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Full-Text Articles in Law

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner Nov 2017

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner

Maine Law Review

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power ...


Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther Nov 2017

Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther

Maine Law Review

Maine's courts constantly deal with litigants with mental health issues. Historically, our decisions have relied on expert testimony addressing specific issues of responsibility, risk, and treatment. In recent years, by my observation, court involvement in the treatment process has increased, but the availability of expert evidence has decreased. Thus, we as judges have become the ultimate decision-makers regarding litigants' mental health treatment in both criminal and civil contexts, without supporting expert testimony. In the face of this development, three interconnected issues arise. The first issue is whether judges should even attempt to fill the void caused by lack of ...


Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead Nov 2017

Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead

Maine Law Review

It is not unusual for an appellate court to simply announce: “In the circumstances of this case, the trial justice did not abuse his discretion ....” No further clarification or elaboration is offered by the learned justices of the court. The parties are left with a final judgment, but little understanding of the appellate court's review process. Although the objective of finality is satisfied, the objective of clarity is ignored. When litigants and counsel are faced with similar factual or legal circumstances in the future, they remain without guidance or insight into the factors that the appellate court deemed to ...


Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr. Nov 2017

Judges, Racism, And The Problem Of Actual Innocence, Stephen J. Fortunato Jr.

Maine Law Review

The facts and data are in and the conclusion they compel is bleak: the American criminal justice system and its showpiece, the criminal trial, harbor at their core a systemic racism. For decades, criminologists, law professors, sociologists, government statisticians, and others have been collecting and collating data on crime, punishment, and incarceration in the United States. These intrepid scholars have looked at crime, criminals, and the justice system from all angles—the race of defendants and victims; the relationship of poverty to criminality; severity of crime; severity of punishment; incarceration rates for different racial groups; sentencing and sentence disparities; and ...


Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler Nov 2017

Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler

Maine Law Review

My participation in a new drug treatment court over the last few years signifies a transformation of this judge's application of herself in the courtroom. I have moved from the traditional role of judge to a more fluid role in which I begin from the stance as witness for the client and, when necessary, move to the more traditional decision-making responsibility of a judge. Awareness of the change occurred over time, but became most apparent in the context of an adult drug treatment court that integrates drug and alcohol treatment into the criminal justice system. A number of factors ...


When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen Nov 2017

When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen

Maine Law Review

One of my early judicial role models, Justice James L. Reid of the Maine Superior Court, was sentencing a defendant for a murder committed within the confines of the Maine State Prison. The defendant was already serving a life sentence for another murder at the time the offense was committed. Because Maine has no parole or capital punishment, the sentencing options were limited and ultimately meaningless. As Jim imposed a life sentence consecutive to the existing life sentence, the defendant rose in his manacles and uttered an early Anglo-Saxon version of “screw you.” Jim, rising from the bench and moving ...


Some Reflections On Dissenting, Kermit V. Lipez Nov 2017

Some Reflections On Dissenting, Kermit V. Lipez

Maine Law Review

In the collegial world of appellate judging, where the dominant impulse is consensus, dissents depart from the norm. If their language is sharp, the dissents may offend colleagues and worry court watchers who expect consensus. These self-assigned opinions also add to the pressures of the work. Given these implications, the choice to dissent should never be a casual one. You must weigh the institutional and personal costs and benefits, understand the purpose of the dissent and the audiences for it, and always be attentive to style and tone. In a haphazard sort of way, I consider these issues when I ...


Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis Nov 2017

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of ...


Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn Nov 2017

Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn

Maine Law Review

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are ...


An Examination Of The State And Federal Courts' Treatment Of The Parent-Child Privilege, Maureen P. O'Sullivan Nov 2017

An Examination Of The State And Federal Courts' Treatment Of The Parent-Child Privilege, Maureen P. O'Sullivan

The Catholic Lawyer

No abstract provided.


Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer Nov 2017

Corpus Linguistics: Misfire Or More Ammo For The Ordinary - Meaning Canon?, John D. Ramer

Michigan Law Review

Scholars and judges have heralded corpus linguistics—the study of language through collections of spoken or written texts—as a novel tool for statutory interpretation that will help provide an answer in the occasionally ambiguous search for “ordinary meaning” using dictionaries. In the spring of 2016, the Michigan Supreme Court became the first to use corpus linguistics in a majority opinion. The dissent also used it, however, and the two opinions reached different conclusions. In the first true test for corpus linguistics, the answer seemed to be just as ambiguous as before.

This result calls into question the utility of ...


Do Women Justices Matter?, Ashley Shula Oct 2017

Do Women Justices Matter?, Ashley Shula

The Eastern Illinois University Political Science Review

In recent years, women have started to have a considerable impact on the political process. While literature exists on women in Congress and in district court settings, little research exists on the role played by female Supreme Court Justices. The author attempts to shed light on the impact of female justices by assessing statements made by the justices, in addition to their voting records. The author finds that the new women Supreme Court Justices have had little impact so far, but offers that perhaps as time goes on, this will change.


