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The Constitutional Law of Remedies in Welfare Litigation
Get PDFIt is becoming increasingly obvious that the problems of poor people in the United States are dependent, more than those of other classes, upon the proper administration of government agencies. The contact of poor people with government agencies involves most of their chief concerns in life: Welfare, social security, adequate health care, adequate income from work, a safe and healthy place to live, whether privately or publicly owned, and schools that provide real education without racial or economic discrimination. Where payments are improperly withheld from a presumably destitute recipient, the need for a speedy and adequate remedy should be obvious. Yet, the remedies available to an aggrieved welfare applicant who has been denied benefits pursuant to an unconstitutional state eligibility rule are vague and speculative. The law of effective relief in federal courts for welfare plaintiffs, and indeed for other participants in federal transfer programs, is largely undeveloped. Judges and lawyers for the poor have searched with little success for authority in point. The search has confronted the doctrines of sovereign immunity, exhaustion of administrative remedies, and interests of federalism. This article considers whether a federal court may award retroactive payments to a class of welfare recipients specifically in a suit against state officers in their official capacity, when a state regulation or statute has been declared unconstitutional, without regard to the question of whether the defendants acted in bad faith. The thesis is that only one answer is correct—a class retroactive order of payment. This result is required by the constitutional law of remedies, by equity, and by sound judicial administration and, in light of the supremacy clause and the equal protection clause, is not prohibited by the eleventh amendment or the wording of section 1983
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
Environmental Jurisdiction in the Congress and the Executive
Get PDFExtraterrestrial exploration and a historic lunar success have helped give modern man a unique perspective on the earth and his natural environment. We have looked on our planet from the reaches of outer space and have seen how small, how alone, and how vulnerable we are. We have travelled to the moon and photographed Mars, but we have finally realized that no matter how far or how fast we grow, no matter how far afield our explorations take us, and no matter how great our vision, we must always return to earth. This is a discomfiting realization for a civilization which had come to believe that the strength of its technology could overcome the limits of its natural state. In some future time, we may find another environment in which we can live without artificial assistance. But for the foreseeable future, we have but one home and one natural environment. We have discovered that if we do not begin to repair the damage we have caused as we have flexed our technological muscle, we shall soon be ecological orphans—faced with an environment which cannot support human existence. The Congress, stimulated by this realization, has written legislation to protect the environment and prevent its deterioration. That legislation pledges America to a national policy of enhancing environmental quality, a policy based on the concept that man and his environment are interrelated, and that a safe environment is necessary to the maintenance and improvement of acceptable living standards for all men. Public recognition of the depth of the environmental crisis is relatively recent. Although warning signals have been evident, particularly in our burgeoning urban areas since the 1920\u27s, Congress first responded to these signs in the late fifties and early sixties. The problems and questions cannot be satisfactorily solved solely on one level of government or the other. The traditional jurisdictional boundaries of municipalities and states have become blurred in the face of metropolitan growth, and the jurisdictional boundaries of many state and local agencies have become lost in the complexity of environmental and technological problems. Furthermore, the states and cities often find themselves without the expertise or the funds necessary to deal with site selection or operating problems of growing electric generating systems. Regulation of these activities and achievement of the environmental quality desired should be left to the public in the communities and the areas which will be affected. No set of national standards will ever take into account the many unique and local considerations which should be a part of the basis for these decisions. At the same time, the reliability and adequacy of the electric power supply are the legitimate objects of national performance standards. Therefore, we have begun to recognize the unique intergovernmental issues posed by the necessity of insuring an adequate, reliable, and efficient supply of electric energy on the one hand, and insuring environmental protection on the other
Maine\u27s Educational Television Network: Legal Difficulties
Get PDFMaine\u27s educational television network (ETV) cannot pride itself in achieving broad goals and, in fact, cannot attempt to achieve them because of legislation of questionable legal validity which has become an anachronistic barrier to innovations consistent with a keener awareness of the utility of educational television. This note focuses on the state-controlled system servicing northern Maine and points out the conflicts between the system\u27s enabling legislation and the manner in which the system currently operates, and between the enabling legislation and federal laws and regulations. Additionally, it recommends, in a statutory format, the manner in which the system should be revamped in order to achieve optimal utilization
Legislative Discouragement of Maine\u27s Marine Industrial Growth
Get PDFAt common law the public rights to navigation and fishing could not be alienated by the King. Dry land and the land beneath the sea could be alienated but only so long as the public rights to navigation and fishing were preserved. This common law doctrine was rejected in 1842 by the United States Supreme Court as binding precedent for limiting the alienation of the public domain by the legislatures of the various states. In Martin v. Wadell the Court reasoned that this common law principle was not applicable because the people of the United States through their act of revolution and reassemblage had abrogated the common law, and had delegated to the state legislatures full power to deal with the public domain. Subsequently, the courts of Maine and Massachusetts held in accord with Wadell, and further determined that the grant of exclusive fishing rights to private parties could be considered an exercise of the delegated power for the benefit of the public, and not necessarily a violation of the public trust. The courts of the several states have adhered to a presumption that the legislatures would grant exclusive rights