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Personal Data is not Digital Contraband: Why the Protecting Data at the Border Act is Needed
Get PDFIn Fiscal Year 2024, U.S. Customs and Border Protection (CBP) conducted over 46,000 warrantless searches at international borders, raising significant privacy concerns. This article examines the constitutionality of these searches, focusing on the federal government’s use of the “border search exception” to the Fourth Amendment, which traditionally allows warrantless searches at the border to safeguard national security. However, applying this exception to electronic devices, which store vast amounts of personal data, presents new challenges, for such electronic devices often reveal intimate details of an individual\u27s life. The article critiques the government\u27s use of such exceptions and the argument that constitutional rights are often diminished at the borders, asserting that warrantless searches of electronic devices undermine Fourth Amendment protections. As a possible solution, this article advocates for the passage of the Protecting Data at the Border Act, which would establish clear guidelines for the search of electronic devices and would otherwise require warrants for more invasive inspections of these electronic devices. By balancing national security and individual privacy rights, the Protecting Data at the Border Act would protect both individual liberties and border security, along with government interests
Just Kids: Establishing a Minimum Age of Jurisdiction in Maine’s Juvenile Court
Get PDFIn Maine, there is no such thing as a child too young to be prosecuted. Maine’s Juvenile Code grants the juvenile court jurisdiction over a child of any age, even one who would have been considered too young to prosecute in the fifteenth century. As of 2024, just over half of states in the country have rejected this approach and established minimum ages of jurisdiction for their juvenile courts. These minimum age laws protect the youngest, least culpable, and least competent children from prosecution, and generally require states to respond to young children through services rather than punishment. This Comment argues that Maine should join this growing movement and establish a minimum age of jurisdiction in its juvenile courts. It begins by charting the development of the separate juvenile justice system in the United States and the three core principles that underlie that system. Next, it explores the policy justifications set forth by proponents of minimum age statutes, the different types of minimum age laws across the country, and the ways that states with such laws respond to young children accused of violating the law. This Comment then turns to Maine, exploring the history of Maine’s approach to juvenile justice. This Comment concludes that Maine’s legislature originally intended for children suspected of crimes to receive a state response informed by both corrections and social services. This Comment addresses Maine’s current sole mechanism for excluding young children from its juvenile court: the due process requirement of competence to stand trial. This Comment then evaluates Maine’s current approach in light of the interests of the State, children, and families. Ultimately, this Comment concludes that both the underlying purpose and history of Maine’s Juvenile Code and a modern analysis of the interests of the State, children, and families all indicate that Maine and its children would be better served by adopting a minimum age of jurisdiction. This Comment proposes the age of fourteen, sets forth the policy justifications for that age, and recommends that children thirteen and younger be referred to the Department of Health and Human Services for services instead. Finally, this Comment explores potential barriers to implementation and suggests solutions to those barriers. Maine has just committed to significantly expanding its services for children in need. This Comment urges Maine to seize this opportunity to reimagine its approach to young children accused of offenses by adopting a minimum age of juvenile court jurisdiction, which will better serve the interests of children, their families, and the State itself
Defining an Appropriate Education Under the Education for All Handicapped Children Act of 1975
Get PDFThe educational rights of handicapped children have long been neglected due to a combination of societal indifference and ignorance. Judicial recognition of the educational rights of handicapped persons only began in the early 1970\u27s when constitutional challenges were brought against school systems that excluded handicapped children from attending school. Federal statutory reforms, however, have gone much further than the constitutionally-based decisions of the early 1970\u27s. This Comment focuses on the Education for All Handicapped Children Act, the primary federal statute for securing educational rights of handicapped children. Because the Act is relatively new, case law providing guidance for judicial decision making is just beginning to evolve from the Act, notwithstanding judicial reluctance to confront difficult questions regarding educational policy. Much of the early litigation under the Act challenged the failure of school districts to comply with the Act\u27s procedural requirements. While state compliance with the Act\u27s procedures continues to be monitored by advocates of the handicapped, judicial challenges are now moving into the substantive rights provided by the Act. This Comment examines and further defines the Act\u27s broad substantive right to a free appropriate education for all handicapped children