A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez Oct 2017

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 ...


Shaping State Courts For The New Century: What Chief Judges Can Do, Judith S. Kaye Oct 2017

Shaping State Courts For The New Century: What Chief Judges Can Do, Judith S. Kaye

Maine Law Review

Judge Coffin is an inspiration on so many levels for all of us. But just at this very moment in my own life, I feel that he is speaking personally and directly to me. I am in my own transitioning period, as-in just fifty-five days-my judicial service comes to an end after over twenty-five years, because our state constitution provides for mandatory age retirement. I particularly liked a quotation Judge Coffin included in his article: "Our lives are two/ If we can relish our past life anew." So, under the banner of Law and Public Service, I thought I would ...


Honey, You're No June Cleaver: The Power Of "Dropping Pop" To Persuade, Victoria S. Salzmann Oct 2017

Honey, You're No June Cleaver: The Power Of "Dropping Pop" To Persuade, Victoria S. Salzmann

Maine Law Review

Imagine a contentious child-custody hearing in which the husband is testifying about his wife's behavior. If he were to state “she is no June Cleaver,” that testimony would have an immediate impact upon those present. Most people would understand that the husband was making a reference to Mrs. Ward Cleaver, the pearl-clad mother figure from the popular 1950s television show Leave It to Beaver. However, the reference does more than simply call to mind 1950s television. It is a vivid popular-culture allusion that immediately taps into the psyche of anyone familiar with the show. It tells the listener that ...


Establishing Guidelines For Attorney Representation Of Criminal Defendants At The Sentencing Phase Of Capital Trials, Adam Lamparello Oct 2017

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 ...


Recent Developments, Daisy C. Karlson Oct 2017

Recent Developments, Daisy C. Karlson

Arkansas Law Review

No abstract provided.


The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock Oct 2017

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court ...


The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman Oct 2017

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.


Funding Justice: The Budget Of The Maine Judicial Branch-We Did Get There From Here, Leigh I. Saufley Oct 2017

Funding Justice: The Budget Of The Maine Judicial Branch-We Did Get There From Here, Leigh I. Saufley

Maine Law Review

The budget for the administration of justice in the State of Maine is a study in contrasts. During the last two decades, the lack of sufficient dollars appropriated to Maine Judicial Branch and the impact that this underfunding has had on people seeking access to justice have created consistent concerns for leaders in the Judicial Branch as well as for those in the Executive and Legislative Branches. Despite these challenges, however, the administrative structure of the Maine Judicial Branch stands as a model for states across the country. Understanding the genesis of this contrast will be critical to planning for ...


An Exposition Of The Effectiveness Of And The Challenges Plaguing Maine's Juvenile Drug Treatment Court Program, Jason E. Rayne Oct 2017

An Exposition Of The Effectiveness Of And The Challenges Plaguing Maine's Juvenile Drug Treatment Court Program, Jason E. Rayne

Maine Law Review

Since 1989, trial courts across the United States have been developing and implementing the drug court model. Drug courts are treatment-based programs that are considered less adversarial than traditional methods of adjudication. By early in the new millennium, drug courts had “achieved considerable local support and [had] provided intensive, long-term treatment services to offenders with long histories of drug use and criminal justice contacts, previous treatment failures, and high rates of health and social problems.” Drug courts were developed in part to quell the trend of prison overcrowding associated with America’s increased “war on drugs” during the 1980s. Courts ...


Maine's Overdue Judicial Reforms, Peter L. Murray Oct 2017

Maine's Overdue Judicial Reforms, Peter L. Murray

Maine Law Review

The recent mandate to all organs of Maine state government to make major budget cuts in a time of international economic distress has focused attention on the fiscal and operational condition of Maine’s Judicial Branch. A symposium on March 30, 2009 at the University of Southern Maine presented various perspectives on the role of Maine’s judiciary as the twenty-first century unfolds, and the need for adequate resources to maintain the Judicial Branch as a vital and functioning branch of our tripartite system of government. It is clear that much of the challenge faced by our Judicial Branch is ...


The Impact Of The Current Economy On Access To Justice, Kathleen A. Mckee Oct 2017

The Impact Of The Current Economy On Access To Justice, Kathleen A. Mckee

Maine Law Review

The adequacy of access to justice in the American legal system is not a newly emergent issue. Discussion acknowledging this right dates back to colonial times. For example, in 1932, the United States Supreme Court noted in the case of Powell v. Alabama that the right to counsel in criminal proceedings can be traced back to colonial times in America. The Court remarked that the right to be heard must encompass the right to be heard by counsel if it is to be meaningful. In the ongoing dialogue on this issue, primacy has been given to the right of criminal ...


