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Introduction, Gerald F. Petruccelli Apr 2025

Introduction, Gerald F. Petruccelli

Maine Law Review

Others, most notably the late Professor Herbert Packer, have written extensively in recent years concerning the limits of the criminal sanction, and it seems trite to observe that the subject matter is hardly novel and has been the subject of literary and philosophical discourse for centuries. The purpose of this brief presentation, therefore, is not to review that voluminous literature or to make expansive claims for the new Maine Criminal Code. Rather, it is to show that the new Maine Code was written with an awareness of the basic premises both of classical theories of limited public intrusion into private …

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Mens Rea And Insanity, Maine Law Review Apr 2025

Mens Rea And Insanity, Maine Law Review

Maine Law Review

Two developments in the administration of criminal law call for a closer examination of the relationship between mens rea and insanity. The first is the practice of bifurcating trials into a guilt phase and an insanity phase. The new Maine Criminal Code, for example, allows the defendant to elect such a procedure. The second development is the increasing willingness of courts to admit evidence of the accused's mental disease or defect as probative of whether he possessed the culpable state of mind, or mens rea, which must be proven as one of the elements of the crime charged. When the …

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Compelled Expression: Maynard V. Wooley, Maine Law Review Apr 2025

Compelled Expression: Maynard V. Wooley, Maine Law Review

Maine Law Review

In 1969, the New Hampshire legislature enacted a law requiring that the state motto, "Live Free or Die," be displayed on all license plates for noncommercial vehicles. Many individuals in New Hampshire objected to the motto for various religious or philosophical reasons, and several decided to obliterate the motto by placing tape or painting over it. After numerous prosecutions under the license plate defacement statute, the constitutionality of the law was challenged as it applied to the obliteration of the motto. In 1972, the New Hampshire Supreme Court in State v. Hoskin held that the law did not violate the …

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Nineteenth Century Dams And Twentieth Century Problems: Commentary On A Statutory Solution, G. Graham Waite Apr 2025

Nineteenth Century Dams And Twentieth Century Problems: Commentary On A Statutory Solution, G. Graham Waite

Maine Law Review

In times past streams were commonly dammed to provide water power for machinery, improve navigation, or serve some other business purpose. The dams today pose serious problems for the public and for riparian owners along the dammed streams, problems stemming from either operation of the dams or failure to maintain them properly. The dams are operated to further the business purposes for which they were built, sometimes resulting in water levels or flows detrimental to game fish in the streams and to shoreline recreational property. When the old dams cease to be economical to operate, as often has happened, the …

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The Burden Of Proof And The Insanity Defense After Mullaney V. Wilbur, Maine Law Review Apr 2025

The Burden Of Proof And The Insanity Defense After Mullaney V. Wilbur, Maine Law Review

Maine Law Review

In 1970, the Supreme Court of the United States in the case of In re Winship specified an evidentiary standard of proof for criminal prosecutions as a requirement of the due process clause of the 14th amendment: "Lest there remain any doubt about the constitutional stature of the reasonable doubt-standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Five years later, in Mullaney v. Wilbur, the Court extended Winship to invalidate Maine's statutory scheme of …

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Trademark Rights In Patented Subject Matter And The Patent Policy Of Public Dedication, Maine Law Review Apr 2025

Trademark Rights In Patented Subject Matter And The Patent Policy Of Public Dedication, Maine Law Review

Maine Law Review

This Comment examines the allowance of federal trademark registration for devices that may also qualify for patent protection. A conflict between trademark recognition for patentable devices and basic patent policy inheres in the Patent Act and Supreme Court decisional law. The availability of trademark registration for patentable subject matter may needlessly derogate the public right to benefit from the free exploitation of new ideas.

