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Security Ins. Group v. Emery: A Step Backward for Interest Analysis in Maine
No full textSecurity Insurance Group, the Connecticut insurer, sought declaratory relief\u27 alleging that failure by its insured to furnish timely notice of the accident as prescribed by the policy precluded its liability. The insured contended that Maine\u27s notice statute was applicable, requiring only that the insurer receive notice of the action before judgment, and that this requirement was satisfied. Alternatively, the insured contended that even if the Connecticut notice term were held applicable, since there was no contact between the two cars, it was his belief that he was not at fault and thus had no reason to notify his carrier of the accident. The trial judge accepted the insured\u27s alternative contention and held that he had not failed to give notice as soon as practicable under the circumstances. This result was buttressed by the fact that the insurer actually learned of the accident during January or February of 1967, when the accident victim\u27s insurance carrier filed a subrogation claim with defendant\u27s carrier. On appeal, the Law Court upheld the insurance company\u27s contention that the Connecticut contract notice provision applied to determine the insured\u27s rights with his insurer, but held that the insured had failed to notify his carrier within a reasonable period of time. The court reached this conclusion by focusing on section 2901 of the Maine Insurance Code, which delimits the applicability of the Code to insurance policies delivered or issued for delivery in Maine. Finding that the Connecticut contract did not fit within this provision, the court ignored the liberal notice provision embodied in section 2904 in rendering its decision. Although the Law Court was confident in its interpretation of intended legislative policy under the Code, it felt compelled to lend support to its opinion by stating that for the legislature to impose its notice requirement on foreign contracts would have violated constitutional safeguards because to apply forum law to a foreign contract would have been a denial of due process of law as guaranteed by the fourteenth amendment. It should be apparent that Maine not only had a sufficient interest to have its policy given precedence but that it had the more significant interest. Using the governmental interest analysis suggested by one recent commentator, the focus should be on the issues to determine the imposition of one interest over the other. Maine\u27s interest, aside from the fact of accident within its borders, was defined through its statutes which unequivocally mandated a right in any victim to recover if notice was received by the judgment debtor\u27s carrier prior to judgment. Actual notice which was received long before judgment blunts any hardship Security Insurance Group might claim under the Maine provision. Unfortunately, because the Law Court did not consider all the relevant factors nor fully analyze the notice statute to discern the true legislative intent, it has severely restricted the rights of a Maine citizen to indemnity protection
Uncommon Controversy
Full text linkIn the mid-nineteenth century the Indians of the Northwest were pressured by government agents into signing treaties ceding most of the land they had historically occupied to the United States. In each treaty, besides reserving small tracts of land for themselves, the Indians specifically reserved the right to fish at all usual and accustomed grounds and stations. Because the lands which the Indians were permitted to reserve were selected so as not to interfere with existing [non-Indian] claims, or with the progress of settlements, many traditional fishing places were located outside the reservations. The Indians\u27 grudging acceptance of the treaties was obtained only by insuring their right to continue fishing at such places without interference. The State of Washington assumes that if conservation purposes are to be served, regulation must be done by the Departments of Game and Fisheries. This assumption is based upon an apparent belief that Indians are incapable or unwilling to limit and regulate their own fishing in order to insure the perpetuation of the fish resource. But historically, and to the present day, Indians have practiced conservation in their fishing and have tribal fishing regulations. Undoubtedly, a desire to allocate fish among non-Indian sport and commercial fishermen who figure importantly in Washington\u27s economy is a factor. The conviction that Indians are incompetent to manage the fishery and lack the will to control the fishery for the benefit of non-Indians reveals a callosity not only to the legal rights of the Indians but to their culture—that is, to the fact that they are different. The thesis of Uncommon Controversy is that the battle to preserve Indian fishing rights in western Washington is not about conservation; rather, it is about the attitude of the whole society toward difference
Maine Civil Practice (2d ed.)
Full text linkShortly after the first edition of this book appeared I referred to it as an excellent treatise, and I have kept a copy close at hand in my office so that I may benefit from its useful insights into procedural problems when I am engaged in my own writing about procedure in the federal system. I have now had an opportunity to read the second edition from cover to cover and have no doubt that it is even better, and will be even more useful to judges and lawyers in Maine and to persons interested in procedure outside Maine, than was its predecessor. The discussion is considerably more extensive in the second edition than in the earlier book. There are now 1074 pages of text discussing the Maine Rules of Civil Procedure compared with 628 pages in the first edition. The second edition, which necessarily has expanded to two volumes, also has an additional 116 pages on the Maine District Court Civil Rules. In 1959 the authors could only predict how a particular provision would be interpreted in Maine. Now they are able to draw on a decade of experience with the rules in Maine in explaining how they are to work
De Novo Juries, Misdemeanor Counsel, and Other Problems: Changes Ahead for the Maine District Courts?
