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February 2014

January 2014

  • January 31, 2014 After Online Equity: De-Crowding and Accommodating Venture Capital On October 23, 2013, the SEC released its proposed equity crowdfunding rules. The proposed rules, which come over a year and a half after the Jumpstart Our Business Startups Act (JOBS Act) was signed into law, outline the details of how the legislation’s new crowdfunding provisions will function. While many have lauded the new rules as potentially useful for capital-seeking startup companies, this new financing mechanism has two serious limitations.

December 2013

  • December 6, 2013 Thumbs Up: Fourth Circuit in Bland Determines Facebook “Likes” Are Protected Under the First Amendment In Bland v. Roberts, the Fourth Circuit held that “liking” a politician’s campaign Facebook Page constituted protected speech under the First Amendment. In doing so, the court resolved an issue of first impression that interconnects First Amendment jurisprudence with social media’s influence on how people express themselves. According to Facebook, more than three billion “likes” and comments are posted on its website every day.
  • December 4, 2013 Regulation of Paid Tax-Return Preparers: A Foregone Conclusion Regardless of the Result in the Loving Case Many have argued that the tax-return preparation industry is behind the licensing curve. The National Consumer Law Center and National Community Tax Coalition have even noted, “[m]ore regulation is required of hairdressers in many states.” The Internal Revenue Service (IRS) sought to change this by extending its regulatory reach to tax-return preparers. However, the IRS’s right to regulate this industry is currently being litigated. This Essay analyzes the legal and policy considerations on both sides of the issue.
  • December 3, 2013 The Massachusetts Supreme Judicial Court Contravenes United States Supreme Court in Sylvain, Ruling Padilla Rights Apply Retroactively The Sixth Amendment entitles criminal defendants to effective assistance of counsel in defending the charges against them. The Supreme Court has interpreted the Sixth Amendment to hold that failing to advise criminal defendants on whether pleading guilty would subject them to deportation amounts to constitutionally deficient representation. In Sylvain, the defendant alleged that his lawyer failed to advise that he could be deported if he pled guilty and that he would not have done so had he been so informed.

November 2013

September 2013

  • September 29, 2013 Affirmative Action Survives Fisher (Sort of), but What About Schuette? Justice Kennedy’s majority opinion in Fisher v. University of Texas at Austin on the constitutionality of the University of Texas at Austin’s (the University) affirmative action admissions program appears to have something for everyone. Six other justices who had staked out starkly contrasting positions on affirmative action in the past joined the opinion. The parties to the case each claimed they were pleased with the outcome, and both supporters and opponents of affirmative action hailed the decision a victory for their respective sides of the debate.
  • September 16, 2013 Who's Afraid of an Evidence-Based Copyright Law?

    We cannot have evidence-based policymaking if policymakers refuse to change their minds when confronted with the actual facts, and instead cling to false stories. Yet, as my friend, Second Circuit Judge Pierre Leval pointed out to me, “the best way to know you have a mind is to change it.”

    Hopefully, our copyright laws will change too; not to become weaker or stronger, but rather to become effective, become evidence based, become less an ideological or quasi-religious cause, and become more of a tool for doing good and avoiding harm.

April 2013

  • April 22, 2013 Twenty-First Century Fingerprinting: Supreme Court in King to Determine Privacy Interest in Arrestee DNA

    Described by Justice Alito as “perhaps the most important criminal procedure case that this Court has heard in decades,” the Supreme Court’s decision in Maryland v. King will have far-reaching Fourth Amendment implications. In 2008, the Maryland General Assembly passed the Maryland DNA Collection Act, amending a 2002 statute that expanded police authority to collect DNA samples from those arrested for certain offenses. Under the statute, samples are collected at the time of arrest, but can only be analyzed once the arrestee has been charged and arraigned. Once collected, the DNA sample is immediately processed, submitted to the FBI’s Combined DNA Index System database (CODIS), and compared against other samples.

March 2013

February 2013

  • February 25, 2013 Disclosure and Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation

    A quarter century ago, the Lexington, Kentucky Veterans Affairs (VA) Medical Center pioneered a risk management program now known as “disclosure and offer.” Its guiding principal was that patients injured by malpractice should be told about the incident and “made whole” without having to litigate. After a patient suffered an injury that the VA judged to have been caused by a departure from the standard of care, the VA contacted the patient and, along with an attorney of his choosing, invited him to meet with VA staff.

  • February 25, 2013 Genetic Engineering, Self-Replicating Technologies–and Used Books: Intellectual Property Law in 2013

    Supreme Court cases reflect changing times. Suffolk University Law Review began in 1967, the year of Loving v. Virginia, a civil rights case that struck down state laws barring interracial marriage. In 2013, the Court has before it cases to determine the validity of federal and state laws limiting same-sex marriages.


    This piece looks at a different sector of the Court’s docket. Not coincidentally, Suffolk University Law Review Online begins as courts are paying increased attention to issues of high technology.
  • February 25, 2013 Obviously Obvious: Federal Circuit Reverses District Court’s Decision That Online “Shopping Cart” Patents Are Nonobvious as a Matter of Law—Soverain Software LLC v. Newegg Inc.

    Litigation is expensive, plain and simple. In a typical patent-infringement dispute, defending a case from start to finish—that is, from the complaint to the appeal—may cost a company upwards of a million dollars. Accordingly, the defendant-company will often choose to pay the patent holder a licensing fee instead of advancing its case to trial.

  • February 25, 2013 Supreme Judicial Court in Lopez Permits Interference Discrimination Claim Against Third Party Without Proof of Discriminatory Intent

    In Lopez v. Commonwealth, police officers sued the Commonwealth of Massachusetts and the Division of Human Resources (HRD), alleging HRD engaged in racial discrimination by creating and administering a multiple-choice examination for candidates seeking promotion to police sergeant that resulted in a disparate impact on minority candidates. The plaintiff class included all African-American and Hispanic police officers employed by civil service municipalities throughout Massachusetts who took the police sergeant promotional examination in the years 2005-2008 and were not “reached for promotion.”

  • February 25, 2013 The Ninth Circuit’s En Banc Rehearing of Cotterman: What’s on Your Laptop?

    On Friday, April 6, 2007, Howard Cotterman and his wife, Maureen, drove across the border from Mexico, seeking reentry to the United States at the Lukeville, Arizona Port of Entry (POE). A primary inspection of Cotterman’s passport revealed an alert due to Cotterman’s 1992 conviction for sex offenses involving a minor, and a Customs and Border Protection (CBP) officer conducted a secondary inspection of the Cottermans’ vehicle.