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Cars Don’t Stop for Yellow Lights: Turning Maine’s Yellow Flag Law Red
Get PDFThis Case Note is about Maine’s Extreme Risk Protection Order law, Title 34-B, Section 3862-A, of the Maine Revised Statutes. The purpose of Maine’s law and others like it is to proactively take firearms away from individuals who present a substantial risk of violently harming themselves or others. In the aftermath of the mass shooting which occurred in Lewiston, Maine on October 25, 2023, there was debate over whether law enforcement could have used Section 3862-A to proactively prevent the shooting, as well as over whether Section 3862-A was an effective tool for preventing violence in the first place. This Case Note focuses on the latter issue. First, this Case Note outlines the development, application, and effectiveness of Extreme Risk Protection Order laws in the United States. It then sets out the procedure provided in Maine’s Section 3862-A and examines an application of the law in the case of In re J. Ultimately, it argues that Maine’s law should be modified to better facilitate law enforcement’s ability to stop dangerous individuals from committing violence against themselves or others
What Did SCOTUS do to WOTUS?
Get PDFThe term “waters of the United States” has sparked half a century of debate among policymakers, judges, Supreme Court Justices, the Environmental Protection Agency, and the Army Corps of Engineers, culminating in the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency. This Article chronicles the interpretive history of “waters of the United States” within the context of wetlands and discusses the broader implications of the Sackett decision on the nation’s water bodies
Presumptions Against Criminal Defendants, Affirmative Defenses, and a Substantive Due Process Interpretation of County Court of Ulster v. Allen
Get PDFIn County Court of Ulster County v. Allen, the Supreme Court stated: inferences and presumptions are a staple of our adversary system of factfinding. Because Allen concerned the constitutionality of the use against criminal defendants of such deductive devices as statutory inferences and presumptions, it appeared that the decision would ultimately favor their unrestricted use in criminal cases by the prosecution. Further, that expectation was buttressed by the ruling in Patterson v. New York, in which the Court awarded constitutional sanction to state use of affirmative defenses against criminal defendants. These facts suggested that the Court would refrain from imposing constitutional restraints on the state\u27s criminal use of statutory inferences and presumptions. In fact, the Allen Court severely restricted the prosecutor\u27s ability to rely on those two devices. The purpose of this Article is to explain the rationale of the Allen Court
Civil Juries in Maine: Are the Benefits Worth the Costs?
Get PDFThroughout this century, legal scholars have vigorously criticized civil juries with little apparent effect. Despite the civil jury\u27s long history of successful resistance to change, new considerations make it imperative that we conduct a fundamental review of the functioning of the civil jury as an instrument of justice for the twenty-first century. That review has begun in Maine. Under the direction of the Maine Supreme Judicial Court, a comprehensive jury management study has just been completed. Proposals for changes in jury management and efficiency are now being developed. As part of this process, we can simply perpetuate the past or take a fresh look and change direction if necessary. This essay advocates a fundamental review of the civil jury system. Although certain changes in current practices could improve the civil jury system, a basic change in the underlying system is preferable. The civil jury system has outlived its usefulness. The right to a civil jury trial, traditionally considered basic to our democratic government, must be limited in order to achieve the goals of our democracy—justice and fairness under the law
The Tax Home Doctrine: Fifty-Five Years of Confusion
Get PDFProvisions of the Internal Revenue Code have always allowed taxpayers to deduct business expenses from their gross income before a personal income tax is imposed. Under certain circumstances, traveling expenses, such as amounts expended by taxpayers for travel fares, meals, and lodging, are deductible as business expenses. The United States Supreme Court has held that a taxpayer\u27s traveling expenses must meet three conditions to be deductible under this section: the traveling expenses must be reasonable and necessary, directly related to the pursuit of business, and incurred while away from home. The third condition poses the most problems for taxpayers, the Internal Revenue Service, and the courts. Problems arise because the word home is the subject of differing interpretations. While some courts give home its ordinary meaning—principal place of residence—the Internal Revenue Service and many other courts have adopted the tax home doctrine, which interprets home as used in section 162(a)(2) to mean place of employment. The legislative history of section 162(a)(2) reveals the legislative intent concerning the traveling expense language: home means principal place of residence. Despite this legislative purpose to give home its ordinary meaning, rulings by the Tax Court, the Internal Revenue Service, and the courts of appeals have, instead, applied the tax home doctrine. As a result, the doctrine promotes litigation, wastes time, and fosters uncertainty. Its use causes increased administrative complexity and draws attention from the more important requirement that traveling expenses must be necessitated by the exigencies of business rather than the personal desires of the taxpayer. This Comment recommends that Congress or the Supreme Court should expressly reject the tax home doctrine and clearly indicate that the word home means principal place of residence. Abandonment of the doctrine would eliminate these unnecessary problems and would bring needed uniformity and certainty to the traveling expense deduction area of the tax laws
Perspectives on Older Workers: Maine\u27s Prohibition of Mandatory Retirement
Get PDFThe 1978 Amendments to the federal Age Discrimination in Employment Act (ADEA), which generally prohibit mandatory retirement before the age of seventy, have been criticized as proposing to extend freedom of choice by restricting freedom of contract. Despite such criticisms and other less philosophical objections to the Act, the 108th Maine Legislature in 1977 passed the first part of a legislative program which, as of January 1, 1980, prohibits all mandatory retirement in Maine, in both the public and private sectors. Emphasizing the parallels between age discrimination legislation and other civil rights legislation, one of the bill\u27s senate supporters acknowledged the difficulty of implementing this dramatic change in public policy. He called upon his colleagues to support the bill, saying, [It] is actually going to make a very, very important change in the kind of society in which we live, affording to the elderly the dignity to which they are entitled and to which we give lip service. Although it is too early for any significant assessment of its practical impact, Maine\u27s bill seems an excellent model for other states seeking to end age discrimination. While it will undoubtedly leave a sharp, but not necessarily negative, impression on corporate benefit and personnel policies, it has a sound basis which incorporates important individual and societal interests. Following a brief socio-historical overview to provide a perspective on age discrimination in employment, this Comment will attempt to forecast the scope of the bill\u27s effects. Special emphasis will be placed on the contours of the ADEA, which strongly influenced the formulation of the Maine law. A comparison will be drawn between Maine\u27s legislation and that of other states which have also attempted to eliminate age discrimination. Finally, the potential of this legislation for generating new perspectives on the structuring of the workforce and on personnel policy will be explored
Securing Solar Access in Maine
Get PDFThis Comment explores the common law property concepts of nuisance, water law, and easements which arise by operation of law in order to determine the kind and degree of solar access protection they can provide Maine residential users of solar energy. The final section of this Comment proposes an express solar easement by which Maine citizens can create their own enforceable interests in unobstructed sunlight for solar energy use. In highly urbanized areas where space is scarce and already developed, the conflicts between solar energy users and other land and airspace users may be too difficult to resolve. In Maine, however, with its generally suburban and rural character, its critical need for reducing dependence on imported home heating oil, its concern for the preservation of a healthful environment, and its supply of wood to serve as a back-up heating source for solar energy systems, the opportunity to encourage solar energy use by providing the means for individuals to guarantee necessary access to sunlight should not be missed
The Role of Foreseeability in Jurisdictional Inquiry: Tyson v. Whittaker & Son, Inc.
Get PDFWhen defining the extent of their jurisdiction over nonresident defendants, state courts must be ever mindful of the principle that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. In deciding jurisdictional issues against this background of Supreme Court decisions, many courts have had considerable difficulty in ascertaining the precise extent of the amorphous and discretionary standards set forth in International Shoe and subsequent cases. In the recent decision of Tyson v. Whitaker & Son, Inc., the Maine Supreme Judicial Court was put to this task in deciding whether due process permitted the assertion of jurisdiction over a nonconsenting foreign corporation. This Note will demonstrate that at the time of Tyson, the existing constitutional framework governing long-arm jurisdiction supplied a three-pronged test for defining the limits on state court jurisdiction over nonresident defendants. When this test is applied to the facts in Tyson, it becomes apparent that the Law Court\u27s opinion reflected a misunderstanding of both the Supreme Court decisions and the proper focus of jurisdictional inquiry. In addition, this Note will describe the implications of the Tyson decision for state jurisdiction in products liability cases. Finally, this Note will detail the Supreme Court opinion subsequent to Tyson which clarified the constitutional reach of state jurisdiction over nonresident defendants and implicitly overruled the Tyson court\u27s reasoning. This study not only illustrates the principles of long-arm jurisdiction, but also provides an insight into the interaction between courts attempting to develop a coherent body of law
The Constitutionality of Maine\u27s Real Estate Mortgage Foreclosure Statutes
Get PDFIn Maine, Fuentes v. Shevin caused understandable concern about the constitutionality of the state statutes governing real property mortgage foreclosures. Of the foreclosure procedures existing in 1972, only one provided for impartial determination by a court of the mortgagor\u27s breach of condition. In response to Fuentes, the Maine Legislature in 1975 enacted a straightforward provision for foreclosure by civil action. Although the constitutionality of Maine\u27s pre-1975 foreclosure statutes under the fourteenth amendment has not been litigated, lenders in Maine\u27s largest city have recently abandoned all methods of foreclosure except foreclosure by civil action. Lenders, debtors, and legislators in Maine would profit by a clarification of the constitutional issues raised by Maine\u27s real property mortgage foreclosure statutes. The purpose of this Comment is to identify and discuss those issues and to suggest the probable resolution of constitutional challenges to these statutes