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Perreault v. Parker: Findings Tainted By Error
Get PDFAn appellate court does not disturb a trial court\u27s findings of fact unless they are clearly erroneous, and, therefore, usually confines its review to an assessment of a trial court\u27s legal conclusions based on those findings of fact. The method used by a trial court in making factual findings, however, involves the application of legal principles. If a trial court fails properly to apply these legal principles in arriving at its findings of fact, these findings may be tainted by the error. This is so, for instance, when a trial court\u27s findings of fact have been manifestly influenced or controlled by the trial court\u27s failure to apply correctly the burden of proof. Findings that have been tainted by such legal error do not merit the deference accorded by the clearly erroneous standard of review. In Perreault v. Parker, the Maine Supreme Judicial Court, sitting as the Law Court, acknowledged the trial court\u27s legal error concerning the allocation of the burden of proof on the central issue in the case. The Law Court nevertheless failed to consider the effect of this legal error on the trial court\u27s findings of fact. The court held merely that those findings were not clearly erroneous. In doing so, the Law Court improperly applied the clearly erroneous standard of review
Federal Agency Nonacquiescence: Defining and Enforcing Constitutional Limitations on Bad Faith Agency Adjudication
Get PDFA leading authority in the field of administrative law has posited that [t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid. There is no question that judicial review is an imperfect check on agency action: it is susceptible to criticism for, on the one hand, the excessive limitations on its exercise, and on the other for the arguably inferior level of understanding from which courts must approach matters uniquely within the competence of particular administrators. Nonetheless, the courts remain the acknowledged architects and guarantors of the integrity of the legal system. The efficacy of judicial review, according to conventional administrative theory, lies not so much in its application in specific cases as in its availability as a constant reminder to the administrator and a constant source of assurance and security to the citizen. Thus, review by the courts serves two distinct but related purposes: to assure, both directly and indirectly, agency fidelity to statutory and constitutional commands; and to instill public confidence in the legitimacy of those agencies\u27 actions and policies. Although presumably either of the two goals might be achieved independently of the other, it seems likely that the two are in fact closely intertwined—public confidence depends to a great degree upon the cultivation of a perception that the administrative process possesses those attributes of accountability and fairness that are thought to be characteristic of constitutional government. The erosion, for any reason, of that perception raises serious questions about the viability of administrative agencies as legitimate components of constitutional government. Since 1981, events in the administration of the Social Security disability compensation programs have given rise to new and unsettling questions about the federal judiciary\u27s capacity to exercise meaningful control over rebellious or recalcitrant executive agencies. The refusal, during the past several years, of the Department of Health and Human Services (HHS) to conform to the federal courts\u27 interpretations of the Social Security Act\u27s disability provisions, the human suffering wrought by that refusal, and the apparent impotence of the courts to mitigate that suffering, together pose a serious challenge to the conventional view of the relationship between the executive and judicial departments. In particular, those events have called into question the validity of two crucial presumptions articulated in recent years by the Supreme Court as underlying its treatment of the relationship between federal agencies and the judiciary: first, that the courts must accord federal administrative agencies a presumption of good faith in their administration of public law; and second, that even when that presumption is undermined, adequate safeguards exist to protect those subjected to agency misfeasance from untoward consequences. While the courts may be bound, as a practical matter, by the first of these presumptions, the second presumption is neither inevitable nor necessarily accurate; the experience of disabled persons victimized by the refusal of HHS to respect the rule of law discloses that the remedies available to most citizens are frequently beyond the grasp of society\u27s least affluent and least powerful members. It is the inaccuracy of that second presumption, and the resulting inequity to those who are least able to defend themselves against the grossest abuses of agency authority, which form the subject matter of this Comment
Editors\u27 Preface
Get PDFThe Perspectives section of this issue developed from the Editors\u27 concern with the ever-increasing attacks upon the traditional tort system as a mechanism for dispensing just remedies to injured individuals. Our writers have focused on two areas of major concern: toxic torts and medical malpractice. Although we strove for a balance of viewpoints, our writers overwhelmingly favor the tort system as the appropriate remedial scheme in these two areas and, for the most part, reject reforms designed to benefit individual classes of tortfeasors. Their views are offered to stimulate continued debate on this important topic