The Dilemma of Local Land Use Control: Power Without Responsibility
Get PDFLand use planning and control has traditionally been perceived as a set of issues best dealt with by local government. State governments historically have been called upon to provide nothing more than a suitable framework of planning and land use control enabling legislation. In recent years some states have sought to address land use issues having regional or statewide impact. This has usually been done on an intra-state basis, however, and meaningful interstate or multi-state approaches to land use problems, though much discussed in the literature, are almost non-existent in practice. Federal involvement in land use issues has also been limited. This invariably leads individual towns to promulgate land use control ordinances and regulations that make it difficult, if not impossible, for large, unsightly, potentially troublesome, but nonetheless essential, development activities (in an overall social sense) to locate within the town. It is increasingly apparent that if the land use needs of essential and unwanted activities are to be met, a new ingredient must be added to our present construct of land use control mechanisms. As unpopular as it may be, this new ingredient must involve a higher level of government (probably the state) in land use decision-making. Local powers cannot be absolute. This does not mean that local land use decision making must be totally preempted, but it does mean that local interests and larger social interests, which higher levels of government recognize and articulate, must be balanced. Though an argument can be made for extensive federal involvement in land use decision making, involving large or difficult to locate development types and activities, such an approach seems both politically unwise and unnecessary. A limited federal role in certain circumstances can be defended, but in most situations the state government is best situated to provide locational alternatives for development activities which individual towns for some reason cannot accommodate. The remainder of this Article will deal with ways in which this delicate problem in inter-governmental relations may be solved
Bakke, Lochner, and Law School: The Nobility Clause Versus a Republican Form of Medicine
Get PDFAlan Bakke, an unsuccessful medical school applicant, filed suit challenging the constitutionality of the minority admissions program administered by the Medical School of the University of California at Davis. The practice of reserving sixteen special places for minority students out of a total of 100 positions in the entering class, Bakke contended, constituted a denial of the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Bakke\u27s suit afforded the justices of both the California Supreme Court and the United States Supreme Court a unique opportunity to examine the substantive nature of the equality guaranteed by the federal Constitution. Unfortunately, none of the justices accepted the invitation. The justices\u27 failure to analyze the substance of equality is a glaring one, but it is also a failure which can be put to a pedagogical use. The absence of substantive analysis illustrates the inadequacies of our law schools and the unthinking reliance upon black letter rules of law which the legal profession encourages. To a layman, the discussion of less restrictive alternatives, benign racial classifications, and remedial responses to findings of identified discrimination must seem curiously unrelated to the crucial questions of justice, equality, and fair representation which should have been the main topics of these opinions. The issue which should have been the focus of discussion in Bakke concerns the clash between the twin ideals of meritocracy and republicanism. It is not the purpose of this article to suggest how this conflict between meritocracy and republicanism should have been resolved in the Bakke case. Instead, this article focuses on the reasons why the California and United States Supreme Court justices declined to identify and discuss the underlying issues in the case. Bakke is merely one decision. But the judicial evasion of central issues of constitutional law is a recurring phenomenon. This article seeks to explain why this disturbing phenomenon is so common. It is suggested that these judicial evasions can be attributed to the legal profession\u27s practice of masking the human realities of legal conflicts with the use of camouflaging terminology and black letter formulas for case dispositions. The failure to confront the substantive nature of equality can be attributed to our law schools\u27 failure to train jurists to heed the emotional responses of the heart
State v. Hayes: Privacy of the Mind and the Incompetent Defendant
Get PDFAlthough numerous jurisdictions have faced the question of whether a criminal defendant can be considered competent to stand trial when his competency is medically induced, the question of whether the state may force the accused to take competency-inducing medication during trial over the pretrial objections of the defense is relatively novel. Confronted with that issue recently, the Supreme Court of New Hampshire in State v. Hayes held that the state could compel a criminal defendant to take psychotropic drugs\u27 necessary to maintain competency if the jury was informed about the use of medication. It is clear from the New Hampshire court\u27s opinion and the briefs of counsel that the fundamental constitutional implications of drug-induced competency were considered only summarily. The factual background of the case, however, presents a unique setting in which the constitutionality of compelled competency might have been explored, had the court and counsel seen fit. Accordingly, this Note departs from the traditional format of a law review case note by using State v. Hayes as a touchstone for discussion of the serious questions that arise when competency-inducing drugs are forcibly administered to criminal defendants. In light of an emerging constitutional right to refuse treatment, an attempt is made to articulate the basis for a constitutional right to refuse competency-inducing psychotropic medication, and to examine the tensions which may arise between the interests of the state in trying criminal defendants and those of the accused in freely refusing treatment when competency to stand trial can only be attained through such treatment
