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The Repair Rule: Maine Rule of Evidence 407(a) and the Admissibility of Subsequent Remedial Measures in Proving Negligence
Get PDFEvidence of subsequent repairs is generally excluded when submitted for admission as circumstantial evidence of negligence. Although this Comment will examine various theories under which such evidence has been held inadmissible, these theories are all based on one of two assumptions. Evidence of subsequent repairs has been excluded either because it is regarded as irrelevant to the issue of negligence, or although relevant, as incompetent because its admission is believed to counteract the strong public policy to encourage repairs. Most modern rules of evidence now base the exclusion on the public policy rationale. Thus, the effect of the subsequent repair rule is to exclude relevant evidence that might aid the finder of fact in determining liability. The rule excluding evidence of subsequent repairs has suffered only minor criticism in recent years. The Maine Supreme Judicial Court, however, has broken with traditional acceptance of the rule. The court has promulgated a rule that evidence of subsequent repairs is admissible. Maine will now be the only jurisdiction admitting evidence of subsequent repairs as circumstantial evidence of negligence. An analysis of the history of the subsequent repair rule and an assessment of its current status affirms the wisdom of the court\u27s abolition of this mandatory rule. Evidence of repairs will be admissible subject only to the discretionary rules normally governing the admissibility of relevant evidence. If evidence of repairs is relevant in an individual case, the court will weigh its probative value against its potential prejudicial effect to determine its admissibility
Due Process and Supremacy as Foundations for the Adequacy Rule: The Remains of Federalism after Wilbur v. Mullaney
Get PDFStillman E. Wilbur, Jr., was found guilty of murder by a jury in a Maine Superior Court and appealed, contending that the trial judge\u27s instructions violated due process. In essence, the trial court instructed the jury that if it were satisfied beyond a reasonable doubt that Wilbur had committed a voluntary and intentional killing, malice aforethought was presumed, and therefore, the defendant would be guilty of murder unless he established by a preponderance of the evidence that he had killed in the heat of passion upon sudden provocation, in which case the jury could find him guilty of manslaughter. The Maine Supreme Judicial Court upheld the conviction. Wilbur petitioned for habeas corpus in the federal district court. The district court rejected the Maine court\u27s interpretation of its own law on murder, found that murder and manslaughter were crimes, not punishment categories, and concluded that malice aforethought was a fact necessary to constitute the crime of murder. The First Circuit affirmed and elaborated upon the grounds set forth by the district court. The more intricate—and important—question provoked by the sequence of Wilbur cases centers not upon the final resolution of the uncertainties in Maine law, but upon the final resolver of those uncertainties. This difficult issue can be framed very narrowly: when can a federal court on habeas reject a state court\u27s interpretation of state substantive law and substitute another construction? In this regard, the First Circuit\u27s sortie into Maine law reveals two recurrent problem areas of our federalism: the proper role of federal habeas corpus in protecting the rights of state prisoners and the extent to which a federal court must defer to a state court\u27s interpretation of state substantive law
Lanza v. Drexel & Company: Rule 10b-5 and the Outside Director
Get PDFIn Lanza v. Drexel & Company, the United States Court of Appeals for the Second Circuit, over two vigorous dissents, held that a corporate director was not liable for negligence when he neither participated in stock transfer negotiations nor had knowledge of material misrepresentations and omissions made in those negotiations. The court rejected the proposition that rule 10b-5 imposed liability on nonparticipating directors for the negligent failure to communicate material adverse information to prospective purchasers. The analysis used in Lanza raises still further questions about the implications of rule 10b-5 and its relationship to section 11 of the 1933 Securities Act. Implicit in the court\u27s opinion is the notion that rule 10b-5, in private suits, cannot be used to impose liability for negligent misrepresentations. This Note examines these questions and the policy considerations of a negligence standard in rule 10b-5
Variable Life Insurance and the Federal Securities Laws
