Author: TSA Press

Ed. Note: As the decade comes to a close, Above the Law presents you a special Trivia Question of the Day series in remembrance of the Biglaw firms we lost in the 2010s.

What now defunct Biglaw firm was founded in 1891 in Boston and grew to have nine offices around the U.S. as well as five international offices?

Hint: Though the firm survived the 2009 recession, tensions from mergers (and major litigation drying up) are largely credited with leading to the firm’s 2014 dissolution. The immediate preceding event? When 750 attorneys (226 of which were partners) left the firm for Morgan Lewis & Bockius.

See the answer on the next page.

Although we can never eliminate stress or worry entirely, we can aspire to reduce the stigma associated with mental health challenges, to help students better care for themselves and their peers, and to provide the robust continuum of wellness and mental health resources that students need to thrive at [Harvard Law School].

— from a report based upon a mental health survey at Harvard Law School, the results of the 2017 survey were published late this month. The study revealed high rates of mental health issues at the elite law school, namely that ~60 percent of respondents reported signs of depressions. Additionally, over 50 percent of respondent reported signs of anxiety. In an email to law students, dean John Manning revealed a path forward based on the data, “The report provides us with a good sense of where we stand in the broader context of the profession, legal education, and graduate education more generally… Through a series of thoughtful recommendations, the Working Group also lays out an initial framework for addressing the mental health and well-being challenges on our campus. They further identify some things we can do right away to improve student well-being.”

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

This past summer I wrote about the case of Michelle Carter, a minor who was convicted of involuntary manslaughter for verbally encouraging her boyfriend, Conrad Roy, to commit suicide. Carter’s case established a rather unique legal precedent in the state of Massachusetts. As I explained at the time:

“Although states can and do criminalize assisted suicide, Massachusetts had no such statute at the time Carter was convicted. Moreover, although assisted suicide was/is a common law crime in Massachusetts, as with many state statutes, the common law was explicitly tailored around doctor-prescribed suicide. Accordingly, Carter’s case is inapplicable to all Massachusetts’s law relating to assisted suicide because unlike doctor-prescribed suicide, Carter neither provided the means nor physically participated in the act. In fact, it was the older Roy alone who would research the method of suicide, obtain the means to do so, and in the end, physically carry out an act he had attempted multiple times before. In other words, it was Carter’s speech alone that formed the basis of her conviction, but not for the crime of assisted suicide as many might think. Rather, Carter’s conviction was based on a common law standard of behavior categorized as wanton and reckless “verbal conduct” constituting involuntary manslaughter.

Creating a category of “verbal conduct” within common law involuntary manslaughter allowed the Massachusetts courts to argue Carter’s speech belongs within the supposedly but not really at all well-defined and narrowly limited “speech integral to criminal conduct” federal exception to free speech protection.”

In Carter’s petition to the U.S. Supreme Court to overturn her Massachusetts involuntary manslaughter conviction, her attorneys focus on the argument that the common law’s “verbal conduct” standard lacks any “clear, meaningful, and constitutional way to determine” the line between criminal and permissible encouragement of suicide. In fact, the Massachusetts Supreme Court acknowledged in its decision of the Carter case that not all instances of encouraging suicide are the same. Accordingly, Carter’s federal petition argues any family member who encourages a sick loved one to die with dignity, or to avoid what they view as unnecessary suffering, exists at the mercy of a Massachusetts prosecutor of being charged with involuntary manslaughter.

The obvious danger with laws that offer no clear indication as to whether citizens have broken them or not is that prosecutors/government can apply them with bias, using them as a pretext to target dissent for example. More important to consider, however, is the fact that vague laws have recently been overturned by a bipartisan majority of the U.S. Supreme Court. The Massachusetts legislature is at least now attempting to define the parameters of its newly established involuntary manslaughter “verbal conduct” standard to include instances where “the will of 1 person is substituted for the wishes of another.”

The common law standard established by the Carter case is currently being played out in another Massachusetts court room with the case of Alexander Urtula and Inyoung You. Similar to the Michelle Carter case, the defendant, Inyoung You, is being portrayed by the prosecution as some kind of “monster” who verbally established complete control over Urtula’s suicide. Further complicating the issues of personal responsibility is the substantial evidence that both the suicide victim and the defendant in both the Carter and You cases suffer(ed) from some form of psychological disorder. In the You case, Mr. Urtula’s friends had at one point tried to intervene in the relationship by observing that You, not Urtula, needed “professional help.”

