Commonwealth v. Nissenbaum

Many years ago, Chief Justice Lemuel Shaw, writing for the court in a case involving art. 2 of the Massachusetts Declaration of Rights, stated: “This cause was argued some time since, and partly on account of the intrinsic difficulty attending some of the questions raised in the case, and a difference of opinion among the judges on some of these questions, it has stood over for consideration *588and advisement, to the present time.” Commonwealth v. Kneeland, 20 Pick. 206, 211 (1838).

One hundred and fifty years later we have experienced similar difficulty. The difficulty is caused partly by the…