent of interfering with animal sacrifice. It was not considered generally applicable on various grounds and the Lukumi Court states, “As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government "may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Ibid., quoting Bowen v. Roy, 476 U. S., at 708 (opinion of Burger, C. J.).”[vii] In Lukumi, arguably there were so many exceptions, the rule was clearly targeting religious sacrifices. The Court applied strict scrutiny and the law was deemed unconstitutional. II. The Current Supreme Court and Laws Outside of Smith The current and recent cases indicate that some justices on the Supreme Court assert that the caselaw supports religious exemptions to a broad array of laws. Two arguments support this result: either a limited interpretation of “generally applicable and neutral” or a slightly different tactic which argues that any laws with individual exceptions call for strict scrutiny. (One argument is that those which allow exceptions are not generally applicable and neutral, and thus fall outside of Smith and they require strict scrutiny;[viii] the other is that a law can be generally applicable and neutral, but if it has a system for exceptions, then it is subject to strict scrutiny.[ix]) In John Does 1-3 v. Mills, the Supreme Court denied an injunction on October 29, 2021. The case concerns Maine’s vaccine mandate and will be heard on the merits. Gorsuch dissented from the denial of injunctive relief. He applied Smith, Lukumi, and Fulton v. Philadelphia[x] saying that because there is a medical exemption, the law is not “generally applicable”[xi] and strict scrutiny will apply. Thomas and Alito joined Gorsuch. The Gorsuch dissent also implies that the Maine medical exemption may be somewhat bogus saying Maine finds the “mere trepidation over vaccination as sufficient” if it is expressed in medical rather than religious terms.[xii] Justice Barrett, joined by Kavanaugh, concurred in the denial of the injunction, but clarified that her reasoning was a wish to avoid giving a “merits preview” by enjoining the law, based on the applicants’ likelihood of success, noting the case is “the first to address the questions presented.”[xiii] III. Do Medical Exemptions Negate the Possibility of a Neutral and Generally Applicable Law? Are they a de facto “mechanism for individual exemption”? To me, it seems that under the current law, a medical exemption could make the absence of a religious exemption more problematic. The big issue now is whether Barrett and Kavanaugh and any (even all) other justices are likely to find the medical exemption is a “mechanism for individual exemptions” or whether it otherwise more simply makes a law not neutral or generally applicable. In previous recent COVID-19 cases, the argument of emergency authority was prominent. Caselaw regarding emergency use of governmental powers trumped some constitutional arguments and led to disparate COVID-19 caselaw.[xiv] For example, some courts applied Jacobson v. Massachusetts,[xv] giving deference to public health authorities while others applied strict scrutiny.[xvi] At the Supreme Court level, Justices Sotomayor, Kagan, and Breyer have been more willing to analyze COVID-19 regulations according to emergency powers.[xvii] a. In Favor of the Gorsuch Reasoning The Gorsuch dissent will require the state to offer proof of some rationale for why a medical exemption would be more acceptable, less dangerous, etc. than a religious one. Because there is a medical exemption, the causal nexus between the state’s goals and the restrictions will matter. For example, in Fraternal Order of Police v. Newark, a requirement that police be clean shaven was invalidated because there was a medical exception.[xviii] The problem with the rule was that the government interest in uniformity was not violated any more or less whether the person was noncompliant due to medical as opposed to religious reasons. Gorsuch correctly applied similar reasoning arguing that those not in compliance with the Maine vaccine mandate due to religious exemptions posed no more danger than those noncompliant due to medical conditions.[xix] An opposing side might argue that by the numbers, and without a need for a doctor’s signature, more people would apply for and receive religious exemptions, thus harming the ability to reach herd immunity more, or posing more risk of community spread. b. But, on the other hand There are many laws with medical exemptions. It would not seem right that they be subject to strict scrutiny for failing to offer religious outs as well. For example, places without motorized vehicles could allow motorized wheelchairs. Indeed, the ADA may even call for special treatment in many circumstances where religious special treatment would not be granted. Disability law often requires variances, changing zoning to allow ramps, or other accommodations.[xx] It does not appear that every disability accommodation equates to a need to allow a corresponding religious accommodation, nor that strict scrutiny would apply. Zoning cases are common where churches seek exceptions from historical landmark regulations and the results of those cases vary.