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Comparative Negligence in Jackson v. Frederick\u27s Motor Inn: What is Compared?
Get PDFBefore 1965, the defense of contributory negligence was an absolute bar to a plaintiff\u27s recovery in tort actions in Maine. Under the contributory negligence principle, any degree of fault attributable to the plaintiff defeated his or her claim; the fault of the plaintiff and of the defendant was not compared. In 1965, the Maine Legislature enacted the Comparative Negligence Act in order to eliminate the harshness and inequities of the contributory negligence doctrine. The Act also served to stop juries from using compromise verdicts to reach a fair result. Under the Act, a plaintiff\u27s fault is compared with that of the defendant; the plaintiff may recover damages if the jury finds that he or she was less at fault than the defendant. Thus, unlike the contributory negligence rule, Maine\u27s Comparative Negligence Act permits a negligent plaintiff to recover, but only if the plaintiff is not equally or more at fault than the defendant. Damages under the Maine Act are reduced to such extent as the jury thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. In the expanding area of tort litigation, fair and workable principles are essential if the jury and the court are to perform effectively. Although the wording of the Maine Act is unfortunate and needlessly complicated, the Maine Supreme Judicial Court (sitting as the Law Court) succeeded in Wing v. Morses an earlier comparative negligence case, in constructing a two-standard, three-step process for jury determination of fault and apportionment of damages. The Wing v. Morse construction of the Comparative Negligence Act provides a fair, predictable, and reviewable approach to comparative negligence and successfully furthers the legislative intent. In Jackson v. Frederick\u27s Motor Inn, however, the Law Court deviated from the Wing analysis. This Note examines the Jackson interpretation of the Act and shows that this interpretation is incorrect and unjust in light of the statutory purpose. The Jackson court failed to apply the Wing procedure properly and has thereby created serious and unjustifiable doubts concerning the vitality of the Maine Comparative Negligence Act
Appointment of Counsel in Misdemeanor Prosecutions In Maine
Get PDFWhen a criminal defendant appears without a lawyer before a trial court, the trial judge must decide whether to appoint counsel to represent him. The trial judge\u27s decision is one of constitutional magnitude under both the United States and Maine Constitutions, and the decision made in any particular instance affects the integrity of the trial process and the validity of any conviction. The scope of the constitutional right to appointed counsel has lately been the subject of major decisions of the United States Supreme Court and of the Maine Supreme Judicial Court. The United States Supreme Court in Argersinger v. Hamlin held that the sixth amendment compels appointment of counsel in all criminal prosecutions of indigent defendants who do not competently waive appointments and who, upon conviction, are actually imprisoned. In Newell v. State, the Maine Supreme Judicial Court held that under article I, section 6, of the Maine Constitution indigent defendants who do not waive counsel must have counsel appointed where the charges against them carry potential penal sanctions in excess of a $500 fine or six months imprisonment, or both. This Comment examines both Argersinger and Newell and raises the problems that must be resolved in order to fix the scope of the two holdings. The core element of Argersinger is causation—the causal connection between an uncounseled conviction of an indigent and his immediate or eventual incarceration. Argersinger creates an absolute standard based upon an actual penal consequence of conviction. Newell, on the other hand, focuses on potential penal sanctions as a measure of the total penal and collateral consequences of conviction. Although both holdings represent a balancing of the defendant\u27s need for counsel against society\u27s ability reasonably to provide appointed counsel, each court measured the defendant\u27s need by a different standard
Cyr v. B. Offen & Co.: Liability of Business Transferees for Product Injuries
Get PDFThe development of the law of products liability since MacPherson v. Buick Motor Co. has extended liability without fault to wholesalers, retailers, lessors, bailors, and trademark licensors. But the liability of a transferee of business assets for claims arising from the transferor\u27s products after the change in business ownership has never been clearly established. Although commercial creditors generally have been unable to reach the transferee\u27s assets, recent cases have pointed to additional factors that may distinguish products liability plaintiffs from commercial creditors. The liability question is especially important where the transferor, a seller of consumer goods, has dissolved prior to the injury. In Cyr v. B. Offen & Co., the First Circuit Court of Appeals considered both the traditional rules of transferee responsibility to creditors of the transferor and the general principles of strict tort liability for products injuries in an attempt to resolve this problem. The court imposed liability upon the transferee, finding that this result of the traditional business-creditor rules was supported by the general principles of products liability theory. This Note examines the application of business-creditor rules to products liability cases, marking out the points at which the existing commercial precedents may conflict with the theory of products liability. It suggests that standards for transferee liability should be derived directly from the principles of products theory without regard to the traditional business-creditor rules
