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Articles 31 - 60 of 63
Full-Text Articles in Law
Gun Control: Political Fears Trump Crime Control, Clayton E. Cramer, Joseph Edward Olson
Gun Control: Political Fears Trump Crime Control, Clayton E. Cramer, Joseph Edward Olson
Maine Law Review
No matter how draconian, gun control laws are weakly enforced (at least in the United States) and seldom of any significant effect in reducing crime. The kind of citizen who will comply with a gun law is the opposite of the person who will use a gun to facilitate his or her crimes. The problem of weak enforcement is highlighted by a candid interview with the author of the District of Columbia’s 1968 gun registration scheme while the District’s 1975-76 gun ban was under consideration: The problem, [Hechinger] said, is the failure of the mayor and police department to enforce …
The Role Of The State Attorney General In Preventing And Punishing Hate Crimes Through Civil Prosecution: Positive Experiences And Possible First Amendment Potholes, Amy Dieterich
Maine Law Review
On July 3, 2006, Lewiston, Maine resident Brent Matthews threw a pig's head as "a joke" into the town's only mosque, frequented primarily by Somali refugees, during evening services. Because of Matthews' "joke," members of the mosque were required by Islamic law to clean the desecrated area seven times, attendance at the mosque decreased, and some members said they feared physical harm. Unfortunately for Matthews, Maine is one of eight states that has given its Attorney General the authority to seek a civil remedy for a violation of a citizen's civil rights, which can be pursued concurrently or exclusively of …
A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez
A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez
Maine Law Review
Takings doctrine is a mess. Let's just accept that and establish specialized federal and state "takings courts" to adjudicate takings claims. Takings claims arise when governmental conduct is alleged to detrimentally affect private property. Adjudication of takings claims may initially seem straightforward: the Fifth Amendment's Just Compensation Clause, as well as analogous state constitutional provisions, plainly provide that the government shall not take private property for public use without just compensation. In 1978, the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. Decades later, in 2005, the Court abrogated a test for takings that it had …
Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan
Ideological Plaintiffs, Administrative Lawmaking, Standing, And The Petition Clause, Karl S. Coplan
Maine Law Review
Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations-so-called "regulatory objects"-enjoy presumed standing to challenge …
Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman
Racism, Juries, And Justice: Addressing Post-Verdict Juror Testimony Of Racial Prejudice During Deliberations, Andrew C. Helman
Maine Law Review
From the beginning, race played a role in the prosecution of Christopher McCowen for the rape and murder of well-known fashion writer Christa Worthington. To some, the trial was even a spectacle and treated as “one of the most spectacular homicide cases in [Massachusetts'] history.” It quickly became a “made-for-cable-news tale of the heiress fashion writer and her lowly Portuguese fisherman lover, illicit sex, and an out-of-wedlock child,” all set in a seaside village. McCowen, an African-American garbage man, was right in the middle of it; police and prosecutors did not believe his assertions that he had consensual sex with …
"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull
"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull
Maine Law Review
The Sixth Amendment's Confrontation Clause guarantees criminal defendants the right to “confront witnesses against them.” Specifically, the Clause ensures a criminal defendant's right to confront witnesses who testify against him by the unique medium, or “crucible,” of cross-examination. Although federal and state rules of evidence prohibiting hearsay and the Confrontation Clause are designed to protect similar interests, whether or not admission of a piece of evidence violates a defendant's rights under the Confrontation Clause is a separate analysis than whether that same piece of evidence is admissible under a rule of evidence. In 2004, the United States Supreme Court held …
The Supreme Court's Long And Perhaps Unnecessary Struggle To Find A Standard Of Culpability To Regulate The Federal Exclusionary Remedy For Fourth/Fourteenth Amendment Violations, Melvyn H. Zarr
Maine Law Review
On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling.” Another …
Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello
Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello
Maine Law Review
