University of Maine School of Law
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The Private Cause of Action Under Maine\u27s Unfair Trade Practices Act
Get PDFIn 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . . UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys\u27 fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine\u27s UTPA was originally hailed as a useful weapon in the fight against consumer fraud, the act has not, in practice, played a significant role in protecting the Maine consumer. Increasing budget restraints at both state and federal levels are shifting the responsibility for consumer protection from the public to the private sector. This circumstance increases the importance of the private cause of action afforded by the UTPA, and requires that the act be used more effectively than it has been in the decade since its passage. Increased awareness of how to make best use of the UTPA\u27s inherent strengths is necessary if the developing need for more effective private action is to be met. Additionally the UTPA in its present form has several inherent weaknesses which have contributed to its underutilization. First, individuals purchasing or leasing for business needs are not afforded the protection of private action under the UTPA, even though they may be victims of abusive trade practices which would give rise to a cause of action for individuals buying for personal, family, or household purposes. Secondly, even individuals who qualify as consumers within the meaning of the statute must suffer a purely economic loss if they are to have a remedy under the UTPA. Finally, the UTPA\u27s remedy is restricted to restitution, and has been narrowly interpreted by the Maine Supreme Judicial Court. This Commentator suggests amending the UTPA to extend protection to consumers buying for business needs, changing the economic loss requirement to one of actual harm, and providing a general and punitive damages remedy in lieu of restitution. These revisions would enhance greatly the UTPA\u27s potential for consumer protection
Respect My Authority: The Past, Present, and Future of the Public Authority
Get PDFThis comment synthesizes various historical aspects of motor vehicle infrastructure in the United States. The network of issues at play involves centuries of public policy decisions made at the local, state, and federal level, which twentieth century legal innovations hastened and curdled into the car culture we are all a part of today. The public authority is the paradigm of these legal innovations, but it has outlived its usefulness in the face climate change and burgeoning issues relating to urbanism
It\u27s a Soft Shell Life for ME: The Case for Expanding NPDES Permitting to Include Causes of Ocean Acidification
Get PDFOcean acidification, a lesser-known counterpart to climate change, is primarily caused by the ocean’s absorption of carbon dioxide from the atmosphere. This absorption, in turn, reduces the ocean’s pH, and has detrimental effects on the health of the entire ecosystem. This Comment examines the applicability of the “functional equivalent test,” coined by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, to the causes of ocean acidification. Using this test, this Comment proposes expanding NPDES permitting under the Clean Water Act to cover some landbased sources emitting carbon dioxide
Forgive and Forget: Honoring Full and Unconditional Pardons
Get PDFWith few words, the Great Bard summarized the popular understanding of full and unconditional pardons as unrestrained acts of mercy which approximate, as best as humans can, the divine ability to forgive and forget. Perhaps in light of that sentiment, the common law held that a royal pardon blotted out any guilt or infamy resulting from commission of a crime, as well as the legal existence of the conviction itself. Following much discussion of the issue, the Supreme Court adopted the forgive-and-forget rule in a series of decisions following the Civil War. Yet, despite clear common law and Supreme Court precedent holding that full and unconditional pardons blot out both the legal existence of a conviction and any resulting guilt or infamy, state and lower federal courts, with notable exceptions, frequently take a rather tight-fisted view as to the operation and effect of full and unconditional pardons. In so doing, those courts overlook the fact that the pardon power involves the exercise of the executive\u27s unlimited constitutional authority to convey the full measure of mercy that the people were capable of placing in the constitution. This Article argues that a full and unconditional pardon actually does blot out any guilt or infamy resulting from a criminal conviction, and that it restores the character and standing of the pardoned individual in the eyes of the law. State and lower federal courts rejecting the forgive-and-forget rule hold or imply that a full pardon does not close the judicial eye to an individual\u27s past crime. That conclusion, however, ignores the following considerations which are analyzed in this Article: (1) the pardon power implicates the principle of separation of powers because the exercise of the executive\u27s exclusive and unlimited