University of Maine School of Law
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Maine\u27s Living Will Act and the Termination of Life-Sustaining Medical Procedures
Get PDFThe Maine Legislature recently enacted a law authorizing the execution and use of living wills. The execution of a living will, essentially a document of informed consent, allows a person to preserve in a legally recognized form his desire that, once he has been diagnosed to have a terminal medical condition and is no longer competent to make treatment decisions, the doctor should discontinue all life-sustaining procedures. With the passage of this act, Maine has joined thirty-four other states and the District of Columbia in enacting living will provisions. In addition, the National Conference of Commissioners on Uniform State Laws has approved the Uniform Rights of Terminally Ill Act on which Maine based its own statute. The popularity of living will legislation has been a direct response to the difficult legal and moral questions which unavoidably have accompanied the swift advances in medical science of the past two decades. In particular, legislatures are seeking to address the suffering of people who are kept alive without any hope of recovery through state-of-the-art medical procedures and the most technically advanced mechanical devices. Legislatures are striving to strike a balance between the individual\u27s desire not to be kept alive by medical procedures that only prolong the suffering attendant upon dying and the community\u27s concern with the moral implications of consciously failing to do all that is within its power to help those who, in extremis, are no longer able to help themselves. The problem legislatures face in addressing the plight of the terminally ill is heightened by an awareness that an individual approaching death is most vulnerable to and most dependent upon the powers and designs of those around him. This period of physical dependency presents forcefully the dilemma concerning the proper relationship between the individual and the state: When may the state require treatment through intrusive medical procedures of a person approaching death? Since the tragic case of Karen Quinlan forced this issue into the national consciousness in 1976, legal and ethical commentators, the courts, and state legislatures have reached a general consensus that a patient has a right to terminate those medical procedures that serve only to prolong the dying process. None of these groups, however, has recognized a general right to die, and most have explicitly rejected euthanasia, suicide, and mercy-killing as acceptable means for bringing about a terminal patient\u27s death. Despite this underlying consensus, there remains substantial disagreement concerning when the termination of medical care simply allows the dying process to take its course and when that termination amounts to some form of euthanasia. This Comment discusses the proper balance between the individual\u27s interest in controlling the course of his own medical treatment and the state\u27s interest in protecting the well-being of those who, nearing death, are no longer able to care for themselves. The Comment argues that although a terminal patient may generally have a right to order the withdrawal of life-sustaining procedures, important moral and practical arguments suggest limitations on that right which would preclude terminating nutrition and hydration
State v. Farnham: The Defendant\u27s Exercise of the Right to Stand Trial as Negative Character Evidence
Get PDFA defendant in a criminal case may not receive a more severe sentence because he exercised his sixth amendment right to stand trial. However, determining when a court has more severely sentenced a defendant for exercising his constitutional right to a jury trial is a difficult task. Some argue that a defendant\u27s choice to stand trial is relevant to the sentencing process as character evidence. The decision to stand trial, the argument goes, indicates a defendant\u27s lack of remorse and an unwillingness to take the first step toward redemption by admitting his guilt. Others take the position that consideration in the sentencing process of a defendant\u27s exercise of the right to trial impermissibly burdens both that right and the privilege against self-incrimination. In State v. Farnham, the Maine Supreme Judicial Court, sitting as the Law Court, took the former position, holding that a sentencing justice may consider the fact that a defendant stood trial in evaluating the defendant\u27s remorse, repentance, and potential for rehabilitation. This Note argues that a defendant\u27s trial decision should not be used as evidence of character because it falls to accomplish its stated goal of accurately assessing character and needlessly diminishes constitutional rights guaranteed by both the United States and Maine Constitutions
In re Daniel C.: Reunification Efforts and the Termination of Parental Rights
Get PDFIn In re Daniel C., the Maine Supreme Judicial Court, sitting as the Law Court, affirmed an order terminating a father\u27s parental rights pursuant to title 22, section 4055 of the Maine Revised Statutes. The issue on appeal concerned the effect of a failure by the Department of Human Services (DHS) to make efforts toward family reunification. The appellant, Daniel C.\u27s father, Everett Co., argued that the DHS failed to make adequate reunification efforts as required by title 22, section 4041 of the Maine Revised Statutes and that this failure precluded the termination of his parental rights. The Law Court agreed that section 4041 imposed a duty on the DHS to make reunification efforts and that the department\u27s efforts in regard to Daniel C. fell short of the statutory requirements. Nevertheless, the court rejected the appellant\u27s argument that the DHS\u27s failure to make reunification efforts created grounds for denying the termination of his parental rights. The practical effect of the Law Court\u27s decision in In re Daniel C. is that there is no mechanism for enforcing the reunification requirements of section 4041. Thus, the issue arises whether the court\u27s construction of the termination statute is consistent with the Legislature\u27s purpose in enacting the reunification provision of section 4041. In addition, Daniel C. implicates fourteenth amendment due process concerns. The termination of parental rights is a drastic measure. The United States Supreme Court has classified parental rights as a fundamental liberty interest protected by the due process clause of the fourteenth amendment. Consequently, when a state seeks to terminate parental rights, it must provide parents with fundamentally fair procedures. There is a question, therefore, whether as a matter of due process reunification efforts should be a prerequisite to the termination of parental rights
Stacked Recovery Under Maine\u27s Uninsured Motorists Statute: Connolly v. Royal Globe Insurance Company
