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Constitutional Dilemmas Posed By State Policies Against Marine Pollution - The Maine Example, Daniel Wilkes May 2025

Constitutional Dilemmas Posed By State Policies Against Marine Pollution - The Maine Example, Daniel Wilkes

Maine Law Review

The physical fact about coastal pollution is that, since many of its harms are irreversible, it must be prevented and not just dealt with as it arises. The legal fact about coastal pollution is that legislation which aims to prevent pollutants must survive attacks under the due process, equal protection, commerce, and privileges and immunities clauses of the federal Constitution if we are not to lose entirely the enjoyment of our coastal waters. As the following discussion of the "Environmental Protection Package" passed by the First Special Session of the 104th Maine Legislature and the earlier Wetlands Act shows, judicial …


Conservation, Policy And The Role Of Counsel, David J. Halperin May 2025

Conservation, Policy And The Role Of Counsel, David J. Halperin

Maine Law Review

The conservation interests in the State of Maine have been roused to a furor by the decision of Maine's highest court in State v. Johnson. The case, in substance, holds that Maine's Wetlands Act is unconstitutional when applied to prohibit the filling of a specific segment of salt water marsh. While both the decision and the underlying statute are of considerable substantive interest, the case deserves particular study for the light it sheds on the role of counsel in helping the legal process accommodate new policy concerns. A note of caution must, of course, be sounded before seeking to generalize …


Ransoming The Maine Environment, G. Graham Waite May 2025

Ransoming The Maine Environment, G. Graham Waite

Maine Law Review

The call for natural resource conservation is widely heard today. Purity of air and water are goals that most persons seem to endorse, at least in the abstract. The dollar costs of governmental programs for achieving relatively clean air and water doubtless are high, making questions of who bears them important. Some recent decisions of the Maine Supreme Judicial Court suggest that in Maine the major costs will be paid by taxpayers at large rather than by individual resource users.


De Novo Juries, Misdemeanor Counsel, And Other Problems: Changes Ahead For The Maine District Courts?, Pierce B. Hasler May 2025

De Novo Juries, Misdemeanor Counsel, And Other Problems: Changes Ahead For The Maine District Courts?, Pierce B. Hasler

Maine Law Review

The Maine judicial system has two levels of criminal courts, the superior court having exclusive trial jurisdiction over felony prosecutions and the district court operating with concurrent trial jurisdiction for misdemeanors. The district court also processes the preliminary phases of felony cases; included in this function are bail hearings, initial appearances (arraignments), and preliminary hearings. To provide jury trials in misdemeanor prosecutions state law permits all district court convictions to be appealed to the superior court for trial de novo to a jury. The accepted reason for unlimited de novo trials is that the state constitution requires a jury in …


The Constitutional Law Of Remedies In Welfare Litigation, Donald F. Fontaine May 2025

The Constitutional Law Of Remedies In Welfare Litigation, Donald F. Fontaine

Maine Law Review

It is becoming increasingly obvious that the problems of poor people in the United States are dependent, more than those of other classes, upon the proper administration of government agencies. The contact of poor people with government agencies involves most of their chief concerns in life: Welfare, social security, adequate health care, adequate income from work, a safe and healthy place to live, whether privately or publicly owned, and schools that provide real education without racial or economic discrimination. Where payments are improperly withheld from a presumably destitute recipient, the need for a speedy and adequate remedy should be obvious. …


State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?, Francis J. O'Toole, Thomas N. Tureen May 2025

State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?, Francis J. O'Toole, Thomas N. Tureen

Maine Law Review

Because of their strategic location on the sparsely settled Canadian border, the Passamaquoddy Indians were of great importance in the American Revolution, and played a decisive role in securing eastern Maine for the United States. As soon as the hostilities had ended, however, the federal government promptly forgot about these Indian allies in what is now the State of Maine and, whether intentionally or not, left the Passamaquoddy Tribe in its dealings with the dominant society to the mercy of Massachusetts and, after 1820, Maine. The Passamaquoddy Tribe is a relatively small one, but there are approximately 120,000 other tribal …


Search And Seizure, Daniel G. Lilley May 2025

Search And Seizure, Daniel G. Lilley

Maine Law Review

Search and Seizure, authored by Colorado Judge Edward C. Fisher, is a book of better than 300 pages which purports to be a recent survey of the law dedicated to "peace officers of America." The foreword states that it is written for law enforcement officers and is a ready reference for attorneys, judges, and others concerned with the administration of criminal justice. The book is clearly written. It tells police officers how to conduct searches and seizures and it tells them why restrictions are imposed. Where there is still conflict and doubt, it gives the officer some "safe" approaches to …


The Development Of Admiralty Jurisdiction And Practice Since 1800, David P. Dawson May 2025

The Development Of Admiralty Jurisdiction And Practice Since 1800, David P. Dawson

Maine Law Review

This book undertakes several tasks. It contains a detailed narrative of the ebb and flow of the admiralty jurisdiction exercised by the English Admiralty Courts from earliest times to the present, together with a look at the practice during each period. Unlike our Admiralty jurisdiction which rests on the Constitution and has grown steadily through court interpretation, the jurisdiction of the English Admiralty Court has expanded and contracted with frequent and varying statutory changes.


