University of Maine School of Law
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Remarks by the Chancellor
Get PDFIn a time when university administrators seem to endure very short terms, it is remarkable that Kinvin Wroth served as Dean for 12 years. At the University of Southern Maine alone, he served with four presidents, four chancellors, four provosts, and a score of colleague deans. His permanent and productive legacy rests in no small part on the length of his commitment as well as its character
Public Trust, Public Use, and Just Compensation
Get PDFIn its recent decision, Bell v. Town of Wells, the Maine Law Court declined to grapple with one of the major legal conceptual problems presented by the case. The court failed entirely to reckon with the intersection of two competing, dynamic principles of American property law; these principles are increasingly significant in an era of growing conflict between public and private interests in land and natural resources. The first principle protects particular expectations of private owners of property through application of the just compensation (or takings ) clause of the fifth amendment. The second principle recognizes that certain property is held by the law to be inherently public and therefore is afforded special consideration by courts and legislatures. Navigable waterways, the waters of the sea, and the lands covered by the tides are included in this special category. The purposes of this Article are threefold. First, the Article discusses the Bell II court\u27s evaluation of the takings clause challenge to the Public Trust in Intertidal Land Act; it outlines the major authority upon which the Bell II court relied for its finding that the Act violated the constitutional provision that property shall not be taken for public purpose without just compensation. The Law Court also drew considerable support from an advisory opinion by the Massachusetts Supreme Judicial Court that contained many analytical deficiencies. Second, a brief review of recent United States Supreme Court cases demonstrates the court\u27s error in ignoring these important federal decisions. Two Supreme Court decisions are discussed in particular: Nollan v. California Coastal Commission, in which the Court invalidated a public beach access condition under the just compensation clause, and Phillips Petroleum Co. v. Mississippi, in which the Court made important findings concerning the application of state property law to define rights in tidally-influenced lands. The Article concludes with a discussion of how just compensation clause challenges to particular classes of governmental actions—those aimed at vindicating public rights in waters and tidally-influenced lands—should be evaluated by the courts. It outlines an alternative mode of analysis that, had it been followed, would have made an important contribution, both within the state and beyond, to the ongoing debate about the boundary between public and private expectations in land and natural resources
Constitutional Challenges to Caps on Tort Damages: Is Tort Reform the Dragon Slayer or Is It the Dragon?
Get PDFLiability insurance consumers are convinced the dragon is only sleeping. Because insurance has become a near necessity for businesses, professionals, and municipalities, it is no surprise that fears of the return of insurance unavailability and prohibitive cost cause the boldest policyholders to break out in a cold sweat. In many states, this fear has prompted legislative changes in the civil justice system—tort reform, as a sure-fire way to kill the insurance-crisis dragon. One such tort reform is a statutory limitation on tort damages. In Maine, a legislative proposal capping noneconomic tort damages in medical negligence cases at $250,000 has received considerable attention. This Comment will focus on the validity of such a damage cap under the United States and Maine Constitutions and will consider whether this measure is the dragon slayer that the public now seeks
Legal Standards Governing Modification of Child Custody Orders
Get PDFChild custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child\u27s legal protector when a change of custody issue is brought before it; its primary concern is to determine whether a change of environment would be beneficial or harmful to the child\u27s future development. From the court\u27s point of view taking a child from a stable, if not ideal, situation and transferring her to a new environment requires the moving party to bear the burden of proving that the change would be in the child\u27s best interest. Until recently, Maine law required that the noncustodial parent prove the necessity of changing custody by fulfilling a two-prong test. The first prong of the test required a showing that a substantial change in the circumstances surrounding the original custody determination had occurred. If that prong was satisfied then the court applied the second prong and asked whether the best interests of the child would be served by changing the original custody decree. In Philbrick v. Cummings and Villa v. Smith the Maine Supreme Judicial Court, sitting as the Law Court, abandoned the existing two-prong test and replaced it with a unitary test which focuses on whether the changed circumstances are substantial and affect the best interests of the child. This change pulls sharply away from the two-prong test articulated in Stevens v. Stevens six years earlier. Writing for the majority in Villa, Chief Justice McKusick rebuffed the two-prong Stevens test by stating that making a threshold determination of changed circumstances without considering the impact of the change on the child is impractical and irrelevant. Writing in dissent in Philbrick, Justice Scolnik strongly disagreed, pointing out that the threshold test of whether there has been a substantial change in circumstances allows the motion justice to dismiss meritless cases before requiring a full-blown hearing. This Comment explores the merits of both the two-prong Stevens test and the new unitary test articulated in Philbrick and Smith. Analyses of both tests reveal the weaknesses and strengths in each
