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Articles 301 - 330 of 10968
Full-Text Articles in Law
Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith
Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith
Maine Law Review
In Tuttle v. Raymond, the Maine Supreme Judicial Court, sitting as the Law Court, reconsidered the appropriateness of Maine's common law doctrine of punitive damages. Under the doctrine, punitive or exemplary awards are permitted in tort actions, at the factfinder's discretion, for the purpose of deterring wrongful conduct. Prior to Tuttle, a plaintiff raised a claim for such an award if he proved by a preponderance of the evidence that the defendant was guilty of intentional, wanton, malicious, reckless, or grossly negligent behavior. Because of the doctrine's uncertain justification and vague standards, however, punitive damages had become the subject of …
State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?, Kristin A. Gustafson
State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?, Kristin A. Gustafson
Maine Law Review
In State v. Boilard, the Maine Supreme Judicial Court, sitting as the Law Court, recently addressed the question of when the failure to instruct the jury regarding a defense available under the Maine Criminal Code constitutes error. The court held that the trial court's failure to give an instruction on the defense of justification did not rise to the level of obvious error. The court reasoned that because the instruction conflicted with the defendant's theory of defense, and because counsel for the defendant did not claim error at trial or on appeal, any argument that the defendant had been prejudiced …
The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough
The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough
Maine Law Review
The past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or "floor," it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering …
Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases, Kaighn Smith
Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases, Kaighn Smith
Maine Law Review
In 1982, three asbestos product manufacturers filed voluntary petitions for business reorganization under Chapter 11 of the United States Bankruptcy Code. The common reason for each of these filings was that tort liabilities threatened the financial survival of the corporation. Never, in the history of United States bankruptcy law, had any business sought bankruptcy relief for such a reason. By 1985, two more firms, another asbestos product manufacturer and a pharmaceutical company, filed Chapter 11 petitions for the same reason. The torts of these "debtors" in bankruptcy are similar; they extend from the manufacture and wide-spread marketing of products that …
Improved Regulation Of Maine Physicians: One Solution To The Medical Malpractice Crisis, Joanne Buttolph Steneck
Improved Regulation Of Maine Physicians: One Solution To The Medical Malpractice Crisis, Joanne Buttolph Steneck
Maine Law Review
Maine began regulating allopathic and osteopathic physicians around the turn of the century with the passage of two statutes, in 1895 and 1919, commonly referred to as the Medical Practice Acts. As originally enacted, these statutes provided for the establishment of boards, composed of physicians, and empowered the boards to examine and license all persons seeking to practice as physicians and surgeons within the state. The boards were also responsible for investigating complaints of noncompliance with, or violations of, the Acts' provisions, and for revoking licenses for such violations. The boards were left to undertake these licensing and review functions …
Ending The Never-Ending Medical Malpractice Crisis, Allen Redlich
Ending The Never-Ending Medical Malpractice Crisis, Allen Redlich
Maine Law Review
Another nationwide outbreak of what is commonly called the medical malpractice "crisis" is spreading. Once again, as during prior episodes, the public hears of dramatic increases in the cost of malpractice insurance, of growing numbers of multimillion dollar awards, and of increases in the number of suits filed. Already several states have passed statutes in attempts to resolve the crisis. This crisis atmosphere resembles the crisis of the mid-seventies when every state enacted so-called "remedial" statutes, which failed to solve the crisis. A physician would define a "crisis" as a turning point in the course of a disease; nonmedical definitions …
Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis, Patrick Francis Harrigan
Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis, Patrick Francis Harrigan
Maine Law Review
