University of Maine School of Law
University of Maine, School of Law: Digital CommonsNot a member yet
1960 research outputs found
Sort by
Slow, Expensive, and Out of Control: A Statutory Solution to the Competency Crisis
Full text linkThe United States Constitution guarantees both the right to a speedy trial and the right to be competent to stand trial. United States Supreme Court decisions have recognized both of these rights but left the hard work of implementing them to legislatures and rulemakers. After turning the technicalities over to the states, the Supreme Court has generally stayed out of the business of setting bright-line rules to follow, both for setting speedy trial limits and ensuring defendants are evaluated and restored to competency. This delegation has led to a dual crisis. Cases are not resolved on time, and a substantial body of academic work has discussed that crisis. Defendants who have competency concerns are not cared for in a timely matter and have been known to languish for days, weeks, months, and even years without being evaluated or treated. The intersection of the competency crisis and the speedy trial crisis demands a solution. The solution is not coming from the Supreme Court, and it is only rarely hinted at by the lower courts. While a scholarly survey of speedy trial laws and rules concluded that many states have speedy trial waivers for competency concerns built into their laws, this Article delves further into that particular component, revealing that nearly every state has a statute, rule, or case that waives speedy trial limits for those seeking competency evaluations and restoration. Inspired by one outlier state, Montana, this Article proposes a speedy trial statute that sets out bright-line limits for competency evaluation and restoration. Montana charges “institutional delay” as time against the state, and so does the rule set out in this Article. But this Article proposes to do so through an objective rule with strict numerical deadlines. The proposed rule also offers a safety valve and compromise of counting institutional delay not as harshly as other delays. This problem needs a solution. The courts appear to have no appetite for a constitutional one. This Article continues the conversation about speedy trial statutes without leaving those least able to defend themselves behind
Detention of Foreign Seafarers and Vessels: Pollution Prevention or Piracy?
Full text linkThe purpose of this Article is to interrogate the legal basis for holding foreign crewmembers against their will in connection with APPS prosecutions. Part I examines the underlying justification for prosecuting foreign vessel owners for foreign conduct under APPS. It first discusses the international anti-pollution regimen from which APPS emerged. Next, the Article explores the handful of cases in which APPS prosecutions have been challenged and for the most part sustained, and then offers a critique of the rationale for such prosecutions. Part II explores the lawfulness of the techniques to detain foreign crewmembers and press those crewmembers into the government’s service. Part III analyzes the protections that may be available for such seafarers. The Article concludes that the federal courts can and should prevent the government from holding innocent crewmembers against their will in pursuit of fines from their employers for extraterritorial conduct
Damage Apportionment in Maine: A Proposal for Reform
Full text linkMost jurisdictions have some form of comparative negligence system. Such systems reflect an evolving policy of equating liability with a proportional percentage of fault. Yet a vast majority of jurisdictions that have adopted comparative negligence also retain the common law rules of either joint and several liabilities or entire liability. Although these rules derive from discrete common law roots, the rules currently stand for the proposition that a tort-feasor should be responsible for all the damages his or her negligence proximately caused. Thus, even though a jurisdiction adopts comparative negligence, simultaneous application of the incongruent common law rules may frequently result in a tort-feasor being held liable for damage in excess of his or her proportionate share of the damages. Thus, this Comment proposes legislation to provide a comprehensive damage apportionment system in which a defendant pays for his or her share of fault. The system includes flexible provisions for equitable apportionment of unrecoverable damages, depending on the recovery setting
Pretrial in Maine Under New Rule 16: Settlement, Sanctions, and Sayonara
Full text linkOn September 1, 1980, a new pretrial procedure rule became effective in Maine. The rule was heralded as the most significant modification of the Maine Rules of Civil Procedure in recent years. The rule was intended to remedy major defects in existing pretrial procedure and to benefit judges and attorneys through more explicit directions for pretrial procedure. Ultimately, the goal of this reform is to achieve a just result of litigation.” This Comment begins with an overview and evaluation of quantitative studies of the pretrial conference in various judicial systems. The Comment then analyzes the new Maine rule and its impact on the state\u27s judicial system. Under this analysis, the new Maine rule emerges as a significant innovation. The sum of its parts, rather than individual components, is a new concept in pretrial procedure emphasizing disposition rather than preparation. Considering crowded trial dockets and the increasing demand on finite judicial resources, however, this concept is a natural and necessary evolution rather than a startling revolution. Yet the emphasis on disposition may be too strong. Properly applied, the settlement and sanction provisions of the new rule will streamline the litigation process. If improperly applied, however, these provisions could replace the litigation process. The pretrial conference must be an efficient means to a just result of litigation; the conference must not be an end in itself
Tortious Interference with the Expectancy of a Legacy: Harmon v. Harmon
