Article Preview: “Extending The Mode of Operation Approach Beyond the Self-Service Context” by William Brekka

Contributing Editor: Kevin Buono

The seeming simplicity of the facts of most slip-and-fall cases belie the increasingly complex and amoebic set of new rules which govern them. The modern personal injury practitioner must keep abreast of these changes if she hopes to adequately represent an injured customer or defend the owner of the premises where the injury took place. As the methods in which customers and business owners engage in commerce have evolved, the law has, albeit slowly, attempted to evolve with these methods to preserve the rights of business owners and customers in the event of an injury.

Bill Brekka examines one such evolution in slip-and-fall cases in Massachusetts in Extending The Mode of Operation Approach Beyond the Self-Service Supermarket Context, which will be featured in the New England Law Review, Volume 48, Book 4. The article examines Sheehan v. Roche Brothers Supermarkets, Inc., where the SJC recognized the need for a new rule appreciating “self-service” developments in many supermarkets, which gave customers more freedom to handle the merchandise. This “mode of operation” approach eliminates the standard slip-and-fall rule which requires the injured plaintiff to prove that the premises owner had notice of the risk that caused the injury if the defendant’s mode of operation creates a foreseeable risk that a dangerous condition will occur. After Sheehan, the lower courts have reached different conclusions about whether or not this rule, one that has effectively attached liability to premises owners who would otherwise escape liability by demonstrating a lack of actual notice, applies only in the self-service context.

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Podcast: Interview with Louisa Gibbs on EEOC v. Boh Bros Construction Co.

Today, we are joined by Louisa Gibbs, the New England Law Review’s former Executive Online Editor and a recent graduate of New England Law | Boston, to discuss her Comment entitled “EEOC v. Boh Brothers Construction Co.: Expanding Same-Sex Sexual Harassment Jurisprudence Beyond Sexual Desire,” which will be published in Volume 48, Book 4. Her Comment discusses the Fifth Circuit’s EEOC v. Boh Brothers Construction Co. decision, in which the court found the evidence sufficient to establish Title VII same-sex sexual harassment based on sex stereotyping. She argues that although the Fifth Circuit was ultimately correct, the Court was incorrect in failing to utilize its sister circuits’ views in the decision and, instead, simply focusing on the evidence. She argues that the Fifth Circuit’s analysis would have been much stronger had it addressed or even acknowledged that the Sixth and Ninth Circuits have strong arguments supporting and opposing same-sex sexual harassment. In its shortcomings, the Fifth Circuit therefore failed to provide adequate judicial protections for men subject to same-sex sexual harassment.

Listen on our website here, or visit our PodOmatic page here.

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On Remand: Carrie Goldberg, Esq., Review of Hate Crimes in Cyberspace by Professor Danielle Keats Citron, Esq.

Every social disease spawns its cultural cure. Hate Crimes in Cyberspace is the antidote, bred from the explosion of online personal attacks, a societal ailment seeping into the online and offline fabric of our communities, targeting women and members of other historically subjugated groups. This book sirens to the world that digital hate is an epidemic that costs us all, some far more than others. It cries for a free and equal Internet, where we can all engage without obstruction in the revolutionary new opportunities provided through the Internet—communication, innovation, commerce, recreation, and occupation.

As you will see, this is going to be one sugarplum tree of a review. However, the sugarplums will be vibrating and fizzing, overrun with creeping maggots and rot. That is because Professor Danielle Keats Citron, Esq., penned a superb book about foul things, and we cannot talk about the book without discussing what festers on its branches.

Read more from the most recent On Remand article, a book review of Professor Danielle Keats Citron, Esq.’s Hate Crimes in Cyberspace by Carrie Goldberg, Esq. here.

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Contributor Profile: Bruce D. Sunstein

Contributing Editor: Heather Bruha

Bruce D. Sunstein, author of How Prometheus Has Upended Patent Eligiblity: An Anatomy of Alice Corp. v. CLS Bank, to be published in Volume 49, Book 1 of the New England Law Review, is Founder and Partner at Sunstein Kann Murphy & Timbers LLP. He has a B.S. in Humanities (Applied Mathematics and Literature) from the Massachusetts Institute of Technology, an M.A. in English from Indiana University, and earned his J.D. from Boalt Hall School of Law, University of California at Berkeley in 1973. Impressively, he was selected for Best Lawyers in America 2013–2014 and The Best Lawyers in America 2015 in the field of Litigation–Intellectual Property. He was also named by Boston magazine as one of the five best intellectual property lawyers.