Judicial Administration: The American Experience, Robert B. Williamson May 2025

Judicial Administration: The American Experience, Robert B. Williamson

Maine Law Review

Professor Karlen's Judicial Administration: The American Experience "contains, in revised and updated form, the substance of three lectures delivered in England in December, 1968, upon the occasion of the founding of the English Institute of Judicial Administration at the University of Birmingham."


Maritime Personal Injury In The New England Fishery, Ralph J. Gillis May 2025

Maritime Personal Injury In The New England Fishery, Ralph J. Gillis

Maine Law Review

Commercial fishing, as carried on by the "down east" fisherman, is an industry fast succumbing to the economic inequities of vessel operation. Over the past two decades, the prices for fish boats have not increased as rapidly as the operating costs involved in fitting and maintaining the fishing vessel. Today, this situation has been compounded by the economic inability of the individual trawler owner to obtain protection and indemnity insurance to compensate crew members for injuries received during the course of maritime employment. The present consequence of these developments is that, although judicial and legislative regulatory guidelines have been set …


Privileged Communications: A Case By Case Approach, Josephine Citron May 2025

Privileged Communications: A Case By Case Approach, Josephine Citron

Maine Law Review

Privileged communications are communications which, because of a special relationship, are protected from revelation during the course of litigation. In the past, grants of privilege have been made by reference to professional groups rather than to the content of the particular communication, resulting in inconsistent treatment. Some professionals have secured absolute privileges for their relationships while others have been partially or totally unsuccessful. The inconsistencies are most clearly demonstrated by examining grants of privilege to medical, psychotherapeutic, and social work personnel, although it is not intended that the case by case approach suggested in the proposed statute at the end …


Record Piracy And Copyright: Present Inadequacies And Future Overkill, Peter Ballou May 2025

Record Piracy And Copyright: Present Inadequacies And Future Overkill, Peter Ballou

Maine Law Review

This comment explores different types of piracy from both a legal and an economic point of view, and suggests that raising the status of some of the economic distinctions to legal distinctions may well serve the public interest better than the present legal distinctions or those proposed in the Copyright Revision Bill. In brief, the record companies are rightfully concerned about the vast amount of piracy of many of their most profitable recordings. On the other hand, there are vast numbers of unavailable and presumably unprofitable recordings which are apparently desired by some consumers and many musical works which, and …


Rule 80b And Nonstatutory Judicial Review Of Administrative Action In Maine, Richard A. Langley May 2025

Rule 80b And Nonstatutory Judicial Review Of Administrative Action In Maine, Richard A. Langley

Maine Law Review

The 1967 amendments to rules 80B and 81 of the Maine Rules of Civil Procedure (MRCP) constitute significant and potentially far-reaching changes in judicial review of administrative action in Maine. Prior to 1959, nonstatutory judicial review of administrative action in Maine was available only by extraordinary writ. An alternate means of securing judicial review was provided by the original rule 80B of the MRCP adopted in 1959, but because of an apparent overlap of those two procedures, 80B was amended in 1967. That amendment made rule 80B the sole means of obtaining nonstatutory review of all governmental action and a …


Security Ins. Group V. Emery: A Step Backward For Interest Analysis In Maine, William F. Julavits May 2025

Security Ins. Group V. Emery: A Step Backward For Interest Analysis In Maine, William F. Julavits

Maine Law Review

Security Insurance Group, the Connecticut insurer, sought declaratory relief' alleging that failure by its insured to furnish timely notice of the accident as prescribed by the policy precluded its liability. The insured contended that Maine's notice statute was applicable, requiring only that the insurer receive notice of the action before judgment, and that this requirement was satisfied. Alternatively, the insured contended that even if the Connecticut notice term were held applicable, since there was no contact between the two cars, it was his belief that he was not at fault and thus had no reason to notify his carrier of …


The Law Of The Land: Development Legislation In Maine And Vermont, J. Jackson Walter May 2025