constitutional authority to grant pardons serves as a check and balance on legislative and judicial errors and excesses; (2) the executive exercises judicial or quasi-judicial functions in evaluating the merits of individual pardon petitions and thus implicitly finds that the person pardoned is either innocent or rehabilitated; (3) the judiciary does not enjoy an exalted or exempt status as to the operation and effect of full pardons, and thus is not immune to all other acts of governmental mercy except its own; and (4) the executive does not suffer an inferior status in granting governmental mercy so that, as a result, the courts are required to honor full pardons at least to the same extent as legislative amnesties, especially since pardons involve a judicial-like sifting of the merits of individual cases while broad-based legislative amnesties do not. Whether expressly stated in a pardon warrant or not, the executive traditionally determines an individual\u27s innocence or rehabilitation when deciding whether to grant a pardon. Furthermore, the executive\u27s pardon-deliberation process is quasi-judicial in nature, much like an appellate court\u27s review of a trial court\u27s record for error or a judge\u27s consideration of a defendant\u27s present rehabilitation and plea for mercy in a sentencing hearing. The contempt with which many courts seem to hold full pardons may be traceable to an incorrect or incomplete understanding of the careful, quasi-judicial deliberation which precedes the executive\u27s exercise of the pardon power, and such contempt is unwarranted as a matter of law. By treating full and unconditional pardons as having little, if any, legal significance beyond that of lesser forms of executive clemency such as restorations of civil rights and conditional or partial pardons, the judiciary has virtually eviscerated the distinction between full pardons and those lesser forms of executive clemency. Indeed, the traditional operation and effect of a full and unconditional pardon under the forgive-and-forget rule is the major and perhaps only real difference between it and lesser forms of executive clemency such as restorations of civil rights and conditional or partial pardons. This Article reviews the relevant case law and concludes that a full and unconditional pardon blots out both the legal existence of a conviction or crime and any resulting guilt or infamy, subject to four well-defined common law exceptions or limits to the operation and effect of full pardons. The Article also discusses the scope of the executive\u27s nearly unlimited pardoning authority under the constitution and separation-of-powers doctrine. It concludes that since the executive has virtually unlimited power to convey every bit of mercy contained in the constitution itself by the mere act of issuing a full pardon without expressly stating that a conviction was erroneous or that an individual has been rehabilitated, legislative and judicial attempts to regulate or limit the exercise of that power such as Federal Rule of Evidence 609 may encroach on the executive\u27s constitutional power
From Natural Law to Legal Realism: Legal Philosophy, Legal Theory, and the Development of American Conflict of Laws Since 1830
Get PDFThere has been an alleged revolution” in American conflict of laws during the past sixty or so years. Yet, like most revolutions in intellectual pursuits, this revolution did not arise ex nihilo. Indeed, the revolution can be correlated with a change in the manner in which both law and legal reasoning have come to be viewed by members of the legal profession in the twentieth century. It is this correlation that the present article explores. In particular, this article demonstrates the effect that the legal realist movement has had in the way conflict of laws problems have come to be viewed. Indeed, if this thesis is correct, the so-called revolution in conflicts is not only a legal realist-inspired movement, but it also provides some empirical evidence for the validity of some of the theses for which those involved in the legal realist movement argued
In re Gardner: Withdrawing Medical Care From Persistently Vegetative Patients
Get PDFAs medical science and technology progress, the distinction between traditional notions of life and death becomes increasingly blurred. Persons in dire medical conditions, lacking all cognitive and sensory abilities, may now be kept alive for indefinite periods of time. In the seminal case of In re Quinlan, a court was first asked whether it was ever legally permissible to withhold or withdraw life-preserving care from a persistently vegetative person. Since In re Quinlan, the courts of many states, including Maine, have confronted this issue. In In re Gardner, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a superior court judgment authorizing the withdrawal of life-preserving care from an incompetent hospital patient in a persistent vegetative state (PVS). In affirming the judgment, the Law Court held that the incompetent patient had made a prior decision not to be maintained in such a medical condition and that the patient had a legal right to have his decision enforced. Three members of the Law Court dissented, arguing