University of Maine School of Law
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Gifts, Joint Ownership, and Marital Property: Interspousal Transfers of Property Under Maine\u27s Marital Property Act
Get PDFThe classification of property in divorce proceedings as either marital or individual is crucial because under Maine\u27s Marital Property Act a divorce decree can dispose of only marital property. Once the court identifies the marital property, the actual division of that property is within the court\u27s discretion. Courts, however, often have difficulty classifying property which was once individual property but which was transferred by the owner spouse into joint ownership during the course of the marriage. Maine courts have reached different results in these situations depending on whether they have read the Marital Property Act literally or in the context of its underlying policy. This Note analyzes several opinions of the Maine Supreme Judicial Court in which the court construed Maine\u27s Marital Property Act as it applies to the disposition of jointly held property acquired through interspousal transfers. Accepting the partnership theory of marriage which underlies the Act, the Note supports an interpretation of the Act which allows the courts to bring property that was in fact incidental to the marriage within the marital estate. The Note argues that by augmenting the marital estate, the courts can thus effectuate the most equitable division of the parties\u27 property
Ending the Never-Ending Medical Malpractice Crisis
Get PDFAnother nationwide outbreak of what is commonly called the medical malpractice crisis is spreading. Once again, as during prior episodes, the public hears of dramatic increases in the cost of malpractice insurance, of growing numbers of multimillion dollar awards, and of increases in the number of suits filed. Already several states have passed statutes in attempts to resolve the crisis. This crisis atmosphere resembles the crisis of the mid-seventies when every state enacted so-called remedial statutes, which failed to solve the crisis. A physician would define a crisis as a turning point in the course of a disease; nonmedical definitions of crisis usually focus upon specific times or events. As the medical profession has been complaining about malpractice litigation for more than twenty-five years, use of the term crisis is inappropriate. Nevertheless, medical malpractice insurance premiums now approach six figures, mirroring an unspecified increase in the size and number of claims, settlements, and judgments. At the same time, the health care industry faces numerous other difficult problems. For-profit hospital chains have replaced nonprofit hospitals. Physician-hospital relationships face new tensions. Some commentators suggest there is an oversupply and misallocation of physicians. Cutbacks in government-funded health care programs add to the problems of the health care industry. In the past, increases in insurance premiums, because of their small amount, were easily passed on to the consumer. Today, the increases are massive and cannot be passed on to consumers because more and more medical charges are predetermined by health care insurers and government. One complicating factor in measuring the extent of the crisis is the paucity of meaningful data. There are sparse statistics from the past, speculative projections about the future, but no information about the present. There is no real proof that there is a crisis. All we know is that there is a perception of a crisis held by the medical profession which now, as in the past, is agitated and lobbying for relief. There is also no proof that the medical profession cannot afford the cost of insurance premiums, and consequently it is difficult objectively to justify preferential treatment for physicians. But, beliefs and perceptions, even if distorted, cannot be ignored as they can themselves be a problem if held by important segments of society. Physicians, insurers, and legislators appear to act upon the premise that there is a crisis. Thus, this Article assumes that there is too much medical malpractice litigation costing too much even though the premise is unproven. It recommends a number of procedural changes designed both to defuse the medical profession\u27s anxiety and to reduce the number of malpractice suits in a logical and fair manner. In return, it asks that doctrinal advantages obtained or sought by the medical profession be surrendered
Tuttle v. Raymond: Drawing the Line on Punitive Damages
Get PDFIn Tuttle v. Raymond, the Maine Supreme Judicial Court, sitting as the Law Court, reconsidered the appropriateness of Maine\u27s common law doctrine of punitive damages. Under the doctrine, punitive or exemplary awards are permitted in tort actions, at the factfinder\u27s discretion, for the purpose of deterring wrongful conduct. Prior to Tuttle, a plaintiff raised a claim for such an award if he proved by a preponderance of the evidence that the defendant was guilty of intentional, wanton, malicious, reckless, or grossly negligent behavior. Because of the doctrine\u27s uncertain justification and vague standards, however, punitive damages had become the subject of mounting criticism, and, although the Maine rule was substantially in accord with the rule in other jurisdictions, the Law Court itself had questioned the doctrine\u27s propriety. Thus, an appeal limited to the issue of the validity of a punitive damages award in Tuttle v. Raymond presented an opportunity for judicial action. After reviewing the history and purpose of punitive damages, the Tuttle court responded not by abandoning the doctrine but by imposing new bounds on its application. In holding that the plaintiff must prove by clear and convincing evidence that the defendant acted with express or implied malice, the court redefined both the standard of proof and the standard of conduct necessary to justify consideration of a punitive damages award. The decision is commendable insofar as it addresses many of the criticisms directed at the doctrine and attempts to draw guidelines where nebulous standards might have allowed unfair and inefficient results. The Tuttle court may have gone too far, however, in redefining the standard of conduct necessary to justify an award of punitive damages; the doctrine\u27s viability was sustained but its vitality was imperiled
