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When Fines Don't Go Far Enough: The Failure Of Prison Settlements And Proposals For More Effective Enforcement Methods, Tori Collins Jan 2024

When Fines Don't Go Far Enough: The Failure Of Prison Settlements And Proposals For More Effective Enforcement Methods, Tori Collins

Maine Law Review

The Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed …


Power V. Power: Federal Pattern-Or-Practice Enforcement Actions Applied To Local Prosecutors, Thomas P. Hogan Jan 2024

Power V. Power: Federal Pattern-Or-Practice Enforcement Actions Applied To Local Prosecutors, Thomas P. Hogan

Maine Law Review

One of the most powerful tools available to the United States Department of Justice (DOJ) to stop abuses in the criminal justice system is the federal pattern-or-practice statute, which allows DOJ to bring an enforcement action to prevent discriminatory conduct by government agencies. The most powerful actor in the criminal justice system is the district attorney, the local prosecutor who is at the center of the system. Does DOJ’s pattern-or-practice enforcement authority extend to local prosecutors? This crucial question remains unresolved in formal precedent and has not been addressed in the relevant literature. This Article explores the issue in detail, …


Dei Newsletter 2024 Issue 1, University Of Maine School Of Law Jan 2024

Dei Newsletter 2024 Issue 1, University Of Maine School Of Law

DEI Newsletter

  • Maine Law’s RHRC Mexico project
  • The Third Annual Indian Law and History Lecture
  • Black History Month at Maine Law
  • Black History Month around town
  • The D1L summer employment program
  • Living Room Library recommendations


One Nation, Under Fraud: A Remonstrance, Hon. Donna M. Loring, Hon. Eric M. Mehnert, Joseph G.E. Gousse Esq. Jul 2023

One Nation, Under Fraud: A Remonstrance, Hon. Donna M. Loring, Hon. Eric M. Mehnert, Joseph G.E. Gousse Esq.

Maine Law Review

This Remonstrance presents a counter-cultural narrative and analysis of Maine’s legal, political, economic, and social interactions with the Wabanaki people. Although contemporary indicia of abuses by the State are glaringly obvious, a cohesive modern narrative that incorporates Maine’s history of predation upon and mistreatment of the tribes has remained poorly defined from an historico-legal perspective. Presenting its analysis through an historic, legal, political, economic, and social nexus, this Remonstrance traces the ontogeny of control exerted by the State of Maine over the Wabanaki tribes and endeavors to excavate the hidden historical narrative of the calculated politico-legal regime that has for …


Symposium Keynote: "Isolation And Restraint: Maine's Unique Status Outside Federal Indian Law", Michael-Corey Francis Hinton Jul 2023

Symposium Keynote: "Isolation And Restraint: Maine's Unique Status Outside Federal Indian Law", Michael-Corey Francis Hinton

Maine Law Review

No abstract provided.


After A.S.: Proposals To Alleviate Psychiatric Boarding In Maine, Meredith K. Cook Jul 2022

After A.S.: Proposals To Alleviate Psychiatric Boarding In Maine, Meredith K. Cook

Maine Law Review

When someone presents to an emergency room with a mental illness manifesting in danger to themselves or others, they can be admitted against their will on an emergency basis to inpatient mental health care through a process colloquially known as a Blue Paper application. However, when an inpatient bed is not immediately available, patients are “boarded” against their will in emergency rooms with little to no therapeutic care, sometimes for several weeks at a time before they are transferred to inpatient care, or their condition stabilizes enough for them to be discharged into the community. In February 2020, a man …


Revisiting The Visitor: Maine's New Uniform Probate Code & The Evolving Role Of The Court-Appointed Visitor In Adult Guardianship Reform, Lisa Kay Rosenthal Mar 2022

Revisiting The Visitor: Maine's New Uniform Probate Code & The Evolving Role Of The Court-Appointed Visitor In Adult Guardianship Reform, Lisa Kay Rosenthal

Maine Law Review

A judge may appoint a guardian for an adult who does not have the capacity to make decisions affecting their own health or welfare. However, the power of the guardian—while intended to serve a protective function—potentially invites financial, physical, and emotional abuse of the most vulnerable members of society. To help a probate judge understand the circumstances of a guardianship and the need for protection, probate courts in Maine appoint a “visitor” to interview both the person allegedly in need of a guardianship and the proposed guardian. The visitor submits a report to the court which contains the visitor’s observations, …


Taking The "Fam" Out Of Family: Adjudicating The State Department's Discriminatory Treatment Of Same-Sex Parents On The Merits, Camrin M. Rivera Mar 2022

Taking The "Fam" Out Of Family: Adjudicating The State Department's Discriminatory Treatment Of Same-Sex Parents On The Merits, Camrin M. Rivera