In Strickland v. Washington, the United States Supreme Court issued a seminal holding that single-handedly rendered it nearly impossible for a capital defendant to demonstrate that he was the victim of ineffective assistance of counsel at the underlying trial or at sentencing. Indeed, due in substantial part to the fact that "Strickland was not intended to impose rigorous standards on criminal defense attorneys," the Court found ineffective assistance of counsel in only one case over the next sixteen years. Critically, however, during this time, both state and federal courts bore witness to some of the most horrific examples of death …
Maine's Sex Offender Registry And The Ex Post Facto Clause: An Examination Of The Law Court's Unwillingness To Use Independent Constitutional Analysis In State V. Letalien, Lauren Wille
Maine Law Review
In 1996, Eric Letalien pleaded guilty to the gross sexual assault of a thirteen year-old girl, an offense he committed when he was nineteen years old. At the time of his sentencing in August of 1996, Letalien was subject to Maine’s Sex Offender Registration and Notification Act of 1995 (SORNA of 1995). Pursuant to SORNA of 1995, Letalien was required to register his address with the State Bureau of Identification (SBI) and update his address in the event he moved. This registration requirement was to be in effect for fifteen years from the time he was released from incarceration. After …
Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins
Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins
Maine Law Review
The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in plain sight. I …
Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty
Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty
Maine Law Review
President Obama has made clear that the United States must grapple with questions of how to detain and try potentially dangerous terrorism suspects in a manner that maximizes national security while adhering to the rule of law. Yet the United States faces a serious quandary in terms of how to prosecute suspects who have been detained at Guantanamo Bay, Cuba, that puts at risk the reputation of the United States justice system and its adherence to rule of law. The question of what trial system to use for suspected terrorists requires an historical interrogation of how and to what effect …
Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax
Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax
Maine Law Review
Over the past several years, many states introduced legislation that protects a pharmacist’s decision to refuse to fill a prescription. Termed “conscience clauses,” these pieces of legislation allow a pharmacist to refuse to fill a prescription because of moral or religious objections without fear of legal repercussions. In 2006, for example, twenty-one states considered legislation that permits pharmacists to refuse to fill prescriptions; some bills focus on contraception alone, while others are not specific to any one type of medication. Arkansas, Mississippi, Georgia, Florida, and South Dakota have state laws that provide legal protection to pharmacists who refuse to fill …
Fisher V. University Of Texas At Austin: Navigating The Narrows Between Grutter And Parents Involved, Kimberly A. Pacelli
Fisher V. University Of Texas At Austin: Navigating The Narrows Between Grutter And Parents Involved, Kimberly A. Pacelli
Maine Law Review
Universities’ use of race as a factor in their admissions decisions has been a divisive issue both in the legal system and in political discourse. Opponents of affirmative action have challenged racial preferences in public university admissions under the Equal Protection Clause of the Fourteenth Amendment. Individuals who find themselves denied a coveted seat in a university class and suspect that racial preferences are to blame will often challenge their rejection as a denial of their state’s “equal protection of the laws.” The United States Court of Appeals for the Fifth Circuit recently considered whether the University of Texas at …
Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes
Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes
Maine Law Review
In State v. Mitchell, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a jury verdict finding Thomas Mitchell guilty of a 1983 murder. In doing so, the Law Court examined two issues: First, whether the trial court “abused its discretion in excluding evidence of an alternative suspect”; and second, whether the trial court’s decision to admit evidence stemming from an autopsy performed two decades before the trial violated the Confrontation Clause of the United States Constitution. In reaching the alternative suspect decision, the Law Court held that the evidence proffered by Mitchell did not establish a reasonable …
Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey
Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey
Maine Law Review
