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Dispute Resolution Provisions of the Canada-United States Free Trade Agreement
Get PDFDispute resolution is a major focus of the recently signed Canada-United States Free Trade Agreement. This focus was heavily influenced by two factors. The first is a significant continuing concern about the dispute resolution procedures and mechanisms under the General Agreement on Tariffs and Trade (GATT). The second factor is the general Canadian perception that trade proceedings under United States law are substantially influenced by political concerns and that under a trade agreement, Canadian businesses would need some protection from United States trade regulation. The general dispute resolution provisions of the Free Trade Agreement, which are found primarily in Chapter 18, embody elements which have worked well in the past in resolving disputes between the United States and Canada. A much more detailed dispute resolution approach is found in Chapter 19 of the Agreement. This Chapter establishes a procedure for binational review of determinations by government agencies in the United States and Canada on dumping and subsidy complaints under domestic law. As Chapter 19 does not undertake to deal with underlying issues, particularly differences on national approaches to trade policy and subsidization of domestic industry, Chapter 19 is only an interim measure. The long-term success of the Free Trade Agreement may well depend on the commitment of the United States and Canada to resolve these important underlying questions
Reasonable Accommodation and Non-Invidious Discrimination Under the Maine Human Rights Act
Get PDFInvidious, through its Latin root invidia, for envy, hints at the dangers of arbitrary discrimination. Statutes, for instance, that distribute social or economic benefits and allocate burdens in a patently arbitrary manner alienate the burdened class. Such laws tear at the social fabric by instilling resentment and bitterness in the disfavored group. At an extreme they encourage rebellion. The famous Carolene Products footnote, in which Justice Stone suggested that the Court would apply a heightened standard of judicial review to statutes affecting discrete and insular minorities, draws an implicit connection between invidiousness and fundamental unfairness. Invidiousness thus refers to the patent unfairness and immorality of the decisionmaker\u27s choice and to the victimization that discrimination involves, including the socially destructive impulses that subjection to arbitrary decisionmaking engenders. As antidiscrimination law has evolved, however, courts construing antidiscrimination statutes, such as the Maine Human Rights Act (MHRA), have held that invidious motivation is no longer necessary for a finding of unlawful discrimination. These courts have taken cognizance of the fact that barriers that are not erected purposefully to exclude persons belonging to a protected classification, but which nevertheless operate to exclude them, can discriminate just as effectively as policies of intentional exclusion. Defendants who come under antidiscrimination statutes may be held liable for the discriminatory effects of their conduct unless they can justify the practice that has produced the discriminatory effect either on the grounds of business necessity or job relatedness or on the basis that the alternatives would cause undue hardship to the defendant\u27s enterprise. Thus, whereas prior to the development of non-invidious discrimination doctrine a defendant needed only to satisfy a court that he harbored, or at least acted upon, no stereotyped ideas connoting the social inferiority of a particular group or protected classification in order to acquit himself of a charge of discrimination, the duty imposed by non-invidious discrimination doctrine includes an affirmative obligation to foresee, and to act to alleviate or avoid, the exclusionary consequences of one\u27s activity. Non-invidious discrimination doctrine thus embodies more stringent moral principles than those expressed in invidious discrimination doctrine. Rather than limiting itself to purging the process of the more egregious, stereotype-based discrimination, antidiscrimination law now focuses on the more subtle but equally pernicious factors of apathy and indifference to the basic human right to a life with dignity
The Afro-American and the Constitution: Colonial Times to the Present
Get PDFThe theme of this essay is the Afro-American and the Constitution: Colonial Times to the Present. When I was told about this theme, my first reaction was to follow the advice of the famous black philosopher, Satchel Paige, who said, Don\u27t look back because what is behind you might be catching up. My discipline, however, forced me to look back at the Constitution and particularly how it has affected black Americans
The Federal Civil Rules After Half a Century
Get PDFThe name Gignoux is not exactly a household word among the lay citizens of this country and would not qualify as one even if we count all the varied pronunciations people choose to accord it. Indeed, there are probably quite a few members of the bar who do not recognize the name or know anything about its bearer\u27s works. That is their loss. Edward T. Gignoux has been doing so much for the betterment of justice in this country in so many ways and for so many years that he has clearly earned a place of high honor in the field. Both the profession and the public should be made more aware of his achievements. This issue of the Maine Law Review will help do that by providing a lasting well-merited recognition of his extraordinary contributions which are all the more pleasant to acknowledge because they bear the stamp of his own grace, intelligence, good humor, and modesty. This Article addresses the problem of improving the civil litigation process, a subject near to Judge Gignoux\u27s interests by virtue of his service as Chairman of the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference
Antitrust Scrutiny of the Medical Staff Plan