that the evidence was insufficient to support a finding that the patient would want treatment discontinued. Moreover, the dissent argued that the state\u27s interests in preserving life and in preventing suicide outweighed any interests of the patient in having treatment discontinued. The dissent also maintained that life-sustaining care in the form of nutrition and hydration should not be withdrawable in this case. This Note examines the Law Court\u27s analysis in In re Gardner and the standard that it announced in deciding whether to allow the withdrawal of life-sustaining care from a PVS patient. This Note maintains that the Law Court erred in finding that the patient had made an actual prior decision to refuse medical care. The Note also argues that the Law Court\u27s adoption of a personal rights-based analysis was inappropriate. Finally, this Note criticizes the Law Court for its failure to articulate clearly a legal procedure to guide future guardians who seek to withdraw an incompetent\u27s life-preserving care
In re Misty Lee H.: Application of the Best Interests Standard in Parental Rights Terminations
Get PDFThe family unit is perhaps America\u27s most deeply rooted social institution. The integrity of the family unit has been repeatedly recognized by the United States Supreme Court as warranting constitutional protection. As a means of protecting family autonomy, natural parents possess a fourteenth amendment liberty interest in the care and custody of their children. The parental liberty interest encompasses a wide range of rights. Although substantial, these parental rights are not absolute. By virtue of the parens patriae power, the state may interfere with parental rights in order to preserve and promote the welfare of the child. The most extreme form of such interference is the permanent severance of the familial relationship between parent and child. In Maine, the termination of parental rights is governed by title 22, section 4055 of the Maine Revised Statutes Annotated. In In re Misty Lee H., the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a district court judgment terminating a mother\u27s parental rights to her two children. In affirming the judgment, the Law Court held that the district court\u27s findings were properly supported by clear and convincing evidence pursuant to Maine\u27s parental rights termination statute. One member of the Law Court dissented, arguing that the evidence was insufficient to support the district court\u27s judgment. The dissent recommended that, pursuant to the best interests standard, [t]he State should be required to demonstrate by clear and convincing evidence that the consequences in harm to the children of allowing the parent-child relationship to continue are more severe than the consequences of termination of that relationship. This Note examines the application of the best interests of the child standard as a ground for termination of parental rights. This Note agrees with the concerns evidenced by the dissent\u27s recommendation. Moreover, in order to guard more effectively against erroneous termination of parental rights, this Note advocates the adoption of substantive factors to define further the best interests standard. The best interests standard is presently characterized by a large measure of substantive imprecision which, by itself, fosters an unwarranted risk of erroneous decision-making. This risk of error is further exacerbated by two additional factors: the broad discretion granted to judges in applying the standard, and the traditional deference applied by the Law Court when reviewing a judge\u27s best interests findings. Given the grave constitutional nature of a parental rights termination proceeding, the risk of error is unwarranted. This Note argues that the Law Court should articulate specific decision-making criteria under the best interests standard in order to diminish more effectively the likelihood of an erroneous severing of the parent-child relationship and ultimately to protect better the child\u27s welfare
The Child Witness in Sexual Abuse Cases in Maine: Presentation, Impeachment, and Controversy
Get PDFIn any sexual abuse trial, the entry of the child into the courtroom is a dramatic moment. The large door to the courtroom opens. A small child enters, accompanied by a victim advocate who walks with the child toward the witness stand. At the end of the public seats, the child is turned over to a court officer who escorts the child to the witness stand. In the typically high-ceilinged, expansive courtroom where we conduct our jury trials, the small child looks even smaller. Some children slouch in the witness chair, as if they were trying to hide. The jurors look at the child with barley disguised sympathy. Some smile the way adults smile at children who are in strange or uncomfortable settings. Others look away from the child, fearful that they will lose the stoic demeanor of neutral jurors. For the defendant, this must be a terrible moment. The sympathy of the jury is almost palpable. How could any juror resist that tremulous, barely audible voice and the child\u27s flushed face as the prosecutor begins the slow, patient questioning? That sympathetic response will