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Law of Federal Courts (2d Ed.)
Get PDFProfessor Charles A. Wright\u27s second edition of Law of Federal Courts, one of the West Hornbooks is not exactly light reading. It probably will not make the best-seller list, at least in competition with some of the current, racy fare that list affords. Indeed, it is not even the kind of law book that one picks up and reads from cover to cover, so to speak. At the same time, Law of Federal Courts is a thoroughly realistic, well composed work of legal art which will fill any reviewer\u27s bill. With a broad brush stroke, Professor Wright, who was one of Time-Life\u27s now famous possibilities for a United States Supreme Court appointment, explores both the abstract principles and the concrete foundations of the federal judicial and jurisdictional system and federal court procedure
Wallace v. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, and the Demise of the Impact Rule
Get PDFDuring the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer\u27s liability for a defective product and the nature of the proof necessary to show a compensable injury. This bipartite decision represents a considerable departure from precedent, and the court has indicated that further change in the field of products liability may be imminent. Malcolm Wallace removed a bottle of Coca-Cola from a grocery store cooler and opened it. Upon taking a drink, he felt a foreign object touch his lips. Investigation disclosed that an unpackaged prophylactic was immersed in the liquid. After returning home and thinking about his experience, he became ill. His illness was manifested by vomiting, which persisted for some time and caused him to be absent from work. Plaintiff brought suit against the bottler alleging a breach of warranty and negligence. On defendant\u27s motion, the judge dismissed the breach of warranty allegation and the case proceeded to trial on the issue of negligence. The dismissal of the warranty claim was not appealed. Essentially, plaintiff\u27s evidence was: (1) The bottle reacted normally when he opened it; (2) he was in the process of drinking the beverage when he discovered a foreign object in it; and, (3) he became ill as a result of drinking the contaminated beverage. The jury drew an inference of negligence from this evidence and awarded damages to the plaintiff. The issues addressed by the court on appeal were: (1) Whether negative evidence of tampering by third parties should be an essential element of plaintiff\u27s case; and (2) whether recovery should be allowed for mental injury not accompanied by a physical impact. The court affirmed the jury\u27s verdict by holding on the first issue that in situations of this type plaintiff establishes a prima facie case by showing that: 1. The bottle he purchased was processed by the Defendant; [and] 2. There was nothing unusual about it when it was opened. On the damages issue the court overruled a 1921 Maine case and held that, subject to certain limitations, physical impact is no longer necessary to recover for mental suffering
A Symposium - Justice in the Military
Get PDFIn writing the traditional law review lead article the author is expected to give fair consideration to opposing viewpoints in his analysis. Fairness becomes more difficult to achieve when the nature of the topic is highly controversial and engenders deeply conflicting viewpoints. Military justice is such a topic, and the symposium format was chosen as an appropriate vehicle for consideration of this subject. However, the symposium is conducive to a form of advocacy not expected in a lead article standing alone. This fact places the burden on the reader to consider a particular viewpoint not in the context of a separate article, but in the context of the symposium as a whole
How Post Is Post-Conviction Relief in Maine?
Get PDFIn a recent case the Maine Supreme Judicial Court delineated the prerequisites for relief under Maine\u27s post-conviction relief statute. The court declared that actual or constructive custody is necessary for relief. In Thoresen v. State, petitioner was convicted of a felony in Maine in 1959. He had been represented by retained counsel, and had elected to plead guilty to an information charging him with grand larceny. His sentence was suspended by probation and he was permitted to leave the state. Formally complying with all the regulations of his probation, he was given a total discharge in 1961. In 1967, he was indicted in California for a violation of a federal statute which makes it unlawful for one who had been convicted of a felony to transport any firearms or ammunition in interstate commerce. At first reading Thoresen\u27s custody requirement appears reconcilable with other Maine post-conviction cases. Thoresen was not incarcerated in Maine and was not on parole or probation from a Maine conviction. Thus, in the eyes of the Maine court, he was not in custody, nor subject to a remand to custody, and did not have sufficient interests to warrant relief. The approach of the court in Thoresen, however, is inadequate. If the statute replaced the common law, it codified relief to out-of-custody petitioners; if not, the statute on its face contemplates relief to such persons. The statute can and should be interpreted to afford relief to a petitioner out of custody. Custody is not a prerequisite to relief under common law coram nobis in other jurisdictions. In federal habeas corpus proceedings the United States Supreme Court has moved away from a narrow interpretation of custody towards considerations of the disabilities inherent in wrongful conviction which remain with the individual after sentence has been discharged
From Petrostate to Precedent: The Impact of Held v. Montana on Future Climate Litigation and the Urgent Need for Federal Climate Action
Get PDFIn 1972, Montana, a prominent petrostate, amended its constitution to enshrine the inalienable right to a clean and healthful environment. After decades of fossil fuel production and consumption, which led to high levels of greenhouse gas emissions, this green amendment became the foundation of Held v. Montana--the first youth-led constitutional climate case to prevail against a petrostate. This Article illustrates the importance of Held for the plaintiffs in the case, for current and future residents of the state, and for plaintiffs in future climate change litigation. This Article also urges the federal government to provide an avenue for redress for all U.S. residents as climate change impacts continue to intensify
The Constitutional Law of Defamation—Recent Developments and Suggested State Court Responses
Get PDFPrior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states\u27 power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of the resurgence of state common law in this area, state courts handling defamation actions are presented with two distinct challenges. First, the courts must determine whether the case under consideration requires application of the New York Times standards. Such a determination requires an assessment of the facts alleged in light of the limited guidelines which have developed since 1964. One purpose of this Comment is to make this evaluation easier by illuminating the extent of the Supreme Court\u27s recent limitations on the applicability of the constitutional standards in the defamation area. A state court which determines that the New York Times doctrine need not be applied in a particular case faces a second task—to clearly articulate the state law upon which a decision is based. In many cases the courts will be developing new law in an attempt to protect competing public and private interests. In addition, the state courts have an obligation to announce clearly the principles on which their decisions are based, so as to minimize potential confusion between the emerging state law requirements and existing federal constitutional privileges. A second object of this Comment is to suggest state court responses which achieve an appropriate balance between the individual interest in reputation and the public interest in freedom of expression
A Response to Professor Delogu: Is Impermissible Exclusion a Reality in Maine?