With increasing frequency, federal courts throughout the nation have confronted a multiplicity of "toxic tort" claims, claims for relief arising from chronic and latent illnesses or diseases allegedly caused by toxic substances. Toxic substances are substances whose manufacture, processing, distribution, use, or disposal presents or will present an unreasonable risk of injury to a person's health or to the environment. Because many of these unreasonable health risks are caused by consumer and industrial products, many toxic tort claims are actually "toxic product" claims. Examples of toxic product claims include those arising from the use, exposure to, or consumption of chemicals …
Gifts, Joint Ownership, And Marital Property: Interspousal Transfers Of Property Under Maine's Marital Property Act, Paul Fillmore
Gifts, Joint Ownership, And Marital Property: Interspousal Transfers Of Property Under Maine's Marital Property Act, Paul Fillmore
Maine Law Review
The classification of property in divorce proceedings as either marital or individual is crucial because under Maine's Marital Property Act a divorce decree can dispose of only marital property. Once the court identifies the marital property, the actual division of that property is within the court's discretion. Courts, however, often have difficulty classifying property which was once individual property but which was transferred by the owner spouse into joint ownership during the course of the marriage. Maine courts have reached different results in these situations depending on whether they have read the Marital Property Act literally or in the context …
Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication, Christopher C. Taintor
Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication, Christopher C. Taintor
Maine Law Review
A leading authority in the field of administrative law has posited that "[t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." There is no question that judicial review is an imperfect check on agency action: it is susceptible to criticism for, on the one hand, the excessive limitations on its exercise, and on the other for the arguably inferior level of understanding from which courts must approach matters uniquely within the competence of particular administrators. Nonetheless, the courts remain "the acknowledged architects …
Emerging Protection Against Retaliatory Discharge: A Public Policy Exception To The Employment At-Will Doctrine In Maine, Andre D. Bouffard
Emerging Protection Against Retaliatory Discharge: A Public Policy Exception To The Employment At-Will Doctrine In Maine, Andre D. Bouffard
Maine Law Review
The job security of approximately sixty percent of Maine's civilian labor force has traditionally been, and continues to be, governed by the employment at-will doctrine. In its traditional form, the doctrine allows employers to discharge employees, whose employment contract is for an indefinite length, for good cause, no cause, or bad cause. Similarly, the employee is free to terminate the employment relationship at any time. Courts and commentators have pointed out that the symmetry and logical appeal of the contractual principle of mutuality of obligation is the central doctrinal underpinning of the rule. Because the employment at-will doctrine was consistent …
Handicapped Workers: Who Should Bear The Burden Of Proving Job Qualifications?, June Zellers Schau
Handicapped Workers: Who Should Bear The Burden Of Proving Job Qualifications?, June Zellers Schau
Maine Law Review
Joining a growing number of jurisdictions in 1973, the Maine Legislature amended the fair employment sections of the Maine Human Rights Act (the MHRA) to extend equal employment opportunity protection to all physically disabled workers. Nearly a decade later the Maine Supreme Judicial Court, sitting as the Law Court, defined unlawful employer treatment of handicapped workers in Maine Human Rights Commission v. Canadian Pacific, Ltd. The Law Court held that an employment decision based on a worker's handicap constitutes an admission of discrimination that shifts the burden of persuasion to the employer to prove either that all workers with similar …
The Gulf Of Maine Case And The Future Of Ocean Boundary Delimitation, Edward Collins Jr., Martin R. Rogoff
The Gulf Of Maine Case And The Future Of Ocean Boundary Delimitation, Edward Collins Jr., Martin R. Rogoff
Maine Law Review
On October 12, 1984, a Chamber of the International Court of Justice handed down its decision in the Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.). By a vote of four to one, the Chamber described in geodetic lines the course of the single maritime boundary that divides the continental shelf and exclusive fishery zones of Canada and the United States in that area. The Chamber's decision ended more than a decade of conflict between the two countries concerning jurisdiction over continental shelf and fishery resources in the Georges Bank area. …
The Waiver Problem In Maine Real Property Foreclosure Law: A Commercial Paper Perspective, Dennis M. Patterson
The Waiver Problem In Maine Real Property Foreclosure Law: A Commercial Paper Perspective, Dennis M. Patterson