The Law Of The Land: Development Legislation In Maine And Vermont, J. Jackson Walter

Maine Law Review

In recent Maine and Vermont environmental protection legislation, desecration of the landscape has emerged as an issue as controversial as pollution of water and air. Traditional techniques of land use regulation operate locally, some say parochially, without any regular regard for Earth Day or statehouse politics or even administrative fair play. The trend in northern New England to adopt state-level standards totally changes the business of land development. And statewide rules are not the end; national land use standards are imminent. A report by the President's Council of Environmental Quality recommends federal controls within areas of critical environmental concern, such …


A State Approach To Effluent Charge, Orlando E. Delogu May 2025

A State Approach To Effluent Charge, Orlando E. Delogu

Maine Law Review

Although the concept of effluent charge as a means of dealing with water pollution has been widely discussed in this country for more than a decade and widely used with documented success in parts of Europe for over fifty years, there is a surprising lack of specific material on methods of implementation. We are, after all, a complex society with overlaying levels of government and close working relationships between the public and private sectors of the economy. Furthermore, the statutory, constitutional, and institutional framework of the federal government and that of each state government are different in varying degree from …


Stewart V. Smith: A Misapplication Of North Carolina V. Pearce, Alton C. Stevens May 2025

Stewart V. Smith: A Misapplication Of North Carolina V. Pearce, Alton C. Stevens

Maine Law Review

Gordon Stewart was convicted of a felony and sentenced to fifteen to nineteen months in the house of correction and a $2,000 fine, or an additional 2,000 days in lieu thereof. Since he was indigent this represented a total sentence of approximately seven years. Upon petition to the Windsor County Court this original sentence was set aside as being in excess of the twenty-four month statutory maximum. Resentencing was ordered and a different judge sentenced respondent anew to a term of twenty-three to twenty-four months in the state prison with appropriate credit given for time already served. On appeal to …


In Re Adoption Of E: First Amendment Rights And Religious Inquiry In Adoption Proceedings, Francis J. Scanlon May 2025

In Re Adoption Of E: First Amendment Rights And Religious Inquiry In Adoption Proceedings, Francis J. Scanlon

Maine Law Review

The New Jersey Supreme Court decision, In re Adoption of E, represents an effort to define what considerations are to be given the religious beliefs of prospective adoptive couples in the screening process of the adoption courts. The majority opinion is emphatic in spelling out what courts cannot do. In overruling the lower court's decision, it was held that the first amendment prohibits the denial of a couple’s adoption request solely because the court disapproves of their religious beliefs. Though holding that a couple's religion cannot be a controlling factor in an adoption denial, the court did not see religion …


The Rights Of The Person Acquitted By Reason Of Insanity: Equal Protection And Due Process, Anne B. Poulin May 2025

The Rights Of The Person Acquitted By Reason Of Insanity: Equal Protection And Due Process, Anne B. Poulin

Maine Law Review

In response to the Maine Supreme Judicial Court's decision in State v. Shackford a commentator suggested that the Maine automatic commitment statute be attacked as denying equal protection of the laws to those individuals acquitted by reason of mental disease or defect. Such an attack was made in the case of Chase v. Kearns, but without the predicted success. In Chase the court failed to come to grips with the crucial issues presented despite careful effort by both counsel to focus on the constitutional problems. The court side-stepped the difficult constitutional issues raised, upholding the statute but failing to provide …


Enforcement Of Money Judgments And Divorce Decrees In Maine, S. Peter Mills May 2025

Enforcement Of Money Judgments And Divorce Decrees In Maine, S. Peter Mills

Maine Law Review

Until recently divorce decrees in Maine were frequently enforced by capias execution, a remedy at law by which the wife or her attorney could jail the ex-husband for failure to pay money overdue in alimony, support or litigation costs. Most states use contempt proceedings whenever imprisonment is deemed an appropriate sanction in a divorce action, but in Maine a capias execution gave the aggrieved party advantages not available in a contempt petition. First, even though issuance of the capias was a matter for the court's discretion, there was no requirement either in statute or in common law that the court …


Nonstatutory Judicial Review Of Federal Agency Action: A New Approach To Sovereign Immunity, William P. Hardy May 2025

Nonstatutory Judicial Review Of Federal Agency Action: A New Approach To Sovereign Immunity, William P. Hardy

Maine Law Review

In deciding whether to review administrative agency action, an astute court seeks to maintain a delicate balance between over-interference with administration of legislatively created programs and denial of plaintiff's rights. This balancing process historically has been hindered by federal courts treating the doctrine of sovereign immunity as a jurisdictional bar to unconsented suits against the United States Government. Regardless of the validity of a plaintiff's grievance and in spite of the relative infrequency of such suits, the courts adhering to this traditional approach mechanically dismiss such actions solely because they seek relief against the sovereign. A few federal courts have …