Full text linkThe Maine judicial system has two levels of criminal courts, the superior court having exclusive trial jurisdiction over felony prosecutions and the district court operating with concurrent trial jurisdiction for misdemeanors. The district court also processes the preliminary phases of felony cases; included in this function are bail hearings, initial appearances (arraignments), and preliminary hearings. To provide jury trials in misdemeanor prosecutions state law permits all district court convictions to be appealed to the superior court for trial de novo to a jury. The accepted reason for unlimited de novo trials is that the state constitution requires a jury in all criminal cases; initial processing through the district court is felt to be a device for sifting out the great bulk of cases, thereby preserving judicial resources of the superior court. In this manner the Maine system accommodates the individual\u27s right to jury trial and the state\u27s interest in allocating its judicial resources. But the balance thus struck may be the worst possible one for both the state and those accused of crime. On the one hand, cases which should never reach the superior court level—or perhaps any true court—are permitted to clog dockets, and on the other, individuals being prosecuted for serious crimes unfairly are denied an initial jury trial or, as a practical matter, may never receive the verdict of a jury. At the close of its last term the United States Supreme Court decided several cases which bode fundamental change for the Maine district court system. Almost certainly under the case of Baldwin v. New York, de novo procedures fall short of constitutional requirements. Thus, problems of jury trial are the major concern here
Law of Federal Courts (2d Ed.)
Full text linkProfessor Charles A. Wright\u27s second edition of Law of Federal Courts, one of the West Hornbooks is not exactly light reading. It probably will not make the best-seller list, at least in competition with some of the current, racy fare that list affords. Indeed, it is not even the kind of law book that one picks up and reads from cover to cover, so to speak. At the same time, Law of Federal Courts is a thoroughly realistic, well composed work of legal art which will fill any reviewer\u27s bill. With a broad brush stroke, Professor Wright, who was one of Time-Life\u27s now famous possibilities for a United States Supreme Court appointment, explores both the abstract principles and the concrete foundations of the federal judicial and jurisdictional system and federal court procedure
Proof of Defect in a Strict Products Liability Case
Full text linkThe realization that negligence doctrines do not provide an adequate remedy for consumers injured by defective products has led many courts to adopt theories of strict liability. Justification for the strict liability doctrine rests on the judicial belief that the law should provide maximum protection for the health and safety of all consumers, and that the manufacturer is conditionally at fault if he does not compensate consumers injured by his defective products. Manufacturers are not held liable for all product-related harm to consumers. To recover the plaintiff must plead and prove that the product which caused the harm was defective when it left the manufacturer\u27s hands. The emphasis is not on the quality of the defendant\u27s conduct, as in negligence, but on the condition of the product that caused the harm. The most important question in products liability law has become the kind and quantum of evidence necessary to infer the defect required for recovery under strict liability theory. A recent Oregon decision considered the specificity with which a plaintiff must plead and prove defect in a strict products liability case. In Vanek v. Kirby the Oregon Supreme Court held that the plaintiff, a passenger injured in an automobile which left the road and struck a power pole, stated a good cause of action against the manufacturer for breach of implied warranty of merchantability. The plaintiff\u27s allegation of defect was simply that said vehicle could not be kept on said highway during its normal use as a vehicle for transportation. The trial court had entered a judgment on the pleadings for the defendant. On appeal the Supreme Court of Oregon reversed. The issue on appeal was the sufficiency of the foregoing complaint. The appellate court framed the issue in terms of causation— the specificity with which the plaintiff must plead and prove that his injury was caused by the defendant\u27s product rather than by some other cause. The court stated that a plaintiff should not have to plead more than he must prove. Therefore, rather than dealing with the pleading issue directly, the court concluded that the requirements of proof for recovery under strict liability would determine the sufficiency of the pleadings
The Farm Worker: His Need For Legislation
