Podcast: Commonwealth v. Vacher

Today, we are discussing a recent Mass. Crim. Digest blog post on Commonwealth v. Vacher, decided August 14, 2014. The Mass. Crim. Digest, formerly known as the Massachusetts Criminal Digest, was the New England Law Review’s online case-summary database that provided citable, straightforward summaries of recent criminal law cases decided by the Massachusetts Supreme Judicial Court, or SJC. In 2014 the Mass. Crim. Digest was retired, though summaries of cases decided by the SJC under Articles 12 and 14 of the Massachusetts Declaration of Rights are still provided through our editor blog.

We are joined by a Volume 49 Comment and Note Editor, Catherine Flaherty, to discuss her Mass. Crim. Digest blog post about Commonwealth v. Vacher, citation of which is 469 Mass. 425, again decided August 14, 2014. Catherine, thank you for joining me today.

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

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Article Preview: Constitution Interpretation and Technological Change by Allen R. Kamp

Contributing Editor: Alessandra Perna

Two experiences inspired Allen R. Kamp to write this article. The first was a lecture by Professor Randy Barnett at the 2011 Loyola Constitutional Law Conference that focused on the meaning of “commerce” around the time of the Constitutional Convention. The second was a Colbert Report skit in which Colbert impersonated Paul Revere warning about the British while firing his guns and blowing his horn. These two experiences led Kamp to research how the Supreme Court has looked at technology and how the Constitution’s meaning of words have changed because of it.

Kamp discusses the rules that guide the Supreme Court when interpreting the Constitution in regard to technological change. Kamp looks at the First, Second, and Seventh Amendments of the Constitution, in addition to the Commerce Clause, and how certain—namely conservative—justices go beyond the literal language of the Constitutional text when dealing with technological change. Ultimately, there is no united philosophy when dealing with technological change and therefore the Court’s interpretive approach is ad hoc.

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Podcast: Interview with Bruce Sunstein on Patent Eligibility and Alice Corp v. CLS Bank

Today, we are joined by Bruce Sunstein, founder and partner at Sunstein Kahn Murphy & Timbers, LLP, to discuss his forthcoming article “How Prometheus Has Upended Patent Eligibility: An Anatomy of Alice Corp. v. CLS Bank.” His Article discusses the Supreme Court’s recent decision in Alice Corp. v. CLS Bank, in which the Court ruled on the patent-eligibility of computer-related inventions, clarifying confusion of the application of the Court’s 2012 Mayo v. Prometheus decision to these inventions. Attorney Sunstein asserts, among other things, that the Alice Court disregards deeply ingrained principles of patent law in its approach to patent eligibility doctrine by considering patent claims generally, rather than addressing claim limitations rigorously. He further criticizes the Alice decision for misconstruing precedent and working against the goals of the patent system.

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Article Preview: Tales From the Cryptocurrency: On Bitcoin, Square Pegs, and Round Holes by Eric Pacy

Contributing Editor: Chelsea Edwards

Technology and the Internet have become an integral part of many people’s everyday life, including how they communicate, find information, and watch television. Even watches are getting an upgrade —so it is no wonder that currency would follow suit. Enter the Bitcoin!

Bitcoin is a finite, decentralized, virtual form of payment that is transferred over a peer-to-peer network anonymously and almost instantaneously. To synthesize the transaction between the two parties, “miners” use complex algorithms to match parts of the “block chain” in order to complete the transfer of the Bitcoin. As these block parts are “mined” over time, the amount in the block is reduced and the algorithms become even more complex. Because of its virtual form, regulators hesitate to consider Bitcoin as money. Instead, regulators have attempted to classify this new technology as something other than money, using an existing regulatory framework. However, some businesses already accept Bitcoin as a payment method.

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On Remand: Marissa A. Wiesen, Chapter 9 Bankruptcy in Detroit and the Pension Problem

When Detroit filed for Chapter 9 bankruptcy on July 18, 2013, it became the largest U.S. city by population to do so. Once known as the “Paris of the West” and the home of America’s lucrative automotive industry, Detroit filed after fighting decline for over fifty years. While Detroit grew at a constant rate for the first half of the twentieth century, it has been shrinking at a stunning rate since. In 1950, the population was over 1.8 million; now Detroit is home to only 700,000 residents. There are tens of thousands of abandoned buildings and vacant properties. This has left Detroit with a shrunken tax base and a huge, 139-square-mile city to maintain. In the past fifty years, the city has also been plagued with increased borrowing and financial mismanagement, vastly underfunded pension funds, and “widespread dysfunction”—all factoring into Detroit’s decision to file for municipal bankruptcy.

Upon approving Detroit’s petition for municipal bankruptcy, U.S. Bankruptcy Judge Steven Rhodes gave the city approval to adjust its pension and retirement funds as part of the restructuring plan, despite a Michigan constitutional provision that explicitly protects pensions. Judge Rhodes ruled that pensions are to be treated as contracts and can be compromised in federal bankruptcy court. Many unions and retiree organizations are appealing the decision, citing that pensions are constitutionally protected.

Read more from the most recent On Remand article, Chapter 9 Bankruptcy in Detroit and the Pension Problem by Marissa A. Wiesen here.

