University of Maine School of Law
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Climate Change in Arctic and Indigenous Peoples: Challenges and Solutions
Get PDFClimate change poses a serious threat to human well-being, negatively affecting health, traditional environmental management, water supply and food security. Changes in the environment are exacerbating indigenous peoples\u27 problems. This is especially relevant to those who lead traditional lifestyles and whose well-being depends on agricultural and livestock production. This Article addresses the challenges and potential solutions to climate change in the Arctic ecosystem, including the Sub-Arctic regions. Physical changes to the landscape are examined alongside impacts on Indigenous culture and identity. In addition, the article explains the importance of Indigenous knowledge, values, and ethics in developing successful adaptation strategies. In the Russian Federation, however, not all Indigenous people are recognized as Indigenous. This Article advocates for changes to Russian law, along with a cultural shift to address climate change and its impacts
Withdrawal of Life-Sustaining Treatment: Patients\u27 Rights—Privacy Rights
Get PDFAs medical expertise and technologies improve, many patients who would otherwise die of their illnesses or injuries survive. For many of these patients and their families, the knowledge and therapies that save their lives are a blessing. Unfortunately for some, survival means not recovery, but rather a severely limited existence dependent on some form of life-sustaining treatment, such as a ventilator or feeding tube. For some of these patients, such an existence is not a blessing, but a curse, not a triumph over death, but rather a cruel prolonging of their dying. These patients, or their families, seek to have their life-supporting therapies withdrawn, allowing them to complete the process of dying which their bodies have already begun. Many patients are successful in having such treatments withdrawn. Success comes to others, though, only as the result of lengthy legal battles, which add to the grief of the patients and families involved. Most state courts confronted with withdrawal-of-support problems have found that patients do indeed have the right to demand the termination of life-supporting therapies, and most state courts have found that right to be derived from the federal constitutional right of privacy. The Supreme Court of Missouri, however, in its 1988 decision Cruzan v. Harmon, came to the opposite conclusion.Nancy Cruzan is a young woman in a persistent vegetative state as the result of an automobile accident. Her parents and co-guardians sought an order allowing them to authorize the removal of the feeding tube through which Ms. Cruzan receives the necessary nutrition and hydration to remain alive. The Missouri court noted over four dozen withdrawal-of-support cases from other states that had nearly unanimously respected the patients\u27 requests to have treatment halted. Despite that, the court found that Ms. Cruzan has no right of privacy or self-determination that can outweigh the immense, clear fact of life in which the state maintains a vital interest. The most troublesome aspect of the Cruzan decision was the court\u27s assertion that because Ms. Cruzan feels no pain, the treatments she receives are not burdensome to her. The court reached this conclusion despite evidence that Ms. Cruzan had said she would not want to be maintained in such a condition and that she would not want her family to suffer the pain of seeing her in such straits. The court\u27s statement shows a stunning lack of sensitivity to Ms. Cruzan\u27s human dignity, a dignity that is given meaning by, among other things, individual rights of self-determination, the right to be let alone. Ms. Cruzan\u27s parents and co-guardians appealed the Missouri decision to the United States Supreme Court. The Court heard arguments in Cruzan, its first withdrawal-of-support case, in December, 1989. This case gives the Court a chance to conclusively resolve the issue of how and by whom withdrawal-of-support decisions are made. A patient\u27s decision to order the cessation of treatment is a personal medical decision and should be made, like any other personal medical decision, in the privacy of the doctor-patient relationship, not in a courtroom. A clear and definitive ruling by the Court that every patient has a right, guaranteed by the federal Constitution, to order treatment discontinued will return these treatment decisions to their proper place, the patient\u27s bedside. This Comment will discuss the problems created by the current state of affairs, which all too frequently forces patients and their families into the courts to have fundamental questions of medical treatment decided. It will then discuss the foundation of a patient\u27s federal constitutional right to order the withdrawal of life-sustaining therapies. It is imperative that the Court clearly enunciate this right for many reasons; these will be discussed in the final section of this Comment
Introduction to Symposium: Alternative Dispute Resolution in Canada-United States Trade Relations
Get PDFThe Alternative Dispute Resolution (ADR) movement in law arose domestically as the pressures on our court system threatened to deprive individual citizens of their day in court. Maine is a leader in the development and elaboration of the principles and practicalities that must be mastered for ADR mechanisms to function. The University of Maine School of Law symposium examining the application of ADR principles to international disputes focuses specifically on the trade relationship between the United States and Canada. But its examination of both the innovations and limitations of ADR to the resolution of international disputes is broader than this single relationship. It is an important pioneering step in developing the legal and policy background we must have to perfect and invent the kinds of international systems that our world will need. The symposium makes clear that what is needed is both to improve existing systems and to invent new ones. In a discussion with wide application, it sets forth some of the fundamental questions of principle and matters of fact that policymakers and private parties alike will have to consider, whether their goals are profitable trade or stable political relationships. Part I of the Symposium consists of a colloquy addressing, in general, alternative dispute resolution in international trade and business. Part II consists of conference papers addressing alternative dispute resolution primarily in the context of Canada-United States trade relations
