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Articles 1441 - 1470 of 10992
Full-Text Articles in Law
Where The Crawdads Sing Deconstructed: An Examination Of Natural Vs. Moral Law, Rural Justice Systems, And True Crime, Hannah Martin
Where The Crawdads Sing Deconstructed: An Examination Of Natural Vs. Moral Law, Rural Justice Systems, And True Crime, Hannah Martin
Ohio Northern University Law Review
No abstract provided.
Interpreting "Membership In A Particular Social Group" In Light Of International Standards, Klaudia K. Cambridge
Interpreting "Membership In A Particular Social Group" In Light Of International Standards, Klaudia K. Cambridge
Ohio Northern University Law Review
No abstract provided.
Claims On The Tracks, Thomas D. Russell
Claims On The Tracks, Thomas D. Russell
Ohio Northern University Law Review
No abstract provided.
Unequal Protection Of The Laws For Women Is Constitutional Terrorism, So How Come Nobody Knows About It?, Wendy J. Murphy J.D.
Unequal Protection Of The Laws For Women Is Constitutional Terrorism, So How Come Nobody Knows About It?, Wendy J. Murphy J.D.
Ohio Northern University Law Review
No abstract provided.
Joy V. Eastern Maine Medical Center: Extension Of A Physician's Duty To Third Parties, Timothy H. Norton
Joy V. Eastern Maine Medical Center: Extension Of A Physician's Duty To Third Parties, Timothy H. Norton
Maine Law Review
In Joy v. Eastern Maine Medical Center, the Maine Supreme Judicial Court, sitting as the Law Court, held that a claimant may sue a physician to recover damages for injuries that were caused by a negligently treated patient. The Law Court focused its analysis on the concept of duty and reasoned that a physician's duty to his patient extends to third parties whose injuries are a foreseeable result of negligent treatment. The Joy case sets forth a broad rule that provides a new and untested means of recovery against physicians and hospitals. This Note examines the new rule against the …
In Re Misty Lee H.: Application Of The Best Interests Standard In Parental Rights Terminations, William L. Dawson Jr.
In Re Misty Lee H.: Application Of The Best Interests Standard In Parental Rights Terminations, William L. Dawson Jr.
Maine Law Review
The family unit is perhaps America's most deeply rooted social institution. The integrity of the family unit has been repeatedly recognized by the United States Supreme Court as warranting constitutional protection. As a means of protecting family autonomy, natural parents possess a fourteenth amendment liberty interest in the care and custody of their children. The parental liberty interest encompasses a wide range of rights. Although substantial, these parental rights are not absolute. By virtue of the parens patriae power, the state may interfere with parental rights in order to preserve and promote the welfare of the child. The most extreme …
Retroactive Application Of Statutes: Protection Of Reliance Interests, Gene A. Maguire
Retroactive Application Of Statutes: Protection Of Reliance Interests, Gene A. Maguire
Maine Law Review
Courts commonly use the term "retroactive" in two senses. On the one hand, it refers broadly to the fact that all new laws to some extent apply to a state of affairs created by past events. The term, on the other hand, embodies a time-honored historical antipathy to laws that disrupt settled expectations. The common law upholds the principle that the citizenry should be able to make everyday decisions with reasonable certainty of the legal consequences of their actions. This principle is based on fundamental notions of fairness and justice. It is well established, however, that the legislature may enact …
A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby
A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby
Maine Law Review
The federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of …
Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen
Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen
Maine Law Review
Perhaps in no other field of judicial endeavor is diversity and variety more apparent than when a sentencing judge considers the circumstances presented by a defendant convicted of a criminal offense. In each case, the sentencing judge confronts an individual who has no exact counterpart in any defendant previously appearing before the court for sentencing. The sentence imposed is primarily a matter of judicial discretion and is based upon consideration of the nature of the offense, the circumstances surrounding the commission of the offense, and the circumstances of the defendant. The sentencing judge formulates a specific sentence within broad statutory …
Separation Of Powers Restrictions On Judicial Rulemaking: A Case Study Of Federal Rule 4, Ralph U. Whitten
Separation Of Powers Restrictions On Judicial Rulemaking: A Case Study Of Federal Rule 4, Ralph U. Whitten
Maine Law Review
Debates over the validity of Federal Rules of Civil Procedure have historically centered on the "substantive rights" restriction of the Rules Enabling Act of 1934. While Supreme Court decisions from Sibbach v. Wilson & Co. through Hanna v. Plumer and beyond have arguably deprived the restriction of any practical force, scholars have consistently favored a more rigorous interpretation of the directive that federal rules not "abridge, enlarge, or modify any substantive rights." Despite the historic impotence of the substantive rights restriction, discussions of the validity of the Federal Rules of Civil Procedure continue, even today, to center on the substantive …
Reasonable Accommodation And Non-Invidious Discrimination Under The Maine Human Rights Act, Stuart W. Tisdale Jr.
