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Maine Law Magazine - Issue No. 99
No full textA Letter from the Dean Alaskan residents granted resident tuition status at Maine Law ‘I wasn’t doing it alone’: Students find mentorship and direction in Maine Law’s 3+3 Program A Place to Call Home: Three journal symposium addresses housing crisis in Maine and beyond Maine Law community honors founding Dean Edward Godfrey’s lasting legacy How Maine Law’s Economic Justice Fellowship is Shaping the Next Generation of Advocates New fellowship broadens scope and reach of Maine Law’s Refugee and Human Rights Clinic The Clinics at Maine Law: Renamed to Reflect Our Expansive Reach Prisoners’ Assistance Clinic - Providing Much Needed Access to Justice in Civil Matters New Business & Law Clinic aims to strengthen Maine’s economy one startup at a time Maine Law experts and students advocate for the future of youth justice statewide and beyond Maine Law student awarded prestigious Westin Fellowship Extended Learning Opportunity gives high schoolers a taste of law school Professor Andrew Kaufman receives Fuld Award Former Maine Attorney General delivers Constitution Day Lecture: “Later is right now, and you are the decision-makers” Inaugural Maine Center Awards include two Maine Law trailblazers Maine Law alumni shaping the future of the state through public service Bridging law, business, and community: Pat Maiorino ‘73 recognized for a lifetime of justice in action Professor Jenny Wriggins will retire after nearly three decades at Maine Law Faculty Notes Philanthropy Reporthttps://digitalcommons.mainelaw.maine.edu/maine-law-magazine/1099/thumbnail.jp
Informed Consent in Maine: Woolley v. Henderson and the Informed Consent Statute
Get PDFIn recent years, American courts have used two different standards in informed consent actions to define the scope of a physician\u27s duty to disclose to his patient the risks inherent in a proposed medical procedure—the professional disclosure standard and the material-risk standard. In Woolley v. Henderson, the Maine Law Court expressly adopted the professional disclosure standard. Prior to the Law Court\u27s decision, however, but after the cause of action in Woolley arose, the Maine Legislature enacted the Maine informed consent statute. Justice Glassman\u27s opinion in Woolley expressly declined to construe the statute. The continued relevance of Woolley to similar cases in the future depends upon the construction of this statute. This Note outlines the doctrine of informed consent and evaluates the relevant policy considerations supporting the Law Court\u27s decision. In addition, this Note demonstrates that Woolley has continued vitality for causes of action governed by the informed consent statute
The Development and Consequences of the Good Faith Exception to the Exclusionary Rule and the Qualified Good Faith Immunity from Liability Under Section 1983
Get PDFThe remedies fashioned to redress violations of the fourth amendment to the United States Constitution continue to be the subject of much judicial, legislative, and scholarly inquiry. In striking the balance between the need to protect individual freedom and the need to protect society from criminal activity, the Supreme Court and Congress have developed two principal remedies for fourth amendment violations: the exclusionary rule and civil actions under 42 U.S.C. § 1983 or under theories of constitutional tort. on the development of both of these remedies it is assumed that their effectiveness is the true measure of fourth amendment liberties. The fourth amendment is a nullity if there is no effective remedy for its violation. Hence, this Comment rejects the idea that fourth amendment liberties exist independently of remedies for their violation
Ordering the Judicial Process Lien and the Security Interest under Article Nine: Meshing Two Different Worlds Part I—Secured Parties and Post-Judgment Process Creditors
Get PDFThe clash between a creditor with a consensual security interest in personal property and a general creditor with a judicially created lien in the same property generates fundamental problems for the commercial lawyer. The respective rights of these two parties hinge upon a determination of priority. Because the interests of the parties are governed by distinct bodies of state law whose interrelationship remains unclarified, the resolution of priority problems in this context is difficult. Article Nine of the Uniform Commercial Code, which purportedly contains a comprehensive priority system, regulates the consensual security transfer, and a variety of independent state statutory provisions define the lien acquired by resort to judicial process. A complete understanding of the priority scheme requires integration of state law prejudgment and post-judgment remedies with the Code\u27s priority principles—a task never systematically attempted. Undertaking that task, this article, comprising the first of a two-part inquiry, examines the relationship between Article Nine secured parties and those judicial process creditors who acquire an interest in personal property after judgment. The characteristics