Bruce Sunstein focuses his practice on intellectual property rights, particularly patents, as well as business representation, serving as an expert witness, and various engagements as an arbitrator. He was admitted to practice before the United States Patent and Trademark Office in 1974, and since then has obtained a wide range of patents for his clients, ranging from financial trading systems to neuromedical measurement devices. Intellectual property disputes contribute to Bruce D. Sunstein’s expertise as a witness and arbitrator, and he is expected to give patent law expert testimony in antitrust litigation in In re Nexium (Esomeprazole) Antitrust Litigation, scheduled for trial in October 2014. He has also served as an intellectual property law expert in a dispute over Massachusetts’ corporate excise tax liability, which settled during trial.

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NELR Happenings: NEJCCC Fall Symposium

The New England Journal on Criminal and Civil Confinement is hosting its Fall symposium on October 16, 2014 from 9:30am – 3:30pm in the New England Law | Boston Cherry Room. This year’s symposium, entitled “Crime, Privacy, and Technology: The 21st Century Wild West,” addresses various constitutional issues raised by the government’s use of emerging technologies to investigate and prosecute crime. Topics to be covered include: the third party doctrine, cell site location information/GPS tracking, the Mosaic theory, the pain view doctrine relative to digital searches, and compelled data decryption.

The first panel, Constitutional Theories Anew: The Third Party Doctrine and Related Topics, will take place from 9:30 am – 11:30 am and feature:

  • Professor Lawrence Friedman, New England Law | Boston
  • Professor David Gray, University of Maryland, Francis King Carey School of Law
  • Matthew Segal, Legal Director, ACLU Massachusetts
  • Professor Shaun Spencer, University of Massachusetts School of Law

The second panel, Recent Jurisprudence: The High Court Speaks, will take place from 1:30 pm – 3:30 pm and feature:

  • Gretchen Lundgren, Assistant District Attorney, Suffolk County District Attorney’s Office
  • Judith Mizner, Chief of the Appeals Unit, Boston Federal Public Defenders Office
  • Jessie Rossman, Staff Attorney, ACLU of Massachusetts
  • Professor Stephen Wicker, Cornell University School of Electrical and Computer Engineering

For more information, you can view the Journal Symposium page. We hope to see you there!

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Mass. Crim. Dig.: Moe v. SORB

Contributing Editor: Kevin C. Mortimer

Moe v. Sex Offender Registry Board, 467 Mass. 598 (2014)

I. Issue

In Moe v. Sex Offender Registry Board, the Massachusetts Supreme Judicial Court (“SJC”) considered: (1) whether the July 12, 2013 amendments to the sex offender registry law (“SORL”) are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) whether the Legislature intended for retroactive application; and (3) if so, whether such application violates due process under the Massachusetts Declaration of Rights.

II. Holding

The SJC held that: (1) the July 12, 2013 amendments to the sex offender registry law are retroactive as applied to those classified as level two offenders on or before July 12, 2013; (2) the Legislature intended for retroactive application; and (3) such application violates due process under the Massachusetts Declaration of Rights.

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Mass. Crim. Dig.: Commonwealth v. Duncan

Contributing Editor: Sean P. Murphy

Commonwealth v. Duncan, 467 Mass. 746 (2014)

I. Facts

On a “bleak, snowy, and freezing” January day, a neighbor went to retrieve a borrowed shovel from Heather Duncan’s residence; although no one was home and the gate was locked, she observed two dead dogs in Duncan’s yard and heard a third dog barking. Responding to the neighbor’s subsequent call, police officers heard a dog whimpering as if in distress. Stepping on a tall, nearby snowbank and gazing over Duncan’s six-foot privacy fence, they saw two dogs who were apparently frozen and a third dog “alive but emaciated”—they couldn’t see any food or water left out for the dogs. The yard’s gate was padlocked, so officers tried numerous ways to contact the homeowner, to no avail. The officers then contacted the fire department, which removed the padlock from the gate, and animal control took custody of the dogs—in total, police were on scene for less than two hours.