I am going to address two topics. The first is the one Judge Coffin asked me to address in October 2009, when I was invited to give the 2010 Coffin Lecture: how to combine the private practice of law with an active pro bono practice. The second topic is the one Dean Peter Pitegoff and I agreed to add: a brief discussion of legal developments in national security law since 9/11. My pro bono involvement in Guantanamo Habeas litigation began in 2004 and led directly to my interest in national security law and to my recognition of how difficult it …
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
Maine Law Review
Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws to protect …
Hate Speech In The Schools: A Potential Change In Direction, Kevin W. Saunders
Hate Speech In The Schools: A Potential Change In Direction, Kevin W. Saunders
Maine Law Review
The law regarding free expression and students in the public schools has long been somewhat confused. An early Supreme Court vindication of student speech rights has eroded over the years. Yet, it is perhaps unclear how great the erosion has been and how much of the original recognition still stands. This has left the lower courts rather unwilling to protect school students from hate speech, at least in cases where there has not been a history of such speech leading to disruption or even violence. Only recently has there been some sign of change in that regard, with a few …
"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain
Maine Law Review
Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at trial ought …
Putting The Restroom Debate To Rest: Addressing Title Ix And Equal Protection In G.G. Ex Rel. Grimm V. Gloucester County School Board, Alexandra A. Harriman
Putting The Restroom Debate To Rest: Addressing Title Ix And Equal Protection In G.G. Ex Rel. Grimm V. Gloucester County School Board, Alexandra A. Harriman
Maine Law Review
Courts, legislatures, and citizens have been debating whether transgender students should use the restroom that corresponds to their biological sex, or whether they can choose to use the facilities which align with their gender identity. The Fourth Circuit decided that Title IX required the latter in G.G. ex. rel. Grimm v. Gloucester County School Board, but that didn't settle the issue. To complicate things, the Trump Administration revoked the guidance that the Fourth Circuit had relied on. This Note argues that a court should resolve this once and for all by finding that a school policy that requires students to …
The First Amendment And The Police In The Digital Age, Kermit V. Lipez
The First Amendment And The Police In The Digital Age, Kermit V. Lipez
Maine Law Review
In almost thirty-two years as a judge, I have written over 1300 opinions. Each of these opinions was important to the parties involved, yet some have gained more prominence than others. This essay addresses one of those—a 2011 decision that involves the First Amendment, the complex relationship between the police and the communities they serve, and the revolution in communications technology. I emphasize two points as I begin. I have enormous respect for police officers and their work. They risk their lives on the job—a reality that we have seen far too often in recent years—and go to work every …
Federal Habeas Review Of State Court Convictions: Incoherent Law But An Essential Right, Lynn Adelman
Federal Habeas Review Of State Court Convictions: Incoherent Law But An Essential Right, Lynn Adelman
Maine Law Review
I thank the editors of the Maine Law Review for the opportunity to participate in a discussion about the present state of post-conviction review of criminal convictions. This discussion is important and timely both because the quality of the procedures by which state prisoners can obtain post-conviction review varies greatly from state to state and because state prisoners who seek federal court review of their constitutional claims by petitioning for a writ of habeas corpus face many obstacles. As a federal district judge, my experience is primarily with the later problem. Thus, in this article, I will offer a few …
A Modern Look At The Right To A Civil Jury Trial Under The Maine Constitution, Carolyn A. Liegner
A Modern Look At The Right To A Civil Jury Trial Under The Maine Constitution, Carolyn A. Liegner
Maine Law Review
The right to a civil jury trial is a cornerstone of the American legal system. The Maine Constitution promises an even broader right to a civil jury trial than is offered by the federal Constitution and many other states. Article I, Section 20 states: “In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced.” The exception in the provision has been the subject of multiple interpretations by the Maine Supreme Judicial Court, sitting as the Law Court, since the …
Constitution Day Lecture: American Constitutionalism, Almost (But Not Quite) Version 2.0, Richard H. Fallon, Jr.
Constitution Day Lecture: American Constitutionalism, Almost (But Not Quite) Version 2.0, Richard H. Fallon, Jr.