Maine Law Review

Cisgender same-sex male married couples, unlike cisgender opposite-sex married couples, will always require artificial reproductive technology (ART) for at least one of the spouses to attain biological parenthood. Due to legal and financial barriers to ART, many of these couples turn to international ART services to grow their families. In doing so, these families may face immigration battles when they apply for recognition of their child’s United States citizenship. For example, a prior State Department policy sparked three lawsuits after the State Department refused to recognize children as United States citizens from birth because the children were not biologically related …


Substance Use As A Second Class Disability: A Survey Of The Ada's Disarmament Of Individuals In Recovery, Ryan Schmitz Feb 2021

Substance Use As A Second Class Disability: A Survey Of The Ada's Disarmament Of Individuals In Recovery, Ryan Schmitz

Maine Law Review

The Americans with Disabilities Act and Fair Housing Act are landmark statutes that afford essential protections to individuals with disabilities in the foundational areas of everyday life. Despite their recognition of substance use disorders as disabilities, these statutes deny protection to individuals who are either in active use or in the early stages of their recovery. This Article explores the dangers posed by the “current use exception” and surveys the case law to determine the extent of the harms done to individuals with disabilities who seek to vindicate the rights purportedly guaranteed to them by the Americans with Disabilities Act …


Please Stop: The Law Court's Recent Roadblock Decisions, Jonathan A. Block Apr 2020

Please Stop: The Law Court's Recent Roadblock Decisions, Jonathan A. Block

Maine Law Review

Police checkpoints or “roadblocks” have become an increasingly utilized law enforcement tool. At best, these checkpoints result in only a minor inconvenience to motorists. When abused, however, roadblocks have the potential for invidious invasions of privacy and personal freedom. Roadblocks are designed to deter, and to a lesser extent detect, criminal activity by stopping everyone—both the guilty and the law-abiding—for a brief inspection, thereby impinging to some degree on one's freedom of travel, privacy, and “right to be let alone.” Such “seizures” must be “reasonable” under the Fourth Amendment in order to survive constitutional challenge. The major difference between roadblocks …


Arbitration Of Health And Safety Issues In The Workplace: Employees Who Refuse Work Assignments Because Of Fear Of Aids Contagion, Madelyn C. Squire Apr 2020

Arbitration Of Health And Safety Issues In The Workplace: Employees Who Refuse Work Assignments Because Of Fear Of Aids Contagion, Madelyn C. Squire

Maine Law Review

Horror stories concerning the abuse suffered by the AIDS victim in the workplace are plentiful. There have been numerous reports about employees who have refused to work with or touch the AIDS worker, or use the same bathroom, telephone, water fountain, or pencil. It was reported that one AIDS victim was not even allowed to use his pregnant co-worker's word processor; she claimed she had once seen him sweat on the keyboard. Paul Cronan became painfully aware that his employer of twelve years, the New England Telephone Company, had breached his privacy by divulging in large group meetings of employees …


Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey Apr 2020

Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey

Maine Law Review

Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male …


The Constitutional Law Of Equality In Canada, Kathleen E. Mahoney Apr 2020

The Constitutional Law Of Equality In Canada, Kathleen E. Mahoney

Maine Law Review

On April 17, 1982, Canada repatriated its constitution from the Parliament at Westminster, sweeping away one of the final vestiges of its colonial past. At the same time, a Canadian Charter of Rights and Freedoms was constitutionally entrenched, giving the people express constitutional rights for the first time. The equality provisions, in particular, represented a new era in Canadian constitutional law. The intense debate leading up to the entrenchment of the Charter raised profound questions about the basic nature of the country, its values, and its ability and willingness to acknowledge equality for women and other disadvantaged groups. Since the …


Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith May 2018

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …


Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr. Apr 2018

Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.

Maine Law Review

The Second Annual Frank M. Coffin Lecture on Law and Public Service was held on October 7, 1993. Professor Arthur M. Schlesinger, Jr. presented "Multiculturalism and the Bill of Rights."