II. Procedural History

Heather Duncan was charged with three counts of animal cruelty under G.L. c. 272, § 77. The defendant filed a motion to suppress the observations by police and any physical evidence, and after an evidentiary hearing the judge allowed the motion, stating “[o]ur courts have not as yet applied the emergency exception to animals.” Under Rule 34 of the Massachusetts Rules of Criminal Procedure, the judge reported the question of law, and trial was continued pending the resolution of the question.

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Editor Post: Defining “Solicitation” Within an Employment Contract in the Age of Social Media: Lessons from Invidia and Muller

Contributing Editor: Catherine Martin

In today’s increasingly tech-savvy society, social media is perhaps the simplest and most convenient way to stay in touch with friends—and former clients, customers, and coworkers. This increased ease in connectivity is particularly troublesome for employers seeking to enforce their non-solicitation agreements and for employees wary of violating those agreements. The critical and unsettled point of contention is deceptively simple: Can social media conduct, like a Facebook wall post or a LinkedIn profile change, constitute “solicitation?”

A basic non-solicitation agreement between employer and employee generally comes into effect after the employment relationship has terminated, and it requires that the former employee refrain from “soliciting” former coworkers, clients, or customers for a specified length of time. The most commonly litigated issues in non-solicitation cases are the nuanced meaning of the term “solicitation” within the context of the particular agreement and whether an employee’s actions fall within that definition. In the world of social media interactions, defining “solicitation” becomes all the more complex.

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On Remand: Game of Spies by Professor Lawrence Friedman

Intelligence gathering and analysis have long played a critical role in national security efforts. Historically, and with good reason, the extent, reach, and effect of intelligence activities have remained in the shadows, escaping the notice of many in government, as well as the attention of the American public. In the age of the twenty-four hour news cycle, though, this situation is beginning to change: rare since Edward Snowden’s revelations about what our intelligence services have been up to, both domestically and abroad, has been the week in which some intelligence-related activity has not made headlines.

In light of the Snowden revelations and other reports about the intelligence activities in which the United States is engaged, some historical context may be useful—both to assuage our fears and to manage our expectations. For every generation mistakenly supposes that the startling events of its time are the worst ever to have occurred, only to be confronted with historical antecedents that give us some perspective on modern events and offer lessons that may help us address their consequences.

Read more from the most recent On Remand article, a book review of Kenneth A. Daigler’s Spies, Patriots, and Traitors: American Intelligence in the Revolutionary War entitled Game of Spies by Professor Lawrence Friedman here.

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Contributor Profile: Professor Evan J. Mandery

Contributing Editor: Sean Murphy

The New England Law Review’s Spring 2014 symposium, “A Look Back at the History of Capital Punishment,” centered on Professor Evan J. Mandery’s book, A Wild Justice: The Death and Resurrection of Capital Punishment in America. New England Law | Boston was honored to have Professor Mandery in attendance, along with Professor Phyllis Goldfarb of George Washington University Law School; Professor Michael Meltsner from Northeastern Law School; the Honorable Michael Ponsor, Associate Justice of the United States District Court of Massachusetts; and Professor Carol S. Steiker from Harvard Law School. Discussions during the symposium covered a range of topics, from the Bill of Rights and Supreme Court cases, to issues of race and the influence of media on the public’s perception of the death penalty. Live Twitter coverage of the symposium appears here.

Professor Mandery, a graduate of Harvard College and Harvard Law School, teaches at John Jay College of Criminal Justice and serves as the chairperson of the college’s Department of Criminal Justice. A Wild Justice is not Professor Mandery’s only book on the subject of capital punishment; he has also written a textbook, Capital Punishment: A Balanced Examination, which is now in its second edition, as well as numerous law review articles and commentaries on the death penalty and other criminal law issues facing the justice system. In addition to his non-fiction books about capital punishment, Professor Mandery has written three novels: Q: A Novel, First Contact (Or It’s Later Than You Think) – Parrot Sketch Excluded, and Dreaming of Gwen Stefani; two short stories: The Christmas Miracle Event and The Son Also Rises; and a non-fiction book The Campaign: Rudy Giuliani, Ruth Messinger, Al Sharpton and the Race to be Mayor of New York City, which was published in paperback as Eyes on City Hall.

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