Maine Law Review
On February 7, 2012, a front-page article in The New York Times reported that the Constitution of the United States has ceased to be the leading model for constitution-writers in other countries. According to The Times, and to the law review article on which The Times based its report, the U.S. Constitution has fallen increasingly out of alignment with an evolving international consensus regarding the individual rights that a constitution ought to protect. In addition, the constitutions of other countries copy the structural provisions of the U.S. Constitution—involving federalism and the separation of powers—far less frequently than they once did. …
The Law Court's Proper Application Of Miranda In State V. Bragg: A "Matter-Of-Fact Communication" To The Defendant Regarding Evidence Against Him Will Not Typically Constitute "Interrogation", Stephen B. Segal
Maine Law Review
In State v. Bragg, Tammy Bragg was convicted of a Class D crime for operating under the influence (OUI) at the completion of a jury trial, and was ordered to pay a fine of $800 and her license was suspended for ninety days. During her trial, Bragg submitted a motion to suppress statements she made in the police officer’s vehicle and the police station on the grounds that she was not read her Miranda warnings prior to making the statements. The Superior Court denied her motion, however, concluding that Miranda warnings were not necessary in the officer’s vehicle because her …
Liberty Of Palate, Samuel R. Wiseman
Liberty Of Palate, Samuel R. Wiseman
Maine Law Review
As lawmakers concerned with problems as diverse as childhood obesity, animal cruelty, and listeria have increasingly focused their attention on consumers, legal issues surrounding food choice have recently attracted much broader interest. Bans on large sodas in New York City, fast food chains in South Los Angeles, and foie gras in California and Chicago have provoked national controversy, as have federal raids on raw milk sellers. In response, various groups have decried restrictions on their ability to consume the food products of their choice. A few groups have organized around the principle of what we might call liberty of palate, …
Preempting Humanity: Why National Meat Ass'n V. Harris Answered The Wrong Question, Pamela Vesilind
Preempting Humanity: Why National Meat Ass'n V. Harris Answered The Wrong Question, Pamela Vesilind
Maine Law Review
The 2011-12 Supreme Court term was notable for high profile cases about state undocumented immigrant law, GPS-enabled police searches,chronic liars claiming military honors, and the constitutionality of the Affordable Health Care Act. As such, it is unsurprising that the decision in National Meat Ass’n v. Harris,notable for its unanimity and matter-of-fact concision, received relatively little attention from the media or the academy. Nevertheless, National Meat is a bellwether federalism opinion, the significance of which has been widely overlooked. At first blush, the legal question in National Meat appeared to be relatively unremarkable: whether the USDA’s slaughterhouse and packing plant regulations …
The New England Food System In 2060: Envisioning Tomorrow's Policy Through Today's Assessments, Margaret Sova Mccabe, Joanne Burke
The New England Food System In 2060: Envisioning Tomorrow's Policy Through Today's Assessments, Margaret Sova Mccabe, Joanne Burke
Maine Law Review
As the local food movement gains critical mass around the country, deep and important issues concerning food system policy arise. The modern American food system spans from agricultural production to food processing to food consumption, and finally, to health outcomes. The system’s components include economic, environmental, social, political, and scientific aspects that interact in ways that far outstrip any one discipline’s capacity to analyze and resolve problems. Additionally, the system is profoundly shaped by a complex architecture of laws and regulation. With much credit to the local and regional food movements, people have begun to question not only the current …
Personal Jurisdiction In The Data Age: Macdermid V. Deiter's Adaptation Of International Shoe Amidst Supreme Court Uncertainty, Ryan Almy
Maine Law Review
In MacDermid, Inc. v. Deiter, the Second Circuit held that a Connecticut court may exercise personal jurisdiction over a defendant who allegedly used a computer in Canada to remotely access a computer server located in Connecticut in order to misappropriate proprietary, confidential electronic information belonging to a Connecticut corporation. This Note argues that, given the factual elements before the court, MacDermid was an unsurprising, orthodox, and proper holding in the context of personal jurisdiction jurisprudence. However, the facts in MacDermid, and the corresponding limits inherent in the Second Circuit’s holding, reveal potentially gaping holes in our modern personal jurisdiction framework …
The Post-Crawford Rise In Voter Id Laws: A Solution Still In Search Of A Problem, David M. Faherty
The Post-Crawford Rise In Voter Id Laws: A Solution Still In Search Of A Problem, David M. Faherty
Maine Law Review
In Crawford v. Marion County Election Board, the Supreme Court upheld Indiana’s voter identification law, which required registered voters to present government-issued photo identification at the polls. Instead of applying heighted scrutiny to a law that had an effect on voter qualifications, the Court simply balanced the asserted state interest of protecting the integrity and reliability of elections by preventing voter fraud against the burden imposed on eligible voters who were prevented from voting because they did not possess the required form of photo identification. Not persuaded by the fact that Indiana could not point to a single instance of …
The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller
The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller
Maine Law Review
It’s hard to predict what an average member of the public thinks when he or she hears the words “student newspaper.” Opinions vary. This Article goes beyond that public perception and demonstrates that student journalists across the country are doing work that matters. Student reporters uncover corruption, help hold government officials accountable to taxpayers and the public, and bring to light important issues that would otherwise go unreported. They allow students to develop academically, professionally, and socially. And they give a voice to developing citizens who are often disenfranchised from voting, holding elected office, or otherwise participating in politics and …