University of Maine School of Law
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Maine\u27s IOLTA Proposal: A Source of Supplemental Funding for Legal Services
Get PDFLawyers often hold certain client funds for short periods of time. Generally, those funds must be kept separate from funds belonging to the lawyer or law firm. Occasionally the clients\u27 funds are deposited in individual, interest bearing accounts and the interest generated is credited to the particular client, but more often the amount or length of the deposit does not warrant the opening of an individual account and the funds are aggregated in a general, noninterest bearing trust account. A number of states have implemented programs, commonly referred to as Interest on Lawyers\u27 Trust. Accounts (IOLTA), which allow attorneys to place these otherwise unproductive commingled trust funds in interest bearing accounts. The interest generated funds various public law-related programs. In June, 1982, the Maine State Bar Association (MSBA) proposed an amendment to Maine Bar Rule 3.6(f) to implement an IOLTA program in Maine. The amendment permits lawyers to generate interest from certain client funds to be used to provide civil legal services for the poor of Maine. The Maine Supreme Judicial Court rejected the proposed amendment without articulating its reasons. The court\u27s decision was contrary to the majority of jurisdictions which have considered similar plans. The principal issues raised by IOLTA programs are 1) whether an IOLTA program involves an unconstitutional taking of private property under the fifth and fourteenth amendments, 2) whether an IOLTA program constitutes a violation of the professional responsibility of lawyers to handle clients\u27 funds properly, and 3) whether the possible appearance of improper use of client funds damages the public image of the legal profession. A critical analysis of these objections reveals that they should not prevent the implementation of an IOLTA program in Maine. An IOLTA program is not the entire solution to providing sufficient funding for legal services to Maine. The relatively high percentage of the state\u27s population which qualifies for legal assistance coupled with cutbacks in traditional funding sources creates need greater than an IOLTA program can satisfy. Nor should an IOLTA program be confused with the collective responsibility of lawyers to ensure that legal services are available to those unable to pay for them. An IOLTA program is, however, a valid source of supplemental funding for legal aid and a positive response to the problem of making the judicial system accessible to those unable to pay for it
Preventing the Importation and Sale of Genuine Goods Bearing American-Owned Trademarks: Protecting an American Goodwill
Get PDFA trademark\u27s primary and proper function, it has been said, is to identify the origin or ownership of the article to which it is affixed. Thus, if a trademark indicates either the original producer or an exclusive distributor as the source of the goods on which it appears, it will be entitled to protection against infringement. Related to this source identification function are a trademark\u27s quality assurance and advertising functions. Because the public comes to associate trademarked goods with a certain standard of quality, a trademark guarantees that the goods on which it appears will meet public expectations about quality. Moreover, because of a trademark\u27s consequent power to attract consumers, it serves its owner as a valuable advertising device. Indeed, a trademark\u27s ability to make a direct emotional appeal or insinuate itself into the memory” may make it a more convincing selling point than even the quality of the article to which it refers. Because trademarks thus serve both public and private interests, the courts have tended to ground relief on both deception of the public about the source of trademarked goods, and infringement of private property rights. A trademark owner cannot complain of infringement unless a competitor\u27s activities are likely to cause confusion, mistake, or deception among potential consumers. Although the competitor\u27s use of the mark might impair the trademark owner\u27s economic interests, without deception of the public the impairment is not wrongful
Stewart v. Inhabitants of Durham: An Exclusionary Purpose Ignored
Get PDFExclusionary zoning of mobile homes has become an increasingly important issue in Maine because of escalating costs of conventional housing and rising unmet housing needs. Although towns may regulate mobile home or any other housing use in order to foster public health, safety, morals, or general welfare, they may not enact a zoning ordinance to exclude people of lower income in an attempt to avoid the increased governmental costs and the stresses upon public services which generally accompany such an incursion. In Stewart v. Inhabitants of Durham, the Maine Supreme Judicial Court was confronted with an exclusionary purpose in a zoning ordinance. The court chose to avoid the issue by construing an ordinance so narrowly as to avoid a constitutional issue. The court\u27s reliance on this expedient principle