Department Of Corrections V. Superior Court: Hear No Evil, Aaron T. Morel Apr 2018

Department Of Corrections V. Superior Court: Hear No Evil, Aaron T. Morel

Maine Law Review

On December 9, 1991, professional ethical and moral considerations prompted heated litigation in Department of Corrections v. Superior Court. Justice Donald G. Alexander of Maine's Superior Court displayed considerable foresight while sentencing two borderline mentally retarded child sex offenders. Although both defendants had committed repugnant crimes, Justice Alexander anticipated that they would be subjected to impermissible abuse if incarcerated in the Department of Corrections. He believed that preventive measures were necessary to ensure the safety of the defendants being sentenced and to avoid the potential that conditions of their incarceration would amount to cruel and unusual punishment. Justice Alexander subsequently …


A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr. Apr 2018

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …


Race And The Federal Criminal Justice System: A Look At The Issue Of Selective Prosecution, Drew S. Days Iii Apr 2018

Race And The Federal Criminal Justice System: A Look At The Issue Of Selective Prosecution, Drew S. Days Iii

Maine Law Review

The Fourth Annual Frank M. Coffin Lecture on Law and Public Service was held on September 13, 1995. Following Dean Donald Zillman's opening remarks, The Honorable Drew S. Days III, Solicitor General of the United States, presented “Race and the Federal Criminal Justice System: A Look at the Issue of Selective Prosecution.” The Board and Staff of Volume 48 are honored to publish his remarks in their entirety.


Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins Mar 2018

Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins

Maine Law Review

In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, …


Global Intersections: Critical Race Feminist Human Rights And Inter/National Black Women, Hope Lewis Mar 2018

Global Intersections: Critical Race Feminist Human Rights And Inter/National Black Women, Hope Lewis

Maine Law Review

In this brief essay, I illustrate how Critical Race Feminist analysis could reconceptualize the human rights problems facing “Inter/national Black women” --in this case, Black women who migrate between the United States and Jamaica. This focus on Jamaican American migrants is very personal as well as political; I was raised by Jamaican American women. However, I have begun to focus on such women in my research not only in a search for “home” but also because there are important lessons to be learned from those who are the least visible in the legal literature. I draw the framework for a …


Shattered Jade, Broken Shoe: Foreign Economic Development And The Sexual Exploitation Of Women In China, Elizabeth Spahn Mar 2018

Shattered Jade, Broken Shoe: Foreign Economic Development And The Sexual Exploitation Of Women In China, Elizabeth Spahn

Maine Law Review

Predicting the ways in which feminisms might develop in the next century is unfortunately well beyond my own capabilities. In the next decade or two, however, one thing I believe we might want to think about are the relationships between feminisms and global free market capitalisms. The question I am asking, simply stated, is the extent to which economic development (free-market global capitalism) advances, is neutral toward, or harms women. One traditional American way of viewing the global free market is to tout economic development as a panacea for the problems facing the world's poorest and most violated group, women. …


The Pregnancy Discrimination Act: Legitimating Discrimination Against Pregnant Women In The Workforce, Judith G. Greenberg Mar 2018

The Pregnancy Discrimination Act: Legitimating Discrimination Against Pregnant Women In The Workforce, Judith G. Greenberg

Maine Law Review

The Pregnancy Discrimination Act (PDA) has been effective in making the most egregious and obvious forms of pregnancy discrimination illegal. Unfortunately, the PDA has also acted as a shield behind which employers can hide as they discriminate against their pregnant employees. The result is that the PDA permits discrimination based on the very sort of stereotyping that it was expected to eradicate. There are two dominant stereotypes of pregnant women. Both are inconsistent with the image of a good worker. One stereotype connects pregnant women with the home. In one form or another it says, “Pregnant women are/should be preoccupied …


Never On Sunday: Workplace Religious Freedom In The New Millennium, Marianne C. Delpo Feb 2018

Never On Sunday: Workplace Religious Freedom In The New Millennium, Marianne C. Delpo

Maine Law Review

Imagine being fired for refusing to sing Happy Birthday. Now imagine collecting $53,000 for that firing--from a waitressing job. Science fiction? Not exactly. Try religious discrimination in the workplace--1990s style. Title VII of the Civil Rights Act of 1964 has long proscribed such treatment, but lawsuits claiming this type of workplace discrimination were relatively rare for many years. Now claims are on the rise, up 18% over the past five years, and the substance of religious discrimination claims is changing to include some unprecedented fact patterns. This new activity in employment discrimination law, as well as the growing likelihood that …


Litigating Genocide: A Consideration Of The Criminal Court In Light Of The German Jew's Legal Response To Nazi Persecution, 1933-1941, Jody M. Prescott Feb 2018

Litigating Genocide: A Consideration Of The Criminal Court In Light Of The German Jew's Legal Response To Nazi Persecution, 1933-1941, Jody M. Prescott

Maine Law Review

After years of negotiation, a majority of the nations of the world have agreed to create an International Criminal Court. It will be given jurisdiction over three core types of offenses: genocide, crimes against humanity, and war crimes. With regard to war crimes, however, nations that join the court may take advantage of an “opt-out” procedure, whereby the court's jurisdiction over these offenses may be rejected for seven years after the court comes into existence. For various reasons, a small number of nations, including the United States, have refused to sign the treaty creating the court. While heralded as a …