Maine's Public Labor Law, Ronald D. Russell May 2025

Maine's Public Labor Law, Ronald D. Russell

Maine Law Review

The latter half of the last decade saw a rapid increase in activity on the part of labor organizations formed by public employees in Maine. This activity received an impetus from an opinion of the Attorney General and from a Legislative Research Committee Report based on the Labor Relations Act of 1941. Through different methods of reasoning both documents concluded that public employees had the right to form labor organizations, but neither document defined the relationship between these employees and their public employer. Although the activity of these organizations was evidenced by the formation of agreements with municipalities and by …


Conflict Of Laws And The Disposition Of Decedents' Movables, David Plimpton May 2025

Conflict Of Laws And The Disposition Of Decedents' Movables, David Plimpton

Maine Law Review

Improved travel and communication, a larger, more fluid population and the resulting increase in the number of persons owning property in more than one state have led to a marked increase in conflict of laws situations and also have dramatized the need for their solution. However, it is also true that the degree to which potential conflicts problems exist is a function of the extent to which the law differs between states, not only differences in substantive law but also differences with respect to choice-of-law rules formulated to deal with conflicts between substantive law. One widely accepted choice-of-law principle has …


Maine's Judicial Machinery At The Crossroads, Armand A. Dufresne Jr. May 2025

Maine's Judicial Machinery At The Crossroads, Armand A. Dufresne Jr.

Maine Law Review

There is really no such thing as "a court"; in modem society, at least, there is only something which may be called a court system. Even that designation, however, may be a misnomer; a court system is really no more than a group of people, judges, clerks, lawyers, bailiffs, and so forth, tied together by certain functional arrangements. Even the finest institutional organization for a court system will produce delay and injustice if it is not staffed by competent people. Conversely, the most competent and dedicated people cannot produce satisfactory results from an institutional arrangement which does not permit them …


Retroactivity Rethought: The Hidden Costs, Pierce B. Hasler May 2025

Retroactivity Rethought: The Hidden Costs, Pierce B. Hasler

Maine Law Review

The validity of Justice Harlan's contention that retroactivity must be rethought is becoming increasingly evident, and it seems likely that extensive reevaluation of the doctrine will soon be necessary. The past six years have been marked by well over a dozen Supreme Court decisions addressed to the question of the retroactive or prospective effect to be given prior constitutional rulings in the area of criminal procedure. Rarely has an important constitutional doctrine achieved such full-blown proportions so quickly, yet several members of the Court would now vote to reject it and start anew. Linkletter v. Walkers was the landmark decision …


Pierce And Arlana Hasler, Edward S. Godfrey Iii May 2025

Pierce And Arlana Hasler, Edward S. Godfrey Iii

Maine Law Review

Pierce Barnard Hasler, professor of law at the University of Maine School of Law, and his wife, Arlana Kogut Hasler, an engineer with International Business Machines Corporation in Portland, were killed in a plane crash in Juneau, on September 4, 1971, as they were returning to Maine from a hunting trip in northern Alaska. Their colleagues, Pierce's students at the law school, their many friends and, of course, their families have found the loss of those two fine young persons even yet almost insupportable.


Index Of Authors, Maine Law Review May 2025

Index Of Authors, Maine Law Review

Maine Law Review

Cumulative Index of Maine Law Review, Volumes 14-24, by Author


Cumulative Index (1962-1972), Maine Law Review May 2025

Cumulative Index (1962-1972), Maine Law Review

Maine Law Review

Cumulative Index of Maine Law Review, Volumes 14-24, by Subject Matter


Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review May 2025

Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review

Maine Law Review

Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …


Contract Zoning: A Flexible Technique For Protecting Maine Municipalities, Maine Law Review May 2025

Contract Zoning: A Flexible Technique For Protecting Maine Municipalities, Maine Law Review

Maine Law Review

Since the constitutionality of comprehensive zoning plans was upheld by the 1926 United States Supreme Court decision in Euclid v. Ambler Realty, municipal zoning has become an acceptable, indeed a necessary, fact of life. Maine, as well as most states, has enacted zoning enabling legislation pursuant to which many Maine municipalities have adopted zoning ordinances. The standard zoning approach which has evolved since Euclid has been based largely on the concept of uniform gridiron districts which conform to a legislatively preconceived comprehensive plan intended to assist municipalities in maintaining an orderly growth. These comprehensive plans, however, frequently have become a …