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Massachusetts Law Review Volume 100, No MASSACHUSETTS LAW REVIEW VOLUME 100, NO. 1 PUBLISHED BY THE MASSACHUSETTS BAR ASSOCIATION MASSACHUSETTS VOLUME 100 LAW REVIEW NUMBER 1 December 2018 LAW REVIEW EDITORIAL BOARD 2018–19 IN THIS ISSUE EDITOR-IN-CHIEF Marc C. Laredo Boston An Introductory Note 1 ARTICLES EDITOR Dean Andrew Mazzone By Thomas J. Carey Jr. Boston COMMENTS EDITOR Should State Law Enforcement Officials be Required to Develop and Implement Ann Hetherwick Cahill Minimization Protocols to Govern the Execution of Digital Search Warrants? 5 Boston By Patrick Hanley and Widmaier Marcus Charles BOOK REVIEW EDITOR Zachary Hillman Case Comments Arlington CASE SUMMARY CONTRIBUTORS A Matter of Opinion 16 Katherine E. McMahon Scholz v. Delp, 473 Mass. 242 (2015), cert. denied, 136 S. Ct. 2411 (2016) Springfield Barry Ravech Protecting Real Property from MassHealth’s Estate Recovery Claim: Is it Possible? 19 Needham Daley v. Secretary of the Executive Office of Health and Human Services and ASSOCIATE EDITORS Director of Office of Medicaid,477 Mass. 188 (2017) The Hon. Christopher Armstrong (ret.) | Boston Martha R. Bagley | Boston Matthew C. Baltay | Boston Book Review 24 Victor N. Baltera | Boston The Taming of Free Speech: America’s Civil Liberties Compromise The Hon. Amy L. Blake | Boston Jessica Block | Boston William F. Bloomer | Boston Thomas J. Carey Jr. | Hingham Jerry Cohen | Boston D. Christopher Dearborn | Boston The Hon. Joseph M. Ditkoff | Brookline Peter T. Elikann | Boston Elissa Flynn-Poppey | Boston Gail Kleven Gelb | Beverly The Hon. Kathryn E. Hand | Barnstable The Massachusetts Law Review is supported in part by the The Hon. Timothy S. Hillman | Worcester Massachusetts Bar Association Insurance Agency The Hon. Rudolph Kass (ret.) | Boston Cover: The Edward W. Brooke Courthouse. Photo by Hon. David S. Ross. Robert J. Kerwin | Walpole Rebecca Kiley | Boston Ellyn H. Lazar | Worcester The Hon. James F. McHugh III (ret.) | Boston The Hon. William J. Meade | Boston Roger L. Michel Jr. | Boston MASSACHUSETTS BAR ASSOCIATION M. Patrick Moore Jr. | Boston 20 WEST STREET, BOSTON, MA 02111-1204 Natalie Monroe | Boston Massachusetts Law Review (ISSN 0163-1411) is published quarterly by the Massachusetts Bar Association, 20 West Street, The Hon. Eric Neyman | Boston Boston, MA 02111-1204. Periodicals postage paid at Boston, MA 02205. Postmaster: Send address changes to Massachusetts Christopher J. Pohl | Boston Bar Association Member Services Center, 20 West Street, Boston, MA 02111-1204. Janet Hetherwick Pumphrey | Lenox Subscriptions are free for members and are available to libraries at $50 and those not eligible for membership in the Randall Ravitz | Boston Massachusetts Bar Association at $75 per calendar year. Single copies are $25. Clerk Joseph F. Stanton | Boston The Hon. Gloria Y. Tan | Cambridge Case notes, legislative notes, book reviews, and editorials are generally prepared by the Board of Editors or designated Rebecca Tunney | Boston members of the Board of Editors of the Review. Feature articles are generally prepared by authors who are not members of Nancy Weissman | Belmont the board. The selection of feature articles for publication by the Board of Editors does not imply endorsement of any thesis Edward Woll Jr. | Boston presented in the articles, nor do the views expressed necessarily reflect official positions of the Massachusetts Bar Association unless so stated. MBA positions are adopted by vote of the association’s Board of Delegates or Executive Committee. Proposed MBA Media and Communications Director feature article contributions or outlines of proposed feature article contributions should be sent to Director of Media and Jason M. Scally Communications Jason Scally at [email protected] or to Massachusetts Law Review, 20 West St., Boston, MA 02111-1204. (617) 338-0682 Unsolicited materials cannot be returned. MBA Senior Design Manager COPYRIGHT 2018 MASSACHUSETTS BAR INSTITUTE N. Elyse Lindahl AN INTRODUCTORY NOTE By Thomas J. Carey Jr. Volume 100, Number 1, marks a significant milestone for the Thomas J. Carey Jr.1 is of counsel Massachusetts Law Review. Since its founding in 1915, the Review at the Boston office of the global has published 99 volumes with at least four issues each, supplement- 2 law firm Hogan Lovells, teaches ed by additional special issues. It was the first, and is now the old- at Boston College Law School, est, bar association journal in the country.3 As has been true from and has long been active in the the beginning, subscriptions are a benefit of membership. Massachusetts Bar Association. Under the guidance and editorship of Frank W. Grinnell until 1960, the Review became recognized as “one of the best edited legal Alongside Hon. Christopher J. periodicals … in the English language.”4 Its role as the Massachu- Armstrong (ret.), Carey is the co- setts Bar Association’s “scholarly periodical for practicing lawyers”5 author of the LexisNexis Practice was reinforced and enhanced after 1960 by the efforts of attorney Guide: Massachusetts Appellate Edward F. Hennessey (later chief justice of the Supreme Judicial Practice. 