Get PDFAdvances in medical technology over the past 50 years have made access to a hospital, its medical staff, and the support facilities and equipment it provides essential for many physicians. Until recently it was not difficult for a qualified physician to obtain staff privileges. In recent years, however, an increasing number of hospital governing boards across the United States have begun to design and implement what are known as medical staff plans. The often-stated purpose of these plans is to alleviate hospital overcrowding and unstructured staff growth by applying an ordered approach to future medical staff growth, taking into account long and short-term hospital needs. Although these are legitimate goals, staff plans also provide a method by which the hospital\u27s incumbent medical staff may curtail entry of new physician applicants into the area, and thereby decrease the threat of competition. Medical staff plans may constitute a new method of employing anticompetitive tactics which are carefully screened by procompetitive justifications. Because more and more hospitals are closing their staffs and imposing barriers to new applicants, an increasing number of disappointed applicants are filing antitrust actions
Hawkes Television, Inc. v. Maine Bureau of Consumer Credit Protection: A New Loophole in Maine\u27s Consumer Credit Code
Get PDFThe Uniform Consumer Credit Code (U.C.C.C.), enacted in Maine in 1974, is a comprehensive regulatory measure intended to provide an adequate volume of credit at reasonable cost under conditions fair to both consumers and creditors. Although the Code applies to all consumer credit transactions, consumer credit sales are subject to greater regulation than are consumer leases, and creditors have sought to evade such regulation by characterizing what is in essence a conditional sale as a series of short term renewable leases. The issue in Hawkes Television, Inc. v. Maine Bureau of Consumer Credit Protection (Hawkes TV) was whether such a device exempted certain rent-to-own programs from the Maine Consumer Credit. Code\u27s usury provisions. Applying a literal and formalistic interpretation of the Code\u27s language, the Maine Supreme Judicial Court, sitting as the Law Court, held that such programs are not covered because they involve no extension of credit. A significant loophole thus appeared in Maine consumer credit law: by omitting from rental-purchase contracts any formal obligation to pay rent or by inserting a termination clause, creditors now may charge usurious interest rates. Drawing upon Federal Truth in Lending and Uniform Commercial Code decisions, this Note will compare the literal approach taken in Hawkes TV with a functional approach which focuses on the economic realities surrounding the transaction. Such a comparison will show that the functional approach is more consonant with the remedial purposes underlying the U.C.C.C., that the result in Hawkes TV is unfair to both consumers and conventional credit sellers, and that the case should be legislatively overruled at the earliest opportunity
The Obsolescence of Voluntary Confessions in Maine
Get PDFThe would-be assassin lurks in the crowd that gathers outside the campaign headquarters building. In anticipation of the candidate\u27s appearance, the television technicians hoist their videotape cameras and illuminate the scene with floodlights, as the gunman nervously fingers the automatic concealed in the pocket of his field jacket. Moments later, the candidate emerges from the doorway; the assassin rushes into the floodlit view of the cameras, takes aim at the startled politician, and hollers: I\u27ve been planning this for years, and now I\u27m going to give you what\u27s coming to you. His shots ring out as Secret Service agents converge upon him. If the gunman were tried in a Maine state court, the videotapes of his actions would almost certainly be admissible against him. The sound tracks of those tapes which contain the gunman\u27s words, however, might well be inadmissible. The explanation for this strange state of affairs lies in State v. Caouette, a recent Maine Law Court decision which held that a defendant\u27s involuntary confession must be excluded from the evidence presented at trial even though the police to whom it was made had engaged in no misconduct whatsoever. The court ignored the original common law basis for the exclusion of confessions, the rejection of unreliable evidence, and abandoned the modern ground for such exclusion, fundamental fairness and the deterrence of police misconduct. Instead, the court forged a different rule: a confession will be inadmissible whenever it appears that the declarant was not free from \u27compulsion of whatever nature.\u2
Power v. Power: Federal Pattern-or-Practice Enforcement Actions Applied to Local Prosecutors
Get PDFOne of the most powerful tools available to the United States Department of Justice (DOJ) to stop abuses in the criminal justice system is the federal pattern-or-practice statute, which allows DOJ to bring an enforcement action to prevent discriminatory conduct by government agencies. The most powerful actor in the criminal justice system is the district attorney, the local prosecutor who is at the center of the system. Does DOJ’s pattern-or-practice enforcement authority extend to local prosecutors? This crucial question remains unresolved in formal precedent and has not been addressed in the relevant literature. This Article explores the issue in detail, considering the statutory and legislative background from both federal and state sources, the meager and uninstructive real-life scenarios where DOJ has attempted to bring an enforcement action against a local prosecutor, parallel precedent addressing DOJ’s authority over judges, and DOJ’s own conflicted views. Federal resources demonstrate an almost uniformly negative view of DOJ’s standing to bring a pattern-or-practice action against a local prosecutor. However, previously unexplored state law and an analysis of the evolving and expanding authority exercised by some district attorneys reveal novel and newly viable avenues to establish DOJ’s standing in this area. This Article finds that DOJ currently lacks uniform standing to bring a pattern-or-practice enforcement action against a district attorney, with such authority existing only in limited circumstances. The benefits and dangers of amending the statute to grant DOJ such power are addressed, including practical issues, normative concerns, and political ramifications. This Article recommends that the pattern-or-practice statute be amended explicitly to include local prosecutors, providing critical nationwide oversight regarding such potent actors. The Article also explores a potential alternative solution which would provide more transparency regarding the decision-making of district attorneys
The Denial of Bail Under Maine\u27s Proof Evident or Presumption Great Standard
Get PDFWhen the framers of the Maine Constitution gathered in Portland in the fall of 1819, they decided that the document, unlike the Massachusetts Constitution on which it was based, should guarantee a right to bail pending trial. The convention adopted, apparently without debate or dissent, the following provision as part of the Declaration of Rights in article I . .