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Articles 1 - 30 of 57
Full-Text Articles in Law
Nine Justices And #Metoo: How The Supreme Court Shaped The Future Of Mandatory Arbitration And Sexual Harassment Claims, Tamra J. Wallace
Nine Justices And #Metoo: How The Supreme Court Shaped The Future Of Mandatory Arbitration And Sexual Harassment Claims, Tamra J. Wallace
Maine Law Review
When the Federal Arbitration Act was signed into law in 1925, none would have guessed it would be used to perpetuate a system of silence surround workplace sexual harassment. With the Supreme Court’s continued stance to liberally applying the Act to uphold arbitration agreements contained within employment agreements over the past decades, it is apparent that any change needed to protect vulnerable workers will need to come from federal legislation. The rise of the #MeToo movement across the nation, and throughout various employment sectors, may be the push needed to bring about the necessary change.
A Meeting Of The Minds: Utilizing Maine’S State Education System To Promote The Success Of Its Native Students While Maintaining Tribal Sovereignty, Jordan T. Ramharter
A Meeting Of The Minds: Utilizing Maine’S State Education System To Promote The Success Of Its Native Students While Maintaining Tribal Sovereignty, Jordan T. Ramharter
Maine Law Review
The United States Federal Government is failing to provide its Native American students with access to equal educational opportunities. Although “tribal sovereignty” provides tribes with the right to self-govern, a “trust relationship” is maintained between the sovereign nations and the federal government. This duality results in tribes being viewed as “domestic dependent nations” by the federal government. Due to this relationship, the federal government has long recognized not only a right, but a duty to utilize its plenary powers to develop necessary legislative and executive authority in order to support the nation’s tribes. Encompassed in this duty is the responsibility, …
Reflections On The Church/State Puzzle, Kermit V. Lipez
Reflections On The Church/State Puzzle, Kermit V. Lipez
Maine Law Review
No abstract provided.
Going Rogue: Independent Grand Juries Throughout America, Nino Monea
Going Rogue: Independent Grand Juries Throughout America, Nino Monea
Maine Law Review
Grand juries today do little more than passively approve (almost never disapprove) indictments proposed by prosecutors. But this stands in stark contrast to grand juries in the past. They investigated cases themselves and their purview went well beyond criminal matters. This Article looks in-depth at three historical cases where grand juries not only conducted major investigations but took on major additional roles. They ousted corrupt public officials, ran their cities in the interim, or booted prosecutors that failed to do their jobs. These examples demonstrate that grand juries in modern society could have a more robust role in the justice …
Reimagining State Banking Regulators: How The Principles Underlying The Consumer Financial Protection Bureau Can Serve As A Blueprint For A New Regulatory Federalism, Seth Frotman
Maine Law Review
With hundreds of millions of Americans owing more than $14 trillion in combined household debt, a robust consumer financial protection framework is necessary to protect consumers when accessing critical credit markets. America relies on a complimentary system of regulatory federalism to uphold these protections, premised on robust state oversight and enforcement. However, the current implementation of this system is failing to meet the needs of this moment. Since the Great Recession, federal policymakers and regulators have devoted significant energy and resources to strengthen the oversight and accountability mechanisms of the consumer finance market—but these efforts have largely overlooked the need …
Foreword: Consumer Financial Protection Budget Proposal In California, Richard Cordray
Foreword: Consumer Financial Protection Budget Proposal In California, Richard Cordray
Maine Law Review
No abstract provided.
