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A Proposal to Protect Maine from the Oilbergs of the 70\u27s
Get PDFThe oil industry is moving into Maine with plans to develop new oil ports and to build oil refineries along the coast. Although the Portland harbor is one of the busiest oil ports on the eastern seaboard, the enormous increase in oil transportation over Maine waters, as envisioned by the oil magnates, poses frightening consequences for Maine people. Responding to this threat and to a growing conservation lobby, as well as an aroused public, the 104th Legislature passed measures that hopefully will begin to cope with the problem. Hailed as landmark conservation legislation, the new laws go further than past feeble attempts to afford protection and redress from the ravages of polluting oil. Yet the new laws do not go far enough to provide the quantum of protection demanded by the risks involved. Indeed, the viability of certain controversial provisions of the new legislation will be in question until they have been tested before the courts. As a result, Maine\u27s greatest asset, its environment, especially its unique and famous coastline, remains inadequately protected from oil pollution
Maine Real Estate Law
Get PDFThe author, a former lecturer at the University of Maine School of Law, in the book\u27s foreword, disclaims that his book is written for lawyers. In this disclaimer, he is far too modest. Most lawyers who deal with matters concerning real estate law will benefit by a refresher course. This volume provides an excellent and very readable combination of English and Colonial historical background and current Maine law
Bernier v. State - The Right to Counsel in Entrustment Revocation Proceedings
Get PDFTheodore Bernier was adjudicated a juvenile offender in September, 1966, and was subsequently committed to the Boys Training Center (BTC) for the term of his minority. In February, 1968, he was released on entrustment to his parents. Almost a year and a half later, Bernier was questioned by local police regarding his possible involvement in the theft of greenstamps from a local store. Although he was released without the police taking further action, they notified an aftercare and placement worker assigned to the BTC of the questioning. As a result, the BTC revoked the entrustment, and the police took him into custody for return to the Center. He subsequently was returned without a hearing and the original indefinite commitment was reinstated. To seek relief Bernier filed an action in state court for post-conviction relief. Bernier contended in his writ that the entrustment revocation without a hearing and in the absence of counsel violated the due process clause of the fourteenth amendment, and he also complained that because state probationers and parolees received a statutory hearing, the entrustment procedure discriminated against him in violation of the equal protection clause. Additionally, Bernier argued that the statute from which the superintendent of the BTC derived his authority to revoke entrustments was impermissibly vague. Following dismissal of the writ, appeal was taken to the Maine Supreme Judicial Court. The court answered the vagueness claim by maintaining that upon commitment to the BTC, the juvenile\u27s rights were defined by the state in its role as parens patriae. The lack of specificity of the superintendent\u27s powers under the statute was considered irrelevant because he properly possessed unlimited discretion to act for the juvenile\u27s best interest., Although the court recognized that Maine statutes required hearings for probation and parole revocations, it found this right grounded within the statute rather than the Constitution. Hence, the failure to provide juveniles with a hearing and counsel at entrustment revocation did not contravene due process or equal protection because probation and parole violators also had no right to a hearing and counsel beyond the statutory grant. The court left unresolved defendant\u27s procedural due process argument that the entrustment revocation by the superintendent of the BTC so as to effectuate indeterminate confinement was unconstitutional because it constituted an imposition of sentence without the presence of counsel
Procedural Rights of the Military Accused: Advantages Over A Civilian Defendant
Get PDFThe Supreme Court recently decided in O\u27Callahan v. Parker that the military lacks jurisdiction to try servicemen for crimes that are not service-connected. Justice Douglas, in rendering the majority opinion, was highly critical of military justice and criminal procedures in the court-martial system, which he characterized as a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants . . . . .” The opinion further added that courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law . . . . A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while the military trial is marked by the age-old manifest destiny of retributive justice. The Court then quoted approvingly: \u27None of the travesties of justice perpetuated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.” The indictment of military justice was unmistakable; the portrait was of an institutionalized system of quasi-courts before which an accused is systematically deprived of fundamental rights. The recurrent implication was that any accused would eagerly seek to escape military jurisdiction for the comparative haven of a civilian trial. Within 30 days after O\u27Callahan, the Judge Advocate General of the Army received a letter from a serviceman tried and convicted in a civilian court for manslaughter. The crime was committed on a military reservation. The letter complained of the conduct of the writer\u27s civilian trial including the denial of counsel, military or otherwise, and expressed bitterness that the military had not been able to take jurisdiction of the offense. The letter was, of course, a plea from one incarcerated man and, to be sure, some accused servicemen have sought to bar the exercise of military jurisdiction on the basis of O\u27Callahan. Nonetheless, the petition of this ex-serviceman and his dissatisfaction with his civilian trial may more truly reflect the realities of a thorough comparison of military and civilian criminal procedure than do the broad assertions of Mr. Justice Douglas
State v. Grant: Is Intent an Essential Element of Criminal Attempt in Maine?
Get PDFCriminal attempt is a conceptually difficult area of the criminal law. Efforts to develop a judicial and statutory framework for the imposition of criminal attempt liability have resulted in analytical difficulties from which sound policy has not emerged. The Maine Supreme Judicial Court has recently encountered this problem in State v. Grant. Liability for criminal attempt has traditionally been limited to those situations in which the actor is shown to have had the specific intent to engage in conduct that constituted a substantial step toward the commission of the substantive crime. Because of this requirement, courts have reasoned that criminal attempt liability may only be imposed for substantive crimes for which the culpable mental states are either intent or knowledge. In State v. Grant, the Maine Supreme Judicial Court followed this rationale and held that attempted reckless or negligent homicide (manslaughter) is a logically impossible crime. Support for an alternative conclusion, that attempted reckless or negligent crimes are, in fact, possible, may be derived from the language of the criminal attempt statute itself and from Law Court decisions other than Grant. An interpretation of section 152 different from that relied on in Grant would release the court from the confines of the presently accepted view of attempt law. The purpose of this Note is to examine the law of criminal attempt and to demonstrate that a different interpretation of section 152, based on the actor\u27s conduct rather than the conduct\u27s result, is reasonable and logical given the statutory language
The International Law of Maritime Boundary Delimitation
Get PDFThe law of the sea, in its essence, divides the seas into zones and specifies the rights and duties of states and ships flying their flags in those zones. Now that states are claiming extensive seaward jurisdiction both on the continental shelf and in the water column, attention has begun to shift from delimiting continental shelf boundaries or economic zone boundaries to the delimitation of a single maritime boundary which would serve both purposes. There are significant legal differences between the delimitation of a single maritime boundary and the delimitation of either a continental shelf boundary or an exclusive economic zone boundary. The legal criteria developed for shelf delimitation focus on geological and geographical factors, while the criteria relevant to the exclusive economic zone, although not very well developed, may be regarded as also encompassing historic usage and economic considerations. This Article examines the principles and rules of international law applicable to the delimitation of a single maritime boundary. There is no international agreement in force governing the delimitation of a single maritime boundary. Although many nations are parties to the Convention on the Continental Shelf, that Convention cannot directly provide a rule, even for states that are parties, because its delimitation provision relates only to the continental shelf and not to a single maritime boundary. And there is no agreement in force concerning the delimitation of exclusive economic zones. Thus, lacking any binding conventional law, recourse must be made to the principles and rules of customary international law
The Durfresne Years: A Preliminary Overview
Get PDFMaine Law Review\u27s timely decision to survey the work of the Supreme Judicial Court will enable our Bench and Bar to review past developments, analyze present positions, and, perhaps, chart with greater facility the future course of Maine\u27s legal development. The retirement of Chief Justice Armand A. Dufresne, Jr., provides an excellent occasion for a look back at the Court\u27s accomplishments
Tort Law Developments
Get PDFAny discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners\u27 and occupiers\u27 duties to entrants upon their land, the court has demonstrated a willingness to foster recovery which is tempered by strong concern that beneficial social energies not be dampened, nor abuses promoted. This last tendency perhaps remains most potent in malpractice law, but even here one can discern indications that the durability of the court\u27s restrictive attitude may be severely tested when informed consent problems are properly before it. The cases dealing with these problems, and the many other decisions here surveyed, show much more than a court simply adjusting the volume and direction of the flow of tort liability. The court has been preparing the seedbed from which will grow new rules, new conceptions, new causes of action. Whether, for example, comparative negligence is a defense to a strict tort products liability claim and, if so, in what form, are questions whose answers will bear an organic relation to recent opinions in which the court, adopting a many-faceted role, has implemented the statutory loss-apportionment scheme, or established the part judicial review is to play, or adjusted the doctrinal underpinning of tort liability generally to accommodate the new system. The Law Court\u27s tort opinions, which embrace a far wider spectrum than comparative negligence, range from the high drama of revolutionary innovation to the mundane practicalities of burdens and percentages. Yet they are all knit together by what was timeless in the great common law tort tradition, the ongoing necessity to test ideas such as causation, deterrence, compensation, or duty against the principles and the factual realities of a world in flux
Vagueness and the Vermont Long-Arm Statute
Get PDFThe authority of state courts to assert jurisdiction over the person of nonresidents has expanded markedly since the days of Pennoyer v. Neff. Different theories for asserting jurisdiction over individuals, as opposed to corporations, have been discarded. For jurisdictional purposes, the common law classifications of in personam, in rem and quasi in rem have been abandoned. Minimum contacts has become the all-embracing rationale for reviewing any assertion of jurisdiction over a nonresident defendant by a state court. But if minimum contacts has replaced these former concepts and served to simplify and unify the requirements of due process, it has also lulled the legislature of Vermont into a certain complacency regarding its role in delineating the jurisdiction of its courts. In Avery v. Bender the Vermont Supreme Court held that its courts could not properly assert jurisdiction over the nonresident beneficiaries and the administrator of a trust, although part of the trust property was within the state. The following discussion is addressed to an inquiry of whether a state legislature can delineate the bounds of its courts\u27 jurisdiction by mere reference to minimum contacts without violating the Fourteenth Amendment of the United States Constitution. Specifically, can such a statute be challenged on the grounds of vagueness, and if so, is § 913(b) unconstitutionally vague
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