Reasonable Accommodation And Non-Invidious Discrimination Under The Maine Human Rights Act, Stuart W. Tisdale Jr.
Maine Law Review
"Invidious," through its Latin root invidia, for envy, hints at the dangers of arbitrary discrimination. Statutes, for instance, that distribute social or economic benefits and allocate burdens in a patently arbitrary manner alienate the burdened class. Such laws tear at the social fabric by instilling resentment and bitterness in the disfavored group. At an extreme they encourage rebellion. The famous Carolene Products footnote, in which Justice Stone suggested that the Court would apply a heightened standard of judicial review to statutes affecting "discrete and insular minorities," draws an implicit connection between invidiousness and fundamental unfairness. Invidiousness thus refers to the …
West V. Multibanco Comermex, S.A.: Application Of The Securities Laws To Foreign Certificates Of Deposit, Peter J. Stocks
West V. Multibanco Comermex, S.A.: Application Of The Securities Laws To Foreign Certificates Of Deposit, Peter J. Stocks
Maine Law Review
The persistent debate concerning which investment instruments constitute "securities" for purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934 is as old as the Securities Acts themselves. The Supreme Court has addressed the issue eight times without putting the debate to rest. In Marine Bank v.Weaver, the Court held that a certificate of deposit (CD) issued by a bank regulated under "the federal banking laws" is not a "security" within the meaning of the Securities Exchange Act of 1934. The Court of Appeals for the Ninth Circuit has twice, since Weaver, addressed the issue of …
Maine's Unintentional Murder Statute: Depraved Indifference On Trial, Louis B. Butterfield
Maine's Unintentional Murder Statute: Depraved Indifference On Trial, Louis B. Butterfield
Maine Law Review
Perhaps nowhere in the law is the demand for reason and justice more compelling than in the penal law, and nowhere in the penal law is the need for fairness greater than in the law defining murder. The notion of fairness in Anglo-American criminal law is embodied in the concept of mens rea. For over three hundred years, the basic tenet of penal law has been that "actus non facit reum, nisi mens sit rea." A mens rea element serves to define a crime in positive terms and also provides the basis for defenses that negate the subjective culpability element. …
When The Bank Wants Its Borrower In Bankruptcy: Benefits Of Bankruptcy For Lenders And Lender Liability Defendants, David C. Hillman, Matthew L. Caras
When The Bank Wants Its Borrower In Bankruptcy: Benefits Of Bankruptcy For Lenders And Lender Liability Defendants, David C. Hillman, Matthew L. Caras
Maine Law Review
Bankruptcy features such as the automatic stay and the avoidance powers have traditionally caused lenders to look with disfavor upon the commencement by a borrower of a case under the Bankruptcy Code and have caused lenders to consider only as a last resort the alternative of exercising their right to commence an involuntary bankruptcy against a borrower. Yet circumstances exist where lenders might obtain substantial benefits and advantages from dealing with a problem loan in the context of a borrower's bankruptcy case, particularly in light of the increasing number of lender liability lawsuits that have been initiated during the past …
The Adr Movement: Theoretical Aspects And Practical Potential, Craig A. Mcewen
The Adr Movement: Theoretical Aspects And Practical Potential, Craig A. Mcewen
Maine Law Review
My mission in this paper is to draw upon what we know from the active and lively domestic dispute resolution movements in the United States, Canada, and beyond to identify some of the prospects for and potential problems in developing a dispute resolution system for Canadian-United States trade disputes. Alternative dispute resolution (ADR) is flourishing in the 1980's. Increasing numbers of individuals as well as public and private programs identify their work as alternative dispute resolution. These include private mediation practitioners, ADR partners in major law firms, private organizations such as EnDispute, which will arrange mini-trials and other dispute resolution …
Privatizing Dispute Resolution Under The Free Trade Agreement: Truth Or Fancy?, Leon E. Trakman
Privatizing Dispute Resolution Under The Free Trade Agreement: Truth Or Fancy?, Leon E. Trakman
Maine Law Review
Replete with evidence of extensive forum shopping, unending discovery procedures, and countless delays in the formal adjudicatory process, the case for an alternative, more specialized medium for the resolution of trade disputes between the United States and Canada has grown more pressing. The problem, however, is in being convinced that the alternative, embodied in the proposed Canada-United States Free Trade Agreement, addresses the deficiencies in the existing medium for dispute resolution without introducing greater social and personal costs of its own. A government, in distancing itself from dispute resolution, also separates itself from the process through which social problems are …