A Canadian Perspective on U.S. Administered Protection and the Free Trade Agreement
Get PDFThe negotiation of the Canada-United States Free Trade Agreement over the 1986-1988 period builds upon over 130 years of bilateral trade and investment policy. With Canada\u27s economy being roughly one-tenth the size of that of the United States, the negotiation of commercial arrangements to govern the bilateral trade and investment relationship assumes great importance in the smaller partner. The size asymmetry means that Canada, as the smaller nation, needs to secure a rules-based system rather than a power-based system in its trading relationship with the United States, which accounts for nearly 80% of its exports. Canada is also the largest trading partner of the United States, taking about 25% of all United States exports. The innovative legal framework of the new bilateral free trade agreement, signed by President Reagan and Prime Minister Mulroney on January 2, 1988, is of significant interest to lawyers as well as economists. There are important extensions of the concept of national treatment and right of establishment that will affect investment decisions by businesses in both the goods and service sectors. There are also new dispute settlement procedures and legal processes to be implemented; these can have major implications for the United States-Canadian commercial relationship. In this paper the trade-related measures will be described in detail
West v. Multibanco Comermex, S.A.: Application of the Securities Laws to Foreign Certificates of Deposit
Get PDFThe persistent debate concerning which investment instruments constitute securities for purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934 is as old as the Securities Acts themselves. The Supreme Court has addressed the issue eight times without putting the debate to rest. In Marine Bank v.Weaver, the Court held that a certificate of deposit (CD) issued by a bank regulated under the federal banking laws is not a security within the meaning of the Securities Exchange Act of 1934. The Court of Appeals for the Ninth Circuit has twice, since Weaver, addressed the issue of whether CDs are securities within the purview of the Securities Act of 1933 in the different context of foreign banks issuing CDs in the United States to United States citizens. Relying on the Weaver analysis, the Ninth Circuit held in Wolf v. Banco Nacional de Mexico, S.A., that CDs issued by foreign banks are not securities. In West v. Multibanco Comermex, S.A., the Ninth Circuit again held that the foreign CDs issued to the plaintiff purchasers were not securities. This Note argues that while application of the Weaver rationale in Wolf was appropriate, the Ninth Circuit erred in relying on the Weaver rationale in West. The Weaver rationale is based upon an examination of the factual surroundings in order to determine the necessity for subjecting issuers of the CDs in question to securities laws when the CDs are abundantly protected under other laws. In West, the court determined that a factual inquiry into the actual enforcement of the foreign regulations was barred by the act of state doctrine. This Note argues that the West court erred by relying on the Weaver rationale when it was prevented from making the necessary factual inquiry. Application of Weaver in West was unwarranted and jeopardized important protections available under the Securities Act of 1933
Dissell v. Trans World Airlines: Constitutional Limitations on the Workers\u27 Compensation Commission\u27s Subject-Matter Jurisdiction
Get PDFTo rule upon a workers\u27 compensation claim, the Maine Workers\u27 Compensation Commission must determine that it has both personal and subject-matter jurisdiction. Personal jurisdiction is determined by applying Maine\u27s long-arm statute. Subject-matter jurisdiction derives from the Commission\u27s status as an administrative agency authorized to administer the Maine Workers\u27 Compensation Act (MWCA). Although subject-matter determination generally involves a choice-of-law issue, in a workers\u27 compensation claim having extraterritorial aspects, the Commission is not free to apply the compensation acts of other states that have contacts with the claim. Rather, the Commission may determine only if it has authority under the MWCA to address the claim. If the Commission decides that it does not have such authority, it must dismiss the claim for lack of subject-matter jurisdiction. Although most states have a provision in their workers\u27 compensation statutes regarding the scope of subject-matter jurisdiction, the MWCA is silent on the extraterritorial limitations of the Act. The Maine Supreme Judicial Court, sitting as the Law Court, has therefore determined that the only limitations placed upon the Commission\u27s subject-matter jurisdiction to hear claims having extraterritorial aspects are the constitutional limits implicit in the Workers\u27 Compensation Act itself. Accordingly, the Maine Workers\u27 Compensation Commission\u27s subject-matter jurisdiction is limited only by the due process clause and the full faith and credit clause of the United States Constitution. In a recent decision, Dissell v. Trans World Airlines, the Law Court held that a claim before the Workers\u27 Compensation Commission satisfied subject-matter jurisdiction requirements solely on the basis of the employee\u27s residence in Maine. By premising subject-matter jurisdiction on this single contact, the Dissell decision expands the subject-matter jurisdiction law of Maine in a noteworthy manner; no other jurisdiction, by statute or judicial decision, has ever determined that it had subject-matter jurisdiction solely on the basis of an employee\u27s residence
The Gulf of Maine Case and the Future of Ocean Boundary Delimitation