When it is discovered that a criminal defendant suffers from some form of neurological disorder, not only do our moral intuitions often change, the law can strive to change as well. Objective, scientific reasons have been put forth for why our morals and laws should shift in such circumstances. As neurological scientist Sam Harris has explained, brain disorders appear to be “just a special case of physical events giving rise to thoughts and actions,” and that above all “luck,” or lack thereof, is the ultimate factor in every human decision. Therefore, according to Harris, even when it comes to the most disturbing or repulsive examples of human behavior:

“We should admit that a person is unlucky to inherit the genes and life experience that will doom him to psychopathy. That doesn’t mean we can’t lock him up, or kill him in self-defense, but hating him is not rational, given a complete understanding of how he came to be who he is. Natural, yes; rational, no. Feeling compassion for him would be rational, however — or so I have argued.

“We can acknowledge the difference between voluntary and involuntary action, the responsibilities of an adult and those of a child, sanity and insanity, a troubled conscience and a clear one, without indulging the illusion of free will. We can also admit that in certain contexts, punishment might be the best way to motivate people to behave themselves. The utility of punishment is an empirical question that is well worth answering.”

I would question the legal and moral utility of the criminal punishment in both the Carter and the You cases, not discounting any opinion as to the abhorrent nature of the behavior by each. That is not to say nothing should be done, just that having law enforcement and the criminal justice system tackle this particular harm with incarceration by utilizing difficult to define “verbal conduct” standards seems inapt.

Unfortunately, there is ample evidence law enforcement and the criminal justice system is substantially burdened by being one of the primary regulators of mental health patients in this country. Of course, to alleviate the current burden on law enforcement would first require exercising the moral will to defer even repulsive behavioral cases from criminal mechanisms, to ones more tailored to alleviating harms due to mental health. As preposterous as state funding for metal health infrastructure might sound to some, given how much we currently spend on locking mentally ill patients up, and if trillion dollar a year budgets and historic tax (tariff) increases are now things conservatives budget hawks in Congress support, we eventually might get around to funding a mental health system capable of addressing the harm.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

A New York-based cardiologist sued Apple, saying the tech company violated his patent when it added a new Apple Watch feature to detect atrial fibrillation. Dr. Joseph Wiesel, a clinical assistant professor at NYU Langone Health, filed the lawsuit on Friday.

Apple first received clearance from the Food and Drug Administration to include the atrial fibrillation feature in its devices in September 2018. Using an optical heart-rate monitor, the feature notifies the wearer if an irregular rhythm is detected, though it’s not meant to be used by wearers who have already been diagnosed with atrial fibrillation. Apple first introduced the feature with the Apple Watch 4, though it is now available in older devices.

The feature could alert adults to potential instances of atrial fibrillation, though it still couldn’t replace a medical diagnosis. It’s also worth noting that past studies have questioned the accuracy of wrist-based monitors; a 2017 Cleveland Clinic study testing four wearables showed none were as accurate as a chest strap.

Starting in 1999, Wiesel has filed numerous patent applications related to atrial fibrillation detection, according to the complaint.

“Early on in his career, Wiesel noticed a lack of available and useful technology to screen for atrial fibrillation. For over twenty years, Plaintiff has been inventing, researching and experimenting with innovative approaches for monitoring and detecting atrial fibrillation,” the lawsuit stated.

Wiesel claimed Apple violated a patent he was issued in 2006, describing a method for detecting atrial fibrillation. In the patent, Wiesel explained the device could use either an inflatable blood pressure cuff or a light source that monitors the intervals between pulse beats.

The complaint emphasized the validity of Wiesel’s patent, adding that “The claimed inventions were not well known, routine, or conventional at the time of the invention, nearly twenty years ago, and represent specific improvements over the prior art and prior existing systems and methods…”

Wiesel is seeking past damages in the form of at least a “reasonable royalty,” treble damages for willful infringement, and for Apple to pay royalties on a going-forward basis. The complaint estimates that Apple has sold between 50 million and 100 million watches with the feature included or available as a downloadable upgrade.

Apple did not comment at the time of publication.

Photo credit: Apple Inc.