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New Policies Bearing on the Negligent Employer\u27s Immunity from Loss-Sharing
Full text linkThe statutory and judicial controls on loss-sharing between third-party tortfeasor and negligent employer must yield in the face of major modern developments in tort law. The third party\u27s tort liability burden has sharply increased both in amount and frequency. New attitudes towards loss-apportionment highlight the imbalance that results from the employer\u27s immunity and subrogation right. Although the situation is ripe for legislative action, courts, in the absence of full-scale systemic reassessment, must attempt some balancing of the competing policy objectives. While this Comment concludes by urging the adoption of a specific remedy allowing the third party to assert the employer\u27s concurrent negligence and to realize a form of limited contribution, this proposal represents only a compromise solution. Ultimately, the problem demands comprehensive treatment in statutory form
Liability for Maritime Oil Pollution: A Comparison of the Maine Coastal Conveyance Act with Federal Liability Provisions
Full text linkThe increasing involvement of coastal states in the regulation of oil pollution within their territorial waters has raised serious questions about the constitutional validity of state legislation imposing liability on parties responsible for unlawful oil discharges. The admiralty clause of the United States Constitution provides that the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction. This grant to federal courts of original jurisdiction over all admiralty or maritime cases has been construed to be more than a grant of judicial competence. The United States Supreme Court has interpreted the admiralty clause to incorporate by reference the corpus of general maritime law into the law of the United States and to empower its courts to try cases governed by maritime common law principles. The Maine Coastal Conveyance of Oil Act, one of the most comprehensive state oil pollution control statutes, illustrates the potential state-federal conflict created by the oil pollution problem. The Maine Act imposes liability on oil terminal facility licensees that is potentially more extensive than that imposed by the Federal Water Quality Improvement Act of 1970. Further, the Maine Act\u27s remedial provisions exceed those available under the WQIA and appear to conflict directly with the liability limitations established in the Federal Limited Liability Act. Whereas the Maine Act\u27s liability provisions could result indirectly in the imposition of unlimited liability on a vessel owner for all damages resulting from an unlawful discharge of oil, the Federal Limitation Act restricts the shipowner\u27s liability to the value of the ship and its cargo. This Comment will analyze the possible federal-state conflicts revealed by a comparison of provisions of the Maine Act with federal liability provisions
Mens Rea and Insanity
Full text linkTwo developments in the administration of criminal law call for a closer examination of the relationship between mens rea and insanity. The first is the practice of bifurcating trials into a guilt phase and an insanity phase. The new Maine Criminal Code, for example, allows the defendant to elect such a procedure. The second development is the increasing willingness of courts to admit evidence of the accused\u27s mental disease or defect as probative of whether he possessed the culpable state of mind, or mens rea, which must be proven as one of the elements of the crime charged. When the accused chooses the bifurcated trial, the Maine Code bans such evidence from the guilt phase of trial. This Comment contends that the question whether a legally insane person can possess the requisite criminal mens rea depends upon the type of mental disease or defect at issue. In so doing this Comment will elucidate some of the problems which the relationship between mens rea and insanity poses for bifurcation and for the doctrine of subjective liability
Introduction
Full text linkOthers, most notably the late Professor Herbert Packer, have written extensively in recent years concerning the limits of the criminal sanction, and it seems trite to observe that the subject matter is hardly novel and has been the subject of literary and philosophical discourse for centuries. The purpose of this brief presentation, therefore, is not to review that voluminous literature or to make expansive claims for the new Maine Criminal Code. Rather, it is to show that the new Maine Code was written with an awareness of the basic premises both of classical theories of limited public intrusion into private matters, and of contemporary socio-economic models which recognize that the first step toward effective criminal justice enforcement is a retreat to more modest and pragmatic goals
Federal Preemption in Airport Noise Abatement Regulation: of Federal and State Power
Full text linkThe growth of air commerce in the United States has been characterized by the use of jet aircraft which has led to frequent litigation by local governments and their citizens attempting to abate the increased aircraft noise. Although from the inception of airflight there has been conflict between localities and the aviation industry over the noise produced by aircraft operations, the present conflict dates from the late 1950s when private air carriers first introduced pure-jet aircraft to the nation\u27s civil airports. While the noise emitted from jet aircraft, measured in decibels, is not necessarily louder, it is of a higher frequency than the noise created by propeller aircraft. Because of the higher pitch, jet aircraft noise has a disturbing impact at close range. Like many other areas of pollution control, aircraft noise is an area in which the strong federal interest in interstate commerce is competing with the important local interest in a high quality of life for the community. The fundamental proposition of this Comment is that, without federal legislation, the state\u27s power to control aircraft noise would be limited only by the commerce clause. The Comment traces the prohibitive effect of federal aviation law upon the various forms of local governmental power over noise abatement: the power exercised by the locality as an airport proprietor, the state legislative power, and the power of the state courts in equity and at law. Ideally, the allocation of power between national and local authorities should be tailored to allow each level of government to protect adequately its interests. Accordingly, the federal scheme of restriction of state power is explored to determine whether the local interest in the protection of the environment is served as fully as the national interest in the promotion of air commerce
Special Benefits and Just Compensation: Ensuring Fair Treatment of Landowners in Partial Taking Cases
