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Articles 1 - 30 of 33
Full-Text Articles in Law
Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson
Who's Afraid Of Judicial Activism? Reconceptualizing A Traditional Paradigm In The Context Of Specialized Domestic Violence Court Programs, Jennifer L. Thompson
Maine Law Review
The Specialized Domestic Violence Pilot Project (Pilot Project), implemented in York and Portland in July and August 2002, is the result of the collaborative efforts of the District Court system, law enforcement, prosecutors, members of the defense bar, and various community agencies offering services to victims and perpetrators. District court judges are largely responsible for overseeing the changes in court procedures and implementing the new protocols in domestic violence cases. The Pilot Project, and the changes it is making to the role that courts play in domestic violence cases, represents a significant departure from the procedures followed by traditional court …
The False Idolarty Of Rules-Based Law, John C. Sheldon
The False Idolarty Of Rules-Based Law, John C. Sheldon
Maine Law Review
When the Supreme Court outlawed segregation in public schools in 1954, it acknowledged this social truth: assigning separate public facilities to separate classes of people fosters inequality among those classes. Although Brown v. Board of Education of Topeka addressed only educational facilities, the Court quickly broadened the scope of its decision, applying it to racial discrimination in or at public beaches, buses, golf courses, parks, municipal airport restaurants and state courtrooms. And although Brown addressed only racial discrimination, it quickly became the basis for condemning many forms of discrimination, including race, religion, wealth, gender, age, and disability. What gave Brown …
What Got Into The Court? What Happens Next?, Linda Greenhouse
What Got Into The Court? What Happens Next?, Linda Greenhouse
Maine Law Review
We are now in the midst of an amazing Supreme Court term--more than half-way through on the calendar, far short of halfway through in terms of what has yet to be decided. It's been a roller-coaster term of sorts, beginning with the highly unusual early-September argument in the campaign finance case, followed by a rather quiet fall and winter, and then ending with an April sitting during which the Court will consider, in the context of the country's response to terrorism, cases that are likely to go quite far to define for the modern age the meaning of citizenship and, …
Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner
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
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 expert …
Abuse Of Discretion: Maine's Application Of A Malleable Appellate Standard, Andrew M. Mead
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.
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 so …
Witness For The Client: A Judge's Role In Increasing Awareness In The Defendant, Joyce Wheeler
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 support …
When The Court Speaks: Effective Communication As A Part Of Judging, Daniel E. Wathen
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
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
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 the president's …
Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn
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 …
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 …
Shaping State Courts For The New Century: What Chief Judges Can Do, Judith S. Kaye
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
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 the …
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 …
Funding Justice: The Budget Of The Maine Judicial Branch-We Did Get There From Here, Leigh I. Saufley
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
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 were …
Maine's Overdue Judicial Reforms, Peter L. Murray
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 that of …
The Impact Of The Current Economy On Access To Justice, Kathleen A. Mckee
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
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 Group, or …
The World Is Round: Why We Must Assure Equal Access To Civil Justice, Jon D. Levy
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 the world is round.” …
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
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 custody …
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 executive departments …
Introduction: Accessing Justice-Its Past, Present, And Future, Frank M. Coffin
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
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
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 …
In His Own Words: Judge Coffin And Workability, William C. Kelly Jr.
In His Own Words: Judge Coffin And Workability, William C. Kelly Jr.
Maine Law Review
Early in his judicial career, Judge Coffin proffered the concept of “workability” as one of the core factors in judging. Justice and Workability: Un Essai, his first published reflection on this idea, appeared in the Suffolk University Law Review in 1971. To frame the discussion, he started with a formal definition: “[T]he extent to which a rule protecting a right, enforcing a duty, or setting a standard of conduct—which is consistent with and in the interests of social justice—can be pronounced with reasonable expectation of effective observance without impairing the essential functioning of those to whom the rule applies.” This …
The Ways Of A Judge And On Appeal, Kermit V. Lipez
The Ways Of A Judge And On Appeal, Kermit V. Lipez
Maine Law Review
What do you do when your judicial hero, the author of two important books on appellate judging, was for many years your neighbor, friend, colleague, and mentor? You revel in your good fortune, and you share your admiration for his books. Judge Coffin’s long involvement in the political world contributed significantly to a primary focus of his two books on appellate judging, The Ways of a Judge, published in 1980, and On Appeal, published in 1994. As a political organizer, a candidate for public office, a Congressman, and an administrator in a federal agency, Judge Coffin understood his accountability to …
Coffin's Court: A Colleague's View, Levin Campbell
Coffin's Court: A Colleague's View, Levin Campbell
Maine Law Review
These reminiscences focus on the eleven years, from 1972 to 1983, that Frank M. Coffin of Maine was the Chief Judge of the United States Court of Appeals for the First Circuit. While Coffin’s judicial career extended over more than forty years, I chose this period because it was a time when his influence over the court’s work was at its peak, as well as because he himself later singled it out as a “judicial Garden of Eden,” during which the First Circuit enjoyed its status as the last remaining three-judge federal court of appeals in the nation.