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Prentiss Mellen, Maine's First Chief Justice: A Legal Biography, Ellyn C. Ballou Apr 2025

Prentiss Mellen, Maine's First Chief Justice: A Legal Biography, Ellyn C. Ballou

Maine Law Review

It is in the bosoms of his contemporaries of the profession, and of his clients and personal friends, that the memory of the lawyer is embalmed . . . . [Chief Justice Mellen's] life furnishes a striking illustration of the justness of the preceding remarks, since it was that of one almost exclusively conversant with the active practice of the law. Thus wrote Simon Greenleaf shortly after Prentiss Mellen's death. Greenleaf, perhaps due to the modesty of one in a similar position, was only partially correct. True, few today, even in the legal profession, recognize the name of Maine's first …

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The Encroachment Of Rule 10b-5 On State Corporation Law, Maine Law Review Apr 2025

The Encroachment Of Rule 10b-5 On State Corporation Law, Maine Law Review

Maine Law Review

In 1967, Santa Fe Industries undertook the acquisition of the Kirby Lumber Co. by the publication of a tender offer. By 1973, Santa Fe through its subsidiary, Santa Fe Natural Resources, had acquired ownership of 95% of Kirby's common stock. In 1974, Resources undertook the elimination of the remaining shareholders in Kirby by short form merger of Resources and Kirby. On July 11, Resources organized a shell corporation, Forest Products, Inc., under Delaware law and transferred to it its entire holdings in Kirby in return for all of Forest Products' stock. On July 30, the board of directors of Forest …

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Reassessing "Confiscation" Under Section 305 Of Maine's Public Utility Law, Maine Law Review Apr 2025

Reassessing "Confiscation" Under Section 305 Of Maine's Public Utility Law, Maine Law Review

Maine Law Review

On March 11, 1975, the Maine Public Utilities Commission (PUC) denied a petition by the New England Telephone and Telegraph Co. (the company) for an "interim" rate increase. The company had sought to increase its revenues by $6,582,987 per year, pending the outcome of its petition before the PUC of October 1974 for a permanent rate increase of $21 million annually. After the PUC refused the company a rehearing on its denial of the interim rate increase, the company appealed to the Maine Supreme Judicial Court, alleging that the PUC had acted so as to leave in effect rates which …

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Constitutional And Legislative Issues Raised By The Entrapment Defense In Maine, Maine Law Review Apr 2025

Constitutional And Legislative Issues Raised By The Entrapment Defense In Maine, Maine Law Review

Maine Law Review

In recent years the increase in undercover investigative activity by police agents has generated considerable interest in the defense of entrapment. The entrapment defense to a criminal prosecution has been recognized either judicially or legislatively in most jurisdictions in the United States. The proper formulation of the defense, however, has given rise to conflicting opinions involving various evidentiary and constitutional considerations. In raising the defense of entrapment, a defendant does not deny that he committed the acts constituting the crime, but rather asserts that, on grounds of public policy, he should not be convicted. In Maine, the defense of entrapment …

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Disposition Of Life Insurance Proceeds When Owner Beneficiary Murders The Insured: Estate Of Draper V. Commissioner, Maine Law Review Apr 2025

Disposition Of Life Insurance Proceeds When Owner Beneficiary Murders The Insured: Estate Of Draper V. Commissioner, Maine Law Review

Maine Law Review

A beneficiary of a life insurance policy who has murdered the insured generally is barred from receiving the proceeds of the policy covering the life of the deceased. This rule reflects the common law maxim that no one shall be permitted to profit from his own wrong. Some courts have also denied the beneficiary recovery on the ground that it is unreasonable to hold that the insurer assumed the risk of the beneficiary's intentional killing of the insured. Other courts rely primarily on the rationale that public policy forbids construing contracts in a manner that encourages or rewards crime. Although …

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Federal Tax Immunity And The Legal Incidence Of The Maine Sales Tax: Gamage V. Halperin, Maine Law Review Apr 2025

Federal Tax Immunity And The Legal Incidence Of The Maine Sales Tax: Gamage V. Halperin, Maine Law Review

Maine Law Review

Established constitutional doctrine grants the federal government immunity from state taxation. Application of this doctrine ordinarily depends upon the "legal incidence" of the state tax. A state tax imposed directly on the United States or on one of its instrumentalities violates the immunity of the federal government. Gamage v. Halperin raised the issue of whether a sale partly subsidized by the federal government is entitled to constitutional immunity from a state sales tax, at least to the extent of the government's share of the tax. Taxation of a federally subsidized sale presents difficult problems of federal tax immunity. The threshold …