Allocating the GST Exemption Under the Generation-Skipping Transfer Tax
Get PDFOne of the most significant aspects of the Tax Reform Act of 1986 for estate planners was the retroactive repeal of the original 1976 generation-skipping transfer (GST) tax and the enactment of an entirely new generation-skipping transfer tax. The new generation-skipping transfer tax, unlike the 1976 version, generally applies to transfers that constitute direct skips, such as outright gifts to grandchildren. Like the earlier tax, the new tax also applies to taxable terminations,” such as a termination of the life estate of the transferor\u27s child resulting in the grandchild receiving possession of the transferred property in fee simple under the terms of the original transfer, and taxable distributions, such as a discretionary distribution to a grandchild from a trust created for the benefit of the transferor\u27s children and grandchildren. It is notable, however, that the taxable event (referred to in the statute as the generation-skipping transfer ) is the transfer of the property by the transferor in the case of a direct skip, while the taxable event in the case of a taxable termination or a taxable distribution will usually occur long after the initial transfer of property by the transferor. Although the scope of transfers potentially subject to tax under the 1986 generation-skipping transfer tax is broader than under the 1976 tax, the 1986 tax also includes a larger and more broadly applicable exemption. In lieu of the possible use under the earlier law of the transferor\u27s remaining (at death) unused unified credit and a limited exemption for transfers to grandchildren, section 2631 provides each individual making generation-skipping transfers with a $1,000,000 GST exemption. The effect of the GST exemption on the computation of the generation-skipping transfer tax depends, however, on whether the exemption is allocated to a direct skip or to property with respect to which the individual is the transferor and which may be the subject of a taxable distribution or a taxable termination at a later date. Furthermore, section 2631 allows the individual or the executor of his estate to allocate the GST exemption to any property with respect to which the individual has made a generation-skipping transfer. Such allocations may be made expressly or by allowing the provisions of section 2632 to deem allocations with respect to certain transfers. Planning use of the GST exemption requires an understanding of both the manner in which the GST exemption operates with respect to different types of taxable transfers and the allocation choices that the transferor may make
The ADR Movement: Theoretical Aspects and Practical Potential
Get PDFMy mission in this paper is to draw upon what we know from the active and lively domestic dispute resolution movements in the United States, Canada, and beyond to identify some of the prospects for and potential problems in developing a dispute resolution system for Canadian-United States trade disputes. Alternative dispute resolution (ADR) is flourishing in the 1980\u27s. Increasing numbers of individuals as well as public and private programs identify their work as alternative dispute resolution. These include private mediation practitioners, ADR partners in major law firms, private organizations such as EnDispute, which will arrange mini-trials and other dispute resolution processes for corporate clients, and Maine\u27s own public court mediation service, one of the pioneers in using court connected mediation in small claims and divorce disputes. Professional schools have incorporated dispute resolution teaching into their curricula, and training conferences for attorneys and others on dispute resolution topics abound. Attendance is increasing at national meetings such as those of the Society for Professionals in Dispute Resolution, and at the same time journals, newsletters, books, and articles about negotiation and mediation are proliferating. All of these signs suggest that the practice of domestic dispute resolution is prospering. The prospects for a thoughtfully designed dispute resolution system operating with regard to Canadian-United States trade issues would appear to be equally promising and, in light of the other papers in this symposium, even more necessary. Such an international system, however, should avoid some of the mistakes made in the domestic movement and must confront some special challenges. Despite its promising outlook, domestic ADR activity suffers to some degree from its misleading name. What, after all, is alternative dispute resolution? The movement appears to define itself in opposition to litigation and adjudication in the courts. Such a definition is problematic on several counts in the domestic context, however, and even more confusing in the international arena