Full text linkThe decision of the Maine Supreme Judicial Court in Harmon v. Harmon established that a plaintiff has a remedy in damages for tortious interference with the expectancy of a legacy which may be sought prior to the testator\u27s death. The purpose of this Note is to examine the Harmon court\u27s reasoning, the utility of the remedy announced in Harmon in light of pre-existing plaintiffs\u27 remedies, and the potential consequences of that decision. The development of these themes will require an examination of the decisional law background of the Harmon decision and an analysis of the legal status of testamentary expectancies
Constitutional and Legislative Issues Raised by the Entrapment Defense in Maine
Full text linkIn recent years the increase in undercover investigative activity by police agents has generated considerable interest in the defense of entrapment. The entrapment defense to a criminal prosecution has been recognized either judicially or legislatively in most jurisdictions in the United States. The proper formulation of the defense, however, has given rise to conflicting opinions involving various evidentiary and constitutional considerations. In raising the defense of entrapment, a defendant does not deny that he committed the acts constituting the crime, but rather asserts that, on grounds of public policy, he should not be convicted. In Maine, the defense of entrapment has been recognized by the state\u27s highest court since 1946. Prior to its recent decision in State v. Matheson, the Supreme Judicial Court had discussed entrapment in language that could be construed to support the use of either the subjective or objective test. In Matheson, however, the court explicitly adopted the subjective test. This Note discusses the confusion surrounding the early Maine entrapment cases and the evidentiary and constitutional issues attending adoption of the subjective formulation. Compelling policy considerations support a statutory adoption and reformulation of the entrapment defense in Maine. The omission of an entrapment defense from the Maine Criminal Code, despite legislative enactment in many other states, coupled with the danger inherent in the Matheson formulation, merits prompt legislative action. In order to remedy the defects of the subjective test as presently applied by the Maine court, the Maine Legislature should enact the objective test as proposed by the Model Penal Code or limit the types of evidence admissible to prove predisposition under the subjective formulation of the Matheson court
Changes in the Present Maine Law Created by the Maine State Consumer Credit Code
Full text linkThe Maine Consumer Credit Code [M3C] was enacted by the Special Session of the 106th Legislature of the State of Maine, and will become effective on January 1, 1975. It will regulate almost all consumer credit transactions not secured by first mortgages on real estate. The statute also creates a new, self-financed Bureau of Consumer Protection under the Department of Business Regulation. This article will first discuss the legislative history of the M3C. Second, it will discuss the scope and jurisdiction of the M3C in comparison with the total scope of all the prior statutes. Third, the article will discuss changes in the structure of the industry and in the competitive relationships between types of creditors, identifying the distinctions still made between creditors under the M3C, and the freedom of new competitors to enter the credit market. Fourth, it will discuss the interest rates and other charges allowed to each type of creditor, and compare these charges to those available under prior law in terms of both legal and probable economic impact. Fifth, it will discuss the expansion of protections to consumers against abuse by unscrupulous creditors, identifying retained, expanded, and new concepts. Sixth, and most importantly, this article will examine the mechanisms available for enforcing the M3C, both for private enforcement and for public enforcement through the new Bureau of Consumer Protection
A State Approach to Effluent Charge
Full text linkAlthough the concept of effluent charge as a means of dealing with water pollution has been widely discussed in this country for more than a decade and widely used with documented success in parts of Europe for over fifty years, there is a surprising lack of specific material on methods of implementation. We are, after all, a complex society with overlaying levels of government and close working relationships between the public and private sectors of the economy. Furthermore, the statutory, constitutional, and institutional framework of the federal government and that of each state government are different in varying degree from one another. Thus, the most persuasive and useful plan must, if it is to become the basis for action, be translated into a set of working arrangements which take cognizance of the existing constitutional, statutory, and institutional arrangements in a particular jurisdiction. The purpose of this paper is to propose a working set of arrangements for Maine. To the extent that the paper succeeds in outlining specific approaches which would enable effluent charges to be levied and used in Maine, its more general utility may be limited
The Law of the Land: Development Legislation in Maine and Vermont
Full text linkIn recent Maine and Vermont environmental protection legislation, desecration of the landscape has emerged as an issue as controversial as pollution of water and air. Traditional techniques of land use regulation operate locally, some say parochially, without any regular regard for Earth Day or statehouse politics or even administrative fair play. The trend in northern New England to adopt state-level standards totally changes the business of land development. And statewide rules are not the end; national land use standards are imminent. A report by the President\u27s Council of Environmental Quality recommends federal controls within areas of critical environmental concern, such as coastal zones, shorelands and river floodplains, and within areas impacted by major facilities, such as regional airports, interstate highway intersections, new towns and large recreational developments. What are the new Maine and Vermont laws and how do they work? Several cases are selected to illustrate the operations and problems of the environmental protection laws as they relate to the business of subdividing and developing land, especially for the recreation market