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Full-Text Articles in Law

Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar Jan 2018

Adaptation Nation: Three Pivotal Transitions In American Law & Society Since 1886, Mariano-Florentino Cuéllar

Oklahoma Law Review

No abstract provided.


Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel Jan 2018

Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel

Oklahoma Law Review

No abstract provided.


Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam Macleod Dec 2017

Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam Macleod

Adam MacLeod

The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligation upon private persons and government officials. On the other side of the divide, scholars of law and jurisprudence have generally proceeded, since at least the rise of English positivism in the nineteenth century and the American legal realist movement in the early twentieth, as if the concept of vested right has little real meaning. This article attempts to ...


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 ...


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. Nov 2017

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


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 ...


Res Judicata As Requisite For Justice, Kevin M. Clermont Nov 2017

Res Judicata As Requisite For Justice, Kevin M. Clermont

Kevin M. Clermont

From historical, jurisprudential, and comparative perspectives, this Article tries to synthesize res judicata while integrating it with the rest of law. From near their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion. This core is universal not because it represents a universal value, but rather because it responds to a universal institutional need. Any justice system must have adjudicators; to be effective, their judgments must mean something with bindingness; and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment in an effort ...


Court Review: Volume 41, Issue 3-4 - Friends Of The Court? The Bar, The Media, And The Public, Steve Leben, John Russonello, Malcom Feeley Nov 2017

Court Review: Volume 41, Issue 3-4 - Friends Of The Court? The Bar, The Media, And The Public, Steve Leben, John Russonello, Malcom Feeley

Malcolm Feeley

The fourth panel discussion at the National Forum on Judicial Independence explores the way the public thinks about judicial independence and ways in which the media and members of the bar may affect judicial independence. The discussion was led by then-AJA secretary Steve Leben, a state general-jurisdiction trial judge from Kansas. Panelists were John Russonello, a pollster and consultant to nonprofit organizations, political campaigns, and other clients, and Malcolm Feeley, professor at the Boalt Hall School of Law at the University of California-Berkeley. The National Forum on Judicial Independence was supported by a generous grant from the Joyce Foundation of ...


Court Review: Volume 41, Issue 3-4 - Judicial Independence: The Freedom To Be Fair, Steve Leben, Michael R. Mcadam, Leo Bowman, Kevin S. Burke, Michael Cicconetti, Malcom Feeley, Jack Ford, Gayle Nachtigal, Tam Nomoto Schumann, William C. Vickrey Nov 2017

Court Review: Volume 41, Issue 3-4 - Judicial Independence: The Freedom To Be Fair, Steve Leben, Michael R. Mcadam, Leo Bowman, Kevin S. Burke, Michael Cicconetti, Malcom Feeley, Jack Ford, Gayle Nachtigal, Tam Nomoto Schumann, William C. Vickrey

Malcolm Feeley

The final panel discussion at the National Forum on Judicial Independence was moderated by Jack Ford, host of the syndicated Public Broadcasting System program, Inside the Law. The discussion explores topics of judicial independence in a manner designed for use with the public at large and formed the basis for the onehour PBS program, “Judicial Independence: The Freedom to Be Fair.” Panelists were Leo Bowman, chief judge of the District Court in Pontiac, Michigan, Kevin Burke, district judge and former chief judge of the Hennepin County (Minn.) District Court, Michael Cicconetti, judge of the Painesville (Ohio) Municipal Court, Malcolm Feeley ...


Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith Nov 2017

Why The Taint To Religion?: The Interplay Of Chance And Reason, Richard Stith

Richard Stith

No abstract provided.


Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M. Nov 2017

Judges And Judicial Process In The Jurisprudence Of St. Thomas Aquinas, Charles P. Nemeth, J.D., Ph.D., Ll.M.

The Catholic Lawyer

No abstract provided.


Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast Nov 2017

Privatizing Law: Is Rule Of Law An Equilibrium Without Private Ordering?, Gillian K. Hadfield, Barry R. Weingast

University of Southern California Legal Studies Working Paper Series

Almost all theorizing about law, including the rule of law, begins with government. Analysts from a wide variety of perspectives make this presumption. We contest this presumption. In this paper, we ask whether rule of law is an equilibrium in the absence of private ordering. To address this question, we rely on the what-is-law model of Hadfield and Weingast (2012). Most legal theory has asserted that legal attributes are characteristic of legal orders, such as generality, clarity and neutrality. In contrast, we show that they can be derived from a minimal normative premise about what constitutes law in a setting ...


China's Judiciary: Current Issues, Jianli Song Nov 2017

China's Judiciary: Current Issues, Jianli Song

Maine Law Review

Since 1978, China has been engaged in a major reform program of economic modernization and growing openness to the outside world. The movement towards a market economy has resulted in impressive economic growth. It has also led to social change, including increasing pressure from segments of the population for greater participation in decision making and respect for human rights. The Chinese government is taking steps towards the rule of law. The legal reforms being carried out go beyond the economic sphere, and also gradually will affect the relationship between individuals and the state. Dialogue with the international community has broadened ...