A Quarter of a Century of Rulemaking with Particular Attention to the Federal Rules of Criminal Procedure
Get PDFIt is a happy coincidence that Edward Thaxter Gignoux completes twenty-five years on the bench at about the same time that the present rulemaking procedures in the federal system reach their twenty-fifth anniversary. In the quarter of a century of the present system for rulemaking there have been three distinguished chairmen of the Standing Committee—the committee to which there is delegated overall responsibility for rulemaking by the Judicial Conference of the United States. The three chairmen are Senior Circuit Judge Albert Maris, generally thought of as the modern Father of federal rulemaking, Senior District Judge Rozell Thomson and the present Chairman who has very recently taken senior status, Ed Gignoux. I have had the pleasure of serving under all three. The chairmen of the Standing Committee are deserving of much of the credit for the fact that the Federal Rules of Procedure have served as a model for the rest of the country over the period of this last quarter century. The task for Chairman Gignoux is to continue the high quality of the federal rules at a time when there is greater interest than ever in the rulemaking process and increasing pressure to change the procedures which have worked so well in the past
A Structural Approach to the Application of Section One of the Sherman Act to Oligopolistic Interdependence
Get PDFA central tenet of American economic thought is that markets in which many producers compete for business are preferable to those in which one or a few sellers dominate. The conventional wisdom underlying this preference is that competitive markets produce more of the goods consumers want at lower prices than do noncompetitive markets. Oligopolies are markets in which there are few sellers. Oligopolistic markets are characterized frequently by higher prices and lower outputs than competitive markets. Many sectors of the American economy are oligopolistic. For example, the American automobile industry is dominated by the big three, General Motors, Ford, and Chrysler. The American oil industry is dominated by eight firms. Many parts of the electrical equipment industry are controlled by two sellers, as is the entire can industry. In addition, there are numerous cases of less well-known oligopolies. Since the turn of the century, antitrust laws have existed to control the harmful effects of monopolies and to prevent other firms from acting in concert to achieve the inflated prices characteristic of monopolistic markets. Thus, price-fixing agreements, monopolization, and other practices in restraint of trade are banned by the Sherman Act and other antitrust statutes. Oligopolistic markets have posed a special problem for antitrust enforcers, however, because of the widespread belief that oligopolists can coordinate their prices and outputs to achieve monopoly-like results without entering an illegal price-fixing agreement. Legal commentators have tried for the past forty years to find a way to apply section one of the Sherman Act to supracompetitive pricing by oligopolists. Most have concluded that section one cannot be applied because of the difficulty of proving that oligopolists have acted in accordance with an agreement. If such an agreement is not proved, firms incur no antitrust liability. Thus, many commentators have argued that new legislation is necessary if antitrust enforcers are to reach the harmful effects of oligopoly. This Comment reconsiders the application of section one, and argues that a structural approach to oligopolistic behavior makes the application of section one feasible
When Fines Don\u27t Go Far Enough: The Failure of Prison Settlements and Proposals for More Effective Enforcement Methods
Get PDFThe Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed to ameliorate them. This is an unacceptable result, and one that is largely shielded from the public eye. This Comment contends that if the United States is to fulfill its promise that “cruel and unusual punishments” will not be inflicted on its prison populations, the judiciary’s methods of enforcing settlements must be expanded beyond the fines it currently employs. This Comment provides a brief grounding in Punishment Clause suits based on select conditions of confinement issues and discusses a real-world example of a prison settlement that went largely ignored for several years. It then proposes three statutory modifications as stronger enforcement methods that the judiciary may employ post-settlement: partial abrogation of qualified immunity, modification of the deliberate indifference standard, and a loosening of the strictures of the Prison Litigation Reform Act. Finally, this Comment also offers a policy solution pre-incarceration: strengthened adherence to the twin prosecutorial duties of protecting the public and imposing alternatives to incarceration