become more pronounced as the child endures embarrassing questions that bring forth an unimaginable story. The defendant fears this child. This child is an accuser. For defense counsel, the presence of the child is also painful. Counsel must attack the credibility of the child without appearing to attack, and undo the instinctive sympathies of the jury for the child without destroying all sympathy for his client. Somehow that jury must come to disbelieve a child whose pained presence in that cold, ceremonial courtroom shouts truth. This scene is an increasingly familiar one in Maine\u27s courtrooms and in courtrooms throughout the country. This trend has been well documented. In almost all of these cases the essence of the trial is a credibility contest between the child and the defendant. That fact may not seem so surprising. Many trials are a credibility contest between key witnesses. However, the sexual abuse trial is distinguished by the extent of that contest between the defendant and an alleged victim
State v. Cloutier: Implied Invitees, Pretext and Plain View Under the Fourth Amendment
Get PDFLaw enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department\u27s Christmas charity drive. Occasionally, a police officer follows the path to a person\u27s door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer\u27s conduct generates the issue of whether his observation implicates the fourth amendment\u27s prohibition against unreasonable searches. The Supreme Judicial Court, sitting as the Law Court, recently resolved that issue in State v. Cloutier by articulating for the first time in Maine a legal standard for ascertaining the existence of legitimate police business as that term is used in applying the implied invitee doctrine to police entries onto private walkways. This Note contends that the Cloutier standard consists of two components: an objective justification inquiry which establishes whether a police officer was engaged in some legitimate police activity, and a good faith, lack of pretext inquiry which determines whether the entry onto the walkway was a subterfuge or ploy for undertaking an otherwise unlawful search. Significantly, the good faith, lack of pretext component invalidates an entry that would otherwise be legitimate under the objective justification inquiry. Disagreeing that the Cloutier standard contains an objective justification inquiry, Justices Scolnik and Roberts joined in dissent to challenge the rationale and holding of the court. Arguing that the court\u27s articulated standard required only that a police officer possess subjective good faith, the dissent insisted that such a standard was abhorrent to the privacy values embodied in the constitution of a free society.” According to the dissent, a police officer\u27s entry onto the walkway of a residence should be supported by an objectively reasonable justification. This Note maintains that the Cloutier standard, despite the vigorous protestations of the dissent, does in fact include an objective justification component in addition to the good faith inquiry. The Note also argues that the standard comports with traditional fourth amendment analysis and values, and that it balances individual privacy interests and public safety values in a manner that is consistent with the general tenor of contemporary fourth amendment law
Silence as Consumer Consent: Global Regulation of Negative Option Contracts
Get PDFWorldwide, the “subscription economy” has exploded in recent years, especially among online sellers of consumer goods and services. These subscriptions use various contract forms-- but many have one common feature: the negative option. With a negative option contract, once a consumer has signed up, the contract will continue until the consumer actively reaches out to cancel it. These are wildly popular among sellers, as they create continuous income and put inertia on the sellers\u27 side. Unsurprisingly, then, consumers complain in extraordinary numbers about being trapped in agreements that are easy to sign up for but seemingly impossible to cancel. Even worse, consumers pay—sometimes for years—for scam or marginal “subscriptions” that they never meant to sign up for in the first place. Governments around the globe have scrambled to respond (with mixed success) to this wave of complaints. This Article surveys that landscape, assessing the consumer risks and benefits of negative option contracts, cataloging the regulatory responses across countries, and taking stock of why much of that regulation (especially the disclosure-centric regulation) will fall short. It proposes a new model law that retains essential consumer disclosures, but affords greater substantive protections for consumers. In particular, the model law would prevent free trials from rolling over into paid negative-option contracts, extend the cancellation periods for automatically renewed contracts, and require sellers to stop charging consumers who have stopped using their services (or eliminate automatically renewing term contracts altogether). With negative option contracts and consumer discontent on the rise, now is the moment to take stock of best practices and shore up protections for consumers worldwide