“Do No Harm Or Injustice To Them”: Indicting And Convicting Physicians For Controlled Substance Distribution In The Age Of The Opioid Crisis, Julia B. Macdonald
“Do No Harm Or Injustice To Them”: Indicting And Convicting Physicians For Controlled Substance Distribution In The Age Of The Opioid Crisis, Julia B. Macdonald
Maine Law Review
In response to the devastating impact of the opioid crisis, the Department of Justice has in recent years launched an aggressive crackdown on what it characterizes as “fraudulent prescribers” of controlled substances. Against this backdrop, physicians, prosecutors, and defense attorneys face a number of issues. First, there is a lingering circuit court split on the issue of whether indictments against physicians and other medical professionals for illegal controlled substance distribution must allege that the physician acted “outside the usual course of professional practice and without a legitimate medical purpose.” I argue that acting without a legitimate medical purpose is an …
For Love Or For Profit? – Crafting A Suitable Securities Framework For Initial Coin Offerings, Elliot H. Brake
For Love Or For Profit? – Crafting A Suitable Securities Framework For Initial Coin Offerings, Elliot H. Brake
Maine Law Review
The spectacle of Bitcoin has largely overshadowed the development of the cryptocurrency’s underlying structure – the blockchain. The blockchain is a type of digital ledger that performs a number of traditional record-keeping functions in a more efficient and reliable manner. Organizations around the globe continue to invest heavily in blockchain technology for a myriad of purposes. To fund these innovative projects, many organizations hold an Initial Coin Offering (“ICO”) in which “tokens” -- a blockchain’s primary means of exchanging value, proving ownership, and/or paying for network services -- are sold to purchasers in exchange for U.S. dollars. In many ways, …
Judge Frank M. Coffin: An Examined Life, Dr. Richard J. Maiman
Judge Frank M. Coffin: An Examined Life, Dr. Richard J. Maiman
Maine Law Review
No abstract provided.
Digital Court Records Access: Social Justice And Judicial Balancing, Peter J. Guffin
Digital Court Records Access: Social Justice And Judicial Balancing, Peter J. Guffin
Maine Law Review
With its transition from paper to electronic records, the state court system in Maine is entering new, uncharted territory. In drafting rules regarding public access to electronic court records, a critical issue facing the court system is how to go about balancing the privacy interests of the individual and the state’s interest in providing transparency about the court’s operations. Both interests are important in our democracy, and it is critical that we take measures to preserve both. The purpose of writing this essay is to show that Judge Coffin’s judicial philosophy and rights-sensitive balancing process, although the product of a …
Fee Shifting: A Proposal To Solve Maine’S Intractable Access To Justice Problem, Donald F. Fontaine
Fee Shifting: A Proposal To Solve Maine’S Intractable Access To Justice Problem, Donald F. Fontaine
Maine Law Review
The Maine Legislature should enact a new statute to award attorney’s fees in civil cases to poor litigants against their opponents. Under the proposed statute the opponent must be a corporation or other legal entity and the poor litigant must be the prevailing party in the case. The statute proposed is needed because multiple studies show that there has been an unrelenting decline during the last four decades of the poor’s access to justice. Their numbers increase and the support of the federal government declines. For those who find themselves in legal positions opposing the poor, there is little deterrent …
Correcting Judicial Errors: Lessons From History, Louis Fisher
Correcting Judicial Errors: Lessons From History, Louis Fisher
Maine Law Review
On June 18, 2018, the Supreme Court in Trump v. Hawaii finally acknowledged that its decision in Korematsu v. United States (1944) was in error. It took seventy-four years to make that admission, even though it was widely recognized by scholars and a congressional commission that the decision was fundamentally defective. In the 1936 Curtiss-Wright decision, the Court completely misinterpreted a speech by John Marshall when he served in the House of Representatives. Although he referred to the President as “the sole organ of the nation in its external relations,” he never argued that the President controlled all of foreign …
Maine Corporation Law & Practice, Gregory S. Fryer
Maine Corporation Law & Practice, Gregory S. Fryer
Maine Law Review
The scarcity of case law in Maine on corporate law issues of the day is a fact of life for corporate law practitioners in this State. While courts in more populous states fill library shelves with an ever-growing mix of corporate law decisions, we in Maine often can only wonder which way our own courts would turn if presented with those same issues. Faced with a limited amount of local case law, corporate lawyers here might rarely venture beyond well-hewn traditions were it not for two-and now three-fortunate developments. First and foremost is the Maine Business Corporation Act. The Act …
Wellman V. State: Confusing The Standard Of Excusable Neglect, Andrew L. Black
Wellman V. State: Confusing The Standard Of Excusable Neglect, Andrew L. Black
Maine Law Review
In Maine, as in most other states, a person convicted of a criminal offense is entitled to state post-conviction review upon proper filing of a petition. The Maine Rules of Criminal Procedure establish deadlines for such a filing and for the responsive answer by the State. Application for an enlargement of time in which to respond requires the State to show cause. If, however, the State makes this application after the initial period for response, the Rules impose a much stricter standard—a showing of “excusable neglect.” In Wellman v. State the Maine Supreme Judicial Court, sitting as the Law Court, …
Hart Failure: The Supreme Judicial Court's Interpretation Of Nonjudicial Demeanor, Harold T. Kelly Jr.