Get PDFThe Securities and Exchange Commission has recently ruled that variable life insurance contracts are securities within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934 and, therefore, subject to the registration and disclosure requirements of those acts. Perhaps more significantly, the SEC also found the Investment Company Act of 1940 and the Investment Advisers Act of 1940 applicable to companies issuing variable life insurance, but decided to exempt insurance companies from the requirements of these statutes in deference to developing state regulation. This comment explores the legal issues raised by the SEC decision
State Action and Waiver Implications of Self-Help Repossession
Get PDFIn Adams v. Egley, a California federal district court held the repossession sections of the Uniform Commercial Code to be unconstitutional as a denial of due process. The Adams court relied on Sniadach v. Family Finance Co., in which the Supreme Court invalidated the Wisconsin prejudgment wage garnishment law as violative of due process because property was garnished under the statute without hearing or notice to the wage-earning debtor. When Adams was decided, the scope of Sniadach was the subject of extensive judicial dispute. Since then, the Supreme Court\u27s decision in Fuentes v. Shevin has clarified the meaning of Sniadach by answering some of the questions spawned by that case. Fuentes saw Sniadach as not limited to deprivation of necessities, but as a statement of due process principles applicable to all deprivations of property. Even if the Supreme Court adopts the Adams view that nonjudicial repossession is unconstitutional or if such repossession is statutorily proscribed, the issue of contractual waiver of due process or statutory rights remains. Fuentes discussed contractual waiver without arriving at a solution for the bulk of foreseeable cases. The resolution of this problem, too, may have a profound impact on the debtor-creditor relationship, for the probable alternatives are that either a waiver inserted in the standard form contract will suffice or that waiver will be impossible in the majority of transactions. The constitutional issues of state action and contractual waiver in nonjudicial repossession will provide the focus for this discussion
Dismissals for Pregnancy in Government Employment
Get PDFFor those who litigate sex discrimination cases, the most difficult problems theoretically are those which involve characteristics that are not common to both sexes. Discrimination on the basis of pregnancy is the most obvious example and is probably the most difficult to attack. Male employers, judges and even obstetricians are outsiders to the experience of pregnancy, and to many of them the process verges on the mysterious. Masculine attitudes toward pregnancy range from protectiveness to contempt, but they are seldom neutral. Because counsel for women plaintiffs contesting pregnancy employment regulations work in a sensitive area, they should be especially careful that their arguments conform to reality and that the standard of employer behavior that is requested be carefully delineated and as acceptable by current social standards as possible. This comment will explore all fifth and fourteenth amendment pregnancy cases brought before the federal courts of appeal and both military pregnancy cases brought before the federal district courts in 1972. No reference will be made to analogous Title VII cases because they are of little precedential relevance to constitutional cases. The object of the comment is to explore the state of the law of pregnancy in employment under the Constitution, with stress on the relationship between the conduct of the litigation and the outcome of the case
Retroactivity Rethought: The Hidden Costs
Get PDFThe validity of Justice Harlan\u27s contention that retroactivity must be rethought is becoming increasingly evident, and it seems likely that extensive reevaluation of the doctrine will soon be necessary. The past six years have been marked by well over a dozen Supreme Court decisions addressed to the question of the retroactive or prospective effect to be given prior constitutional rulings in the area of criminal procedure. Rarely has an important constitutional doctrine achieved such full-blown proportions so quickly, yet several members of the Court would now vote to reject it and start anew. Linkletter v. Walkers was the landmark decision in which the retroactivity doctrine was first enunciated. In a two-fold ruling the Court first decided that nonretroactive effect was compatible with constitutional interpretation in cases challenging criminal convictions, and secondly, set forth a balancing equation designed to test the retroactivity issue in each case in which it should arise. The contention of this article is that fundamental responsibility for the operational difficulties of the equation lies in the failure of the Court to debate openly the crucial issue in the Linkletter case. In concluding that nonretroactivity was a constitutionally permissible tool, the Court failed to discuss the values which were really at stake and thus was able to present a formula apparently capable of resolving any problems associated with the disposition of retroactivity issues. The real issue, obscured in Linkletter, was the Supreme Court\u27s newly adopted role in supervising the overall operations of the state and federal criminal justice systems. Retroactivity has become a significant factor in defining this role