Dispute Resolution Provisions Of The Canada-United States Free Trade Agreement, David P. Cluchey
Dispute Resolution Provisions Of The Canada-United States Free Trade Agreement, David P. Cluchey
Maine Law Review
Dispute resolution is a major focus of the recently signed Canada-United States Free Trade Agreement. This focus was heavily influenced by two factors. The first is a significant continuing concern about the dispute resolution procedures and mechanisms under the General Agreement on Tariffs and Trade (GATT). The second factor is the general Canadian perception that trade proceedings under United States law are substantially influenced by political concerns and that under a trade agreement, Canadian businesses would need some protection from United States trade regulation. The general dispute resolution provisions of the Free Trade Agreement, which are found primarily in Chapter …
Dispute Settlement Mechanisms Under The Free Trade Agreement, Ton J.M. Zuijdwijk
Dispute Settlement Mechanisms Under The Free Trade Agreement, Ton J.M. Zuijdwijk
Maine Law Review
The purpose of this paper is to review the dispute settlement mechanisms that are contained in the Canada-United States Free Trade Agreement. The two countries reached agreement on the main features of the Free Trade Agreement on October 3, 1987. Thereafter, the elements of the Agreement were converted into the legal text of the Free Trade Agreement and signed by Prime Minister Mulroney and President Reagan on January 2, 1988. Legislation implementing the Free Trade Agreement has been introduced in the Parliament of Canada and in the United States Congress. In Canada the ordinary rules for legislative enactments will apply. …
The Reception Of Arbitration In United States Law, Thomas E. Carbonneau
The Reception Of Arbitration In United States Law, Thomas E. Carbonneau
Maine Law Review
The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards—in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy. Since 1970, when the United States ratified the …
Canadian Acceptance Of International Commercial Arbitration, John E.C. Brierly
Canadian Acceptance Of International Commercial Arbitration, John E.C. Brierly
Maine Law Review
A few years ago it would have been impossible to speak of Canadian "acceptance" of international commercial arbitration. Canada had not adhered to any international convention on arbitration, and Canadian legislation did not specifically regulate arbitration in commercial dealings or when it involved some non-national element. There was no federal enactment on the subject. Canadian provincial legislation, whether the civil law of Quebec or the common law of the rest of Canada, had not greatly evolved from the 19th century position expressed in legislation based upon the legal traditions of France and the United Kingdom of the same period. No …
A Canadian Perspective On U.S. Administered Protection And The Free Trade Agreement, Alan M. Rugman
A Canadian Perspective On U.S. Administered Protection And The Free Trade Agreement, Alan M. Rugman
Maine Law Review
The negotiation of the Canada-United States Free Trade Agreement over the 1986-1988 period builds upon over 130 years of bilateral trade and investment policy. With Canada's economy being roughly one-tenth the size of that of the United States, the negotiation of commercial arrangements to govern the bilateral trade and investment relationship assumes great importance in the smaller partner. The size asymmetry means that Canada, as the smaller nation, needs to secure a rules-based system rather than a power-based system in its trading relationship with the United States, which accounts for nearly 80% of its exports. Canada is also the largest …
Foreword, Charles S. Colgan
Foreword, Charles S. Colgan
Maine Law Review
The Free Trade Agreement concluded between the United States and Canada, and signed on January 2, 1988, has a number of features that distinguish it among the trade agreements of the United States. It eliminates all tariffs, reduces restrictions on business travel, and establishes ground rules for trade in services and for foreign investment. In this latter respect, the Agreement is unique among major international trade agreements of the world. But one of the most enduring aspects of the Agreement is likely to be the provisions establishing a series of dispute settlement mechanisms. This last observation would probably surprise almost …
Alternative Dispute Resolution In International Trade And Business, Thomas E. Carbonneau
Alternative Dispute Resolution In International Trade And Business, Thomas E. Carbonneau
Maine Law Review
This workshop, which was held at the University of Maine School of Law on May 27, 1987, consisted of an informal discussion among an interdisciplinary group of experts. The purpose of the workshop was to generate ideas and recommendations regarding the utility of alternative dispute resolution (ADR) in international trade and business, with special reference to Canadian-United States trade relations. The discussion also explored the possible commonalties of domestic and international dispute resolution in the hope of developing a basis for a generic alternative dispute resolution methodology.