of statutory interpretation raises troubling questions in the context of exclusionary zoning challenges. In Stewart, the plaintiffs challenged the expansive application of Durham\u27s zoning ordinance, a challenge which the Law Court refused to recognize. The plaintiffs demonstrated that the application of the ordinance\u27s grandfather clause lacked a rational relation to general public welfare and discriminated in favor of local residents. The Law Court avoided the as applied challenge in Stewart by construing the ordinance in an alternative manner. The Law Court should be willing to fashion a remedy for plaintiffs who establish bona fide challenges to an ordinance\u27s application. By denying the plaintiff in Stewart relief, the Law Court has in effect encouraged exclusionary zoning practices. Future plaintiffs will be reluctant to challenge the exclusionary application of ordinances because of the bleak prospects for success. At a minimum, the Law Court in Stewart should have granted the plaintiff relief by applying its interpretation of the ordinance prospectively, and allowed the plaintiff\u27s mobile home into Durham. Optimally, the Law Court should have invalidated the ordinance in its entirety because of its exclusionary purpose. By granting relief to the plaintiff the Law Court would have demonstrated effectively to other municipalities that such exclusionary zoning practices would no longer be tolerated
Greenland\u27s Foreign Policy, Past and Present: From the Merchants\u27 Message to Bilateral Agreements
Get PDFYou Can Grow Your Own Way: Maine\u27s Constitutional Right to Food Amendment
Get PDFMaine is the first state to constitutionalize a right to food. This is significant not only because no other states have enshrined such a right, but because this is Maine’s first foray into constitutionalizing any new individual rights. This raises a host of questions for courts to grapple with: What level of scrutiny should apply? What kinds of protections does this right afford? What are its limitations? This Comment offers a framework for courts to use when interpreting the right to food that is grounded in the legislative and voter intent. Given the amendment’s broad language, this comment argues that the scope of the right to food should be construed quite narrowly to avoid unforeseeable and perhaps undesirable outcomes. This Comment also offers some reflections on Maine’s constitutional amendment process, and considerations for adding new rights in the future
Coping With Confusion: A Unitary Procedure for Judicial Review of the Referendum Process
Get PDFAlthough our state and national political systems are models of representative government, the Maine Constitution provides an important mechanism for direct democracy. Indeed, the people of Maine expressly reserve in the state constitution power to propose laws and to enact or reject the same at the polls independent of the Legislature. Maine people propose such laws by means of the referendum process. Use of the referendum has become an increasingly widespread mechanism for addressing pervasive societal concerns such as land use regulation, environmental policy and public health issues. The prevalence of interest group politics undoubtedly influences Maine\u27s electorate to use the referendum process with increasing frequency in order to convert popular initiatives into law. While this form of direct democracy enables voters to participate in the law-making process, such participation is not without dangers warranting safeguards. Maine\u27s referendum process is not designed to educate voters as to the content of citizen-initiated legislation. The referendum ballot question merely identifies the proposed legislation, thereby placing on each voter the responsibility to learn the substance of the proposed law. Although referendum ballot questions are not intended to educate voters, the questions must at least clearly identify the measures in order to avoid confusion. The danger that a ballot question might mislead the electorate justifies an important safeguard: a procedure whereby voters may challenge the validity of a referendum ballot question. Recent cases, however, demonstrate that considerable procedural confusion characterizes attempts to challenge the validity of referendum ballot questions. After briefly outlining the constitutional and statutory requirements of the referendum process in Maine, this Comment highlights the aspects of the process most likely to engender challenges. The Comment also examines the possible procedures for instituting a referendum challenge, and it evaluates the recent cases that have contributed to the procedural confusion in this area. This Comment contends that the Maine Legislature should codify a unitary procedure for referendum challenges. Adoption of such a procedure will not only eliminate the present uncertainty, but also will provide a more effective safeguard to ensure the integrity of this important vehicle of direct democracy
Maine Debtor-Creditor Law by Dennis M. Patterson