Get PDFA basic premise of Professor Orlando Delogu\u27s article, The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses, is that many Maine municipalities are using their land use regulatory powers in impermissibly exclusionary ways. Professor Delogu proposes that the legislature and courts of Maine should respond to correct the situation. This Commentary will attempt to illustrate that Professor Delogu has failed to document his premise or to define accurately the difference between permissible and impermissible exclusion. He is unable, therefore, to substantiate the need for state intervention in an area of law traditionally delegated to municipalities. Indeed, legislation that prohibits all impermissible exclusionary actions seems unnecessary and difficult to implement without disrupting the flexibility and stability of municipal government functions
Maine Abortion Statues of 1979: Testing the Constitutional Limits
Get PDFIn June of 1979 the 109th Maine Legislature enacted four statutes dealing with abortion. The public and legislative debate on these issues was intense and emotional. Due to the great scope of the subject, this Comment will be limited to discussion of the statutes dealing with informed consent and parental notification, which directly raise issues of individual constitutional rights. The constitutional implications of these two statutes will be examined, and the likely outcome of a constitutional challenge to each will be suggested. Because there are as yet no Supreme Court decisions directly on point for either statute as written, this analysis will be valuable not only for evaluating the constitutionality of the Maine legislation but also for analyzing similar legislation enacted in other jurisdictions
Defense of Nonintercourse Act Claims: The Requirement of Tribal Existence
Get PDFOn August 26, 1976, a group of persons claiming to be the Mashpee Indian Tribe commenced suit in the United States District Court for the District of Massachusetts against 146 named defendants alleging, inter alia, these named defendants to be representative of a class of defendants asserting interests in and title to a tract of land comprising all but a small fraction of the Town of Mashpee, Massachusetts. Specifically, the Mashpee plaintiff claimed that all persons asserting an interest in or title to the land in the Town of Mashpee obtained that interest or title in violation of section 12 of the Indian Trade and Intercourse Act of 1834 (the Nonintercourse Act). The plaintiff sought threefold relief: immediate possession of virtually all the land in Mashpee, the fair rental value of any portion of the land to which any defendant or member of the defendant class retained possession after entry of final judgment, and trespass damages from the defendants in the amount of $5,000,000. Trial commenced on October 17, 1977 and continued through January 6, 1978. After deliberation, the jury returned its verdicts, determining that the plaintiff had failed to carry its burden of proving that its predecessors were an Indian tribe in 1790, 1869, and 1870; that the plaintiff constituted an Indian tribe at the time suit was commenced; and that the plaintiff had continuously existed as an Indian tribe. On appeal to the First Circuit Court of Appeals, the plaintiff claimed a variety of errors by the trial court including certain aspects of the court\u27s instructions on the definition of an Indian tribe as that term is used in the Nonintercourse Act. On February 13, 1979, the First Circuit Court of Appeals rejected each of the plaintiff’s assignments of error and affirmed the judgment of the trial court. The result in Mashpee graphically illustrates the importance of a threshold requirement that confronts plaintiffs who claim the benefit and protections of the Nonintercourse Act—pleading and proving tribal existence
The Meaning and Implications of Indian Country : State v. Dana
Get PDFThe jurisdictional reach of many federal laws relating to Indians is expressly tied to the term Indian country.” Where Indian country exists, these laws, together with the strong federal policies underlying them, can preempt state jurisdiction. According to 18 U.S.C. § 1151, Indian country includes (a) any Indian reservation under the jurisdiction of the United States, (b) all dependent Indian communities within the borders of the United States, and (c) all Indian allotments, the Indian titles to which have not been extinguished. The State of Maine, under the belief that no Indian Country is located within its borders, has throughout its history exercised complete criminal, civil, and regulatory jurisdiction over the Passamaquoddy and Penobscot Indian Reservations. Recently, however, in what may result in a sharp restriction of such unqualified state power, the Maine Supreme Judicial Court held in State v. Dana that all land in Maine to which aboriginal Indian title has not been extinguished and which continues to be occupied by a bona fide tribe, is a dependent Indian community, and hence Indian country subject to the preemptive power of applicable federal laws. What follows is a two-part examination of the character and consequences of Dana