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Eligibility for Vocational Rehabilitation under the Maine Workers\u27 Compensation Act: Troubling New Standards
Full text linkIn 1961, section 52 of the Maine Workers\u27 Compensation Act was amended to include a new provision which states that a worker who suffers an industrial injury is entitled to vocational rehabilitation. Under section 52, vocational rehabilitation may be awarded if such services are necessary and desirable to restore the injured worker to gainful employment and reasonable and proper in scope. The language of section 52 pertaining to vocational rehabilitation has remained essentially unchanged since 1961, despite major developments in the functional, economic, and administrative theories underlying vocational rehabilitation. Narrowly construing section 52, the court in Lancaster v. Cooper Industries and McInnis v. Town of Bar Harbor fashioned standards for eligibility which severely restrict the availability of vocational rehabilitation to injured workers. In support of its holdings the court cited a need to limit employer costs, the restrictive language of the Act, and a perceived legislative intent that vocational rehabilitation not be made widely available. However, a close reading of the Act, combined with a review of current thinking on the function and economics of vocational rehabilitation, reveals that such restrictive holdings were unnecessary. The purpose of this Note is to analyze the Lancaster and McInnis standards in light of the Maine Workers\u27 Compensation Act as a whole, previous Maine case law, and national studies on workers\u27 compensation. The inconsistencies which emerge from this analysis reveal a need for legislative action to provide a workable administrative structure for vocational rehabilitation
The Fishery Conservation and Management Act of 1976: State Regulation of Fishing Beyond the Territorial Sea
Full text linkHistorically, international law has recognized the sovereignty of coastal nations within the three-mile contiguous territorial sea. Although modem international practice has expanded the breadth of the territorial sea to twelve miles or more, the traditional three-mile zone retains a special significance within the scheme of domestic United States marine law. Under the federal scheme of marine resource jurisdiction, authority within the three-mile zone has been allocated to the coastal states while the federal government has exercised near-exclusive jurisdiction over marine zones seaward of the territorial sea boundary. However, this bifurcated jurisdiction scheme has failed to provide effective conservation and management of offshore marine resources, even when complemented by international fishery agreements and quotas. Technological innovations in the post-World War II era gave rise to intensified fishing efforts in the fertile United States coastal waters, resulting in depletion of at least ten major commercial fishery stocks. The economic significance of these depleted resources, combined with the plight of the domestic fishing industry, motivated Congress to pass the Fishery Conservation and Management Act of 1976 (FCMA). The FCMA purports to establish exclusive federal conservation and management authority over fisheries in the 197-mile zone extending seaward from the three-mile territorial sea boundary. Yet the FCMA also contains a provision which may prove to be an important flaw in the apparently exclusive federal authority over the FCZ. This concept of registration appears to have been a major concession to the states by Congress in order to encourage passage of the FCMAD Yet neither the statutory language nor the legislative history of the FCMA provides a clear definition of what are registered vessels. This Comment attempts to clarify the potential scope of state authority in extraterritorial waters under the FCMA, paying particular attention to registration
Workmen\u27s Compensation: Compensable Injuries; Awards; Relation of Court and Commission
Full text linkDuring Justice Dufresne\u27s term as Chief Justice of the Maine Supreme Judicial Court, the court considered over sixty-five cases presenting issues that involved the state Workmen\u27s Compensation Act. These decisions attempted to define both the concept of a compensable injury and the nature of workmen\u27s compensation awards. Examination of the court\u27s treatment of these two major components of the workmen\u27s compensation system reveals the Law Court\u27s attitude toward the system itself, the statutory scheme utilized by the Maine Legislature, and the administrative procedure employed in handling workmen\u27s compensation claims. Consideration of the relationship between the court and the Industrial Accident Commission further illustrates the Maine Supreme Judicial Court\u27s perception of its role in an area created by the Legislature and implemented by an administrative body
A Statutory Proposal to Remove Divorce from the Courtroom
Full text linkOver the past decade the divorce rate in the United States has more than doubled. Although the reasons suggested for this rapid rise are varied, the resultant impact on the judicial system is clear: divorce cases greatly overburden the courts. Presently they account for about one half of all civil cases filed. Unlike most other civil suits of which nearly half are dismissed or settled, divorce requires a court decree for relief unless the parties reconcile and abandon their suits. In addition to the actual granting of the divorce decree, court time is needed for pre-divorce motions for temporary support and custody and for post-divorce motions for modification or enforcement of support or alimony. It might be argued that the burden of divorce cases on the court is overstated since the majority of divorces are uncontested with the substantive issues, such as property division, alimony, child custody and support, settled out of court. In such cases only the actual granting of the decree requires court time. Even uncontested divorces, however, generally require approximately five minutes court time each, and not all divorces are uncontested. As the divorce rate continues to rise, divorce cases will require a greater and more disproportionate share of court time. The present system of divorce also places unnecessary burdens on the parties. The adversary system is ill-suited to the needs of those involved in terminating a marriage. Clearly, reform in divorce law is essential to promote efficient use of valuable court time and to permit prompt resolution of the difficult problems created by divorce. This article will examine the current alternatives to adversarial divorce proceedings as well as suggestions by the private sector. It will discuss whether these solutions are effective in eliminating the burdens of traditional divorce proceedings. In conclusion it will propose procedural legislation which would remove divorce from the courtroom in order to minimize the burdens on the parties and the courts
The Effect of State Conviction Relief on Federal Deportation Law
Full text linkFederal statute requires deportation of any alien drug offender convicted under federal or state law. An offender may have his conviction set aside, however, under federal or state provisions which authorize relief from the penalties and disabilities resulting from a conviction. Use of the relief conferred by these statutes presents the issue of whether the alien remains convicted and therefore deportable under federal law. In Kolios v. The Immigration and Naturalization Service (INS) and Rehman v. INS, the First and Second Circuits reached apparently conflicting resolutions of this problem. The Kolios and Rehman decisions illustrate the confusion regarding the proper relationship between federal deportation law and state conviction relief statutes that are designed to restore qualifying offenders to a social status free from the penalties attending a conviction. The two decisions; however, do not necessarily conflict and together suggest an underlying policy as to when state statutory relief from drug convictions may forestall the deportation of aliens. The federal nature of deportation combined with the gravity of the consequences require comprehensive federal standards that will produce uniform results throughout the circuits. Consideration of the Kolios and Rehman cases in the context of the purposes of federal deportation and expungement policies produces a consistent analytical framework upon which future deportation decisions may rest
The Burden of Proof and the Insanity Defense After Mullaney v. Wilbur
Full text linkIn 1970, the Supreme Court of the United States in the case of In re Winship specified an evidentiary standard of proof for criminal prosecutions as a requirement of the due process clause of the 14th amendment: Lest there remain any doubt about the constitutional stature of the reasonable doubt-standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Five years later, in Mullaney v. Wilbur, the Court extended Winship to invalidate Maine\u27s statutory scheme of felonious homicide which required the defendant to establish by a preponderance of evidence the mitigating factor of heat of passion on sudden provocation. Under Maine law, malice or the absence of heat of passion was not an element of the crime of felonious homicide. The Supreme Court, nevertheless, required Maine to prove beyond a reasonable doubt the absence of heat of passion because it was a fact critical to criminal culpability that affected the severity of the punishment imposed. Maine\u27s new criminal code represents a legislative effort to comply with the mandate of Winship, for it declares that no person may be convicted of a crime unless each element of the crime is proved beyond a reasonable doubt. Nevertheless, Maine, like most states, continues to designate certain issues as affirmative defenses which the defendant must prove by a preponderance of the evidence in order to prevail. This Comment examines the affirmative defense of insanity in light of Winship and Wilbur. Specifically, the thesis of this Comment is that Wilbur expanded the scope of the Winship holding. The reasonable doubt standard is no longer limited to the elements of a crime as formally defined by state law. After Wilbur, any affirmative defense which imposes a persuasion burden upon the defendant is constitutionally suspect. As the First Circuit recently acknowledged, there is substantial doubt whether the Constitution permits a state to impose upon a criminal defendant the burden of proving insanity
Nineteenth Century Dams and Twentieth Century Problems: Commentary on a Statutory Solution
Full text linkIn times past streams were commonly dammed to provide water power for machinery, improve navigation, or serve some other business purpose. The dams today pose serious problems for the public and for riparian owners along the dammed streams, problems stemming from either operation of the dams or failure to maintain them properly. The dams are operated to further the business purposes for which they were built, sometimes resulting in water levels or flows detrimental to game fish in the streams and to shoreline recreational property. When the old dams cease to be economical to operate, as often has happened, the owners may stop maintaining them and allow their decay, or may remove them altogether. Either response results in lowering the water level of the impoundment, thereby exposing previously submerged land and piling along the edges of the pond to the aesthetic and financial detriment of persons owning improved shoreline property. Riparian owners downstream may also experience unwanted changes to their property through changes in the current and quantity of stream flow effected by decay or removal of the dam
Improvident Credit Extension: A New Legal Concept Aborning?
Full text linkThe latest triumph of our modified free enterprise system is consumer credit which, including home mortgages, has burgeoned from 569 billion in March 1974. In 1946 the total cost to consumers for interest and debt retirement was 110.6 billion, or twenty-two percent of family income. By 1971 installment debt charges accounted for from twenty to thirty-nine percent of disposable income for five percent of our families and for forty percent or more of disposable income for another two percent. Another commonly employed index, the percentage of annual personal income represented by total personal debt, shows an increase from almost eighteen percent. Although most people are able to handle their consumer debt and other monetary obligations, a substantial number are not. Whatever the trauma for the bankrupt consumer debtor, bankruptcy does not greatly concern the institutional extenders of consumer credit. Since they estimate their losses at from one-half of one percent to two percent of their total receivables, it is apparent that their emphasis is on volume rather than on thorough credit investigation. Such investigation as they do make usually consists of three steps not well calculated to produce an accurate picture. The first is to have the debtor fill out, and the debtor and spouse sign, a financial statement while they sit in the loan office without the benefit of any personal records they may have. When examined in later bankruptcy proceedings, these statements frequently turn out to be inaccurate, particularly in understating existing debts. On this fragile information, the consumer credit extender makes his decisions to extend credit. Small wonder that some consumers find themselves overcommitted to the point where bankruptcy seems the only solution. It does not seem too much to say that one who voluntarily extends credit by disregarding a known risk, or risks which could be discovered by a reasonable effort, should bear the loss when loss occurs. If such a standard imposes some brake on the credit boom, it would be a brake wisely applied in the interests of both the consumers and the extenders of credit