Hart Failure: The Supreme Judicial Court's Interpretation Of Nonjudicial Demeanor, Harold T. Kelly Jr.
Maine Law Review
Among the inherent powers of the Maine Supreme Judicial Court is the power to regulate the officers of its courts. As the court explained in Board of Overseers of the Bar v. Lee, “each of the three co-equal branches of government has, without any express grant, the inherent right to accomplish all objects necessarily within the orbit of that department when not expressly allocated to, or limited by the existence of a similar power in, one of the other departments.” It is not surprising that the Supreme Judicial Court has for many years regulated, through formal disciplinary proceedings, the conduct …
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Comprehensive General Liability Policies Under Maine's Ground Water Protection Act: The Law Court's Extraordinary Definition Of Ordinary Intelligence, Andrew M. Strongin
Maine Law Review
In Patrons Oxford Mutual Insurance Co. v. Marios, the Supreme Judicial Court of Maine, sitting as the Law Court, joined the current debate in the state and federal judiciaries as to whether comprehensive general liability (CGL) insurance policies obligate the insurer to indemnify the insured for cleanup costs incurred pursuant to governmentally mandated cleanup of hazardous substances. In that decision, the court held that cleanup costs incurred pursuant to court order authorized by the Maine Underground Oil Storage Facilities and Ground Water Protection Act are not covered by such policies. The explicit basis of the court's decision was that the …
Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy
Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy
Maine Law Review
In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …
Grinding Gears: Meshing Maine Mortgage Foreclosure Law And The Bankruptcy Code, Daniel L. Cummings
Grinding Gears: Meshing Maine Mortgage Foreclosure Law And The Bankruptcy Code, Daniel L. Cummings
Maine Law Review
In Maine interesting and unresolved questions often arise when a mortgagor files for bankruptcy after a judgment of foreclosure has been entered in state court but before a foreclosure sale has occurred. Specifically, what rights does the mortgagor have in the real property? And are the mortgagee's subsequent steps to complete the sale barred by the automatic stay of the Bankruptcy Code (“Code”)? These questions are made more difficult because Maine is a title theory state and because the foreclosure sale occurs after the expiration of the statutory redemption period rather than, as in most states, before it. Because a …
Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen
Gender And Specialization In The Practice Of Divorce Law, Richard J. Maiman, Lynn Mather, Craig A. Mcewen
Maine Law Review
In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation's lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the …
Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak
Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak
Maine Law Review
The rules that make the federal courts available for the resolution of controversies between citizens of different states have often been described as placing an undue burden on the federal system. Congress has for the most part turned a deaf ear to calls by jurists and commentators for reform or even abolition of federal diversity jurisdiction, leaving the courts to struggle with difficult issues about the proper contours of the jurisdictional requirements. One recurring difficult issue is the manner in which citizenship is to be attributed to the investors who compose various business organizations. The general rule has been that …
The Auditor's Responsibilities For Fraud Detection And Disclosure: Do The Auditing Standards Provide A Safe Harbor?, James L. Costello
The Auditor's Responsibilities For Fraud Detection And Disclosure: Do The Auditing Standards Provide A Safe Harbor?, James L. Costello
Maine Law Review
Eighty-seven percent of managers recently surveyed were willing to commit financial statement fraud. More than half were willing to overstate assets, forty-eight percent were willing to understate loss reserves and thirty-eight percent would "pad" a government contract. These disturbing results are underscored by the financial miseries still brewing in the savings and loan industry, as well as by other corporate and banking financial debacles of the past decade, including Lincoln Savings & Loan, Wedtech, and the Delorean sports car venture scandal. Amidst these financial ruins we find the chronic element of management fraud. Unfortunately for investors and depositors a troublesome …
