University of Maine School of Law
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Extending the Smith v. Hooey Duty to the Holding Jurisdiction
Full text linkThe right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution. The Court held that this right was of such a fundamental nature and was so essential to due process of law, that it should be enforced against the states in the same manner as it is enforced against federal encroachment. The fundamental nature of this right is further demonstrated by the fact that each of the fifty states recognizes and guarantees the right to a speedy trial. The Supreme Court has detailed three potential evils of criminal justice that may be eliminated by the constitutional guarantee of a speedy trial. First, it prevents unwarranted and harsh incarceration prior to a trial that might reveal the accused\u27s innocence. Second, it minimizes the emotional harm resulting from an unproven accusation. The body of tort law concerning false arrest and imprisonment is evidence that society realizes this danger and seeks to sanction its causes. Finally, it eliminates any possibility that a delay may impair or prevent an accused from exercising a vigorous defense. The existence of any of these hazards, whether singularly or in concert, is inconsistent with the presumption of innocence upon which our system of criminal law is founded. Since all the objectives of the speedy trial guarantee are present when an accused is serving a sentence in another jurisdiction, he should be able to enforce this right. When the question has been posed concerning separate venues, the general rule has been that a sovereign could not deny a speedy trial to an accused because he was imprisoned in an institution of that sovereign under a prior conviction and sentence of one of the sovereign\u27s courts. But when the jurisdiction making the accusation differed from the jurisdiction of incarceration, the former was allowed to file a detainer and, in derogation of the accused\u27s rights, delay trial until he had completed the sentence in the foreign jurisdiction. This inaction by the accusing jurisdiction was justified by the doctrine of comity. It was thought that since the accusing jurisdiction could not demand custody of the accused as a matter of right, it was under no obligation to request custody. A request might be denied and such a denial would be an insult to the accusing jurisdiction\u27s sovereignty. The possibility of a rebuff outweighed an individual\u27s right to a speedy trial
How to Use Financial Statements—A Handbook For Lawyers
Full text linkIt is always dangerous to write a handbook for lawyers on another discipline whether that discipline be medicine, engineering, actuarial science, or accounting. The demands on the lawyer for knowledge in any of these other disciplines differ both in breadth and depth in each of the multitudinous matters in which he finds himself involved. Moreover, among individual practicing lawyers are found widely varying degrees of sophistication in these other disciplines. Bearing in mind this inherent limitation of any handbook for lawyers, it is apparent that Irving Kellogg has done a good job with his handbook on financial statements
The Rights of the Person Acquitted by Reason of Insanity: Equal Protection and Due Process
Full text linkIn response to the Maine Supreme Judicial Court\u27s decision in State v. Shackford a commentator suggested that the Maine automatic commitment statute be attacked as denying equal protection of the laws to those individuals acquitted by reason of mental disease or defect. Such an attack was made in the case of Chase v. Kearns, but without the predicted success. In Chase the court failed to come to grips with the crucial issues presented despite careful effort by both counsel to focus on the constitutional problems. The court side-stepped the difficult constitutional issues raised, upholding the statute but failing to provide any sound basis for its decision. Traditional justifications for automatic commitment were reiterated with no inquiry into their validity in light of contemporary knowledge and values. The law relating to the fights of those acquitted by reason of insanity suffers from a lack of sound legal reasoning. It has been confused by the interaction of conflicting beliefs. On the one hand, there exists a feeling, demonstrated by the fact that insanity is an absolute defense rather than a mitigating circumstance, that it is unfair to punish a person for a criminal act caused by his mental illness; no fault is perceived on the part of the actor and no benefit anticipated from his retributive imprisonment. On the other hand, because of the relatively late development of the psychological sciences and the uncertain effectiveness of treatment, society is afraid of the mentally ill, and even more so of those whose antisocial behavior has also been in contravention of the law. This fear of the person acquitted by reason of insanity is largely responsible for the enactment of criminal commitment statutes like Maine\u27s and for unwaivering judicial support of such statutes in the face of legal attack
An Analysis of Federal Drug-Related Civil Forfeiture
Full text linkDrug Enforcement Administration Special Agent Arthur J. Goldenbaum participated in a raid at the home of Mrs. Edna Salas, arrested her husband, and charged him with possession of heroin. Pursuant to a warrant, Goldenbaum searched the Salas\u27s 1975 Mercedes and found four marijuana cigarette butts in the ashtray. The government seized the Mercedes, sold it, and collected the proceeds. This is an example of forfeiture-the loss of goods to the government as a result of the commission of a crime-under the federal drug laws. This Comment examines federal civil forfeiture statutes applicable to drug trafficking. The widespread judicial reluctance to apply stringently the statutes and the harsh results that traditionally have been linked with in rem forfeiture proceedings suggest that revision of these laws is necessary. Consequently, the Comment proposes statutory changes that would clarify the law and would mitigate un-reasonable consequences
Small Claims Mediation in Maine: An Empirical Assessment
Full text linkIn recent years considerable attention has been paid in the United States to the development of informal alternatives to court as part of a world-wide access to justice movement. Of these alternatives to courts, mediation contrasts most sharply with adjudication and, in theory, promises much by way of decreasing the alienation of citizens when it is made an adjunct to the formal judicial process. The contrast and promise stem largely from the participatory and consensual character of the mediation process. A third party to the dispute—the mediator—encourages the parties to find a mutually agreeable settlement by helping them to sharpen the issues, reduce misunderstandings, establish priorities, vent emotions, find points of agreement, and, ultimately, negotiate an agreement. Unlike a judge or arbitrator, the mediator lacks authority to impose an award, and thus mediation can fail if one or both parties refuse to settle. It is this sharp contrast between a process based on participation and consent and one founded on authority and imposition of judgment that makes mediation a particularly intriguing alternative to court. The consequent benefits of mediation have been asserted frequently and serve to justify scores of mediation programs across the United States and Western Europe. Apart from the hoped-for impact on caseload and delay, mediation presumably has a number of favorable effects on the parties to the dispute and on the legal system as a whole. This article is the first report of a social scientific research project that we have undertaken to gather data on mediation programs and to address the range of issues raised by Maine\u27s adoption of mediation as an alternative to small claims court
