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2024

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Articles 271 - 300 of 10968

Full-Text Articles in Law

Ouellette V. Sturm, Ruger & Co. And Jones V. North American Aerodynamics: The Effectiveness Of Maine's Borrowing Statute In Cases Involving Corporations, J. Gordon Scannell Jr. Dec 2024

Ouellette V. Sturm, Ruger & Co. And Jones V. North American Aerodynamics: The Effectiveness Of Maine's Borrowing Statute In Cases Involving Corporations, J. Gordon Scannell Jr.

Maine Law Review

Maine's borrowing statute provides that a person may not bring an action in Maine that has been barred by the laws of another jurisdiction wherein all parties resided. In effect, the statute permits "borrowing" the limitation period of the other jurisdiction. In Ouellette v. Sturm, Ruger & Co., the Maine Supreme Judicial Court, sitting as the Law Court, interpreted the residency requirement of the borrowing statute as it relates to a corporation and held that for purposes of the statute a corporation is a resident of only the state in which it is incorporated. Because of the peculiar wording of …


Deadlocked Juries And The Allen Charge, Karen Pelletier O'Sullivan Dec 2024

Deadlocked Juries And The Allen Charge, Karen Pelletier O'Sullivan

Maine Law Review

Juries in cases requiring a unanimous verdict have three alternatives: a guilty verdict, a not guilty verdict, or no verdict for lack of unanimity. Deadlocked juries have long created a problem for efficient judicial administration. Early common law judges carried hung jurors around in oxcarts until a verdict "bounced out." More recent methods of forcing jurors to reach verdicts have included requiring them to deliberate all night and threatening to deprive them of water and heat. A more subtle method of encouraging jurors to reach verdicts is a trial judge's supplemental instruction to deadlocked jurors. A verdict-urging instruction is commonly …


The Government Contract Defense: Should Manufacturer Discretion Preclude Its Availability?, John D. Pelletier Dec 2024

The Government Contract Defense: Should Manufacturer Discretion Preclude Its Availability?, John D. Pelletier

Maine Law Review

The government contract defense developed in cases involving suits against private contractors for damages arising out of the performance of government public works projects. These cases held private contractors immune from liability for damages necessarily incident to the performance of such projects. In several recent cases, manufacturers have been allowed to raise the government contract defense as a bar to liability for injuries caused by design defects in military products supplied to the United States government. In two of these cases, the defense barred liability on behalf of military suppliers who merely executed the government's mandatory design specifications. In subsequent …


The Public Trust Doctrine In Maine's Submerged Lands: Public Rights, State Obligation And The Role Of The Courts, Mitchell M. Tannenbaum Dec 2024

The Public Trust Doctrine In Maine's Submerged Lands: Public Rights, State Obligation And The Role Of The Courts, Mitchell M. Tannenbaum

Maine Law Review

The State of Maine has within its borders over three thousand miles of coastline and numerous navigable rivers and lakes. The productive use of these waterways and the lands which lie beneath them historically has been linked to the quality of life within Maine and continues to be essential to the social and economic development of the state. Both the state's control over its thousands of acres of submerged lands and the public's right to use these lands derive from what has come to be known as the "public trust doctrine." The basic tenet of the doctrine is that the …


United States Ex Rel. Arrow Electronics, Inc. V. G.H. Coffey Co.: Judicial Interpretation Of Timely Notice Under Federal Rule Of Civil Procedure 15(C), Brett Dwight Baber Dec 2024

United States Ex Rel. Arrow Electronics, Inc. V. G.H. Coffey Co.: Judicial Interpretation Of Timely Notice Under Federal Rule Of Civil Procedure 15(C), Brett Dwight Baber

Maine Law Review

In 1966, the United States Supreme Court amended Federal Rule of Civil Procedure 15(c) to eliminate lower court confusion regarding "relation back" of pleading amendments which sought to change the party against whom the claim was asserted. The Rule, as presently formulated, permits a plaintiff to add or change a party defendant after the statute of limitations has run provided that . . . . While the current Rule is more precise than the pre-1966 Rule in defining when "relation back" is permissible, it has not eliminated the sharp divergence among judicial opinion regarding the proper application of the Rule. …


Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge Dec 2024

Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge

Maine Law Review

Prosecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) …


Group Homes For The Mentally Retarded In Maine: Legislative Intent And Administrative Process, James C. Hunt Dec 2024