Maine Law Review
When a mortgagee accepts from a mortgagor payment of part of a mortgage arrearage, does the mortgagee then waive its right to foreclose? Many bank counsel will say that the mortgagee does waive its right to foreclose, and they will point for authority to the broad holding of Savings & Loan Association of Bangor v. Tear. In that decision, the Maine Supreme Judicial Court, sitting as the Law Court, seemed to hold that a mortgagee waives its right to foreclose if it accepts tender of a late payment. This broad interpretation of the Savings & Loan decision has proven to …
Perreault V. Parker: Findings Tainted By Error, Gisele M. Nadeau
Perreault V. Parker: Findings Tainted By Error, Gisele M. Nadeau
Maine Law Review
An appellate court does not disturb a trial court's findings of fact unless they are clearly erroneous, and, therefore, usually confines its review to an assessment of a trial court's legal conclusions based on those findings of fact. The method used by a trial court in making factual findings, however, involves the application of legal principles. If a trial court fails properly to apply these legal principles in arriving at its findings of fact, these findings may be tainted by the error. This is so, for instance, when a trial court's findings of fact have been "manifestly influenced or controlled" …
In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue
In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue
Maine Law Review
Pursuant to the Due Process in Sterilization Act of 1982, Maine courts may hear petitions for sterilization of the mentally retarded. In In re Debra B., a mother petitioned to have her mentally retarded daughter sterilized. The Maine Supreme Judicial Court, sitting as the Law Court, vacated the order granting the petition. In a unanimous opinion, the court held that a finding of procreative capability is a sine qua non for determining whether sterilization is in an incompetent person's best interest. Through its holding, the court thereby extended the statute's clear and convincing standard of proof to a factor not …
Maine's Living Will Act And The Termination Of Life-Sustaining Medical Procedures, Eric R. Herlan
Maine's Living Will Act And The Termination Of Life-Sustaining Medical Procedures, Eric R. Herlan
Maine Law Review
The Maine Legislature recently enacted a law authorizing the execution and use of living wills. The execution of a living will, essentially a document of "informed consent," allows a person to preserve in a legally recognized form his desire that, once he has been diagnosed to have a terminal medical condition and is no longer competent to make treatment decisions, the doctor should discontinue all life-sustaining procedures. With the passage of this act, Maine has joined thirty-four other states and the District of Columbia in enacting living will provisions. In addition, the National Conference of Commissioners on Uniform State Laws …
From "Maine Law" To Model Act: Liquor Liability In Maine, William P. Shumaker
From "Maine Law" To Model Act: Liquor Liability In Maine, William P. Shumaker
Maine Law Review
With the passage of the Maine Liquor Liability Act by the 112th Legislature, the State of Maine has completed a thorough reexamination of its public policy in the area of liability for injuries resulting from the use of alcoholic beverages. For 130 years the state's policy in this area was expressed by the statute commonly known as the dram shop act, the essential provisions of which had remained unchanged for over a century. This statute held sellers and other providers of alcoholic beverages strictly liable to any third party injured as a result of the intoxication of the recipient of …
The Provisional Application Of International Agreements, Martin A. Rogoff, Barbara E. Gauditz
The Provisional Application Of International Agreements, Martin A. Rogoff, Barbara E. Gauditz
Maine Law Review
The last few decades have seen a tremendous increase in the number of international agreements concluded by states and international organizations. The pace of concluding international agreements is accelerating and will most likely continue to accelerate at an increasing rate. The growing reliance on international agreements by the members of the world community is of course a response to rapidly expanding international interactions and interdependencies. Until the latter part of the nineteenth century, international agreements dealt primarily with political matters: peace treaties, treaties of alliance and friendship, neutrality treaties, and treaties settling territorial claims. Today, international agreements deal not only …
Wilderness, Trust, And Finality: The Baxter State Park Snowmobile Dispute, Ellen Kandoian, Brooke E. Barnes
Wilderness, Trust, And Finality: The Baxter State Park Snowmobile Dispute, Ellen Kandoian, Brooke E. Barnes
Maine Law Review