United States ex rel. Arrow Electronics, Inc. v. G.H. Coffey Co.: Judicial Interpretation of Timely Notice under Federal Rule of Civil Procedure 15(c)
Get PDFIn 1966, the United States Supreme Court amended Federal Rule of Civil Procedure 15(c) to eliminate lower court confusion regarding relation back of pleading amendments which sought to change the party against whom the claim was asserted. The Rule, as presently formulated, permits a plaintiff to add or change a party defendant after the statute of limitations has run provided that . . . . While the current Rule is more precise than the pre-1966 Rule in defining when relation back is permissible, it has not eliminated the sharp divergence among judicial opinion regarding the proper application of the Rule. There are three distinct situations in which a plaintiff could employ Rule 15(c) to change the defendant named in a complaint. The first situation is the so-called misnomer in which the proper defendant has notice and has been served with process, but the name listed in the complaint is technically incorrect. The second situation arises when a plaintiff fails to name a particular person as a defendant and that person knows he should have been named in the complaint. The third situation, probably the most troublesome, arises when the plaintiff names the wrong person as a defendant and the proper defendant never receives notice of the suit; pursuant to Rule 15(c), the plaintiff then seeks to substitute the name of the proper defendant for the person incorrectly named as the defendant
Ouellette v. Sturm, Ruger & Co. and Jones v. North American Aerodynamics: The Effectiveness of Maine\u27s Borrowing Statute in Cases Involving Corporations
Get PDFMaine\u27s borrowing statute provides that a person may not bring an action in Maine that has been barred by the laws of another jurisdiction wherein all parties resided. In effect, the statute permits borrowing the limitation period of the other jurisdiction. In Ouellette v. Sturm, Ruger & Co., the Maine Supreme Judicial Court, sitting as the Law Court, interpreted the residency requirement of the borrowing statute as it relates to a corporation and held that for purposes of the statute a corporation is a resident of only the state in which it is incorporated. Because of the peculiar wording of the statute, the Law Court\u27s decision in Ouellette raises questions as to the effectiveness of the borrowing statute in the majority of cases involving corporations, especially in light of Jones v. North American Aerodynamics, Inc. On its facts, Jones presented a strong argument for application of the borrowing statute, but as a result of the Ouellette decision, the Law Court held that the statute did not apply. A juxtaposition of the two cases illustrates some fundamental problems with Maine\u27s borrowing statute and the Law Court\u27s interpretation of it
Proof of Causation in a Private Action for Acid Rain Damage
Get PDFThe acid rain problem has become one of the major environmental issues of our day. Each new report on the subject is more disturbing than the last, documenting serious and often irreversible effects of acid rain on lakes and streams, fish and other aquatic life, forests, soils, buildings, and even human health. Present federal legislation is inadequate to deal with acid rain effectively. Proposed legislation could help ameliorate the problem, but even if adopted the effects of such proposals will not be felt until early in the next century. Furthermore, the current administration, particularly the Environmental Protection Agency (EPA), has resisted all efforts to address the acid rain problem. A private action for damages caused by acid rain is an attractive short-term solution for individuals or classes of persons whose property or livelihoods are being threatened by acid rain. There are several obstacles, however, to the success of a private action for acid rain injury. This Comment addresses the principal obstacle, the traditional tort law requirement of proving causation in fact. Acid rain is the result of an aggregation of emissions from hundreds of major sources, transported great distances and chemically altered before being deposited. It is impossible to trace individual episodes of acid rain to the particular emission sources causing the problem or to apportion acid rain injuries among contributing polluters. To require a plaintiff in an acid rain suit to prove causation in fact would effectively bar such actions and allow polluters to continue shifting the costs of their business to innocent downwind parties
Aviation Law: Owner-Lessor Liability—The Need for Uniformity
Get PDFGeneral aviation—aviation involving both private and business aircraft—is a substantial and growing industry which comprises a fleet of 211,000 planes. The number of general aviation aircraft is expected to increase to 300,000 by 1991. Moreover, there are over 760,000 private pilots in the United States. Because of the varying sources of aviation liability law among the states, there is a lack of uniformity regarding whether the owner-lessor will be held vicariously liable for the negligent acts of the pilot. The lack of uniformity concerning owner-lessor liability in the aviation context is problematic because the owner is unable to predict what state his plane may pass over and, hence, what laws he may be subject to. There are no feasible boundary lines in the sky, and weather or other unexpected developments may cause a plane to be flown into a state the owner never intended it to enter. Because aviation liability laws vary from state to state, the aircraft owner must insure at a rate based on the harshest potential state law which could be applied if the plane had to enter the state because of unexpected developments. Accident