6 Court) and others who created “a scholarly forum in which the en- of deciding what to do today about the prospect for tomorrow.”12 tire Association could participate not only as editors but as original It remains true, as Grinnell wrote in 1945, that in the pages of 7 contributors.” The Review’s reputation and influence continued to the Review one “will find the story of almost all the legal develop- 8 9 grow under a succession of dedicated editors. During their tenure, ments [in Massachusetts] since the beginning of the [20th] century, the rejuvenated Review has published more than 14,000 pages. With and much statutory and constitutional history … which can be modern technology, this wealth of information and analysis is now found nowhere else.”13 Today, one could expand the statement to easily accessible to members on the Massachusetts Bar Association include the first two decades of the 21st century. website.10 The Massachusetts Law Review is thus a valuable repository of *** legal scholarship covering more than a century of the common- Here are some examples of the breadth and scope of the materials wealth’s legal history. The pages of theReview are a testament to to be found in the Review. Among numerous special issues and sym- posiums, the Review celebrated the tercentenary of the SJC14 and the belief that an understanding of legal history is essential for the th 15 legal practitioner. “Legal history broadens our sensibility and even the 150 anniversary of the Superior Court, published a Special ennobles the more mundane aspects of practice.”11 Perhaps more Constitutional Issue for the bicentennial of the United States Con- stitution,16 and commemorated the 200th anniversary of the Mas- than most people, lawyers should understand the uses of history 17 and “how to use experience, whether remote or recent, in the process sachusetts federal courts. In 1917, when there was renewed talk 1. The author was admitted to the Massachusetts bar in 1965, and is a mem- after Grinnell: Edward F. Hennessey; Daniel G. Macleod; Francis J. Larkin; ber of the Editorial Board. Raymond J. Kenney, Jr.; James F. Queenan Jr.; Daniel J. Johnedis; Philip M. 2. It was originally named the Massachusetts Law Quarterly. The name was Cronin; Marjorie Heins; Jerry Cohen; Barry Ravech; R. Michael Cassidy; Janet changed to Massachusetts Law Review in Volume 63, reflecting an ambitious but Hetherwick Pumphrey; William J. Meade; Victor N. Baltera; J. Thomas Kirk- short-lived effort to publish six issues per year, and the new name was kept even man; Roger L. Michel Jr.; Ellyn H. Lazar-Moore; and Marc C. Laredo. Many after the Review returned to four regular issues in 1981 in Volume 66. Since others have served on the Editorial Board in various capacities. the volume numbers are consecutive, this note does not separately cite to the 10. At https://www.massbar.org/publications/massachusetts-law-review. quarterly title. 11. Jerry Cohen, Book Review: History of the Law in Massachusetts: The Su- 3. See Robert J. Brink, Fiat Justitia: A History of the Massachusetts Bar Associa- preme Judicial Court 1692–1992, by R. Osgood; Law and Liberty in Early New tion, 1910-1985, 28-29 (1987). England: Criminal Justice and Due Process 1620–1692, by Edgar J. McManus, 4. Id. at 28. 78 Mass. L. Rev. 117 (1993). 5. Id. at 64. 12. Richard E. Neustadt and Ernest R. May, Thinking In Time: The Uses of His- tory for Decision-Makers, Preface xxii (1986). 6. See “In Memoriam: Chief Justice Edward M. Hennessey,” 90 Mass. L. Rev. 158 (2007). 13. Brink, supra, at 29. 7. Brink, supra, at 63-64. 14. 77 Mass. L. Rev. 2-61 (1992). 8. Id. at 29 (citing a national study of citations of the Review by courts). 15. 92 Mass. L. Rev. 123-66 (2009). 9. The following have served (for terms of various lengths) as editor-in-chief 16. 72 Mass. L. Rev., Issue 3, 1-67 (1987). 17. 74 Mass. L. Rev. 190-297 (1989). An Introductory Note / 1 AN INTRODUCTORY NOTE By Thomas J. Carey Jr. Volume 100, Number 1, marks a significant milestone for the Thomas J. Carey Jr.1 is of counsel Massachusetts Law Review. Since its founding in 1915, the Review at the Boston office of the global has published 99 volumes with at least four issues each, supplement- 2 law firm Hogan Lovells, teaches ed by additional special issues. It was the first, and is now the old- at Boston College Law School, est, bar association journal in the country.3 As has been true from and has long been active in the the beginning, subscriptions are a benefit of membership. Massachusetts Bar Association. Under the guidance and editorship of Frank W. Grinnell until 1960, the Review became recognized as “one of the best edited legal Alongside Hon.
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