Consent Decrees, The Enlightenment, And The "Modern" Social Contract: A Case Study From Bates, Olmstead, And Maine's Seperation Of Powers Doctrine, Dana E. Prescott Nov 2017

Consent Decrees, The Enlightenment, And The "Modern" Social Contract: A Case Study From Bates, Olmstead, And Maine's Seperation Of Powers Doctrine, Dana E. Prescott

Maine Law Review

On December 17, 2004, the Maine Supreme Judicial Court, sitting as the Law Court, issued its decision in Bates v. Department of Behavioral & Developmental Services, which affirmed in part, and vacated in part, the decision of Superior Court Chief Justice Nancy Mills, and remanded for further proceedings in the so-called Augusta Mental Health Institute (AMHI) Consent Decree case. In the underlying litigation, patients at the mental health hospital filed motions for sanctions and findings of contempt alleging the State of Maine failed to comply with the 1990 Consent Decree and incorporated settlement agreement. After a seventeen-day trial on whether the ...


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 ...


Recht Is Geen Wetenschap. Rechtswetenschap Bestaat Daarom Niet Minder, Serge Gutwirth Oct 2017

Recht Is Geen Wetenschap. Rechtswetenschap Bestaat Daarom Niet Minder, Serge Gutwirth

Serge Gutwirth


Deze bijdrage gaat op zoek naar de eigenheid van de rechtswetenschap. Dat gebeurt niet alleen in het verlengde van bestaande discussies hierover, maar ook en vooral omdat de vraag naar wat de rechtswetenschap tekent een tastbare inzet heeft. Deze betreft namelijk de al dan niet inclusie van publicaties van juristen bij de berekening van de financiering van de universiteiten en de (rechts)faculteiten op basis van onderzoeksoutput. Doel is te toetsen of de daarvoor gebruikte bibliometrische parameters voldoende rekening houden met de karakteristieke eigenschappen van rechtswetenschappelijke publicaties. Zo het VABB terzake een relatieve vooruitgang betekent, blijkt niettemin dat de bibliometrische ...


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 ...


In His Own Words: Judge Coffin And Workability, William C. Kelly Jr. Oct 2017

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 ...


The Ways Of A Judge And On Appeal, Kermit V. Lipez Oct 2017

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 ...


Coffin's Court: A Colleague's View, Levin Campbell Oct 2017

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.


Frank Morey Coffin's Political Years: Prelude To A Judgeship, Donald E. Nicoll Oct 2017

Frank Morey Coffin's Political Years: Prelude To A Judgeship, Donald E. Nicoll

Maine Law Review

Each day when I go to my study, I see a wood block print of two owls gazing at me with unblinking eyes. Ever alert, they remind me of the artist, who in his neat, fine hand, titled the print “Deux Hiboux,” inscribed it to the recipients and signed it simply “FMC 8-2-87.” In addition to his talents as an artist and friend in all seasons, FMC was a remarkable public servant in all three branches of the federal government and, with his friend and colleague Edmund S. Muskie, a creative political reformer for the State of Maine. Throughout his ...


Frank Coffin And Enlightened Governance, Robert A. Katzmann Oct 2017

Frank Coffin And Enlightened Governance, Robert A. Katzmann

Maine Law Review

I have often thought that Judge Frank M. Coffin is one of a handful of statesmen of recent times I could easily imagine in Philadelphia in the summer of 1787 (indeed, as a central figure in a David McCollough biography). If he had been, as competing factions struggled to find solutions to thorny issues, Madison’s Notes would inevitably and often have recorded: “With negotiations on the verge of collapse, all eyes turned to Frank Coffin, who found not only the key to compromise, but also the better way.”


The Legacy Of Judge Frank M. Coffin, Peter R. Pitegoff Oct 2017

The Legacy Of Judge Frank M. Coffin, Peter R. Pitegoff

Maine Law Review

Judge Coffin had adopted the University of Maine School of Law as if it were his own. He was a committed friend to the Law School and served on the advisory Board of Visitors for almost two decades. Like so many others, I felt his keen personal commitment as well, with his periodic calls and visits, his steady counsel and encouragement. Before arriving in Maine, I had known of Judge Coffin. Little did I anticipate that he would so enrich my experience as Dean at Maine Law. He remains a role model to so many of our graduates and leaves ...


Textualism And The Problem Of Scrivener's Error, John David Ohlendorf Oct 2017

Textualism And The Problem Of Scrivener's Error, John David Ohlendorf

Maine Law Review

Scrivener’s errors make easy prey for the gentle comedy of the bench and bar, much in the way that typographical errors in billboards, newspaper headlines, and church bulletins form an endless source of humor for late night talk show hosts. But theorists of legal interpretation have long seen that scrivener’s errors pose a more serious problem. The doctrine surrounding scrivener’s error stands considered as something of a cousin to the absurdity doctrine, which has roots extending to the earliest days of the American Republic. More recently, the post-legal-process revival of formalist approaches to statutory interpretation on the ...