of liens generated by traditional post-judgment remedies, including execution and levy, garnishment in aid of execution, and liens resulting from equitable procedures such as creditors\u27 bills and supplementary proceedings, will be explored and dovetailed with Article Nine priority rules. While recognizing that bankruptcy is one of the most important contexts in which the secured party measures himself against the rights of a judicial process creditor, this article analyzes the problem purely from a state law perspective. Nevertheless, this analysis of state law is directly applicable in bankruptcy. This is particularly true in two respects: where the trustee dons the mantle of a judicial process creditor in exercising his status and avoidance powers, and where a transfer of personal property is defined in terms of the point in time when it becomes invulnerable to a hypothetical judicial process creditor. Due process standards recently formulated by the Supreme Court may have broad implications for prejudgment judicial lienholders, but post-judgment judicial process creditors treated herein are outside the major thrust of these standards
The Use of Federal Habeas Corpus in Child Custody Disputes
Get PDFInability to enforce child custody decrees on a nationwide basis has created an unfortunate and well-publicized anomaly in the law. A parent disappointed with one state\u27s award of custody may remove the child to another jurisdiction, gambling that the second state\u27s courts will decline to enforce the original decree. Of the several remedies that have been suggested to relieve this situation, federal habeas corpus remains among the least explored. The use of federal habeas corpus in child custody disputes raises two questions central to every federal jurisdictional controversy: Do the federal courts have power to entertain the action? If the power exists, do federal legislative or judicial policies support a refusal to decide such suits? Although in 1890 the United States Supreme Court apparently answered the first question in the negative, the lower federal courts have debated the question continuously from 1824 until the present. Resolution of the second question requires a careful balancing of the states\u27 interest in regulating disputes of a traditionally local nature, the federal courts\u27 interest in restricting access to their limited resources, and the petitioner\u27s interest in obtaining a final determination of child custody that will be respected in every American jurisdiction
Santa Fe Industries, Inc. v. Green: An Analysis Two Years Later
Get PDFIt has been nearly two years since the Supreme Court decided Santa Fe Industries, Inc. v. Green. Although the outcome of that decision should have surprised no one, since the trend of the Court clearly had been to constrict the scope of the federal securities legislation, the case was a major decision that will have a substantial impact on the development of corporate law in this country. Indeed, it may turn out to be one of the most significant corporate cases decided by the Supreme Court in recent years. Since by this point the dust has settled from the case, it seems appropriate to examine the decision in light of the developments that have occurred in the last two years. With the aid of hindsight, this article will analyze the impact of Santa Fe Industries and attempt to show that the decision is likely to generate both confusion and abusive conduct
Boundary Delimitation in the Economic Zone: The Gulf of Maine Dispute
Get PDFIn an ideal world of abundant natural resources, homogeneously distributed among nations, the issue of marine boundary delimitation would have little significance within the international community. However, the realities of randomly concentrated and limited resources, complicated by the political geography of the oceans, have made maritime boundary delimitation a crucial international issue. In a world of more than 130 coastal nations, the determination of standards for allocation of living and non-living ocean resources within the fertile offshore areas has become an issue of widespread economic importance. Nonetheless, the international community has developed few concrete and specific rules for marine boundary delimitation within the various marine zones historically claimed by coastal nations. The advent of the 200-mile economic zone concept has further intensified the need for an approach to boundary delimitation problems capable of accommodating both environmental realities and political expectations. Marine boundary delimitation falls into three broad classifications. First is the drawing of baselines along a coast that will close off a coastal nation\u27s internal waters and serve as the starting point for measurement of the various offshore zones. The second step in boundary delimitation involves fixing the seaward limit of the various marine zones of national jurisdiction. The marine zones commonly claimed by coastal nations include: territorial sea; contiguous zone; continental shelf; and, more recently, the exclusive economic zone. The third category of marine boundaries includes the