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The Federal Income Tax Consequences Of Property Settlements In Common Law States And Under The Uniform Marriage And Divorce Act: A Proposal, Maine Law Review Apr 2025

The Federal Income Tax Consequences Of Property Settlements In Common Law States And Under The Uniform Marriage And Divorce Act: A Proposal, Maine Law Review

Maine Law Review

Generally, during marriage, most of the property of husband and wife is held in the husband's name. Then, if there should be a divorce, the husband often finds himself required to transfer some of this property to his wife as a "property settlement." If the transferred property has appreciated in value while held by the husband, this appreciation may be treated as taxable income to the husband. Whether the appreciation is so treated depends on the marital property law of the taxpayer's domicile. In the United States, two different systems of marital property law have developed. Most states have evolved …

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The Effect Of State Conviction Relief On Federal Deportation Law, Maine Law Review Apr 2025

The Effect Of State Conviction Relief On Federal Deportation Law, Maine Law Review

Maine Law Review

Federal statute requires deportation of any alien drug offender convicted under federal or state law. An offender may have his conviction set aside, however, under federal or state provisions which authorize relief from the penalties and disabilities resulting from a conviction. Use of the relief conferred by these statutes presents the issue of whether the alien remains "convicted" and therefore deportable under federal law. In Kolios v. The Immigration and Naturalization Service (INS) and Rehman v. INS, the First and Second Circuits reached apparently conflicting resolutions of this problem. The Kolios and Rehman decisions illustrate the confusion regarding the proper …

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A Statutory Proposal To Remove Divorce From The Courtroom, Stephen R. Feldman Apr 2025

A Statutory Proposal To Remove Divorce From The Courtroom, Stephen R. Feldman

Maine Law Review

Over the past decade the divorce rate in the United States has more than doubled. Although the reasons suggested for this rapid rise are varied, the resultant impact on the judicial system is clear: divorce cases greatly overburden the courts. Presently they account for about one half of all civil cases filed. Unlike most other civil suits of which nearly half are dismissed or settled, divorce requires a court decree for relief unless the parties reconcile and abandon their suits. In addition to the actual granting of the divorce decree, court time is needed for pre-divorce motions for temporary support …

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Liability For Maritime Oil Pollution: A Comparison Of The Maine Coastal Conveyance Act With Federal Liability Provisions, Maine Law Review Apr 2025

Liability For Maritime Oil Pollution: A Comparison Of The Maine Coastal Conveyance Act With Federal Liability Provisions, Maine Law Review

Maine Law Review

The increasing involvement of coastal states in the regulation of oil pollution within their territorial waters has raised serious questions about the constitutional validity of state legislation imposing liability on parties responsible for unlawful oil discharges. The admiralty clause of the United States Constitution provides that the judicial power of the United States extends to "all cases of admiralty and maritime jurisdiction." This grant to federal courts of original jurisdiction over all admiralty or maritime cases has been construed to be more than a grant of judicial competence. The United States Supreme Court has interpreted the admiralty clause to incorporate …

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"Jurisdictional" Indictments, Informations And Complaints: An Unnecessary Doctrine, Peter G. Ballou Apr 2025

"Jurisdictional" Indictments, Informations And Complaints: An Unnecessary Doctrine, Peter G. Ballou

Maine Law Review

In the majority of jurisdictions in the United States, including the federal courts and Maine, a sufficient indictment, information or complaint is deemed an absolute prerequisite to a valid conviction. This right to a sufficient charging instrument is not subject to waiver and may be asserted at any time, even though not raised before or during trial or on direct appeal from a conviction. This characteristic of nonwaivability, probably unique among the rights belonging to a criminal defendant, has led some courts, including the Maine Supreme Judicial Court, to characterize the requirement of a sufficient indictment as "jurisdictional." When an …

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Withholding Tax On Wages: Central Illinois Public Service Co. V. United States, Maine Law Review Apr 2025

Withholding Tax On Wages: Central Illinois Public Service Co. V. United States, Maine Law Review