[xxi] One of the biggest vulnerabilities of the Smith ruling is that arguably all laws have an individualized enforcement aspect. While it may not be an official exemption or a “mechanism for individual exemption”, individuals have the ability to use courts to challenge laws, there are laws that rely on wishy washy terms, like “good cause”, and there are groups whose failure to comply with laws may be traditionally ignored. In each of those scenarios, those seeking religious exemptions may have a stronger case, and eventually may chip away at Smith. c. Would a Different Built-In Exemption Preclude Application of Smith? Application of Smith may depend on whether the exemption is discretionary or built in. For example, if an exemption said anyone may apply for an exemption with good cause, religious ones should be fairly and equally considered. If an exemption reads anyone with an autoimmune disease is exempt, the class of people exempt would be delineated (unlike the Maine language) rather than discretionary as with the open-ended medical exemption language of the Maine statute. In the case of a class-like exemption, the argument that the law is neutral and generally applicable would be stronger. Smith was not really meant to declare that laws with any categories would be vulnerable to free exercise challenges. Similarly, objective criteria in providing exemptions differs. When criteria for exemptions are made clear, the religious argument could be weaker. However, the Gorsuch argument that in the end the religious objector poses no more danger to others than the medical (or other maybe conscientious, financial, or physical) objector may be the winning argument. IV. Side Note: Another Consideration for Neutral Laws In Roman Catholic Diocese of New York, Justice Kavanaugh created a peer group limitation in applying Smith. Kavanaugh found that a law that limited gatherings at religious services was not neutral. The law had various categories of entity.[xxii] An interesting twist is that other entities similar to churches in objective concrete ways (like theaters) were closed altogether, so arguably religion was favored over those, but disfavored compared to essential businesses (like food stores). The orange and red zones in the challenged Cuomo Executive Order did have specific rules for places of worship. Gorsuch referred to Lukumi in his concurrence and went directly to strict scrutiny without sincerely entertaining the concept that the Executive Order was a neutral and generally applicable law. That is in keeping with his dissent in Does 1-3 v. Mills. Yet, it remains possible to argue that laws with objective, defined categories may still be neutral and generally applicable. V. Time to Abandon Jacobson at this Juncture of COVID-19 Jacobson applies in public health emergencies and, while in recent Supreme Court cases, many justices rightly pointed to the emergency as a reason to compromise important rights, the emergency aspect of the pandemic is waning. In many areas, the positive rate is quite low, businesses are returning to normal, and the vaccination rate is high. As such, the abandonment of strict scrutiny in favor of Jacobson’s emergency deference to public health entities, something Gorsuch failed to entertain in South Bay Pentecostal Church v. Newsom[xxiii] anyway, is arguably no longer warranted. Deference to the state and to experts must be limited to emergencies. Justices Kagan, Breyer, and Sotomayor who rightly cautioned against “armchair epidemiology”[xxiv] during the height of the COVID-19 pandemic might return to stricter stances on protecting rights as the emergency dies down or becomes localized, and as increasing methods and treatments arise, like the COVID-19 pill by Merck. The calculus of whether we need strict COVID-19 regulations is dynamic. This is not a static emergency with powers to be left in place unconditionally. CONCLUSION The argument that vaccination is a civic and moral obligation that people should engage in regardless of religious beliefs is stronger in an emergency. Whether deemed to include a “mechanism for individual exemptions” or just declared not neutral or generally applicable, laws offering any exceptions are more vulnerable to free exercise claims. Under the current Supreme Court composition, anticipating that laws may face strict scrutiny is wise—Smith is unlikely to shield seemingly neutral laws in the face of free exercise cases. That is not necessarily a bad outcome in a country that purports to allow religious freedom and can do so safely. Strict scrutiny is merely a protection that would ensure the public that laws are meaningful, achieve compelling purposes, and do so without unnecessarily impeding fundamental rights. Yet one bad outcome of a rule that says if there are medical exemptions so must there be religious ones is that lawmakers will write laws that are more absolute, rigid, and unyielding to legitimate claims. [i] 494 U.S. 872 (1990). https://supreme.justia.com/cases/federal/us/494/872/#tab-opinion-1958253 [ii] 374 U.S. 398 (1963). https://supreme.justia.com/cases/federal/us/374/398/#tab-opinion-1944463 [iii] Smith, at 879 (religion does not excuse people from compliance with neutral laws.) [iv] Kaplan, Carol M., “The Devil is in the Details: Neutral, Generally Applicable Laws and Exemptions from Smith,” New York University Law Review, October 2000. https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-75-4-Kaplan.pdf [v] Kaplan, at 1053. [vi] Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993). https://supreme.justia.com/cases/federal/us/508/520/#tab-opinion-1959281 [vii] Lukumi, at 537. [viii] Keeler v. Mayor of Cumberland. 