The Unmet Legal Needs Of The Poor In Maine: Is Mandatory Pro Bono The Answer?, Wendy F. Rau
The Unmet Legal Needs Of The Poor In Maine: Is Mandatory Pro Bono The Answer?, Wendy F. Rau
Maine Law Review
In 1989, the Maine Commission on Legal Needs was formed to study the civil legal needs of Maine's poor population and to develop a plan for meeting those needs. Similar projects have been undertaken in a number of other states and by the American Bar Association in recent years. Each study has revealed a significant unmet need among the poor for assistance with legal problems. There seems little doubt that the situation is serious and widespread. The difficulty lies in finding a solution. One proposal that has been advanced is mandatory pro bono, a program that would require attorneys to …
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
Maine Law Review
There seems to be no absolute freedom of information. Even President Lyndon B. Johnson's declaration made on July 4, 1966, as he signed the Freedom of Information Act (FOIA) into law, indicates the limitations accompanying most right-to-know laws from their inception. A delicate balance must be struck between the public's access to public business and the public interest, between the public's access and a person's right to privacy, and, at the federal level, between the public's access and national security. Maine also crafted a limited freedom of information law, the Freedom of Access Act ("FOAA" or "the Act"), seven years …
Drug Testing In The Nonunionized Workplace: Search And Seizure, Procedural Due Process, And Maine's Drug-Testing Statute, Shawn K. Bell
Drug Testing In The Nonunionized Workplace: Search And Seizure, Procedural Due Process, And Maine's Drug-Testing Statute, Shawn K. Bell
Maine Law Review
As former President Reagan stated in Executive Order No. 12,564, "[d]rug use is having serious adverse effects upon a significant pro- portion of the national work force .... " One survey by the National Institute on Drug Abuse found that between ten and twenty-three percent of all employees use drugs at work. The costs to industry in lost productivity due to drugs are equally staggering. Employee drug and alcohol abuse resulted in an estimated $100 billion in lost productivity in 1986. Furthermore, employees with drug or alcohol abuse problems have an absentee rate sixteen times greater than the average employee, …
The Truthsayer And The Court: Expert Testimony On Credibility, Michael W. Mullane
The Truthsayer And The Court: Expert Testimony On Credibility, Michael W. Mullane
Maine Law Review
The purpose of this Article is to analyze the admissibility of expert testimony on credibility. State v. Woodburn serves as a lens to focus on the broader issues. The primary issue is an examination of expert testimony on credibility in light of the Federal Rules of Evidence and their progeny. The Rules of Evidence mandate admission or exclusion of expert testimony based on certain criteria. How are these criteria applied to expert testimony on credibility? How should they be applied? The surprising survivability of other criteria discarded by the Rules is also considered.
Toward A Coherent Interpretation Of Maine's Marital Property Act, John C. Sheldon
Toward A Coherent Interpretation Of Maine's Marital Property Act, John C. Sheldon
Maine Law Review
Interpreted literally, Maine's Marital Property Act (MPA) excludes all wedding gifts from the marital estates of divorcing spouses. Wedding gifts received before a wedding are nonmarital because they were not received during the marriage. Wedding gifts received after a wedding are nonmarital because they were gifts, which appear to be expressly excluded from the marital estate by the statute's definition of marital property. In short, a literal reading of the MPA prevents Maine's divorce courts from exercising any discretion in the distribution of what must, by any measure of common sense, be quintessential examples of marital property. This curious state …
Judge, J. Peter Byrne
Judge, J. Peter Byrne
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
An Advocate's Perception, Margaret D. Mcgaughey
An Advocate's Perception, Margaret D. Mcgaughey
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
A Tribute To Judge Coffin, Stephen Breyer
A Tribute To Judge Coffin, Stephen Breyer
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
Judge Frank M. Coffin, Edmund S. Muskie
Judge Frank M. Coffin, Edmund S. Muskie
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …