University of Maine School of Law
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Homicide
Get PDFThe homicide provisions of the Maine Criminal Code break down culpable killings into six degrees. Until the line of cases beginning with State v. Wilbur, the law of Maine had always seemed to separate the various unlawful killings into separate crimes rather than degrees of the same crime. Commencing with State v. Rollins and State v. Lafferty, the Maine Supreme Judicial Court announced that there was and always had been only one crime of felonious homicide. Murder and manslaughter were merely punishment categories or degrees of felonious homicide. The new homicide provisions are similar to the pre-Code court interpretation in this respect
The Admiralty Clause and State Workmen\u27s Compensation for Fishermen
Get PDFThe current methods of compensating fishermen injured or killed at sea are products of federal law. Without exception, a fisherman or his representative must turn to federal law for compensation. Unlike certain maritime workers covered by a federal workmen\u27s compensation scheme, the fisherman\u27s remedies are exclusively judicial, burdened by the expenses and delays inherent in litigation. Although this method of determining rights and liabilities may be a satisfactory means of obtaining compensation for other types of seamen, it has come under increasing attack within the fishing industry. This Comment evaluates both the constitutionality and the practicability of state coverage of fishermen
The Maine Rules of Evidence: What They Are and How They Got That Way
Get PDFThe promulgation by the Supreme Judicial Court of the Maine Rules of Evidence is another landmark in Maine judicial administration. When the Rules of Civil Procedure were adopted in 1959, the old rules of the common law, somewhat eroded by time and patched here and there by legislative poultices, still governed Maine pleading and practice. Since then modem rules of Criminal Procedure have also been adopted, a new Criminal Code has been enacted, and the court system has been reorganized. The Maine Rules of Evidence round out this picture of progress. The Rules of Evidence were promulgated pursuant to the Evidence Enabling Act, enacted by the Legislature in its 1974 special session, which specifically authorized the Court to prescribe rules of evidence. This enabling legislation was necessary in order to avoid any doubt whether rules of evidence were rules of practice and procedure within the existing rules enabling acts. This Act provides that the Rules shall take effect on such date not less than six months after their promulgation as the Court may set. Thereafter all laws in conflict with them are superseded. No further legislative action is required to make the Rules effective. Despite the possibility of legislative change, it seems useful at this time to record step by step the progress culminating in the adoption of the Rules and the philosophy underlying them. In doing so, this Article discusses major aspects of the Rules with particular reference to departures from existing Maine law
A National Environmental Policy: Now You See It, Now You Don\u27t
Get PDFThe National Environmental Policy Act was born with a fanfare of rhetoric. Suddenly sensitive to the urgency of the environmental crisis, Congress passed the bill quickly, and President Nixon seized the opportunity to sign it on the first day of the new decade. During its early years, NEPA was hailed by environmental activists as nothing short of a panacea; the environmentalists were nearly unanimous in singing its praises. At the same time, industrialists warned that NEPA\u27s provisions could stop growth and progress in their tracks. But in recent months the battle lines have begun to shift. When the subject of NEPA surfaces in environmental discussions, it is becoming difficult to distinguish proponents from opponents. In the relatively brief time that this body of environmental law has been in force, the federal government and resourceful environmental advocates in the private sector have used its provisions to make significant progress in the fight against environmental abuse. But over the same period of time it has become clear that the existing body of law is not a sufficient arsenal; there are missing links in the law that must be repaired if the progress of the past few years is to continue. Several proposals have been offered to repair these missing links, and we shall critically review two of the principal ones before making some proposals of our own. One attempt to cope with the absence of substantive rights and referees is embodied in legislation now pending in the Congress which would create broad substantive environmental rights and would provide judicial review of alleged government or private interference with those rights. In our view, however, this approach is mistaken in its conception of the competence and proper role of the courts, and would lead to inconsistent and weakened environmental regulation. Some environmentalists and most industrialists have suggested that the relationship between NEPA and the standards-setting statutes should be a vertical one, with NEPA on top and the government\u27s environmental regulatory activities subject to its provisions. Our conclusion is that this approach is unnecessary and would lead to weakened regulation. Our own proposals for repairing the missing links which we have identified are based on our belief that although more explicit substantive rights to a healthy and pleasing environment must be created, the Congress ought not leave the task of creation to the courts. This means that the legislative branch must write more laws of the standards-setting variety, and at the same time strengthen the opportunities for judicial review of government activities which have an environmental impact
Attorneys and the Summary Contempt Sanction
Get PDFIt is indisputable that an orderly, disciplined courtroom is a prerequisite for the administration of justice. Rules necessarily backed by sanctions insure needed decorum and sobriety within the courtroom. One method used to promote courtroom order is the summary criminal contempt procedure embodied in 18 U.S.C. § 401(1) and implemented under Rule 42(a) of the Federal Rules of Criminal Procedure. In practice, the nature of the procedure has triggered criticism that summary criminal punishment of indecorous courtroom conduct fails to provide constitutional safeguards of due process of law. Most recently, the decision of In re Dellinger has reemphasized the problems involved in the use of contempt proceedings to control the in-court disruptions caused by the Chicago Seven defendants and their counsel. This comment will examine the development and present status of summary criminal contempt in our federal system, especially as it applies to attorneys
Applying Federal Antitrust Law to Banking Services—Noninterest-Bearing Mortgage Escrow Accounts