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Mass. Crim. Dig.: Commonwealth v. Vacher

Contributing Editor: Catherine S. Flaherty

Commonwealth v. Vacher, 469 Mass. 425 (2014)

I. Facts

On December 16, 2008, sixteen year-old Jordan Mendes’s body was found burning in a pit in Hyannis. Mendes was stabbed in the neck and face twenty-one times, and was shot in the chest. The previous day, he went to his half-brother Charlie’s home on Arrowhead Drive after school. The defendant, Robert Vacher, was dropped off at Charlie’s home with Charlie and John R. around the same time as Jordan. That evening, Charlie arranged to test drive a black Nissan Maxima that a classmate was selling for $11,000. Charlie, John R., and the defendant test drove the vehicle and had it in their possession for approximately four hours, returning it at 8:00 p.m. At that time, Jordan’s friend Diana had expected to see him at the Arrowhead Drive house; he did not arrive, and she telephoned him throughout the night but was ultimately unable to reach him. The next morning, Diana drove Charlie and the defendant to a car dealership in Hyannis, where they purchased a silver BMW for $10,995 in cash. Charlie, John R., and the defendant were later seen at a gas station with the BMW and a red gasoline can.

Jordan’s grandmother became concerned about his whereabouts because she had not seen him since the previous day. She and Jordan’s sister went to look for him, ultimately arriving at a place in the woods where Jordan and his sister often played as children. Jordan’s grandmother and sister noticed a fire burning in a pit, and found Jordan’s body at the bottom. A certified accelerant detection dog twice alerted to the presence of gasoline.

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NELR Happenings: Book 3 Posted!

The New England Law Review is happy to announce that Volume 48, Book 3 is now available! You can see the issue here.

Book 3 is a symposium issue. For information about our Fall 2013 Symposium, Benchmarks: Evaluating Measurements of Judicial Productivity, visit the event page here. Additionally, a complete transcript of the live Twitter discussion is available.

Stay tuned for information about our second symposium issue, which will also be available soon!

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Contributor Profile: Gail J. Hupper

Contributing Editor: Katarina Kozakova

Gail J. Hupper, a Visiting Scholar at Harvard Law School, focuses on research concerning the evolution of the post-graduate legal education in the United States. Her article Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law will be featured at the New England Law Review’s Fall Paper Symposium on November 5, 2014.

Gail Hupper received her Bachelor of Arts degree in Political Economy from Williams College and was awarded the Graves Essay Prize for study of the Social Security system. She earned her Juris Doctorate from Columbia Law School and was an Editor of the Columbia Law Review. She is admitted to practice law in both Massachusetts and New York.

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NELR Happenings: Fall Paper Symposium

The New England Law Review Fall Paper Symposium will be held on November 5th at 4:00 p.m. in the Cherry Room at New England Law | Boston. It will showcase Professor Gail Hupper’s article Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law. Professor Hupper is a Visiting Scholar at Harvard Law School, and her article explores the evolution of the Doctor of the Science of Law (J.S.D.) and Doctor of Juridical Science (S.J.D.) programs. Although originally designed for graduates of United States law schools, these programs are now primarily intended for students who obtained their initial legal education outside of the United States.

Professor Hupper explores some of the inherent tensions in United States legal education, as well as the struggle between academics and professional training. Her article is the third part of a study that looks at the history of the S.J.D., a degree primarily meant to train professors and other legal scholars, and how the degree can contribute to legal concepts both inside and out of the United States.

Our keynote speaker will, of course, be Professor Hupper. The other speakers are:

  • Professor Paulo Barrozo, Boston College Law School
  • Professor Carole Silver, Northwestern University School of Law
  • Gordon Silverstein, Assistant Dean for Graduate Programs at Yale Law School

Please join us Wednesday, November 5 at 4:00pm in the Cherry Room. For more information, including profiles of all our speakers, you can view the Law Review Symposium page here or view additional information on New England Law | Boston’s website here.

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Article Preview: Perspectives on Outpatient Commitment by Richard C. Boldt

Contributing Editor: Timothy Arnold

The highly publicized Newtown, Connecticut mass shooting reignited national debate regarding mental health services and what legislatures can and should do about them. Recent legislation—namely the Murphy Bill—was introduced in response to such incidences; however, mental health treatment in the United States remains a hotly contested issue. The debate largely turns on the competing aims of mental health treatment: (1) the government’s interest in preventing dangerous outbursts, and (2) the states’ parens patrie interest in the health and well-being of persons with mental illnesses. How do these seemingly mutually exclusive goals fit within a statutory framework, and how does the Murphy Bill fare?

In his article Perspectives on Outpatient Commitment, Richard C. Boldt aims to provide guidance on the first question, and critiques legislation similar to the Murphy Bill for encouraging states to make greater use of outpatient civil commitment. This Article, which will be featured in the New England Law Review’s Volume 49, Book 1, asserts that legislation aimed at effectively treating mental health and preventing future violence will only succeed with adequate funding, proper implementation, and full appreciation of the cost-benefit analysis regarding commitment versus individual liberties.

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