victims desire adequate compensation, and society has an interest in providing adequate compensation for victims. Tort plaintiffs generally must prove fault to recover. When airplane owner-lessors are held vicariously liable, the tort plaintiff need not prove the owner was at fault. There must, however, be a rational basis for not requiring general aviation accident victims to prove owner-lessor fault. In the past, a pilot-lessee\u27s negligence was imputed to the aircraft owner on the basis that aircraft were considered ultrahazardous; this is no longer true. The current justification for imputing negligence to the aircraft owner appears to be the deep pocket theory: the aircraft owner is in the best financial position to compensate the victim and is in the best financial position to purchase insurance covering the loss. The deep pocket theory is also the current basis for holding automobile owners vicariously liable. A complete analogy of aircraft to automobiles for purposes of imputing negligence, however, is unsupported by their comparative safety records. Efforts aimed at achieving uniformity have been unsuccessful even though at least thirty states have indicated in their aviation statutes a purpose to cooperate in effecting uniformity of laws among the several states. A possible solution to the lack of uniformity is a uniform enabling act. Unless a significant number of states adopt such an act, however, uniformity cannot be achieved. The federal government has expressed a strong interest in the development of the aviation transportation industry. This interest coupled with the fact that aviation is inherently interstate in nature, provides a sufficient basis for federal control even though tort law traditionally has been the province of the states. Under the commerce clause of the United States Constitution, Congress has the power to enact a comprehensive aviation tort liability statute covering major points of substantive law, standing provisions, and procedural rules. Furthermore, federal control would provide uniformity and certainty benefiting both the aircraft owner and accident victim
Getting the Green Light: Renewable Energy as an Internal Tribal Matter
Get PDFFor over forty years the Wabanaki people of Maine have had their sovereignty diminished as a result of the Maine Indian Claims Settlement Act (MICSA), an arrangement with the state and federal government unlike any other tribal sovereignty arrangement in the Unites States. The MICSA was born from a decades-long debate over land rights and resource rights in Maine, culminating in a “compromise” that avoided political conflict at the expense of Wabanaki sovereignty. Under the MICSA, the Wabanaki do not have sovereign status, instead only holding sovereign control over those matters the state deems “internal tribal matters.” Among the many aspects of self-governance affected by this lack of sovereignty is an inability to exert full autonomous control over natural resources on Wabanaki lands and waters. Renewable energy is an example of one such resource that could provide immense benefits to the Wabanaki people by allowing increased independence from the state and a source of additional income. Through a review and re-interpretation of the MICSA’s history and case law, this Comment seeks to redefine the definition of internal tribal matters to encompass the development of renewable energy projects contained within Wabanaki lands if created with the intent of directly supporting Wabanaki communities. This new test for determining internal tribal matters is then applied to hypothetical utility scale and small-scale renewable projects to determine when the Wabanaki could proceed with development as sovereigns without oversight from the state. This Comment will conclude with a brief discussion of the broader issues inherent in the current status of the Wabanaki under the MICSA with an eye towards a more comprehensive solution and grant of full sovereignty
Fishing Communities and Public Participation in Federal Decisionmaking: A Case Study of Community Opposition to the Mid-Barataria Sediment Diversion Project
Get PDFIn debates surrounding coastal restoration projects, the word “community” is heard frequently. Coastal restoration projects have the potential to affect a wide range of communities, both those which are place-based as well as communities of practice that are not geographically bound. However, the lack of a single, accepted definition of community can lead to faulty assumptions about who is being represented in policy debates which can undermine efforts to build consensus and support for coastal restoration efforts. This Article presents a case study of community conflicts and public participation surrounding a large, controversial coastal restoration project in Louisiana—the Mid-Barataria Sediment Diversion. The case study contrasting the special consideration granted fishing communities under federal law with the more common approach to public participation in federal decision-making—broad public notice and comment opportunities without any particular community focus. Federal fishery managers are mandated to take into consideration impacts to “fishing communities” when regulating fisheries, but there is little consensus on how that term is defined. Without consistent definitions and inclusion criteria, it is difficult to identify and assess impacts to fishing communities. This case study explores the differences between these two engagement approaches. Although the environmental review process for large coastal restoration projects does not implicate the fishing community analysis mandated by federal law, it could be a model for how to identify and mitigate impacts on affected communities in the future