Reflections Of An Access To Justice Chair, Kermit V. Lipez Oct 2017

Reflections Of An Access To Justice Chair, Kermit V. Lipez

Maine Law Review

From January 2001 to January 2008, I had the privilege of serving as the Chair of Maine’s Justice Action Group. In the legal services world, the Justice Action Group is known as an “Access to Justice” entity. Most states have such entities. Although the missions of these entities may vary somewhat from state to state, they share the same general goals—to increase the resources available to the organizations providing free or reduced fee legal services to low income, disadvantaged, and elderly citizens, and to maximize the use of these resources through coordinated efforts. In Maine, the Justice Action ...


The World Is Round: Why We Must Assure Equal Access To Civil Justice, Jon D. Levy Oct 2017

The World Is Round: Why We Must Assure Equal Access To Civil Justice, Jon D. Levy

Maine Law Review

In 1972, the astronauts of Apollo 17, NASA’s final manned-mission to the Moon, took a photograph of the entire hemisphere of Earth. The photograph shows the continents of Africa and Antarctica in hues of red and brown, surrounded by the vibrant blue oceans and topped by swirling white clouds. It has become an iconic image. Studying the Earth from afar, Eugene Cernan, Apollo 17’s commander, reported to the Houston command center with just a touch of irony: “We’re not the first to discover this, but we’d like to confirm, from the crew of Apollo 17, that ...


A Foundation Upon Which Justice Is Built: The Chicago Bar Foundation's Innovations To Improve Access To Justice During Tough Economic Times, Danielle Elyce Hirsch Oct 2017

A Foundation Upon Which Justice Is Built: The Chicago Bar Foundation's Innovations To Improve Access To Justice During Tough Economic Times, Danielle Elyce Hirsch

Maine Law Review

“Equal justice for all” is one of the United States’ most proudly proclaimed principles, embellished on courthouse entrances and regularly cited in constitutional decisions. The Illinois Constitution also contains a strong commitment to equal and unimpeded access to our legal system for all of our citizens: “Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely and promptly.” Notwithstanding these constitutional principles, a large number of people with urgent and important issues at stake—such as the ...


Funding The Judicial Department At A Level The Supreme Judicial Court Deems "Essential To Its Existence And Functioning As A Court" Is Required By Doctrines Of Comity And Duties Imposed By Maine's Constitution, Orlando E. Delogu Oct 2017

Funding The Judicial Department At A Level The Supreme Judicial Court Deems "Essential To Its Existence And Functioning As A Court" Is Required By Doctrines Of Comity And Duties Imposed By Maine's Constitution, Orlando E. Delogu

Maine Law Review

This Article develops ideas and arguments relative to judicial funding initially advanced by this Author in two op-ed pieces previously published in the Maine Lawyers Review. Beyond elaborating and more carefully documenting (with footnote references) points previously made, this Article undertakes to lay out the judicial department’s unique status as one of three co-equal and coordinate branches of Maine’s governmental structure. It is this status that separates the judicial department from all of the other agencies of state government. The Article further argues that this status gives rise to a duty on the part of the legislative and ...


Introduction: Accessing Justice-Its Past, Present, And Future, Frank M. Coffin Oct 2017

Introduction: Accessing Justice-Its Past, Present, And Future, Frank M. Coffin

Maine Law Review

No abstract provided.


The Judge And His Clerks, Barbara F. Riegelhaupt, Kaighn Smith Jr., J. Peter Byrne Oct 2017

The Judge And His Clerks, Barbara F. Riegelhaupt, Kaighn Smith Jr., J. Peter Byrne

Maine Law Review

In his memoir, Life and Times in the Three Branches, Judge Coffin recounts the history of the institution of the law clerk and observes, “I was the first such creature Maine had seen.” He served as a clerk from April 1947 to June 1949 for United States District Court Judge John D. Clifford, working in the same chambers that he would later inhabit as a judge. Over the course of his more than four decades on the Court of Appeals, Judge Coffin would have sixty-eight clerks of his own. Those of us lucky enough to be in that family of ...


The Speeches Of Frank M. Coffin: A Sideline To Judging, Daniel E. Wathen, Barbara Riegelhaupt Oct 2017

The Speeches Of Frank M. Coffin: A Sideline To Judging, Daniel E. Wathen, Barbara Riegelhaupt

Maine Law Review

The Authors of this Article are engaged in a separate project to publish the full collection of law-related speeches delivered by Judge Coffin during his tenure on the bench. That collection in its entirety consists of more than 125 speeches, and it is a treasure trove of thoughts on the judiciary as an institution, the law, judging, the legal profession, legal education, and legal luminaries past and present. The speeches are also worthy of study purely as examples of communication, advocacy, speechcraft, composition, humor, and whimsy. Within the confines of this Article, the modest goal is to provide samples of ...