Get PDFForemost among the problems of automobile travel facing state legislatures may be that of ensuring adequate compensation for injuries and deaths suffered in traffic accidents. Frequently an injured party wins an award of damages against a negligent motorist, only to find the negligent party unable to meet the financial burden which the judgment imposes. The injured party, though innocent of any wrongdoing, may receive little or no compensation for injuries suffered. State legislatures have attempted to prevent such situations by enacting mandatory liability insurance laws, creating victim compensation funds, or requiring uninsured motorist coverage. Inherent weaknesses exist, however, in both the mandatory liability coverage and compensation fund approaches. In states requiring mandatory liability insurance, the absence of the required insurance is not apparent until the motorist is involved in an accident. Even in those states requiring proof of insurance as a prerequisite to vehicle registration, a motorist can allow his insurance to lapse while nevertheless continuing to drive. The sanctions of the so-called Financial Responsibility Acts thus come into play too late for the victim of the accident. The victim compensation fund approach has a similar flaw: it may require the victim to obtain an uncollectible judgment against the negligent motorist as a prerequisite to applying for compensation from the fund. Uninsured motorist coverage, which overcame these limitations, improved significantly upon these existing programs
Compensation for Financing a Spouse\u27s Education: The Means of Economic Justice in Maine
Get PDFIn cases of marriage dissolution courts attempt to promote economic justice by utilizing their equitable powers and interpreting applicable statutes. It is often difficult, however, to achieve a just result in cases in which one spouse supported the other who attended college and/or professional school during the marriage. In the typical case divorce occurs just prior to or after completion of the education, at a time when the couple has accumulated very few marital assets because all of the marital income has gone into living and educational expenses. Because the only significant asset acquired during the marriage is the degree, the court has no marital property to divide in order to reflect the contribution of the working spouse. Thus the court must find alternative means to compensate fairly the working spouse (usually the wife) for his or her contribution to the education of the student spouse (usually the husband). The court\u27s difficulty arises because alimony traditionally does not encompass such compensation to the working spouse. At the same time, when there are very few marital assets to divide, most disposition of property statutes cannot be utilized to provide fair recompense in this situation unless the degree or enhanced earning capacity that accompanies it is considered marital property. The Maine courts, working within the limits of the partnership theory of marriage, have the necessary tools to devise a fair method for dealing with such claims for compensation when they arise within a divorce proceeding. Maine\u27s alimony statute gives the courts sufficient discretion to award alimony as recompense to the working spouse. In addition, the disposition of property statute provides the courts with an alternative means to achieve equitable compensation as well. In order to utilize the property statute to provide recompense to the working spouse, however, the courts will have to allow the continually expanding view of marital property to engulf the enhanced earning capacity acquired by the student spouse. It is this Commentator\u27s position that the Maine courts should follow the national trend and utilize these statutes to their fullest extent to allow compensation to the working spouse
In Defense of Civil Juries
Get PDFCriticism of the civil jury system is nothing new. In fact, virtually since its inception the civil jury has been embroiled in controversy. Typically critics argue that: the jury cannot handle the complex or technical case; there is great expense and delay attendant to trial by jury; jury adjudication is of low quality; verdicts rendered by different juries in cases involving similar facts often appear inconsistent. Recently, Justice Donald Alexander of the Maine Superior Court stated that [t]he civil jury system has outlived its usefulness. In support of his basic premise that the civil jury system is merely an historical artifact, Justice Alexander reiterated some of the general criticisms that have been voiced by other commentators. He also raised some specific concerns based on his experience as a trial judge on the Maine Superior Court. Justice Alexander opined that under the present jury system the rights of potential jurors are disregarded, that the financial and temporal costs of the civil jury are too high, and that a jury trial in a complex matter has the potential of depriving the litigants of due process. These problems, in his view, require massive reform of the civil jury system. This Article does not examine these criticisms exhaustively. Rather, it considers some of the concerns raised by Justice Alexander in light of the Author\u27s experience conducting civil litigation in Maine. On the basis of this experience, the Author believes strongly that the civil jury has continuing vitality and that many commonly held beliefs about shortcomings of the jury system are not justified
An Inadequate Band-Aid: Existing Privacy Law has Uncertain Application to Web-Scraped Personal Information Used to Train AI
Get PDFTo legislate high-growth technology requires fine-tuned balance, but the current state of AI legislation swings in favor of AI providers given U.S. lawmakers near non-existent response. From healthcare to education, the financial industry to the legal field, AI has gained a grip stronger than any legal band-aid lawmakers might believe to be in place and protecting consumers. I argue that based on a survey of current U.S. legislation, AI providers are being given the chance to have their cake and eat it too at the expense of consumers’ rights. Such a perfectly permissible feast is why lawmakers must promptly and rigorously regulate the handling of consumer data, especially that which involves consumers’ personal information
Projections for Arctic Marine Accessibility: Risk under Climate Change
Get PDFFew transformations in Earth systems are as dramatic as those currently occurring in the Arctic. We reveal the emergence of a new route regime in response to the evolving context of climate change and human pressures. This paradigm shift presents both opportunities for Arctic exploration and maritime trade, as well as risks for marine ecosystems and coastal communities. It underscores the need for concerted efforts to recalibrate the associated legal framework
The Loss & Damage Fund: Will It Leave Greenland Behind?
Get PDFThe United Nations Framework Convention on Climate Change (UNFCCC) maintains three pillars of international climate governance: (1) mitigation, (2) adaptation, and (3) loss and damage. Loss and damage, the newest pillar, refers to the negative effects of climate change that transpire despite mitigation and adaptation measures. This notion has manifested into the newly operationalized Loss and Damage Fund, which is designed to compensate developing nations for the losses and damages that occur. This Comment identifies a gap in the Loss and Damage Fund, which will leave Greenland left out of receiving compensation, despite being extremely vulnerable to climate change, because of its relationship to Denmark