In Memoriam Donald LeRoy Garbrecht
Get PDFThe faculty of the reestablished University of Maine law school held its first meeting in Washington in May 1962, during the annual session of the American Law Institute. The first order of business included an interview with one Donald L. Garbrecht, who had been recommended to serve as assistant to the librarian, Dr. Arthur Pulling. After Don had successfully undergone an interview and we had voted—unanimously, for once—Dr. Pulling looked at us in the earnest way he had when he was enthusiastic about something and said, He\u27ll be fine! His prophecy proved to be correct. It should be counted as one of Dr. Pulling\u27s achievements that he was able to detect Don\u27s great ability and awaken his interest in creating a university law library. Don\u27s approach to the library\u27s share of the law school budget was realistic but based on the axiom that a law school can never be much better than its library. Don worked out most of the details of the systems and arrangements now in effect in the University of Maine Law Library to a large extent from his own ideas of what a good library should be and do. It is appropriate that it be dedicated as a living monument to him. It was his combination of perspective with the disposition to take prompt and vigorous action when goals were clear, that was the hallmark of Don Garbrecht\u27s administration of the library. Whether that rare combination was the result of the nature of his work, or whether it may have grown from some premonition that he did not have much time to do all that needed to be done, I do not know. I do know we have lost a wonderful librarian, colleague, teacher, and friend
Maine\u27s Reception of the Common Law
Get PDFFrom the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine\u27s Supreme Judicial Court, reception was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals. After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell into disuse. The reception clause has lain relatively quiescent through much of the present century, the Maine Law Court having refrained from employing the incorporation doctrine even when clearly germane to the resolution of a case. In 1975, however, the Law Court poured new vitality into the reception clause in Hilton v. State, some of whose language can be interpreted to mean that English common law rules, once incorporated into Maine law, can be changed only by legislative action, and that courts are powerless to modify or overrule them. Such an interpretation of the reception clause would run contrary to established principles of jurisprudence, to historical fact, and to past decisions of the Maine Law Court. The reception clause can and should be treated in a more flexible and enlightened manner, for the English common law, incorporated or not, is of value only insofar as it retains its adaptability to the changing needs of a dynamic, modem society
Validity and Relevancy Analysis: An Approach to the Admissions of Experimental Evidence
Get PDFRules of evidence in the common law system were developed to serve the fundamental purpose of minimizing erroneous factual conclusions by the jury. In pursuit of this goal, two guiding principles have been followed: first, that the jury should be provided with the most accurate and trustworthy information possible; second, that the flow of information to the jury should be controlled to exclude evidence which is irrelevant or otherwise misleading. Since the earliest cases in which the results of experiments were offered as evidence, American courts have treated experiments as a unique form of evidence but have found it difficult to formulate a rational and workable rule for the admissibility of experimental results. Because the courts have never undertaken the thorough analysis necessary to harmonize the uniqueness of experimental evidence with basic evidentiary principles, the present rationale for determining the relevancy and admissibility of experimental evidence is incomplete and unsatisfactory. This Comment begins with a discussion of validity and the scientific experimental method, and then progresses to an examination of relevancy. A final section on admissibility synthesizes the validity and relevancy discussions, and suggests first that similarity concepts are improperly applied to validity, and second that, even in the context of relevancy, similarity principles should be reconsidered. A new rationale is proposed, based upon the relationship between the experimental hypothesis, the defining postulate of the experiment, and the disputed factual issue, rather than upon random and undiscriminating similarity of conditions. It will also be shown that a careful validity analysis facilitates the evaluation of probative worth and the consideration of the evidence on secondary exclusionary grounds