Full text linkOf America\u27s ignored and invisible people, the farm worker is one of the most ignored and least visible. He is hidden by the crops as he works his way down the endless rows. Far from the cities where the laws are made and the issues of the day are debated, his voice is not heard. He is vitally necessary to this well-fed nation, and yet his needs are seldom considered. The legislators have not ignored the industrial worker. They have provided him with laws insuring a minimum wage, workmen\u27s compensation and other such benefits. The farm worker, however, is expressly excluded from coverage under most of the federal and state laws enacted for the benefit of other workers. It is the purpose of this note to discuss the problems of the farm worker, to explore those federal and state laws which should include farm workers but do not, and to examine those very few laws written for the benefit of the farm worker and their effect. This note is in no way comprehensive; its focus is mainly on those problems and laws which affect the working conditions of the farm laborer. This note should make it clear that the farm worker has been uniquely discriminated against by both the federal and state legislatures and that the reasons for such discrimination have no validity today. It is time for the lawmakers to realize that the discrimination exists, that it is unjust, and that it must be brought to an end
A Seventh Amendment Remedy for Housing Instability
Full text linkAfter the 2023–2024 Supreme Court term, housing advocates despaired over the expected, yet still unwelcome, decision in City of Grants Pass v. Johnson. While focusing on this case is understandable, this Article suggests that scholars, policymakers, and advocates should train their focus on another, perhaps less-expected case from the previous Supreme Court term: SEC v. Jarkesy. In Jarkesy, the Court affirmed a defendant’s constitutional right to a jury trial in an administrative proceeding that sought to enforce a right similar to one found at common law. The Court’s capacious interpretation of the Seventh Amendment in Jarkesy has implications for state-law matters, like eviction suits, that are more squarely rooted in the common law than the enforcement of federal securities regulations at issue in that case. These implications translate to the broader effort to mitigate housing instability. This Article argues that Jarkesy invites advocates to respond creatively to the ongoing housing affordability and eviction crisis and sets forth a three-part strategy to expand tenants’ rights, reframe public perceptions of eviction trials, and increase democratic participation in the eviction process to serve as a check against the presumptions embedded in summary process
Using the Maine Constitution to Expand the Civil Rights and Civil Liberties of Unhoused People
Full text linkIn recent years, homelessness has surged, and there has been a substantial increase in the number of people staying unsheltered in public places. In response to this rise in visible homelessness, municipalities have turned to criminalization, enacting and enforcing laws that ban, punish, fine, and ultimately seek to banish unhoused people from public places. Litigation has provided an important tool to fight criminalization and protect the fundamental rights of unhoused people. Legal advocacy for homeless rights suffered a major blow, however, in June 2024 with the United States Supreme Court decision in City of Grants Pass v. Johnson. In Grants Pass, the Court held that the Eighth Amendment’s ban on cruel and unusual punishment does not prohibit cities from punishing unhoused people for engaging in life-sustaining conduct, like sleeping, in public—even if they have nowhere else to go. Grants Pass is the most consequential legal decision on homelessness in decades. The decision, which gave municipalities a green light to continue criminalizing homelessness, is already making the homeless crisis worse. This Article argues that in the devastating aftermath of Grants Pass, state constitutions provide the opportunity and potential to reaffirm and expand the civil rights and liberties of unhoused people. In the Maine Constitution, there are two different opportunities to expand the protection of unhoused people’s civil rights and liberties. First, Maine has adopted the primacy approach to state constitutional interpretation, meaning that state courts must resolve state constitutional issues before reaching federal constitutional issues, and that provisions of the state constitution should be independently interpreted. Thus, while the Federal Constitution sets the floor for the protection of individual rights, Maine is free to develop its own law and adopt a higher standard for rights protections. This Article explores specific opportunities to expand unhoused people’s due process rights and protection from cruel punishment. Second, the natural rights provision in the Maine Constitution provides an opportunity to argue for a more expansive form of positive rights for unhoused people. Some advocates in other states have already started to use state constitutional litigation to protect the rights of people experiencing homelessness. Such litigation provides a model for advocates in Maine seeking to protect unhoused people from the violent and dehumanizing impacts of criminalization. Ultimately, this Article argues that state constitutional litigation can and must be part of the solution to Maine’s homelessness crisis
Unlawful Disclosures Of Personal Information in M&A Transactions and How to Avoid Them
Full text linkThis article examines the unlawful disclosure of personal information in the context of M&A transactions, identifying common pitfalls and legal exposures that arise during due diligence and as a result of the transaction itself. It discusses how various data privacy regulatory regimes intersect with M&A practices, and provides practical guidance for mitigating risks through contractual and technical safeguards. By outlining regulatory expectations and enforcement trends, the article aims to help deal professionals and counsel avoid privacy violations and ensure compliant transactions