Mullin V. Ratheon Co.: The Threatened Vitality Of Disparate Impact Under The Adea, Miles F. Archer Feb 2018

Mullin V. Ratheon Co.: The Threatened Vitality Of Disparate Impact Under The Adea, Miles F. Archer

Maine Law Review

Seven years after Congress enacted Title VII of the Civil Rights Act of 1964 (Title VII), and four years after the enactment of the Age Discrimination in Employment Act of 1967 (the ADEA), the Supreme Court, in Griggs v. Duke Power Co., enunciated the doctrine of disparate impact as a means of establishing liability under Title VII. Since that time, the doctrine has evolved considerably and its application and contours have been redefined by the Court as well as by Congress. Within this evolution there has been a debate among the courts and commentators as to whether the doctrine may …


Exercising The Right To Public Accommodations: The Debate Over Single-Sex Health Clubs, Miriam A. Cherry Feb 2018

Exercising The Right To Public Accommodations: The Debate Over Single-Sex Health Clubs, Miriam A. Cherry

Maine Law Review

Recently, the debate over single-sex health clubs gained national attention when a patent attorney, James Foster, sued for admission to Healthworks, a Massachusetts all-women's health club. Jurisdictions across the country have also been struggling with the issue, and no clear consensus has emerged. Besides highlighting a wide variance between state laws, the debate over single-sex health clubs illuminates tensions within current feminist thought and within the current legal doctrine surrounding public accommodations statutes. Specifically, the presence of single-sex health clubs, like the question of single-sex schools, asks whether, in some contexts, it is legally and morally acceptable for men and …


The Supreme Court Reverses The Equal Employment Opportunity Commission's Directive That Disability Determinations Should Be Made Without Regard To Mitigating Measures: Sutton V. United Airlines, Sara Gagne Holmes Feb 2018

The Supreme Court Reverses The Equal Employment Opportunity Commission's Directive That Disability Determinations Should Be Made Without Regard To Mitigating Measures: Sutton V. United Airlines, Sara Gagne Holmes

Maine Law Review

In Sutton v. United Airlines, identical twin sisters with severe myopia, filed suit under Title I of the Americans with Disabilities Act (ADA) alleging that United Airlines (United) discriminated against them on the basis of a disability, or because United regarded them as having a disability. This case invited the United States Supreme Court to decide for the first time whether mitigating measures such as glasses, medication or prosthetics should be considered when determining if an impairment is an “actual disability” under the ADA, and what constitutes a proper allegation for being “regarded as” disabled under the ADA. In a …


Mixed Messages: An Analysis Of The Conflicting Standards Used By The United States Circuit Courts Of Appeals When Awarding The Compensatory Education For A Violation Of The Individuals With Disabilities Education Act, James C. Schwellenbach Feb 2018

Mixed Messages: An Analysis Of The Conflicting Standards Used By The United States Circuit Courts Of Appeals When Awarding The Compensatory Education For A Violation Of The Individuals With Disabilities Education Act, James C. Schwellenbach

Maine Law Review

With the passage of the Education for All Handicapped Children Act (EAHCA) of 1975, now titled the Individuals with Disabilities Education Act (IDEA or the Act), each child with a disability was guaranteed the right to a free and appropriate public education. It fell to the public schools to provide that free and appropriate education to students with disabilities, many of whom had been denied access to public schools prior to that time. It was inevitable that parents would disagree with their local school district, or the state educational agency, as to whether their child was being provided the kind …


The Maine Civil Rights Act: History, Enforcement, Application, And Analysis, J. Christopher Parr Feb 2018

The Maine Civil Rights Act: History, Enforcement, Application, And Analysis, J. Christopher Parr

Maine Law Review

Since the passage of the “Maine Civil Rights Act” (MCRA, Act) in 1989, the Maine Department of the Attorney General has made enforcement of that civil “hate crime” law one of its highest priorities. According to one statistic, “more than 125 people have been prosecuted in Maine's civil courts on hate crime charges since 1994,” and only two of those actions have been lost by the State. The Attorney General at the time of this writing, Andrew Ketterer, has stated that he takes the perpetration of hate crimes seriously, and that it has been important to him “that the message …


Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle Feb 2018

Hate Speech - The United States Versus The Rest Of The World?, Kevin Boyle

Maine Law Review

The search for a commonly agreed upon international legal understanding of the meaning of free speech or freedom of expression, as an individual human right, was a major international preoccupation from the 1940s to the 1980s. During the Cold War it was, of course, also a highly ideological debate. There were three positions, broadly speaking: the Soviet Union and its allies, who had little enthusiasm for the idea at all; the United States, which believed in it—many thought—too much; and the rest, the other Western democracies and developing countries, who tried to hold the middle ground. These contrasting positions were …