Group Homes For The Mentally Retarded In Maine: Legislative Intent And Administrative Process, James C. Hunt

Maine Law Review

Historically, mentally retarded citizens of Maine have been confined to Pineland Center, the state's principal institution for the mentally retarded. In 1975 a class action suit, Wuori v. Zitnay, was filed in federal district court on behalf of "involuntarily confined" Pineland residents and "conditionally released" residents "in need of care . . . in a humane and healthful . . . environment." Three years later agencies and officials of the State of Maine entered into a consent judgment which laid down a "comprehensive plan designed to bring about speedy and meaningful relief" to the plaintiff class. The relief granted was …


Personal Injury Compensation As A Tax Preference, Lawrence A. Frolik Dec 2024

Personal Injury Compensation As A Tax Preference, Lawrence A. Frolik

Maine Law Review

Samuel Johnson tells us "[d]epend on it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully." Projected federal budget deficits in the realm of $200 billion a year for the foreseeable future ought to have a similar effect: a concentration on means of reducing these unacceptable deficits. The simple answer is either to spend less or tax more, or perhaps, a bit of both. If we choose to tax more, we must either raise tax rates or widen the tax base, or both. The former, a general rise in tax rates, …


In Re Daniel C.: Reunification Efforts And The Termination Of Parental Rights, James W. Claus Dec 2024

In Re Daniel C.: Reunification Efforts And The Termination Of Parental Rights, James W. Claus

Maine Law Review

In In re Daniel C., the Maine Supreme Judicial Court, sitting as the Law Court, affirmed an order terminating a father's parental rights pursuant to title 22, section 4055 of the Maine Revised Statutes. The issue on appeal concerned the effect of a failure by the Department of Human Services (DHS) to make efforts toward family reunification. The appellant, Daniel C.'s father, Everett Co., argued that the DHS failed to make adequate reunification efforts as required by title 22, section 4041 of the Maine Revised Statutes and that this failure precluded the termination of his parental rights. The Law Court …


In Re Caulk: A Prisoner's Right To Die—The Factor Of Intent, Laurence H. Leavitt Dec 2024

In Re Caulk: A Prisoner's Right To Die—The Factor Of Intent, Laurence H. Leavitt

Maine Law Review

In prisons throughout the United States, prisoners commonly use hunger strikes as an avenue of protest to make personal demands, to call attention to poor prison conditions, or to make various political statements. Prisoners typically choose this route because they view their own bodies as one of the few things over which they actually have control and because the extreme slowness of a hunger strike gives others the chance to meet their political or personal demands. When confronted with such attempts at starvation, prison officials almost invariably have resorted to force-feeding the hunger strikers, although in recent years some prison …


State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard Dec 2024

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …


State V. Farnham: The Defendant's Exercise Of The Right To Stand Trial As Negative Character Evidence, Richard F. Buckley Dec 2024

State V. Farnham: The Defendant's Exercise Of The Right To Stand Trial As Negative Character Evidence, Richard F. Buckley

Maine Law Review

A defendant in a criminal case may not receive a more severe sentence because he exercised his sixth amendment right to stand trial. However, determining when a court has more severely sentenced a defendant for exercising his constitutional right to a jury trial is a difficult task. Some argue that a defendant's choice to stand trial is relevant to the sentencing process as character evidence. The decision to stand trial, the argument goes, indicates a defendant's lack of remorse and an unwillingness to take the first step toward redemption by admitting his guilt. Others take the position that consideration in …


Home Rule And The Pre-Emption Doctrine: The Relationship Between State And Local Government In Maine, Robert W. Bower Jr. Dec 2024

Home Rule And The Pre-Emption Doctrine: The Relationship Between State And Local Government In Maine, Robert W. Bower Jr.

Maine Law Review

The legal relationship between a state government and a municipal government determines the powers and responsibilities of these two political entities. In Maine this relationship is complex and uncertain due to ambiguities in the constitutional and statutory scheme governing it and due to the Maine Supreme Judicial Court's narrow and inconsistent interpretation of that scheme. This Comment discusses the various methods for delegating power to municipalities, including the traditional method which was used in Maine prior to 1970. In addition, this Comment examines the "home rule" scheme enacted in 1970 and its subsequent judicial interpretation and application. Any statutory or …


American Home Assurance Co. V. Ingeneri: Misrepresentations In Insurance Applications, Richard P. Bennett Dec 2024