Foreword
Full text linkAs one who attended the AALS Native American Rights Section meeting on eastern Indian land claims, I am especially pleased that this issue of the Maine Law Review has been prepared. Though the section meeting was interesting, time was short, and many questions were left unresolved or unasked. This issue, while examining the Indian land claims themselves, also includes articles and comments on factual, jurisdictional, and policy issues which arise from the land claim
The Absurd Ballet of American Indian Policy or American Indian Struggling with Ape on Tropical Landscape: An Afterword
Full text linkOn a recent visit to the National Gallery of Art in Washington, D. C., I was particularly struck by a painting that I encountered. Quite accidentally I came upon an Henri Rousseau primitive painting of a tropical landscape, in which, amidst abundant, lush foliage, was a tiny American Indian wrestling a giant ape. The plate identifying the work read: “‘Tropical Landscape: An American Indian Struggling With An Ape,’ Henri Rousseau, 1910. At that moment it occurred to me that this artist had captured an essential theme underlying the history of American Indian law and policy. This essay reflects upon and develops that theme in the hope that the overall perspective taken will complement current thinking about Indian law and policy, a subject with deep historical roots and compelling contemporary importance. A thorough review and summary of the nearly four-hundred-year-old relationship between the Indian and the United States government and settlers is not attempted. Rather, some general perceptions will sketch impressionistically the nature of the tropical landscape of American Indian policy, and the Indian struggles against the apes thereon
Chief Justice Dufresne: An Appreciation
Full text linkTo those of us who worked with him almost daily, the years of Armand Dufresne\u27s stewardship will be best remembered as the years during which the Justices of the Supreme Court grew closer together, both in their professional and social relations, and in the respect and admiration each held for the other and all held for the Chief Justice. I am confident I express the sentiment of my colleagues when I say the Dufresne years were among the happiest years of the Court family, largely because of the leadership Chief Justice Dufresne provided US
Tortious Withholding of Insurance Benefits: Gibson v. National Ben Franklin Ins. Co.
Full text linkThe Maine Workers\u27 Compensation Act provides that an employer\u27s compensation carrier shares the employer\u27s immunity from common law suit. If the carrier delays or withholds benefits owed an injured employee under an approved compensation agreement, the Act imposes a fine on the carrier and permits the employee to recover the overdue compensation payments by invoking the equity powers of the Superior Court. The Act makes no provision for redress when the carrier refuses to pay, a potential limitation recently confronted by the Maine Supreme Judicial Court in Gibson v. National Ben Franklin Insurance Company. In reversing the trial court\u27s dismissal of a complaint that had alleged severe mental distress caused by the insurance carrier\u27s intentional withholding of benefits due under an approved workers\u27 compensation agreement, the Gibson court held that the Act\u27s exclusive remedy and penalty provisions did not necessarily immunize the insurer from tort liability in a case of intentional wrongdoing. Thus Gibson opened the door to the possibility of recovering consequential as well as punitive damages from a workers\u27 compensation insurer. It will fall to subsequent decisions to flesh out Gibson\u27s limited holding by defining the theory or theories of intentional tort liability that will shape this action. Gibson may reflect a general trend toward expanded liability of first party insurers
Title Disputes After Probate or Administration
Full text linkTitle to realty generally passes by sale, by devise or by descent. Each method of transfer through its respective system of rules and requirements seeks to protect the interests of society as well as the interests of the immediate parties to a transfer of ownership. When a sale, as an inter vivos transfer, follows a transfer of realty by either devise or descent, a gap may appear in the protection afforded to the various parties by each system of rules. Specifically, the purchase of estate realty from a distributee under probate or administration may jeopardize the purchaser\u27s status as owner. Often a distributee, who acquired title by devise or by descent, will convey his title after probate administration to a good faith purchaser for value. A title dispute over the ownership of the estate realty will inevitably ensue if subsequent probate proceedings establish that the grantor, as initial distributee is not the intended distributee who holds the valid title claim to the estate property. The conflicting title claims of the good faith purchaser and the intended distributee present courts with a particularly difficult problem because four parties have different interests in its resolution. The purchaser demands protection of his title on the equitable ground that he gave value in good faith without notice of any adverse claims. The intended beneficiary, on the other hand, claims the estate property on the legal ground that title vested in him at the moment of decedent\u27s death. Having received the sales proceeds, the initial distributee who sold the estate property in a good faith belief of his ownership seeks to protect his economic position. Finally, society has interests in ensuring stability of land titles while effectuating decedent\u27s intent for distribution of his estate. A fair remedy accommodates not only the interests of the immediate parties to the title dispute but also those interests of the initial distributee and society. Courts traditionally, however, have protected the rights of parties to a sale to the detriment of those individuals who derive ownership rights from descent or distribution. This treatment suggests that inter vivos transfer of property is superior to transfer by death. Descent and distribution statutes, however, do not acknowledge a hierarchical relationship between sale and transfer by death. Further analysis of the problems presented by an intended distributee\u27s claim to estate property held by a bona fide purchaser identifies the nature and extent of those interests requiring judicial protection. This analysis also suggests the need for legislative protection