Maine Law Review

Section 3402 of the Internal Revenue Code of 1954 requires every employer to deduct and withhold a tax upon wages paid to its employees. The term "wages" is defined in section 3401(a) as all remuneration for services performed by an employee for his employer. Despite apparent simplicity, the process of defining "wages" has generated conflicting interpretations. In Central Illinois Public Service Co. v. United States, the Seventh Circuit confronted the issue of whether meal reimbursements constitute wages for withholding purposes. The meaning of "wages" in section 3401(a) depends upon an assessment of the policy objectives underlying income tax withholding. In …

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Shellfish Regulation: Conservation And Discrimination, Maine Law Review Apr 2025

Shellfish Regulation: Conservation And Discrimination, Maine Law Review

Maine Law Review

The economy of many coastal states depends heavily upon the shellfish industry. Shellfish such as lobsters and clams are an especially important marine resource for these states. In recent years, however, the supply of shellfish has experienced substantial declines. State laws that permit the harvesting of lobsters prior to sexual maturity, for example, have made the lobster industry dependent on the yearly additions to the lobster supply. The increasing demands for shellfish as well as the pollution of areas such as coastal clamflats have also contributed to the serious depletion of the shellfish resources in many areas. Despite the possible …

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The Validity Of The Restrictions On The Modern Advisory Opinion, Maine Law Review Apr 2025

The Validity Of The Restrictions On The Modern Advisory Opinion, Maine Law Review

Maine Law Review

In 1831 the Maine House of Representatives, relying on its constitutional authority to request advisory opinions, sought the counsel of the Justices of the Supreme Judicial Court regarding voting requirements for the election of state officers. Because the House was about to adjourn, it requested that the Justices forward their answers to the Governor for publication. The Justices, without mentioning any constitutional limitation on their power to answer questions propounded by the Governor or the Legislature, complied with this request. One hundred and forty years later, the Senate requested the Justices' advice regarding the reapportionment of the House of Representatives. …

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The Precedential Weight Of Summary Dispositions Of Appeals, Maine Law Review Apr 2025

The Precedential Weight Of Summary Dispositions Of Appeals, Maine Law Review

Maine Law Review

The extent to which the Supreme Court's summary dispositions of appeals are entitled to precedential weight presents a serious problem for lower courts confronted with cases involving issues similar to those previously disposed of in a summarily decided appeal. A recent source of confusion in this area was the Supreme Court's 1975 opinion in Hicks v. Miranda. In Hicks, the lower court held a California statute unconstitutional despite the fact that one year earlier the Supreme Court had summarily dismissed an appeal from a decision upholding the constitutionality of the same statute., The Supreme Court reversed, pointing out that its …

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New Policies Bearing On The Negligent Employer's Immunity From Loss-Sharing, Maine Law Review Apr 2025

New Policies Bearing On The Negligent Employer's Immunity From Loss-Sharing, Maine Law Review

Maine Law Review

The statutory and judicial controls on loss-sharing between third-party tortfeasor and negligent employer must yield in the face of major modern developments in tort law. The third party's tort liability burden has sharply increased both in amount and frequency. New attitudes towards loss-apportionment highlight the imbalance that results from the employer's immunity and subrogation right. Although the situation is ripe for legislative action, courts, in the absence of full-scale systemic reassessment, must attempt some balancing of the competing policy objectives. While this Comment concludes by urging the adoption of a specific remedy allowing the third party to assert the employer's …

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Title Disputes After Probate Or Administration, Maine Law Review Apr 2025

Title Disputes After Probate Or Administration, Maine Law Review

Maine Law Review

Title to realty generally passes by sale, by devise or by descent. Each method of transfer through its respective system of rules and requirements seeks to protect the interests of society as well as the interests of the immediate parties to a transfer of ownership. When a sale, as an inter vivos transfer, follows a transfer of realty by either devise or descent, a gap may appear in the protection afforded to the various parties by each system of rules. Specifically, the purchase of estate realty from a distributee under probate or administration may jeopardize the purchaser's status as owner. …