Enforcement of Money Judgments and Divorce Decrees in Maine
Get PDFUntil recently divorce decrees in Maine were frequently enforced by capias execution, a remedy at law by which the wife or her attorney could jail the ex-husband for failure to pay money overdue in alimony, support or litigation costs. Most states use contempt proceedings whenever imprisonment is deemed an appropriate sanction in a divorce action, but in Maine a capias execution gave the aggrieved party advantages not available in a contempt petition. First, even though issuance of the capias was a matter for the court\u27s discretion, there was no requirement either in statute or in common law that the court consider a husband\u27s inability to pay as a defense. Second, the capias was issued by the court directly to the wife\u27s attorney thus giving him power to decide when to arrest the husband rather than reserving that decision to the court. In Yoder v. County of Cumberland and its companion case, Lindsey v. County of Cumberland, the Maine Supreme Judicial Court declared the divorce capias unconstitutional because it failed to protect adequately the rights of indigent husbands subject to its process. Although this note will focus primarily on divorce decrees, recent developments in criminal fine and civil debt collection will also be discussed briefly because the issues raised affect policies of divorce decree enforcement. Developments in any one of the three areas may influence the other two
Maritime Personal Injury in the New England Fishery
Get PDFCommercial fishing, as carried on by the down east fisherman, is an industry fast succumbing to the economic inequities of vessel operation. Over the past two decades, the prices for fish boats have not increased as rapidly as the operating costs involved in fitting and maintaining the fishing vessel. Today, this situation has been compounded by the economic inability of the individual trawler owner to obtain protection and indemnity insurance to compensate crew members for injuries received during the course of maritime employment. The present consequence of these developments is that, although judicial and legislative regulatory guidelines have been set out, a consistent economic balance has not been achieved between the operating cost burden of the trawler operator and the maritime employee\u27s need for compensation for personal injuries. As a result, trawler operators are being forced out of business by the costs of operation while employees must bear a substantial portion of the expenses accruing from injuries. The problem is not limited to New England fishing enterprises, but also exists on a national scale. This comment discusses some of the problems of maritime employers and employees in general and proposes a solution of the diverse needs of small commercial fishermen in particular. The basic problem is the failure or inability of marine insurers to provide a risk spreading mechanism that is economically feasible for all parties concerned. Therefore, the objective is to establish a method of insurance that provides adequate protection for maritime employees, at a reasonable cost to maritime employers, and with a reasonable margin of profit for marine insurers. Such a system would remove a severe economic burden on small fishing operations by bringing adequate insurance coverage within the economic grasp of that segment of the maritime industry
Constitutional Dilemmas Posed by State Policies Against Marine Pollution - The Maine Example
Get PDFThe physical fact about coastal pollution is that, since many of its harms are irreversible, it must be prevented and not just dealt with as it arises. The legal fact about coastal pollution is that legislation which aims to prevent pollutants must survive attacks under the due process, equal protection, commerce, and privileges and immunities clauses of the federal Constitution if we are not to lose entirely the enjoyment of our coastal waters. As the following discussion of the Environmental Protection Package passed by the First Special Session of the 104th Maine Legislature and the earlier Wetlands Act shows, judicial modifications of prior theories are needed to withstand these constitutional attacks. First, judges must take into account counsel\u27s new legal arguments advocating a shift from traditional doctrines which favor unabated pollution. Second, burdens of proof must be shifted to those who claim constitutional protections for their polluting activity. The following discussion proposes ways of buttressing briefs in both types of cases