Full text linkThe sovereign power to take private property for public use is counterbalanced by the duty to provide just compensation. The just compensation requirement is intended to protect the individual landowner when the government exercises its right of eminent domain. Consistent with the equitable principle of fairness upon which this requirement is founded, the government must provide the individual with public funds for property transferred from his private use to the public domain. The just compensation requirement thereby distributes the costs of public projects equally among all members of society and ensures that no individual whose property is sacrificed for the public good suffers disproportionate loss. In an effort to administer the constitutional just compensation mandate, the Maine Legislature has codified the method of determining compensation for property taken in highway construction. When highway project necessitates a partial taking of land, the statute, as recently amended, allows special benefits to be set off only against the damages to the remaining property. Under this rule, the landowner will be compensated for severance damages incurred by his remaining property to the extent these damages exceed the special benefits bestowed upon the remainder. He will, however, always receive compensation for the full value of the property taken, regardless of the benefits flowing from the project. This amendment significantly modifies the previous statutory formula, which offset special benefits from both the value of the land taken and severance damages. Maine\u27s statutory rules for determining just compensation do not, therefore, fully indemnify landowners in every case. Moreover, use of the fair market value standard for measuring the extent to which a landowner\u27s property is benefited causes general community benefits, as well as special benefits, to be deducted from the compensation award. Consequently, the compensation formula inflicts upon the individual whose land is taken a loss that is disproportionate to the costs shared by members of the community whose properties are left intact. This Comment will analyze these deficiencies in the statutory scheme in light of Maine\u27s newly-adopted compensation formula and will propose adjustments to the law that will provide a more fair and just compensation to landowners in partial takings
Toward the Wired Society: Prospects, Problems, and Proposals for a National Policy on Cable Technology
Full text linkThe city is already encroaching on the countryside in a modest cultural sense. Today many remote New England villages receive more channels of New York City television, and receive them more clearly, than do most residents of the five boroughs of the great city. This anomaly is because of a relatively new and still evolving technology, popularly called cable television. This article primarily addresses the broad problems now confronting the American people on how to devise wise national policies that will put this technology of the new communications to its best uses for the most people. In short, how is the nation to deploy the new wealth of cable technology? Within the context of analyzing these broad questions of public policy, this article also seeks to present practical points and information for local practitioners (and other newcomers) who must face the bewildering problems of fashioning local legal structures—largely in the form of local franchises—for governing cable development at the local level
Arbitration as an Alternative to Judicial Settlement: Some Selected Perspectives
Full text linkThe increasing interest in arbitration as a means of judicial reform has been largely due to the fact that arbitration provides a forum for dispute settlement apart from the traditional judicial system. In other words, arbitration is regarded as a useful reform measure primarily because it affords potential litigants a forum other than the already over-burdened courts. Little consideration has been given to the possibility that in some areas arbitration may in fact be both a better forum and a better method of resolving disputes than the traditional judicial system. This article will discuss three areas, areas which are susceptible to the use of arbitration and in which it may prove superior to the present court system
Maine\u27s Coastal Conveyance of Oil Act: Jurisdictional Consideration
Full text linkMaine\u27s Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic assertion is that Article III, section 2, of the United States Constitution deprives the State of Maine of the power to effect substantive changes in admiralty law. Thus, the argument runs, any intrusion on maritime jurisdiction by state legislation is forbidden by the Constitution because of the exclusive grant of admiralty jurisdiction to the federal courts. Thus, in two ways the Maine statute is postured as violating exclusive and uniform federal control in admiralty jurisdiction. It is the contention of this comment that, although the Maine Coastal Conveyance of Oil Act constitutes substantive admiralty law, it supplements pre-existing federal rules of liability without seriously harming the federal interest in uniformity. Thus, as an exercise of police power, the Maine legislation is constitutionally sound under the modern interest balancing theory of federal-state admiralty relations. Maine\u27s interest in preserving her environment and the livelihood of great numbers of her people is eminently justifiable. Further, the Maine Act complements the Federal Water Quality Improvement Act in response to Congressional design. This federal legislation does not and was not intended to preempt state action such as that enacted by the State of Maine
In re Adoption of E: First Amendment Rights and Religious Inquiry in Adoption Proceedings
Full text linkThe New Jersey Supreme Court decision, In re Adoption of E, represents an effort to define what considerations are to be given the religious beliefs of prospective adoptive couples in the screening process of the adoption courts. The majority opinion is emphatic in spelling out what courts cannot do. In overruling the lower court\u27s decision, it was held that the first amendment prohibits the denial of a couple’s adoption request solely because the court disapproves of their religious beliefs. Though holding that a couple\u27s religion cannot be a controlling factor in an adoption denial, the court did not see religion as totally irrelevant to adoption proceedings. Adoption courts are instructed that inquiries into religious beliefs are permissible as an aid in determining if a couple is morally fit to adopt. The question remaining is whether or not this proscribed use of religious inquiry, even with its narrow purpose, is constitutional. The New Jersey Supreme Court gave this question virtually no consideration. As a result, the New Jersey Court has ignored and left unjustified the inevitable chilling effect religious inquiry has on the free exercise of religion of couples seeking to adopt. This failure raises grave doubts about the constitutionality of the inquiry