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Full-Text Articles in Law

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 …

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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. …

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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 …

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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.” …

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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.

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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 …

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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. …

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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 …

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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 …

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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 …

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Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith Dec 2024

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 …

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State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?, Kristin A. Gustafson Dec 2024

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 …

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The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough Dec 2024

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 …

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Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases, Kaighn Smith Dec 2024

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 …

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Improved Regulation Of Maine Physicians: One Solution To The Medical Malpractice Crisis, Joanne Buttolph Steneck Dec 2024

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 …

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Ending The Never-Ending Medical Malpractice Crisis, Allen Redlich Dec 2024

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 …

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Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis, Patrick Francis Harrigan Dec 2024

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 …

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Gifts, Joint Ownership, And Marital Property: Interspousal Transfers Of Property Under Maine's Marital Property Act, Paul Fillmore Dec 2024

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 …

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Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication, Christopher C. Taintor Dec 2024

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 …

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Emerging Protection Against Retaliatory Discharge: A Public Policy Exception To The Employment At-Will Doctrine In Maine, Andre D. Bouffard Dec 2024

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 …

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Handicapped Workers: Who Should Bear The Burden Of Proving Job Qualifications?, June Zellers Schau Dec 2024

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 …

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The Gulf Of Maine Case And The Future Of Ocean Boundary Delimitation, Edward Collins Jr., Martin R. Rogoff Dec 2024

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. …

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The Waiver Problem In Maine Real Property Foreclosure Law: A Commercial Paper Perspective, Dennis M. Patterson Dec 2024

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 …

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Perreault V. Parker: Findings Tainted By Error, Gisele M. Nadeau Dec 2024

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" …

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In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue Dec 2024

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 …

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Maine's Living Will Act And The Termination Of Life-Sustaining Medical Procedures, Eric R. Herlan Dec 2024

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 …

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From "Maine Law" To Model Act: Liquor Liability In Maine, William P. Shumaker Dec 2024

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 …

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The Provisional Application Of International Agreements, Martin A. Rogoff, Barbara E. Gauditz Dec 2024

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 …

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Wilderness, Trust, And Finality: The Baxter State Park Snowmobile Dispute, Ellen Kandoian, Brooke E. Barnes Dec 2024

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 …

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State V. Harding: Municipal Police Authority And The Fresh Pursuit Statute, David S. Schuman Dec 2024

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 …

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