American Home Assurance Co. V. Ingeneri: Misrepresentations In Insurance Applications, Richard P. Bennett

Maine Law Review

In American Home Assurance Co. v. Ingeneri, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue of when an incorrect response to a question on an insurance application constitutes a sufficient misrepresentation to render the policy voidable under Maine law. Reversing the trial court, the Law Court held that to render the policy voidable, the applicable statutory provision required the insurer to prove that the insured's misrepresentation was fraudulent, material to the insured risk, and actually relied upon by the insurer. The Law Court determined that the word "or" in the misrepresentation statute should be read …


Keeping Big Issues Off The Table: The Supreme Court On Entrepreneurial Discretion And The Duty To Bargain, James Friedman Dec 2024

Keeping Big Issues Off The Table: The Supreme Court On Entrepreneurial Discretion And The Duty To Bargain, James Friedman

Maine Law Review

Over the past decade a number of major American industries have declined or radically restructured in the face of foreign competition. In 1982, for example, more than 1.2 million American workers were either temporarily or permanently laid off as companies curtailed operations or moved abroad. Two hundred thousand people lost their jobs in 1982 due to plant shutdowns. In recent times the steel and auto industries have provided the most visible examples of massive cutbacks in employment, but jobs have also disappeared in other industries such as electrical manufacturing, machine manufacturing and textiles. Although much public debate and disagreement exists …


Public School Integration Of Children With Handicaps After Smith V. Robinson: "Separate But Equal" Revisited?, Robert J. Goodwin Dec 2024

Public School Integration Of Children With Handicaps After Smith V. Robinson: "Separate But Equal" Revisited?, Robert J. Goodwin

Maine Law Review

Under the direction of Chief Justice Burger the United States Supreme Court has issued several opinions limiting the availability of federal causes of action. While one benefit of this trend may be a reduction in the volume of federal litigation, the costs may include the limitation of substantive federal rights. The recent Supreme Court decision in Smith v. Robinson narrowly construed the availability of certain federal causes of action, and it illustrates how such a ruling, although procedural on its surface, in reality can operate to erode substantive rights. In Smith the Court concluded that a handicapped child could not …


Prejudice And Promise In The Early Years Of The Federal Judiciary, George L. Haskins Dec 2024

Prejudice And Promise In The Early Years Of The Federal Judiciary, George L. Haskins

Maine Law Review

Preserving the dignity of the human individual and protecting individual rights from the excesses of governmental power have been endemic problems for politically organized society in the western world for centuries. From antiquity and the early middle ages comes the thought that "government" became necessary because of he sinfulness or depravity of man. But it was not suggested that rulers should be all-powerful nor that the people who are governed should be entirely at the mercy of government. Indeed, our classic ideal of the democratic state first emerged in Greece, then briefly again in Rome, and later — but for …


The Blm's Public Lands Rule And "Periodic Adjustments In Use To Conform To Changing Needs And Conditions" Under The Federal Land Policy And Management Act, Jamie Pleune Dec 2024

The Blm's Public Lands Rule And "Periodic Adjustments In Use To Conform To Changing Needs And Conditions" Under The Federal Land Policy And Management Act, Jamie Pleune

Pace Environmental Law Review

On May 9, 2024, the Bureau of Land Management (BLM) finalized new regulations, cumulatively referred to as the “Public Lands Rule.” According to the preamble for the rule, the purpose of the regulations is “to advance the BLM’s multiple use and sustained yield mission by prioritizing the health and resilience of ecosystems across public lands.” When making land management decisions, the definition of multiple use requires the BLM to take into account “the long-term needs of future generations.” Those resource needs include “recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.” Despite this directive, …


Beyond The Greenwash: Identifying Genuine Corporate Sustainability, Victoria Agbakwuru Dec 2024

Beyond The Greenwash: Identifying Genuine Corporate Sustainability, Victoria Agbakwuru

Lincoln Memorial University Law Review Archive

As sustainability becomes a critical factor in corporate strategy and consumer decision-making, the rise of greenwashing—where companies exaggerate or falsify environmental claims—poses a significant challenge. This article delves into the legal landscape of greenwashing in the United States and the European Union. It considers regulations specifically tailored to combating greenwashing and encouraging sustainability in those regions. Genuine sustainability practices that companies can engage in are identified and recommended. These include embracing ESG reporting, truth in advertising, transparency, certification and compliance, consistency, and accountability.