The recent controversies surrounding the use of snowmobiles in Baxter State Park exemplify the human essence of the trust relationship and the law's awkwardness in addressing the inherently nonlegalistic principles of trust. Baxter State Park is an area of 201,018 acres in northern Maine, purchased by former Governor Percival Proctor Baxter and then donated to the State of Maine in trust. The park includes Mount Katahdin, the highest mountain in Maine and the head of the Appalachian Trail. As Chief Justice McKusick wrote in a recent decision construing the trust, "in its combination of size, uniqueness, permanence, and vision, his …
State V. Harding: Municipal Police Authority And The Fresh Pursuit Statute, David S. Schuman
State V. Harding: Municipal Police Authority And The Fresh Pursuit Statute, David S. Schuman
Maine Law Review
As early as 1551, during the reign of King Edward VI, courts held at common law that, except in cases of fresh pursuit, the power of a sheriff or justice of the peace does not extend beyond his jurisdiction. Recognizing the importance of jurisdictional boundaries as limits on a sheriff's authority, the Barons of the Exchequer denounced the possibility of "two several sheriffs in one same county," observing that "in this realm there are divers authorities, and none may exceed his limits or bounds." Modern state statutes setting forth the powers of local police continue to limit the extra-jurisdictional authority …
Bouford V. Bath Iron Works: Defining Double Recovery Under State And Federal Compensation Laws For Maritime Workers, John Arthur Mccauley
Bouford V. Bath Iron Works: Defining Double Recovery Under State And Federal Compensation Laws For Maritime Workers, John Arthur Mccauley
Maine Law Review
In Bouford v. Bath Iron Works Corp., the Maine Supreme Judicial Court, sitting as the Law Court, held that an employer is not entitled to credit disability payments made under the federal Longshore and Harbor Workers' Compensation Act (LHWCA) against a subsequent obligation to pay a permanent impairment award for the same injury under the Maine Workers' Compensation Act (MWCA). While adhering to the principle against "double recovery" by employees in cases in which there is concurrent jurisdiction of federal and state compensation schemes, the Law Court reasoned that state permanent impairment awards are not duplicative of LHWCA disability benefits …
Dissell V. Trans World Airlines: Constitutional Limitations On The Workers' Compensation Commission's Subject-Matter Jurisdiction, Patricia A. Nelson-Reade
Dissell V. Trans World Airlines: Constitutional Limitations On The Workers' Compensation Commission's Subject-Matter Jurisdiction, Patricia A. Nelson-Reade
Maine Law Review
To rule upon a workers' compensation claim, the Maine Workers' Compensation Commission must determine that it has both personal and subject-matter jurisdiction. Personal jurisdiction is determined by applying Maine's "long-arm" statute. Subject-matter jurisdiction derives from the Commission's status as an administrative agency authorized to administer the Maine Workers' Compensation Act (MWCA). Although subject-matter determination generally involves a choice-of-law issue, in a workers' compensation claim having extraterritorial aspects, the Commission is not free to apply the compensation acts of other states that have contacts with the claim. Rather, the Commission may determine only if it has authority under the MWCA to …
Implied Warranties Of Seaworthiness: Applying The Knowing Neglect Standard In Time Hull Insurance Policies, Derek P. Langhauser
Implied Warranties Of Seaworthiness: Applying The Knowing Neglect Standard In Time Hull Insurance Policies, Derek P. Langhauser
Maine Law Review
Time hull marine insurance policies provide insurance for a definite period against damage to or loss of a vessel. Even in cases in which a ship owner expressly warrants to an insurer that a vessel will be seaworthy when the policy takes effect, and unless the insurer waives all warranties, American admiralty law implies a warranty of seaworthiness as a condition of the contract. This implied warranty increases the insurer's chance of recovering his premium by mitigating his risk that the vessel will be damaged or lost. Although American admiralty law strives to remain harmonious with English admiralty law, American …
The Denial Of Bail Under Maine's "Proof Evident Or Presumption Great" Standard, Maureen Dea
The Denial Of Bail Under Maine's "Proof Evident Or Presumption Great" Standard, Maureen Dea
Maine Law Review
When the framers of the Maine Constitution gathered in Portland in the fall of 1819, they decided that the document, unlike the Massachusetts Constitution on which it was based, should guarantee a right to bail pending trial. The convention adopted, apparently without debate or dissent, the following provision as part of the Declaration of Rights in article I . . .