Get PDFOn October 12, 1984, a Chamber of the International Court of Justice handed down its decision in the Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.). By a vote of four to one, the Chamber described in geodetic lines the course of the single maritime boundary that divides the continental shelf and exclusive fishery zones of Canada and the United States in that area. The Chamber\u27s decision ended more than a decade of conflict between the two countries concerning jurisdiction over continental shelf and fishery resources in the Georges Bank area. The boundary dispute resolved by the Chamber in the Gulf of Maine Case involved overlapping claims to continental shelf and superjacent waters in the Gulf of Maine region, extending seaward from the coast to a distance of approximately 200 miles. The disputed area covered about forty-two percent of Georges Bank. The location of the boundary has considerable significance for both the United States and Canada because of the known fish yields and the potential oil and gas reserves of the area. Georges Bank is one of the richest fishing grounds in the world, producing about twice as much as the North Sea, four times as much as the Grand Banks, and five times as much as the northeast Arctic. The disputed sector is one of Georges Bank\u27s most productive areas. The amount of oil and gas reserves under Georges Bank, in general, and the disputed sector, in particular, will not be known until considerable exploratory drilling and actual development take place. Experienced geologists have made estimates of potential oil and gas reserves, but their accuracy is uncertain, at best. Existing estimates do indicate, however, that oil and gas deposits may be substantial
The Primacy Method of State Constitutional Decisionmaking: Interpreting the Maine Constitution
Get PDFThe past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or floor, it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering suspicion remains that state supreme courts utilize their state constitutions only when they disagree with controlling Supreme Court precedent. Critics of independent state constitutional decisionmaking charge that state supreme courts resort to state constitutional provisions only when a particular result is desired. These critics of result-oriented state constitutional decisionmaking argue that state supreme courts should articulate principled doctrinal bases for decisions that depart from Supreme Court precedent. In response to the critics of result-oriented decisions, courts and commentators have attempted to develop cohesive methods of state constitutional decisionmaking. Current debate has therefore shifted primarily to the appropriate method by which state supreme courts should construe their respective constitutions. Proponents of independent state constitutional decisionmaking, although advocating somewhat different methods, all agree that if state courts utilize a consistent method to address state constitutional claims, a principled body of state constitutional law is more likely to develop. The growth of state constitutional law in Maine has tracked this developmental trend. Several Maine Supreme Judicial Court decisions during the 1970\u27s explicitly interpreted the Maine Constitution to provide greater protection to individual rights than mandated by the United States Constitution. The Maine court, however, did not develop a consistent methodology by which it would address state constitutional law issues. Rather, the court took an ad hoc approach. This situation continued until 1984, when the Maine Supreme Judicial Court, sitting as the Law Court, adopted a specific method of state constitutional decisionmaking in State v. Cadman. The method adopted has been termed the primacy method of state constitutional decisionmaking. In a nutshell, the primacy method requires a state court first to examine any state constitutional issue raised by a litigant. Only if the litigant\u27s claims fail under the State constitution will an examination of federal constitutional claims be undertaken. The significance of the adoption of this method is twofold. First, it provides clear direction to the bench and bar as to how state constitutional law claims are to be addressed. Second, by choosing this method, the Law Court has articulated a particular and controversial theory of federalism that ensures a primary and active role for the Maine Constitution
Deadlocked Juries and the Allen Charge
Get PDFJuries in cases requiring a unanimous verdict have three alternatives: a guilty verdict, a not guilty verdict, or no verdict for lack of unanimity. Deadlocked juries have long created a problem for efficient judicial administration. Early common law judges carried hung jurors around in oxcarts until a verdict bounced out. More recent methods of forcing jurors to reach verdicts have included requiring them to deliberate all night and threatening to deprive them of water and heat. A more subtle method of encouraging jurors to reach verdicts is a trial judge\u27s supplemental instruction to deadlocked jurors. A verdict-urging instruction is commonly referred to as an Allen charge. Federal and state courts have upheld the Allen charge in cases involving wide variations in language and surrounding circumstances. Although such charges have been upheld, it is an established principle of the law that a trial judge may not coerce jurors into reaching a verdict. An instruction is coercive if it causes jurors to change their votes without changing their conscientious convictions. Recently, the coerciveness of the Allen charge has been severely criticized by the American Bar Association, which has adopted its own standard, and by many federal and state courts, some of which have abandoned the charge.In 1972 in State v. White, Maine\u27s Supreme Judicial Court, sitting as the Law Court, rejected the use of the Allen charge or any modified version thereof, and adopted the American Bar Association\u27s (ABA) standard as the recommended practice. Nine years later in State v. Mahaney, the Law Court upheld an instruction that deviated from the ABA standard and included Allen charge variations, reasoning that there was no coercion in fact. These cases create confusion as to whether Allen charge variations are proper and raise questions as to the standard of review for verdict-urging instructions on appeal. This Note argues that the abandonment of the Allen charge and the adoption of the ABA standard in White are appropriate. Maine\u27s trial courts should not deviate from the ABA instruction which balances the importance of reevaluating one\u27s position with the importance of holding onto one\u27s honest convictions. When trial courts deviate from the ABA standard, the Law Court should determine whether the language of the instruction maintains this balance without inquiring whether the instruction is coercive in fact