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Tortious Withholding Of Insurance Benefits: Gibson V. National Ben Franklin Ins. Co., Maine Law Review Apr 2025

Tortious Withholding Of Insurance Benefits: Gibson V. National Ben Franklin Ins. Co., Maine Law Review

Maine Law Review

The Maine Workers' Compensation Act provides that an employer's compensation carrier shares the employer's immunity from common law suit. If the carrier delays or withholds benefits owed an injured employee under an approved compensation agreement, the Act imposes a fine on the carrier and permits the employee to recover the overdue compensation payments by invoking the equity powers of the Superior Court. The Act makes no provision for redress when the carrier refuses to pay, a potential limitation recently confronted by the Maine Supreme Judicial Court in Gibson v. National Ben Franklin Insurance Company. In reversing the trial court's dismissal …

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The Constitutionality Of The Maine Takeover Bid Disclosure Law, Maine Law Review Apr 2025

The Constitutionality Of The Maine Takeover Bid Disclosure Law, Maine Law Review

Maine Law Review

With the March 24, 1978 enactment of the Maine Takeover Bid Disclosure Law, more than two-thirds of the states purported to regulate the making of corporate tender offers. The Maine Act, which is by and large typical, requires that persons making tender offers (or takeover bids), by which the offeror attempts to control the target company through purchase of its shares, disclose certain specified information fully and accurately so as to guarantee adequate time for the dissemination and consideration of the disclosed information. During the 1960's, tender offers became a popular method of acquiring control of publicly traded corporations. Sound …

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Maine's Reception Of The Common Law, Maine Law Review Apr 2025

Maine's Reception Of The Common Law, Maine Law Review

Maine Law Review

From the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine's Supreme Judicial Court, reception "was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals." After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell …

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Liability Insurer's Duty To Defend: American Policyholders' Ins. Co. V. Cumberland Cold Storage Co., Maine Law Review Apr 2025

Liability Insurer's Duty To Defend: American Policyholders' Ins. Co. V. Cumberland Cold Storage Co., Maine Law Review

Maine Law Review

Liability insurance policies generally contain a standardized provision that requires the insurer to defend the insured against all suits alleging bodily injury or property damage covered by the terms of the policy, even if the claims are "groundless, false or fraudulent.” This provision is the basis for the general rule that a liability insurer's duty to defend an insured will arise when the allegations in a complaint against the insured state a claim within the terms of his policy coverage. In addition to creating a duty to defend, this clause generally affords the insurer the exclusive right to control the …

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Santa Fe Industries, Inc. V. Green: An Analysis Two Years Later, Rutheford B. Campbell Jr. Apr 2025

Santa Fe Industries, Inc. V. Green: An Analysis Two Years Later, Rutheford B. Campbell Jr.

Maine Law Review

It has been nearly two years since the Supreme Court decided Santa Fe Industries, Inc. v. Green. Although the outcome of that decision should have surprised no one, since the trend of the Court clearly had been to constrict the scope of the federal securities legislation, the case was a major decision that will have a substantial impact on the development of corporate law in this country. Indeed, it may turn out to be one of the most significant corporate cases decided by the Supreme Court in recent years. Since by this point the dust has settled from the case, …

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Boundary Delimitation In The Economic Zone: The Gulf Of Maine Dispute, Maine Law Review Apr 2025

Boundary Delimitation In The Economic Zone: The Gulf Of Maine Dispute, Maine Law Review

Maine Law Review

In an ideal world of abundant natural resources, homogeneously distributed among nations, the issue of marine boundary delimitation would have little significance within the international community. However, the realities of randomly concentrated and limited resources, complicated by the political geography of the oceans, have made maritime boundary delimitation a crucial international issue. In a world of more than 130 coastal nations, the determination of standards for allocation of living and non-living ocean resources within the fertile offshore areas has become an issue of widespread economic importance. Nonetheless, the international community has developed few concrete and specific rules for marine boundary …

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Tort Law Developments, Maine Law Review Apr 2025

Tort Law Developments, Maine Law Review

Maine Law Review

Any discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners' and occupiers' duties to …

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