only upon the grounds that the interest of the public would thereby be promoted. For all practical purposes, therefore, the legislatures of the several states have broad discretion when dealing with the public domain. On numerous occasions when the Maine Legislature has been faced with a public need, economic or otherwise, it has responded by exercising this broad power over the public domain. Faced with this history, the 103rd Legislature was presented with a proposal to permit the granting of exclusive lease rights for the harvesting of Irish moss in return for payment to the State of rents on the submerged lands and royalties on the harvests reaped therefrom. Public hearings were held and the proposal submitted was vigorously opposed. The problems associated with this legislative attempt to deal with the State\u27s marine resources are twofold. First, the legislation is a shallow response to the demands of the Irish moss-using industry for the leasing of significant areas of the ocean floor to permit the economic development of the Irish moss element of the State\u27s marine resources. Its shallowness is reflected by the Legislature\u27s lack of consideration of the interests of both the State and the industrial moss harvesters concerning a very narrow aspect in the development of the total marine resource which the Legislature was asked to consider. Second, this approach represents an attempt to deal fragmentarily with the marine resources of the State. It is an inadequate answer to a general problem which at some time the Legislature must face. When the Legislature proceeds to enact legislation expressing a policy and affecting strong economic interests concerning a small aspect of a large problem without balancing the interests involved, and without formulating an overall policy, the fear must arise that adequate legislative attention to the total problem may never be given. This note suggests some areas which a legislature should consider in dealing with a single element of the total marine resource, specifically Irish moss, and further suggests some considerations which are worthy of legislative attention in the development of a comprehensive program dealing with Maine\u27s total marine resource
Frankel: Law of Seashore, Waters and Water Courses: Maine and Massachusetts
Get PDFThe advance announcement of Law of Seashore, Waters and Water Courses: Maine and Massachusetts served to arouse a sense of anticipation among practitioners in Maine. The brochure foretold of a thorough analysis of the relationship of the colonial ordinances to the law pertaining to the land-sea interface, rivers, and great ponds. The book was described as An Exhaustive Handbook on Water Rights in Maine and Massachusetts . . . valuable for lawyers, public officials and property owners. In the Frankel book, realization fell far short of anticipation
The Constitutionality of Geofence Warrants
Get PDFIn our current Information Age, new technologies are expanding faster than our legislatures can keep pace with. This has certainly been the case with “Geofence Warrants,” which are a form of reverse warrant that law enforcement has increasingly relied on to uncover perpetrators of crimes where a suspect may otherwise not be uncovered. Chatrie, the first case to be heard in a Circuit Court regarding geofence warrants, serves as a prime example of the typical context in which these warrants are employed. In Chatrie, over a week, three armed robberies took place at the same bank by what appeared to be the same perpetrator. There was no identifying information about the perpetrator, and the law enforcement office was out of leads for the case. However, it appeared on the surveillance footage of the robbery that the perpetrator had a cellphone in his back pocket. Based on this information, law enforcement sought to obtain a geofence warrant to narrow down the identity of the perpetrator in the hopes that his “Location History” was enabled on his smartphone, revealing his whereabouts and the location data of numerous bystanders at the scene of the crime. There are stark privacy and Fourth Amendment interests at stake concerning the widespread use of these warrants by law enforcement. Because of their novelty, courts have not had much time to intervene. To offer critical guidance in this area, this Article will explore why geofence warrants fit into the “Reasonable Expectation of Privacy” doctrine line of cases related to technology. This Article argues that geofence warrants are inherently a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures, specifically because they lack particularized probable cause and cannot fulfill the Fourth Amendment’s requirement of a “neutral magistrate” due to their novelty and misrepresentations concerning their scope by law enforcement. Throughout this Article, I hope to emphasize that technology will only continue to evolve, and as courts struggle to keep up, we need voices advocating for Fourth Amendment interests and a balance of privacy against safety and security in the face of growing surveillance technology
The Incremental Development of an Extra-Statutory System of Regulation: A Critique of Food and Drug Administration Regulation of Added Poisonous and Deleterious Substances
Get PDFFederal regulation of added poisonous and deleterious substances in food by the Food and Drug Administration has become an administrative quagmire. Although responsibility for this situation evades precise assignment, FDA regulatory problems typically arise through the operation of three factors. First, the applicable statutory provisions are highly ambiguous, far exceeding the level of ambiguity traditionally viewed as necessary to administrative flexibility and efficiency. Even resort to the legislative history of these provisions often leaves many questions unanswered. Second, the perpetual amendment of the original Federal Food, Drug, and Cosmetic Act without the simultaneous repeal of all the inapplicable and inconsistent language generated by the resultant changes, has reduced what was intended to be a well-structured system of classification to a regulatory morass. Many of the provisions are incapable of reconciliation while others generate confusion on the basis of their individual merit. Third, the regulatory policies of the FDA have failed to minimize the variety and magnitude of the problems flowing from an admittedly inadequate statute. Rather than exercising its power to promulgate regulations in a sincere attempt at clarification, the agency has chosen to take advantage of the statute\u27s ambiguity to enhance its regulatory powers, often assigning strained interpretations of the statute to advance the agency\u27s perceived goals. Although the ambiguity, frequent amendment and selective interpretation of the statute provoke serious questions as to the agency\u27s effectiveness in carrying out its charge, they also permit the FDA to facially succeed in its current regulatory endeavors. This Comment will focus solely on the regulation of added poisonous and deleterious substances as an illustration of the illusion of structured regulation cultivated by the FDA