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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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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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Method And System For Tap To Customer’S Own Device To Authenticate A Card, Esha Dutta, Thomas D. Rapkoch, Rhodora Enrijoy H. Martin, Mark Rigby, Geraldine Mitchley Apr 2025

Method And System For Tap To Customer’S Own Device To Authenticate A Card, Esha Dutta, Thomas D. Rapkoch, Rhodora Enrijoy H. Martin, Mark Rigby, Geraldine Mitchley

Defensive Publications Series

Present disclosure provides a method and system for tap to customer’s own device to authenticate a card and this process is implemented in various use cases such as tap to activate a card, tap to confirm a card, tap to add/provision a card and the like. For instance, the tap to authenticate a card includes sending a request by the user to load new card credentials to wallet operator application that transmits a request to perform a financial activity (eg: provisioning card) including EMV cryptogram to issuer mobile gateway. The issuer mobile gateway requests for the issuance of a token …

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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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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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Stare Decisis, Maine Law Review Apr 2025

Stare Decisis, Maine Law Review

Maine Law Review

Stare decisis, a doctrine fundamental to common law decisionmaking, requires a court to resolve disputes within the framework provided by the rationales and results of prior cases addressed to similar legal and factual relations. It seeks to reconcile the law's two great warring imperatives, that which requires a rational scheme of consistent authority serving the broad social goals of predictability, uniformity, and finality, with that which demands individual results informed by principle and applied with flexibility and discretion—in a word, justice. On the one hand, by focusing on how legal theory has interacted with fact on correlative earlier occasions the …

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Statutory Construction, Maine Law Review Apr 2025

Statutory Construction, Maine Law Review

Maine Law Review

The various rules a court may invoke as the time-worn tests of a statute's meaning reveal little of its institutional approach to statutory construction unless considered in the light of particular cases to which they are applied. Mindful that courts generally have failed to develop consistent approaches to statutory construction, the following survey attempts to rough out the contours of Maine doctrine. The reader should note that any critical evaluations derive from stated preferences for particular approaches to problems of statutory construction, and should recall that opinion on these topics varies widely.

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Standing To Challenge Governmental Action, Maine Law Review Apr 2025

Standing To Challenge Governmental Action, Maine Law Review

Maine Law Review

Perhaps no inquiry reveals so much of a court's sense of identity as does that into justiciability, a concept employed by courts to limit the availability of judicial redress when a litigant's remedy more properly resides with another governmental body. When the subject-matter the litigant seeks to put in issue itself concerns governmental action or policy, the court must address a sensitive problem: to what extent might its resolution of the controversy intrude upon the policymaking function with which the legislative branch has been charged? Slow either to open themselves to claims they function "anti-democratically” or to override the informed …

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Labor Law: Teacher Disputes, Maine Law Review Apr 2025

Labor Law: Teacher Disputes, Maine Law Review

Maine Law Review

The vast majority of labor law issues presented to the Maine Supreme Judicial Court during the previous seven years were rooted in the confusion surrounding the role of collective bargaining in public school teacher disputes. Indicative of the unsettled nature of this area is the tension between the teacher termination statutes and the Municipal Public Employee Labor Relations Law (hereinafter referred to as MPELRL). Despite the later enactment of MPELRL and its more specific provisions, the court has consistently refused to give it wide application in teacher disputes, choosing instead to rely on the more amorphous statutory provisions defining the …

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Administrative Law: Approaches To Delegation, Maine Law Review Apr 2025

Administrative Law: Approaches To Delegation, Maine Law Review

Maine Law Review

As do most state courts, the Maine Supreme Judicial Court purports to require that legislative delegations of power to administrative agencies be accompanied by legislatively articulated "primary standards" sufficient to prohibit arbitrary exercise of administrative discretion. The requirement is rooted in the non-delegation doctrine, once the principal stumbling-block to the creation of an effective administrative arm of government. Originally a liberalization of the non-delegation rule, the primary standards test can become an unwarranted restraint on legislative discretion, particularly when invoked to nullify delegations necessarily broad in scope. Often, the very reason behind a legislature's choice of administrative means to effectuate …

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The Durfresne Years: A Preliminary Overview, Charles A. Abbott Apr 2025

The Durfresne Years: A Preliminary Overview, Charles A. Abbott

Maine Law Review

Maine Law Review's timely decision to survey the work of the Supreme Judicial Court will enable our Bench and Bar to review past developments, analyze present positions, and, perhaps, chart with greater facility the future course of Maine's legal development. The retirement of Chief Justice Armand A. Dufresne, Jr., provides an excellent occasion for a look back at the Court's accomplishments.

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Predicting What The Law Court Will Do In Fact, Harry P. Glassman Apr 2025

Predicting What The Law Court Will Do In Fact, Harry P. Glassman

Maine Law Review

Over eighty years ago Oliver Wendell Holmes announced what became the manifesto of the legal realists when he stated: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Legal philosophers and professors of jurisprudence may justifiably quarrel with Holmes' definition of law, but that definition continues to be useful to the practicing attorney engaged in the everyday business of counseling clients and advising them concerning the legality of anticipated activities. It is useful also to the trial court judge, bound by the decisions of an appellate court, who, …

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The Absurd Ballet Of American Indian Policy Or American Indian Struggling With Ape On Tropical Landscape: An Afterword, Rennard Strickland Apr 2025

The Absurd Ballet Of American Indian Policy Or American Indian Struggling With Ape On Tropical Landscape: An Afterword, Rennard Strickland