Defense of Indigents in Maine: The Need for Public Defenders
Get PDFDuring the past ten years the United States Supreme Court has engineered a major reworking of criminal procedure through judicial review. In no area of criminal procedure has the overhaul been so drastic as in the right to court appointed counsel. From a time when court appointment of counsel was virtually nonexistent, the right has been expanded to the extent that counsel is now available in nearly all cases and stages of the proceedings. This rapid growth of the right to counsel has placed an understandable strain on state and federal judicial systems. Various means of coping with the demands have been devised, though most have been short-sighted and ill-suited to the needs of both state and defendant. The State of Maine has felt these pressures on its judicial system and has responded in piecemeal fashion, resulting in a makeshift system for the provision of defense services. In this article the legal developments in the area of right to counsel will be outlined to assay the dimensions of the crisis. The present system for providing defender services will be examined with reference to a survey taken of the practices and opinions of superior and district court judges in appointment of counsel. Finally, the advantages of a public defender system will be presented in general form, followed by a specific proposal for legislation creating a public defender system for Maine
Nonstatutory Judicial Review of Federal Agency Action: A New Approach to Sovereign Immunity
Get PDFIn deciding whether to review administrative agency action, an astute court seeks to maintain a delicate balance between over-interference with administration of legislatively created programs and denial of plaintiff\u27s rights. This balancing process historically has been hindered by federal courts treating the doctrine of sovereign immunity as a jurisdictional bar to unconsented suits against the United States Government. Regardless of the validity of a plaintiff\u27s grievance and in spite of the relative infrequency of such suits, the courts adhering to this traditional approach mechanically dismiss such actions solely because they seek relief against the sovereign. A few federal courts have avoided the doctrine\u27s preclusive effect by treating the review provisions of the Administrative Procedure Act (APA) as an implied consent to suit by the government where the Act is applicable. The basic premise of this approach—the waiver theory— is that enactment of the APA with its broad review provisions is necessarily inconsistent with retention of the common law doctrine of sovereign immunity as a bar to review. Thus, the argument runs, Congress impliedly waived sovereign immunity by consenting to suit. Littell v. Morton, a recent decision by the Court of Appeals for the Fourth Circuit, takes a new tack. The opinion concedes the general applicability of sovereign immunity considerations in unconsented suits against the government, but refuses to give the doctrine preclusive jurisdictional effect or to adopt the waiver theory. Instead, the court treats sovereign immunity as a relativistic concept which should not force dismissal unless its underlying policy justifications are strong. Employed as a balancing concept, immunity no longer enjoys its powerful position as a threshold jurisdictional roadblock. Rather, the threshold consideration is whether the APA review provisions allow judicial intervention under the circumstances. On this score, the Fourth Circuit finds the availability of review under the APA virtually universal
Stewart v. Smith: A Misapplication of North Carolina v. Pearce
Get PDFGordon Stewart was convicted of a felony and sentenced to fifteen to nineteen months in the house of correction and a $2,000 fine, or an additional 2,000 days in lieu thereof. Since he was indigent this represented a total sentence of approximately seven years. Upon petition to the Windsor County Court this original sentence was set aside as being in excess of the twenty-four month statutory maximum. Resentencing was ordered and a different judge sentenced respondent anew to a term of twenty-three to twenty-four months in the state prison with appropriate credit given for time already served. On appeal to the Vermont Supreme Court defendant contended that this increase in sentence chilled his right to appeal and was therefore a violation of due process under the Supreme Court\u27s decision in North Carolina v. Pearce. The Vermont court, limiting its consideration of Pearce strictly to the chill analysis, rejected petitioner\u27s contention. The court held that, since the final sentence was within the statutory maximum and less than the total sentence from which relief was sought, there was no increase and thus no chill upon the exercise of his right to appeal. In thus limiting Pearce, however, the Vermont court failed to consider all the implications of that holding. Aside from protecting against any actual chill which might result from the practice involved, Pearce also intended to discourage any governmental action which placed a price on appeal or evidenced judicial vindictiveness. And, although double jeopardy and equal protection may not have been applicable to the particular facts of Pearce, the decision should not be read as rejecting those rationales in all cases dealing with resentencing procedures