An Examination Of The Impact Of A Dishonorable Discharge Upon Second Amendment Rights., Heidi Timmerman Dec 2024

An Examination Of The Impact Of A Dishonorable Discharge Upon Second Amendment Rights., Heidi Timmerman

Lincoln Memorial University Law Review Archive

I participated in multiple court-martials and administrative discharges during my time of active-duty military service, primarily representing the servicemember’s command. Twenty years later, a federal criminal law course in law school drew my attention to specific consequences of military discharges. This article explores U.S. discharge policies, practices, consequences of discharge types, and the possible recourse paths. This examination started with research on discharge impacts on one’s Second Amendment right to bear arms; however, an array of discharge impacts emerged.While the U.S. Code provides discharge guidelines, each branch of the U.S. military is given a wide berth in application of the …


Expungement: Access To Justice Or Just More Bureaucracy? A Comparison Among The States, Meganne Lee-Rogers Dec 2024

Expungement: Access To Justice Or Just More Bureaucracy? A Comparison Among The States, Meganne Lee-Rogers

Lincoln Memorial University Law Review Archive

A large percentage of the population have some sort of criminal record, whether felony or misdemeanor; however, only a small portion of Americans are aware that expungement of that record is an option. Expungement is the process of erasing a person’s criminal record from public records, such as that it is like the person was never arrested or convicted. However, there are universal limitations on this process, for example not all crimes are eligible for expungement. This Note discusses the vast array of expungement laws across the United States and the importance of these laws in providing convicted persons with …


The Small Business Killer: How Fincen Enforcement Of The Cta Could Destroy The Last Bastion Of The American Dream., Samantha M. Alecozay Dec 2024

The Small Business Killer: How Fincen Enforcement Of The Cta Could Destroy The Last Bastion Of The American Dream., Samantha M. Alecozay

Lincoln Memorial University Law Review Archive

This article addresses an urgent matter regarding the possible repercussions of FinCEN enforcement of the Corporate Transparency Act (“CTA”) against small businesses. The CTA, passed into law in 2021 and made effective January 1, 2024, mandates the creation of a nationwide database that collects owner information of certain legal entities to help prevent money laundering and other illicit financial activities. Further, a legal entity’s failure to comply with the statute may result in civil penalties of up to $591 per day of violation and even criminal penalties.As of January 1, 2024, tens of millions of small businesses in the U.S. …


From Beating Students Down To Building Students Up: Eradicating The School-To-Prison Pipeline, Aubrian Sanders Dec 2024

From Beating Students Down To Building Students Up: Eradicating The School-To-Prison Pipeline, Aubrian Sanders

Lincoln Memorial University Law Review Archive

This note examines the school-to-prison pipeline, its impact on minority children, and strategies for its elimination. The school-to-prison pipeline systematically removes minority children from the classroom. This process facilitates their entry into the justice system through school punishments, the use of school resource officers, and the harsh conditions of the juvenile justice system which has devastating effects on the minority youths in America. To correct this problem, action must be taken at every step along the pipeline to completely alter the behavior that destines the minority youth of America to incarceration. These key steps include reforming school discipline, removing school …


Begin With Lemon, Fill To The Bri With Bremerton, Stir In Trinity Lutheran, Add A Pinch Of Espinoza, And Combine Carson: A Recipe For Educational Disaster, Brittany Lezu Dec 2024

Begin With Lemon, Fill To The Bri With Bremerton, Stir In Trinity Lutheran, Add A Pinch Of Espinoza, And Combine Carson: A Recipe For Educational Disaster, Brittany Lezu

Lincoln Memorial University Law Review Archive

The Establishment Clause of the First Amendment has steadily been eroded over the past ten years by the Supreme Court, but it all began with the infamous Lemon test in 1971. In _Lemon v. Kurtzman_, the Court established the Lemon test to create a “clearer” standard to determine if a government policy or action directly or indirectly advanced or accommodated religion in compliance with the Establishment Clause. Over time, the Lemon test has slowly be whittled away, leaving the opportunity for revision in _Kennedy v. Bremerton_. The Court in Bremerton interpreted the clause “by reference to historical practices and understandings.” …


Biglaw's Campus Reach, Raj Ashar Dec 2024

Biglaw's Campus Reach, Raj Ashar

Lincoln Memorial University Law Review Archive

At many top-ranked law schools, BigLaw firms are the top destination for graduating students. But their presence in the lives of law students starts well before graduation. This note documents the symbiotic relationship between law firms and top law schools, identifying ways in which BigLaw firms embed themselves in these institutions. It then attempts to explain the reason for this strong connection and identifies some potential risks of allowing firms regular access to law students. Finally, it lays out proposals for reform including the regulation of firm sponsorships and changing the recruiting process.