Maine Law Review

On a recent visit to the National Gallery of Art in Washington, D. C., I was particularly struck by a painting that I encountered. Quite accidentally I came upon an Henri Rousseau primitive painting of a tropical landscape, in which, amidst abundant, lush foliage, was a tiny American Indian wrestling a giant ape. The plate identifying the work read: “‘Tropical Landscape: An American Indian Struggling With An Ape,’ Henri Rousseau, 1910." At that moment it occurred to me that this artist had captured an essential theme underlying the history of American Indian law and policy. This essay reflects upon and …

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The Meaning And Implications Of "Indian Country": State V. Dana, Maine Law Review Apr 2025

The Meaning And Implications Of "Indian Country": State V. Dana, Maine Law Review

Maine Law Review

The jurisdictional reach of many federal laws relating to Indians is expressly tied to the term "Indian country.” Where "Indian country" exists, these laws, together with the strong federal policies underlying them, can preempt state jurisdiction. According to 18 U.S.C. § 1151, "Indian country" includes (a) any Indian reservation under the jurisdiction of the United States, (b) all dependent Indian communities within the borders of the United States, and (c) all Indian allotments, the Indian titles to which have not been extinguished. The State of Maine, under the belief that no Indian Country is located within its borders, has throughout …

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A Reexamination Of Passamaquoddy V. Morton, John M.R. Paterson, David Roseman Apr 2025

A Reexamination Of Passamaquoddy V. Morton, John M.R. Paterson, David Roseman

Maine Law Review

In December 1975, the United States Court of Appeals for the First Circuit issued its historic decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton. That decision set in motion a sequence of events that only the most prescient of the original participants could have imagined. At its height the litigation that grew out of Passamaquoddy involved a threatened suit by the United States Justice Department on behalf of two Indian groups in Maine against the State of Maine, several of the nation's largest corporations, 350,000 residents, and scores of Maine municipalities. The plaintiffs sought possession of 12,000,000 …

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The Unilateral Termination Of Tribal Status: Mashpee Tribe V. New Seabury Corp., Maine Law Review Apr 2025

The Unilateral Termination Of Tribal Status: Mashpee Tribe V. New Seabury Corp., Maine Law Review

Maine Law Review

Mashpee Tribe v. New Seabury Corp. is the first reported case in which a federal trial court decided the question of an Indian group's existence as a tribe. In Mashpee, the issue of tribal existence arose as a defense to a claim brought by the Mashpee Indians for recovery of lands comprising most of the Town of Mashpee, Massachusetts. At the time of suit, these lands were held by a class of defendants who, according to the Mashpees' complaint, held interests or title acquired without the consent of Congress in violation of the Nonintercourse Act. Based upon the jury verdicts, …

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Defense Of Nonintercourse Act Claims: The Requirement Of Tribal Existence, James D. St. Clair, William F. Lee Apr 2025

Defense Of Nonintercourse Act Claims: The Requirement Of Tribal Existence, James D. St. Clair, William F. Lee

Maine Law Review

On August 26, 1976, a group of persons claiming to be the "Mashpee Indian Tribe" commenced suit in the United States District Court for the District of Massachusetts against 146 named defendants alleging, inter alia, these named defendants to be representative of a class of defendants asserting interests in and title to a tract of land comprising all but a small fraction of the Town of Mashpee, Massachusetts. Specifically, the Mashpee plaintiff claimed that all persons asserting an interest in or title to the land in the Town of Mashpee obtained that interest or title in violation of section 12 …

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Judicial Enforcement Of The Federal Restraints On Alienation Of Indian Land: The Origins Of The Eastern Land Claims, Robert N. Clinton, Margaret Tobey Hotopp Apr 2025

Judicial Enforcement Of The Federal Restraints On Alienation Of Indian Land: The Origins Of The Eastern Land Claims, Robert N. Clinton, Margaret Tobey Hotopp

Maine Law Review

The land claims of the Passamaquoddy, Penobscot, Oneida, Mashpee, Narragansett, and other eastern Indian tribes have recently drawn attention to the federal statute governing alienation of tribal lands upon which the claims are based—25 U.S.C. § 177. This provision conclusively established, at least in theory, the exclusive authority of the federal government to extinguish aboriginal title to land. The actual practice was quite different, however, because some of the original thirteen states, accustomed to some degree of power under the Articles of Confederation in the field of controlling tribal Indian title, did not immediately acknowledge the complete federal preemption of …

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A Survey Of Eastern Indian Land Claims: 1970-1979, Tim Vollmann Apr 2025

A Survey Of Eastern Indian Land Claims: 1970-1979, Tim Vollmann

Maine Law Review

The eastern Indian land claims are a remarkable phenomenon of jurisprudence. Unmomentous at the time of their filing, the claims have given rise to litigation attracting nation-wide attention, judicial precedent directly affecting several dozen communities on the east coast, and debates in Congress raising political and constitutional questions that go to the heart of this nation's policy toward Indian tribes. From a broad perspective, this essay surveys the eastern land claims cases and highlights some of the resulting significant legal and political developments.

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State V. Hayes: Privacy Of The Mind And The Incompetent Defendant, Maine Law Review Apr 2025

State V. Hayes: Privacy Of The Mind And The Incompetent Defendant, Maine Law Review

Maine Law Review

Although numerous jurisdictions have faced the question of whether a criminal defendant can be considered competent to stand trial when his competency is medically induced, the question of whether the state may force the accused to take competency-inducing medication during trial over the pretrial objections of the defense is relatively novel. Confronted with that issue recently, the Supreme Court of New Hampshire in State v. Hayes held that the state could compel a criminal defendant to take psychotropic drugs' necessary to maintain competency if the jury was informed about the use of medication. It is clear from the New Hampshire …

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