940 F. Supp. 879 (D. Md. 1996) https://law.justia.com/cases/federal/district-courts/FSupp/951/83/1381605/; Kaplan, at 1066. [ix] Kaplan, at 1062, citing Swanson v. Guthrie Indep. Sch. Dist., 135 F. Supp. 694 (10th Cir 1998). [x] Fulton v. Philadelphia, 593 U.S. __ (2021) [xi] Does 1-3 v. Mills, 595 U.S. ____(2021). Gorsuch, dissent, p. 2. https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf [xii] Does 1-3 v. Mills, Gorsuch dissent, p. 3. [xiii] Does 1-3 v. Mills, Barret, concurring. https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf [xiv] Zimmerman, A. “Weeding Out Disingenuous Emergency Orders: A Consistent Ethical Justification to Determine Whether to Apply Jacobson V. Massachusetts’ Deferential Approach or the Tiered Scrutiny That Would Apply Absent an Emergency”. 2021. Voices in Bioethics, vol. 7, May 2021, doi:10.7916/vib.v7i.8037. [xv] 197 US 11 (1905). [xvi] Zimmerman, A. 2021. doi:10.7916/vib.v7i.8037. [xvii] South Bay Pentecostal Church v. Newsom (2021), Kagan, dissenting, joined by Breyer and Sotomayor (Justices are “not scientists”.) [xviii] Kaplan, at 1079, citing Fraternal Order of Police v. City of Newark, 170 F. 3d 359 (3d Cir. 1999). [xix] Does 1-3 v. Mills, Gorsuch dissent, p. 4. [xx] https://www.ada.gov/comprob.htm [xxi] Keeler v. Mayor of Cumberland (provisions deemed individualized exemptions so religious deserve strict scrutiny and consideration); Rector of St. Bartholomew’s Church v. City of New York (2d Cir. 1990)(discretion does not negate Smith if it is not discriminatory so religious does not get strict scrutiny); see Kaplan at 1066. [xxii] Cuomo executive order established zones. https://esd.ny.gov/cluster-action-initiative-faq [xxiii] 592 US __ (2021). https://www.supremecourt.gov/opinions/20pdf/20a136_bq7c.pdf [xxiv] South Bay Pentecostal Church v. Newsom (2021) (dissent).

This chapter discusses the law on marriage and divorce, family property, adoption, poor laws and social welfare, and slavery and African Americans in the United States. In the colonial period, the United States had no courts to handle matters of marriage and divorce. Marriage was a contract—an agreement between a man and a woman. Under the rules of the common law, the country belonged to the whites; and more specifically, it belonged to white men. Women had civil rights but no political rights. There were no formal provisions for adoption. A Massachusetts law, passed in 1851, was one of the earliest, and most significant, general adoption law. The so-called poor laws were the basic welfare laws.

Rural Massachusetts is delightful at the end of summer. The classic New England architecture blends with the lawns, gardens, and green forests into a picture of perfect harmony. It is sunny, and the right time in the afternoon for a stroll around the college town of Amherst. However, after a few blocks a distinct crack appears in this idyll: a traditional white wooden house is being renovated and a skull and crossbones sign on the lawn is telling us to keep out due to danger of lead poisoning. It turns out that the customary white colour of the houses around here was oft en due to lead-based pigments. The use of lead in paints was phased out in 1978, but it is still an issue judging from the 16-page pamphlet available in six languages from the US Environmental Protection Agency, and the criminal cases brought against real estate companies and landlords failing to inform tenants and buyers of the lead status of their homes. Marcus Vitruvius Pollio would probably have agreed with this pamphlet and legislation, and so most certainly would Alice Hamilton. Although almost two millennia separate the Roman engineer from the first woman on the faculty of Harvard Medical School, they are united in the fight against the dangers of lead to the workforce and to the public. We do not know much about the life of the first century BC architect and engineer Marcus Vitruvius Pollio, otherwise known as Vitruvius, except what can be inferred from his famous work The Ten Books on Architecture. This magnum opus, written in the days of the Emperor Augustus, probably represents the summary of the professional experience of an old man. The title is slightly misleading, as architecture in Roman times would cover a much broader area than today. So Vitruvius tells us a great deal about engineering in general, about the chemistry of pigments and, to the benefit of this story, about aqueducts and the proper treatment of water. He is also clearly a conservative man, lashing out against ‘decadent frescos’ and ‘these days of bad taste’.