Community Benefits And Alternative Energy Infrastructure Siting, Edward W. De Barbieri Dec 2024

Community Benefits And Alternative Energy Infrastructure Siting, Edward W. De Barbieri

Pace Environmental Law Review

This essay studies the increasing use of community benefits frameworks in the siting of alternative energy infrastructure. It begins with a discussion of the community benefits agreement movement, the types of agreements that fall under the community benefits agreement frame, as well as the use of community benefits agreements at local law, and in different geographic contexts. Next, it introduces the increasing use of community benefits legal tools in the context of wind energy infrastructure siting. The second part of this essay presents an example of an agreement to share community benefits particularly in the context of federal subsidies through …


Expanding The Toolbox Of Sustainable Business Law: The Transnational Impacts Of The Eu Corporate Sustainability Due Diligence Directive (Csddd), Anne-Marie Weber Dec 2024

Expanding The Toolbox Of Sustainable Business Law: The Transnational Impacts Of The Eu Corporate Sustainability Due Diligence Directive (Csddd), Anne-Marie Weber

Pace Environmental Law Review

The contemporary global economy relies extensively on interconnected value chains that often span different continents, presenting challenges when operations result in human rights violations or environmental damage. This has prompted the emergence of non-binding due diligence guidelines and binding laws in several countries, reflecting the necessity of fostering accountability in transnational business activities. The European Union’s adoption of the Corporate Sustainability Due Diligence Directive (CSDDD) on May 24th, 2024, represents a novel significant milestone in this trajectory. As a new instrument of binding transnational business law, the CSDDD aims to promote sustainable business practices, with implications extending beyond EU borders. …


A Transformative Era Of Action: How The Public Land And Private Sectors Are Realigning To Solve The Energy Transition And Climate Change, Roger Martella, Jillian Lavery, Michael O'Hora Dec 2024

A Transformative Era Of Action: How The Public Land And Private Sectors Are Realigning To Solve The Energy Transition And Climate Change, Roger Martella, Jillian Lavery, Michael O'Hora

Pace Environmental Law Review

Over the last 50 years, environmental laws have transformed the areas we inhabit—and Planet Earth—for the better. Since the daybreak of the environmental law movement in 1970, our air and water are clearer, the lands we navigate are cleaner, and the food and products we consume are safer. Unfortunately, this same legal framework has not met the same success when tackling two of the biggest challenges of ours and future generations: the energy transition and climate change. Since the Supreme Court empowered the Environmental Protection Agency to act on climate change over fifteen years ago, conventional environmental laws and policies …


The New Glass Ceiling, Andrea K. Schneider, Abigail R. Bogli, Hannah L. Chin Dec 2024

The New Glass Ceiling, Andrea K. Schneider, Abigail R. Bogli, Hannah L. Chin

Articles

Until the last decade, gender inequality in the legal profession was selfevident. Law school classrooms and law firm offices were overwhelmingly filled with men. In recent years, women have outnumbered men in law school classes and reached parity with men among first-year associates. These developments have created the misperception that gender equality has been achieved. In this Article, we challenge this complacency. We present new evidence from a detailed case study of law firms in a midsize city, showing that women remain underrepresented in leadership roles and underpaid relative to their colleagues. We then show how the limited opportunities and …


Burns V. Smith: Assessing The Sufficiency Of Affidavits Supporting Prejudgment Attachments In Medical Malpractice Actions, Margaret Christie Kenney Dec 2024

Burns V. Smith: Assessing The Sufficiency Of Affidavits Supporting Prejudgment Attachments In Medical Malpractice Actions, Margaret Christie Kenney

Maine Law Review

The process of attachment allows a plaintiff to request that the court bring a defendant's property into the court's custody for the purpose of satisfying any subsequent judgment that the plaintiff may obtain. In Maine, a plaintiff may proceed either with notice to the defendant or ex parte. In order to proceed ex parte, by which only the plaintiff appears before the court without notice to the defendant, the plaintiff must satisfy the requirements of Rule 4A of the Maine Rules of Civil Procedure. Rule 4A embodies two distinct safeguards for defendants whose property a plaintiff seeks to attach ex …