Pornography Commissions And The First Amendment: On Constitutional Values And Constitutional Facts, David A.J. Richards
Pornography Commissions And The First Amendment: On Constitutional Values And Constitutional Facts, David A.J. Richards
Maine Law Review
The interlinked questions of free speech, obscenity, and pornography are contextually sensitive—as are many other great issues of constitutional principle—to both normative and factual arguments; that is, much of the disagreement in the discussion of these questions centers on the proper interplay of constitutional values and facts. To what extent, for example, should constitutional values be sensitive to empirical research about the consequences of pornography distribution and use? If sensitive at all, how sensitive? Must the state, for example, satisfy a heavy burden of justification in terms of showing harm caused if it is to abridge pornography distribution and use, …
Managing The Cumulative Effects Of Coastal Land Development: Can Maine Law Meet The Challenge?, Alison Rieser
Managing The Cumulative Effects Of Coastal Land Development: Can Maine Law Meet The Challenge?, Alison Rieser
Maine Law Review
Following a period of slow economic growth for the State of Maine in the early part of this decade, improved economic conditions and new demographic trends have renewed the demand for commercial, residential, and recreational development in coastal communities across the state. For many years, Maine has tried to stimulate growth in its communities. Now, many of its coastal towns face a huge development boom, particularly in the southern and mid-coast areas, in communities such as York, Wells, Ogunquit, Kennebunk, Kennebunkport, Portland, Camden, and Belfast. These towns are struggling to find ways to control the increasing density of development along …
The Constitution Without Tears, Gene Carter
The Constitution Without Tears, Gene Carter
Maine Law Review
The coming plethora of Bicentennial speeches and activities are intended to provide occasions for public figures and private persons to say something helpful to a current and realistic understanding of the role of the Constitution in our daily lives; and, hopefully, something at least modestly expository of our duties as citizens of American constitutional democracy.
The Afro-American And The Constitution: Colonial Times To The Present, James L. Watson
The Afro-American And The Constitution: Colonial Times To The Present, James L. Watson
Maine Law Review
The theme of this essay is the Afro-American and the Constitution: Colonial Times to the Present. When I was told about this theme, my first reaction was to follow the advice of the famous black philosopher, Satchel Paige, who said, "Don't look back because what is behind you might be catching up." My discipline, however, forced me to look back at the Constitution and particularly how it has affected black Americans.
A Commemorative, Eric Robert Herlan Editor-In-Chief
A Commemorative, Eric Robert Herlan Editor-In-Chief
Maine Law Review
In this issue the Maine Law Review joins in the national celebration of the Bicentennial of the United States Constitution. Three distinguished federal judges, all of whom are intimately familiar with that great document, have kindly contributed essays to the Review based on speeches they have earlier given for the Bicentennial. We are happy to present these essays, each of which has an important perspective on the Constitution, as our commemorative on this special occasion.
A Genealogy Of Founders, Frank M. Coffin
A Genealogy Of Founders, Frank M. Coffin
Maine Law Review
Two hundred years ago this spring George Washington wrote to our fellow Mainer, General Henry Knox, that because of the illness of his mother he would not be able to attend the Philadelphia Convention. If her health had not speedily improved, we might have had quite a different kind of Bicentennial, for both Washington and Benjamin Franklin, though largely silent in the debates, were palpable sources of strength. As it is, we have the happy occasion to celebrate what Everett Ladd has called "the expression of a nation-defining consensus on political values," our nationalizing principle, the one supreme bond linking …