Get PDFDennis M. Patterson, Esquire, has written a brief, practical guide to selected areas of collection practice entitled Maine Debtor-Creditor Law. Two immediate observations come to mind: first, that I plan to keep a copy of the book in my office library for future reference; second, that I am disappointed that the author omitted reference to several challenging issues that confront the attorney having a regular collection or foreclosure practice. This latter observation is both an indication of the usefulness of the book\u27s treatment of the areas covered and a hopeful invitation to the author to expand on his subject matter in future writings
The Reception of Arbitration in United States Law
Get PDFThe willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards—in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy. Since 1970, when the United States ratified the New York Arbitration Convention, the United States legal system has actively participated in the growing international consensus on arbitration. In fact, federal court decisions have recently assumed a role of preeminence (albeit a somewhat questionable one) in solidifying and advancing that consensus. Invoking its policy favoring international trade and commerce, the United States Supreme Court has guided the federal courts toward an unequivocal endorsement of arbitration for the resolution of private international commercial disputes. Additionally, the Court\u27s most recent pronouncements join in a trend toward less national control of arbitration, viz the development of anational arbitration, under which international commercial arbitration is exempted from almost all national legal strictures. Similar developments are at work in United States domestic law. Pursuant to the Federal Arbitration Act, the Court has systematically minimized the juridical restrictions on arbitration—even sacrificing federalism interests to the elaboration of a national policy on arbitration. This unwavering support for arbitration in domestic law, however, raises questions about the integrity of the Court\u27s conception of arbitration. Is arbitration, along with the alternative dispute resolution (ADR) movement, merely being used to achieve greater efficiency in federal judicial administration? As one critic argues, does ADR serve as a means to effectuate a political agenda of deregulation and anti-statism? Also, the recent convergence of the Court\u27s rulings on international and domestic arbitration eliminates formerly meaningful distinctions between separable areas of arbitral activity. The widening proportions of the Court\u27s doctrine appear to have engendered confusion and misunderstanding as to the mission of arbitration and its validity as a dispute resolution mechanism. Moreover, the decisions on international commercial arbitration can be integrated (either as a generating source or as a derivative development) into a burgeoning internationalist federal case law on transnational litigation. This case law places primary emphasis upon considerations of comity and attempts to elaborate decisional principles that are responsive to the actual character of transnational litigation. Despite its growing sensitivity to international matters, however, the Court has not proffered uniform internationalist guidance. Consequently, this increasingly significant area of adjudication lacks a stable decisional predicate. Future directions are uncertain; even the course of arbitral internationalism now appears to be somewhat confounded. A useful comparison can be drawn between the contemporary status of arbitration in the United States law and that of its Canadian analogue. Prior to 1986, the Canadian law on arbitration embodied much of the traditional Anglo-Saxon distrust of non-judicial dispute resolution. In Canada, arbitral adjudication was not a favored method of dispute resolution, and was one to which parties seldom resorted. Courts, lawyers, and business interests preferred to rely upon the real thing. In 1986, after lengthy efforts to overcome federalism obstacles, Canada ratified the New York Arbitration Convention and adopted the United Nations Commission on International Trade Law (UNCITRAL) rules on arbitration, thereby making Canada instantaneously and unqualifiedly receptive to international commercial arbitration. To draw a limited parallel to human experience, the current Canadian adhesion to arbitration is akin to a coup de foudre. Canada\u27s sudden wholehearted embrace of arbitration raises questions concerning the basic quality and possible longevity of the relationship. The United States has had a more settled experience with arbitration. Hesitant at first, the United States courtship has resulted in a rather harmonious union between the legal system and arbitration. Contemporary developments in the United States, however, suggest that a critical stage has been reached in the marriage of these contrasting adjudicatory ethics. The flirtation with anational arbitration and the unwieldy (perhaps unrealistic) view of the scope of arbitral jurisdiction in domestic law may tax the foundations of the relationship to the point of threatening its stability. The United States experience with arbitration, therefore, could alert Canada to the potential pitfalls of developing an overly exuberant policy on international and domestic arbitration