University of Maine School of Law
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Michigan v. Tucker: A Reevaluation of Miranda
Get PDFIn Michigan v. Tucker the Supreme Court considered whether to exclude the fruits of an interrogation that did not meet the precautionary standards of Miranda v. Arizona. The defendant contended that use of the evidence at his trial violated his fifth amendment privilege against self-incrimination. In deciding that the evidence had been properly admitted, the Tucker Court interpreted Miranda v. Arizona as outlining recommended procedural safeguards for the protection of fifth amendment rights and reasoned that omission of procedural safeguards does not necessarily constitute a violation of the underlying rights. Specifically, the Court concluded that a suspect who did not receive a complete Miranda warning prior to questioning could still make a voluntary statement to the police. This conclusion rejects the Miranda concept of voluntariness: that the accused must comprehend the information contained in Miranda warnings in order to make a truly voluntary statement
Law of Rebuttable Presumptions in Maine
Get PDFIn Hinds v. John Hancock Mut. Life Ins. Co., the Maine Supreme Judicial Court sought to clarify and simplify the law of rebuttable presumptions as to the quantum of evidence that must be introduced before a presumption is dispelled. The Maine court adopted a rule which states that a presumption is rebutted when the probability of the nonexistence of the presumed fact is as probable as its existence. Stated another way, a presumption is rebutted when the jurors\u27 minds are placed in equilibrium. Ten years later, in State v. O\u27Clair, the court expressly incorporated the Hinds rule into criminal procedure. In the O\u27Clair decision, the court also held by way of dicta that when the defendant asserts an affirmative defense, he has the burden of persuasion as to the nonexistence of a presumed fact, regardless of whether the affirmative defense constitutes rebuttal evidence to a presumption. The equilibrium standard utilized in the Hinds decision did little to alleviate confusion surrounding presumptions and is inappropriate for application in both civil and criminal cases. The standard breeds ambiguity in jury instructions with the consequent infringement upon a defendant\u27s right to a fair trial by jury in criminal proceedings and, in effect, shifts the burden of persuasion to the accused. Furthermore, the equilibrium standard and the affirmative defense corollary are a serious challenge to the presumption of innocence and the reasonable doubt requirement embodied in the due process clause of the fourteenth amendment. In civil cases, the standard does not best serve the interests of all litigants because of an unfair allocation of the burden of persuasion. Different policy and constitutional considerations in civil and criminal cases warrant a dual standard for each proceeding as to the quantum of evidence necessary to rebut a presumption
Suggested Revisions in Maine\u27s Planning and Land Use Control Enabling Legislation—Part II
Get PDFThe process which transfers land from its natural or an unintensively used agricultural state to house lots, shopping centers, or industrial sites is often referred to as land subdivision. No more long-lasting or fundamental series of changes with respect to the land can be imagined; yet the process in Maine is not only unregulated by the state and by most local levels of government, but is not at present capable of being regulated in any meaningful sense of the word. No state statutes exist which impose even the most reasonable standards, limitations, or procedural safeguards on either the process of subdividing or on subdividers (developers); and the state\u27s enabling legislation allowing municipalities to regulate the subdivision of land is naive in its simplicity. Even those municipalities which are or might be inclined to apply sound planning principles and modem development controls are hesitant because they lack a clear and express delegation of power to so act. Municipalities are justifiably reluctant to rely on implied powers or tenuous extrapolations of existing powers which courts would almost certainly be unwilling to sustain in spite of the necessity and reasonableness of the subdivision controls imposed. This paper does not deal with state level subdivision controls. It does suggest extensive revision and expansion of municipal powers to control land subdivision. In addition, it suggests legislation which would allow an expanded use of the concept of official mapping; and a more forceful dealing with the problems arising in certain particularly sensitive land areas, e.g., shorelands, highway interchanges, highway frontage areas. Finally, it suggests creating express municipal power to control billboards, and air and water pollution. Each section is accompanied with commentary and footnotes explaining the rationale and justification for the approaches employed and citing appropriate authority for the proposed statutory formulations
Liability Insurer\u27s Duty to Defend: American Policyholders\u27 Ins. Co. v. Cumberland Cold Storage Co.