A Defendant\u27s Right to Counsel in Commitment Hearings for Nonpayment of a Criminal Fine
Get PDFThe federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of the Maine Revised Statutes Annotated establishes a procedure for enforcing payment of a criminal fine. Section 1304 authorizes the court to order a convicted person who has defaulted on a fine to appear before the court to show cause why he should not be imprisoned for nonpayment. On the one hand, if the court finds the default excusable, it may allow additional time to pay, reduce the amount, or revoke the unpaid balance altogether. On the other hand, if the court attributes nonpayment to the defendant\u27s willful refusal to obey the order or to a failure to make a good faith effort to pay the fine, then the court may, in its discretion, order him imprisoned. A recent trilogy of decisions has generated confusion regarding the appropriate method of assessing the right to counsel in a section 1304 hearing. In Colson v. State, the Maine Supreme Judicial Court, sitting as the Law Court, applied a due process balancing test and held that an indigent defendant sentenced to imprisonment pursuant to section 1304 generally has no right to appointed counsel. The indigent defendant in Colson subsequently petitioned for a writ of habeas corpus to the United States District Court for the District of Maine. The federal district court applied the same due process balancing test, but disagreed with the result reached by the Law Court. The district court found that the assistance of counsel is mandated at all section 1304 proceedings.” The Court of Appeals for the First Circuit subsequently upheld the district court\u27s result, but reasoned that the sixth amendment, not the due process clause, governed the right to counsel at section 1304 hearings. The First Circuit did not substantiate its reliance upon the sixth amendment as the basis for its determination. This Comment argues, nonetheless, that the federal appellate court\u27s determination is supported by two independent bases. First, although the section 1304 hearing is not technically a criminal trial, the proceeding resembles a criminal trial in such a manner that the sixth amendment right-to-counsel standard, promulgated by the Supreme Court, guarantees a section 1304 defendant the right to legal representation. Second, since the section 1304 proceeding arises directly from a prior criminal trial and conviction, the hearing constitutes a critical stage of the criminal proceedings to which the sixth amendment right to counsel attaches. This Comment further argues that even if the section 1304 hearing is characterized as a civil proceeding, thus requiring a due process inquiry rather than a sixth amendment analysis, a sentence of imprisonment conclusively establishes a right to counsel without recourse to a due process balancing test. This Comment focuses on the right to counsel in all section 1304 hearings and, like the dissent in Colson v. State, argues that the courts should not distinguish between the sixth amendment and due process rights to counsel in proceedings that result in actual imprisonment
The New People v. Collins: How Can Probabilistic Evidence be Properly Admitted?
Get PDFThe California Supreme Court’s decision in People v. Collins is a staple in Evidence casebooks. An innovative assistant district attorney in the trial court had presented a mathematician who applied probabilities to questions about the perpetrators’ characteristics. The state supreme court disapproved the injection of an equation featuring what mathematicians call the “product rule.” The opinion contains thank-goodness-we-escaped-that-disaster reasoning and condemnation of this use of mathematics with probabilities. But the court’s analysis probably would be different if the case were decided today, as the “new” People v. Collins. Therefore, this Article considers what the author calls the new People v. Collins: that is, the Collins analysis as it would be presented now, as the Collins of the present day. The Article concludes that the California court’s reasoning was wrong as viewed from today, even if the result is defensible. Its opinion relied on a one-sided characterization of the ADA’s evidence and argument. The court’s conclusions would have been better presented if they had included balancing in the manner of Evidence Rule 403, of the value of probabilistic reasoning against its tendency to mislead as weighed by the court. And the court declined to consider the principle that no one piece of evidence is required to prove the entire case, by its indicating that the mathematics could not by itself prove guilt
A Genealogy of Founders
Get PDFTwo hundred years ago this spring George Washington wrote to our fellow Mainer, General Henry Knox, that because of the illness of his mother he would not be able to attend the Philadelphia Convention. If her health had not speedily improved, we might have had quite a different kind of Bicentennial, for both Washington and Benjamin Franklin, though largely silent in the debates, were palpable sources of strength. As it is, we have the happy occasion to celebrate what Everett Ladd has called the expression of a nation-defining consensus on political values, our nationalizing principle, the one supreme bond linking all of us, the idea of the Constitution. Legal scholar Charles Black has called it the greatest work of political creation since the union . . . of upper and lower Egypt