Editorial Board Vol. 40 No. 2 (1988), Patricia A. Nelson-Reade Editor-In-Chief
Editorial Board Vol. 40 No. 2 (1988), Patricia A. Nelson-Reade Editor-In-Chief
Maine Law Review
No abstract provided.
Introduction To Symposium: Alternative Dispute Resolution In Canada-United States Trade Relations, George J. Mitchell
Introduction To Symposium: Alternative Dispute Resolution In Canada-United States Trade Relations, George J. Mitchell
Maine Law Review
The Alternative Dispute Resolution (ADR) movement in law arose domestically as the pressures on our court system threatened to deprive individual citizens of their "day in court." Maine is a leader in the development and elaboration of the principles and practicalities that must be mastered for ADR mechanisms to function. The University of Maine School of Law symposium examining the application of ADR principles to international disputes focuses specifically on the trade relationship between the United States and Canada. But its examination of both the innovations and limitations of ADR to the resolution of international disputes is broader than this …
Maine Debtor-Creditor Law By Dennis M. Patterson, David J. Jones
Maine Debtor-Creditor Law By Dennis M. Patterson, David J. Jones
Maine Law Review
Dennis M. Patterson, Esquire, has written a brief, practical guide to selected areas of collection practice entitled Maine Debtor-Creditor Law. Two immediate observations come to mind: first, that I plan to keep a copy of the book in my office library for future reference; second, that I am disappointed that the author omitted reference to several challenging issues that confront the attorney having a regular collection or foreclosure practice. This latter observation is both an indication of the usefulness of the book's treatment of the areas covered and a hopeful invitation to the author to expand on his subject matter …
Maine Civil Remedies By Andrew M. Horton & Peggy L. Mcgehee, Eric R. Herlan
Maine Civil Remedies By Andrew M. Horton & Peggy L. Mcgehee, Eric R. Herlan
Maine Law Review
If there is any ongoing dispute within the legal community that one could properly characterize as a Great Debate, that dispute concerns the nature and sources of judicial power. Most recently that debate has manifested itself in nuanced and subtle disagreements about how a court ought to interpret enacted law, whether found in statutes or written constitutions. That argument about judicial interpretation, and more precisely about the philosophical possibility of correct textual interpretations, is itself simply a more scholarly manifestation of an earlier dispute over whether judges should "legislate" when they resolve difficult legal issues, or should instead constrain themselves …
City Of Portland V. Depaolo: Defining The Role Of Stare Decisis In State Constitutional Decisionmaking, Thad B. Zmistowski
City Of Portland V. Depaolo: Defining The Role Of Stare Decisis In State Constitutional Decisionmaking, Thad B. Zmistowski
Maine Law Review
Five years ago, the Maine Supreme Judicial Court, sitting as the Law Court, aligned itself with a growing number of states by adopting the primacy method of state constitutional decisionmaking. Under the primacy method, a state court decides an issue of constitutional law by first looking to that state's own constitution; if the issue is resolvable on state constitutional grounds, the federal constitutional grounds are not reached. Adoption of the primacy method by numerous state courts has generated considerable debate concerning issues of state constitutional law. Little discussion, however, has focused on the methodology of state constitutional adjudication. As a …
Maine Recognizes The Independent Tort Of Negligent Infliction Of Emotional Distress: Gammon V. Osteopathic Hospital, Jaye E. Rooney
Maine Recognizes The Independent Tort Of Negligent Infliction Of Emotional Distress: Gammon V. Osteopathic Hospital, Jaye E. Rooney
Maine Law Review
Gerald Gammon opened his deceased father's hospital bag, expecting to find his personal effects. Instead, he discovered a bloodied leg, severed below the knee and bluish in color. Recoiling in horror, he yelled, "Oh my God, they have taken my father's leg off.” His aunt later recalled at trial that "he was as white as a ghost" and she thought he was going to have a heart attack. Gerald received a call on November 7, 1982, from the Osteopathic Hospital of Maine informing him that his father, Linwood Gammon, had succumbed to cancer that morning. A funeral home employee picked …
Taxpayer Standing And The Preventive-Remedial Distinction: A Call For Reform, Alicia E. Flaherty
Taxpayer Standing And The Preventive-Remedial Distinction: A Call For Reform, Alicia E. Flaherty
Maine Law Review
The Maine Law Court has observed that, "a central function of American courts [is] to protect and relieve the individual from injurious unconstitutional conduct by government officials." Apart from the political process, the judicial process is the only means through which citizens can ensure that government conforms to the law. The courts provide a forum for citizens to challenge the legality of official acts, and serve as a "means of correcting illegal practices of government officials which would otherwise be irreparable." The question of standing is a critical element of the court's task of balancing the individual's right to challenge …