Get PDFIt is reasonable that lenders should require mortgage escrow accounts on high loan-to-value mortgages, for lenders are extending a significant amount of credit. Since a house is often the single most valuable purchase ever made by a family, that house is often the only asset of sufficient value to secure the loan. Therefore, the lender will want assurances that the value of the house will be maintained. Mortgage escrow accounts help provide that assurance by protecting against tax liens and accidental damage. But noninterest-bearing mortgage escrow accounts have recently come under fire from consumer advocates. The complaint is that the accounts, aside from protecting the mortgagee-lender\u27s security, also provide a hidden profit to the mortgagee at the mortgagor-borrower\u27s expense. At least thirty-two suits have recently been filed, in both state and federal courts, attacking mortgage escrow accounts. One of the possibilities for attacking noninterest-bearing mortgage escrow accounts is the federal antitrust law. The mortgage market is an oligopoly in which antitrust violations are quite likely. Antitrust law is not the only possible solution to this problem. It may be that lending institutions will offer interest on mortgage escrow accounts simply for public relations purposes. Federal legislation is another possibility. There are also possibilities of relief under state law, such as unjust enrichment, unconscionability, and statutory limitations on interest rates. But perhaps the most promising state law possibility is breach of common law trust. This comment will only consider whether noninterest-bearing mortgage escrow accounts violate the federal antitrust laws. There are basically two aspects to that issue. The first is whether mortgagees are immune from any antitrust scrutiny because of federal policies which encourage or require mortgage escrow accounts. The second aspect is whether the accounts actually violate the antitrust laws either as a conspiracy to fix prices or as an illegal tying arrangement
Conflict of Laws and the Disposition of Decedents\u27 Movables
Get PDFImproved travel and communication, a larger, more fluid population and the resulting increase in the number of persons owning property in more than one state have led to a marked increase in conflict of laws situations and also have dramatized the need for their solution. However, it is also true that the degree to which potential conflicts problems exist is a function of the extent to which the law differs between states, not only differences in substantive law but also differences with respect to choice-of-law rules formulated to deal with conflicts between substantive law. One widely accepted choice-of-law principle has been stated as follows: The succession to and disposition and distribution of personal property wherever situated is governed by the law of domicil of the owner or intestate at the time of his death, without regard to the location of the property or the place of death. That the rule with respect to movables can be stated so definitely indicates compelling reasons supporting it. The purpose of this article is to examine the above-quoted domiciliary rule, the rationale involved in its use, and some alternatives to the rule in the resolution of conflicts problems
Rule 80B and Nonstatutory Judicial Review of Administrative Action in Maine
Get PDFThe 1967 amendments to rules 80B and 81 of the Maine Rules of Civil Procedure (MRCP) constitute significant and potentially far-reaching changes in judicial review of administrative action in Maine. Prior to 1959, nonstatutory judicial review of administrative action in Maine was available only by extraordinary writ. An alternate means of securing judicial review was provided by the original rule 80B of the MRCP adopted in 1959, but because of an apparent overlap of those two procedures, 80B was amended in 1967. That amendment made rule 80B the sole means of obtaining nonstatutory review of all governmental action and a concurrent amendment of 81(c) abolished the extraordinary writs as a means of securing such review. Rule 80B as amended provides the judiciary with a unique opportunity to draw upon established principles of judicial review and to create from them a rational and workable method of review. This comment advances reasons why a more comprehensible and practical review method should be adopted and how it could be employed
Extending the Smith v. Hooey Duty to the Holding Jurisdiction
Get PDFThe right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution. The Court held that this right was of such a fundamental nature and was so essential to due process of law, that it should be enforced against the states in the same manner as it is enforced against federal encroachment. The fundamental nature of this right is further demonstrated by the fact that each of the fifty states recognizes and guarantees the right to a speedy trial. The Supreme Court has detailed three potential evils of criminal justice that may be eliminated by the constitutional guarantee of a speedy trial. First, it prevents unwarranted and harsh incarceration prior to a trial that might reveal the accused\u27s innocence. Second, it minimizes the emotional harm resulting from an unproven accusation. The body of tort law concerning false arrest and imprisonment is evidence that society realizes this danger and seeks to sanction its causes. Finally, it eliminates any possibility that a delay may impair or prevent an accused from exercising a vigorous defense. The existence of any of these hazards, whether singularly or in concert, is inconsistent with the presumption of innocence upon which our system of criminal law is founded. Since all the objectives of the speedy trial guarantee are present when an accused is serving a sentence in another jurisdiction, he should be able to enforce this right. When the question has been posed concerning separate venues, the general rule has been that a sovereign could not deny a speedy trial to an accused because he was imprisoned in an institution of that sovereign under a prior conviction and sentence of one of the sovereign\u27s courts. But when the jurisdiction making the accusation differed from the jurisdiction of incarceration, the former was allowed to file a detainer and, in derogation of the accused\u27s rights, delay trial until he had completed the sentence in the foreign jurisdiction. This inaction by the accusing jurisdiction was justified by the doctrine of comity. It was thought that since the accusing jurisdiction could not demand custody of the accused as a matter of right, it was under no obligation to request custody. A request might be denied and such a denial would be an insult to the accusing jurisdiction\u27s sovereignty. The possibility of a rebuff outweighed an individual\u27s right to a speedy trial