Record Piracy and Copyright: Present Inadequacies and Future Overkill
Get PDFThis comment explores different types of piracy from both a legal and an economic point of view, and suggests that raising the status of some of the economic distinctions to legal distinctions may well serve the public interest better than the present legal distinctions or those proposed in the Copyright Revision Bill. In brief, the record companies are rightfully concerned about the vast amount of piracy of many of their most profitable recordings. On the other hand, there are vast numbers of unavailable and presumably unprofitable recordings which are apparently desired by some consumers and many musical works which, and performers who are never commercially recorded at all. Much of the concern of this comment is to explore means of making such material available
Complete Liquidation of the Corporate Subsidiary: The Questions, Some Answers and Some Observations
Get PDFVarious sections of the Internal Revenue Code of 1954 have been enacted to influence the economy in one manner or another. During the period from 1930 to 1935, elimination of holding companies was an important topic. Many felt that elimination of holding company structures would at least partially relieve the existing economic depression. At that time the complete liquidation of a corporate subsidiary was treated as a taxable transaction. President Roosevelt urged Congress to create a favorable tax atmosphere for such liquidations to encourage simplification of our corporate structures through the elimination of unnecessary holding companies in all lines of business. As a result, Congress provided a new tax policy toward liquidations of corporate subsidiaries which first appeared as section 110(a) of the Revenue Act of 1935, became section 112(b)(6) of the Internal Revenue Code of 1939 and now, in slightly modified form, appears as section 332 of the Internal Revenue Code of 1954. Although intended to be a rather simple relief provision, the application of section 332 in a particular situation may create a number of problems. The problems which may occur have been compounded by the enactment of the special basis provisions of section 334(b)(2) in 1954. The tax practitioner must be thoroughly familiar with the rather intricate rules relating to the complete liquidation of a corporate subsidiary prior to advising a client that such a liquidation will accomplish the result desired. Without careful study, the intended tax relief or benefit might be converted into a serious tax detriment
State Right to Appeal: Has Maine Been Too Cautious?
Get PDFThe Legislature of the State of Maine recently passed an act relating to appeals by the State on questions of law in criminal cases. The Governor\u27s approval of the act on January 29, 1968, was the culmination of some three years of research and debate. The purpose of this comment is to examine the form and scope of the act in light of the continuing controversy in other jurisdictions over the conflict of interests between the people and the accused in what may be characterized as a trend toward more comprehensive state appeal laws, to the end of concluding whether Maine\u27s act will withstand the requirements of the Maine constitutional double jeopardy provision and the fourteenth amendment as it might apply federal jeopardy standards to the states. Further, this comment will focus on the particular problems created by the new Maine law with respect to its procedural and substantive impact upon the parties in interest. Finally, it will be shown that there are two important areas of constitutionally permissible state appeal of which Maine has not availed itself, appeal from judgment of acquittal after verdict, and appeal from the granting of a motion for new trial
Evicted From the Outside
Get PDFIn recent years, Maine has seen an increase in the number of people experiencing homelessness who are living outdoors. People living in these circumstances often shelter together in groups of tents or other temporary structures commonly referred to as “encampments.”As municipalities across Maine struggled with how best to respond to the increase in encampments across the state, the United States Supreme Court decided City of Grants Pass v. Johnson, a case originating in Grants Pass, Oregon. Grants Pass wanted to issue civil and criminal fines to people for sleeping outdoors, even when no alternative shelter was available. The city ultimately succeeded in its pursuit: the Supreme Court held that the Federal Eighth Amendment does not protect people experiencing homelessness from civil or criminal penalties for sleeping outside, even when no other shelter is available. Some cities in Maine lack any shelter for people experiencing homelessness, and Grants Pass allows these municipalities to penalize people for pursuing their only option: sleeping outdoors. However, because Grants Pass is not a mandate, Maine municipalities remain free to provide broader protections to people experiencing homelessness. This Preface recommends that Maine expand its shelter options and refrain from forcing people living in encampments to relocate. Doing so allows encampment residents to build trust in and ultimately access services. In shaping shelter options, this Preface recommends that Maine engage people with lived experience as subject matter experts. Finally, this Preface recommends that Maine focus its efforts to prevent homelessness on expanding affordable housing options and dedicating resources to preventing youth homelessness and the adverse childhood experiences that can lead to homelessness