Get PDFLiability insurance policies generally contain a standardized provision that requires the insurer to defend the insured against all suits alleging bodily injury or property damage covered by the terms of the policy, even if the claims are groundless, false or fraudulent.” This provision is the basis for the general rule that a liability insurer\u27s duty to defend an insured will arise when the allegations in a complaint against the insured state a claim within the terms of his policy coverage. In addition to creating a duty to defend, this clause generally affords the insurer the exclusive right to control the defense. Throughout the litigation the insured must cooperate with the insurer; reciprocally, the insurer must exercise diligence and good faith. The advantage of the general pleading rule is that it allows the insurer to determine the existence of a duty to defend well before litigation of the underlying claim. Because it does not depend upon the insurer\u27s ultimate liability, the duty to defend is broader than the duty to indemnify. This fact has led most courts to adopt the general pleading rule whenever the allegations in the complaint and the known or ascertainable facts are the same. Where the facts and the allegations are not the same, however, courts disagree about the rule\u27s validity. A growing number of courts question the appropriateness of relying solely on the pleadings in a third party\u27s complaint to determine the rights created and the obligations imposed by a contract of insurance. American Policy holders\u27 Insurance Co. v. Cumberland Cold Storage Co. presented the Maine Supreme Judicial Court an opportunity to address the pleading rule issue. Refusing to recognize any exceptions to this rule, the court stated unequivocally that the pleading test for determination of the duty to defend is based exclusively on the facts as alleged rather than on facts as they actually are. The court\u27s holding thus precludes an insured from receiving the benefit of a defense by his liability insurer unless policy coverage appears on the face of the complaint. This result occurs even when the insurer knows that the allegations are untrue and that proper allegations would give rise to a duty to defend. In contrast to the Maine court\u27s restrictive holding, many courts recently have expanded protections for the insured. Analysis of the relationship between the insurer and the insured suggests that courts should not allow an insurer to avoid an obligation to defend by relying on a third-party’s allegations in his complaint. Where a possibility of insurance coverage exists, liability insurers should be required to investigate suits filed against their insureds before they may disclaim their duty to defend
Trademark Rights in Patented Subject Matter and the Patent Policy of Public Dedication
Get PDFThis Comment examines the allowance of federal trademark registration for devices that may also qualify for patent protection. A conflict between trademark recognition for patentable devices and basic patent policy inheres in the Patent Act and Supreme Court decisional law. The availability of trademark registration for patentable subject matter may needlessly derogate the public right to benefit from the free exploitation of new ideas
Equal Protection As A Measure of Competing Interests in Welfare Litigation
Get PDFPresently legal attacks on welfare programs focus upon the basic theory of the program, its definitions of need and obligation, and dissatisfaction with aspects of daily administration. Because these attacks seek to invalidate state action and federal forums are usually sought, conventional constitutional arguments of due process and equal protection are adapted to the peculiar issues posed by welfare cases. These attacks in substance allege that the state has so failed to support a needy person that its actions are fundamentally unfair and unacceptable. Equal protection has been raised often in welfare cases and some courts have granted relief based upon it. These cases, however, do not articulate any distinction between due process and equal protection, and do not give proper analysis to various interests which a state asserts. Although traditionally the welfare recipient was denied challenge summarily because of the no-right argument, presently courts, after imprecisely hurdling the no-right argument, are granting relief virtually automatically without articulating why. An intermediate position ought to be taken. The recipient ought to be readily allowed challenge, but relief should be granted only if the arbitrary state action cannot be justified by the opposing interests asserted by the state as the bases for the differential treatment. This comment urges an intermediate position be adopted by the courts. It compares equal protection and due process and demonstrates the significance of equal protection in welfare law. Equal protection allows challenge where a due process claim typically could not be made, because it is not dependent upon any initial characterization of individual right. The comment then focuses on the key issue in an equal protection analysis; the arbitrariness asserted. It will be demonstrated that it is not arbitrariness in the abstract which can be challenged successfully, but rather constitutional arbitrariness considered against the purpose of the welfare program, and the competing interests asserted. In a welfare situation, it is the individual\u27s need which must be balanced against the competing needs of the state
Cyber Insurance for Public Housing: Confronting Market Barriers and Forging Policy Solutions
Get PDFIn 2023, the Los Angeles Public Housing Authority was hit by the LockBit ransomware gang, which claimed to have exfiltrated 15 terabytes of data. In another incident, hackers impersonated a vendor and diverted nearly $1 million in housing funds from a second California agency. Public Housing Authorities (PHAs), which handle large amounts of sensitive data, are increasingly being targeted by cyberattacks. These attacks often exploit the weak cyber defenses and broad risk profiles of these relatively unsophisticated entities. With limited resources and few avenues for recovery, PHAs are left vulnerable to, and by, cyberattacks, threatening the vital services they provide. One potential solution to improving cyber resilience among PHAs is cyber insurance. However, the practical application of cyber insurance remains unclear, particularly in underexplored sectors like public housing. With limited actuarial data and constantly evolving cyber threats, insurers are reluctant to offer coverage. Even when coverage is available, cyber insurance policies tend to be expensive, have low limits and numerous exclusions, lack standardization, and are difficult for resource-constrained organizations like PHAs to interpret and navigate. This article seeks to clarify the specific cyber threats PHAs face, examine the barriers to insuring them against these threats, and explore the nuances of cyber policies as interpreted in the existing caselaw. Building on that foundation, it then proposes several recommendations for PHAs pursuing cyber coverage—from adopting best practices to navigating the uncertainties of policy language—in an effort to make cyber insurance more accessible and practical for these entities. Such proposals aim not only to strengthen PHAs’ digital resilience but also to enhance their capacity to withstand cyber incidents that threaten their vital operations and the vulnerable populations they serve
Easements as an Option for API Access
Get PDFThe debate surrounding interoperability involves commercial interests, privacy interests, and security interests. Application Programming Interfaces or APIs are a vital component of interoperability, and the possibility of regulating APIs creates tension between owners of APIs, consumers, and other parties. There are many current and proposed methods for regulation. Some are technological, some are legal. No single method completely regulates APIs, and many lack the authority that comes from established precedent. Technology regulation has previously turned to property law principles for privacy and other vital interests. By turning easement law into a framework for API governance, there is a robust tool to handle unbalanced interests that affect the general public