international maritime boundaries between adjacent and opposite states. This Comment, focusing on the delimitation of international boundaries in the economic zone, will proceed through three analytical stages. First, the legal history of boundary delimitation in other marine zones will be reviewed in an effort to find solutions which may be of use within the economic zone. The following section will analyze current proposals for economic zone boundary delimitation at the ongoing Third United Nations Conference on the Law of the Sea [UNCLOS I1]. These proposals will be discussed in the light of prior experience with other marine zones and the problems likely to be encountered in practical application. Finally, an assessment of the current economic zone boundary dispute between the United States and Canada in the Gulf of Maine will be undertaken. The unique environmental factors pertinent to this dispute will receive significant attention as two possible solutions are analyzed: the proposed Canada-United States bilateral settlement and, in the event bilateral negotiations should fail, judicial settlement by the International Court of Justice or the Permanent Court of Arbitration
Compelled Expression: Maynard v. Wooley
Get PDFIn 1969, the New Hampshire legislature enacted a law requiring that the state motto, Live Free or Die, be displayed on all license plates for noncommercial vehicles. Many individuals in New Hampshire objected to the motto for various religious or philosophical reasons, and several decided to obliterate the motto by placing tape or painting over it. After numerous prosecutions under the license plate defacement statute, the constitutionality of the law was challenged as it applied to the obliteration of the motto. In 1972, the New Hampshire Supreme Court in State v. Hoskin held that the law did not violate the first amendment freedom from compelled expression as set forth in Board of Education v. Barnette because the display of the motto on a motorist\u27s license plate was not an affirmation of his personal beliefs. Four years later, in Maynard v. Wooley, the constitutionality of the law was again examined. This time the three-member federal district court focused on the communicative aspect of the reflective red tape used by the Maynards to obliterate the motto, and held that the act of covering up the motto warranted first amendment protection as symbolic speech. After balancing first amendment considerations against countervailing state interests, the court issued an injuction against future enforcement of the statute against the Maynards. The court declined to pass on an argument similar to that raised in State v. Hoskin relating to the right to be free from compelled expression. The decisions reached in Hoskin and Maynard leave unsettled the right of individuals to be free from certain forms of compelled expression. This Note analyzes the scope of this right as it has been articulated in Barnette and the cases dealing with symbolic speech. It also analyzes the related question dealing with the validity of using state authority to compel individual expression
Gambling
Get PDFSimplification of the laws which define criminal offenses and decriminalization of behavior no longer warranting the enforcement mechanisms of the criminal law were two principal objectives of the Criminal Code Revision Commission. Chapter 39 of the Criminal Code contains the revision of Maine\u27s anti-gambling statutes and illustrates as well as any Code chapter the application of these objectives to the formulation of substantive criminal offenses. The substantive provisions of the prior law failed, for the most part, to define key terms. Without such definitions, the provisions of Title 17 which established the elements of an offense were often prolix and exceedingly specific in an effort to encompass all forms of prohibited behavior. In contrast, the Criminal Code Revision Commission relied heavily on definition of the elements of particular crimes to stream-line Maine\u27s penal laws. By creating a definitional foundation for criminal offenses, the draftsmen of the Criminal Code have been able to articulate succinctly the elements of unlawful conduct. The Code\u27s new gambling provisions typify this definitional approach. A comprehensive array of definitions in Chapter 39 permits all punishable gambling offenses to be assimilated into three concise and straight-forward sections. In addition to the new statutory structure, a significant substantive feature of the new gambling laws is the decriminalization of social gambling. The penal provisions of Chapter 39 apply exclusively to the entrepreneur or promoter of unlawful gambling activity, and represent a legislative policy decision to concentrate the resources of the criminal justice system upon those who profit from the gambling of others. The new gambling laws are therefore noteworthy in two respects. Structurally, they are an example of the consolidated and stream-lined draftsmanship undertaken by the Commission. Substantively, the new provisions represent a significant shift in focus away from the social gambler and toward promoters of gambling