Constitutional Law Commons^™

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 …

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) …

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

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

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

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 …

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 …

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

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 …

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 …

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 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 …

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 …

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 …

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 . . .

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

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

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

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 …

Interstate Commerce And Personal Jurisdiction In Flux: A Critical Analysis Of Mallory V. Norfolk Southern Railway Co. And Its Effects On Business Litigation, Mairi Cooley

University of Miami Business Law Review

This Note examines the implications of the U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Railway Co., advocating for legislative intervention by Congress to mitigate its adverse effects on interstate commerce. The Court revived a pre-International Shoe v. Washingtonprecedent, validating a Pennsylvania statute that imposes general personal jurisdiction on non-resident businesses registered in the state. Justice Gorsuch’s majority opinion, supported by a diverse coalition of Justices, underscored the constitutionality of the statute under the Due Process Clause, with Justice Jackson emphasizing the principle of jurisdictional waiver via business registration. Conversely, Justice Alito’s concurrence, while agreeing on …

Document Subpoenas And The Moral Dilemma At The Heart Of The Privilege Against Self Incrimination, John W. Nields Jr.

St. John's Law Review

(Excerpt)

This Article will show that document subpoenas will nearly always compel “testimony.” This is so because the subpoena recipient is legally required to disclose to the party issuing the subpoena each and every document she has that is called for by the subpoena; and because, as Wigmore points out, the party issuing the subpoena will get the incriminating documents it seeks only if the subpoena recipient responds truthfully, disclosing every such incriminating document she has. And this means that the subpoena is compelling “testimony.”

That is the core teaching of the Hubbell decision in which the Court cites …

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Notre Dame Law Review

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

A Uniform Choice? Esas And The State Right To Education, Hadiah C. Mabry

Notre Dame Law Review

Education savings accounts (ESAs) are on the rise. Just since 2023, ESAs have been on the legislative docket in Alabama, Georgia, Iowa, Montana, Ohio, Texas, Tennessee, and Wyoming, with ESAs already active in eleven other states. These programs provide funds directly to parents on a per-child basis which can be used on any number of educational pursuits. While ESAs are relatively young in the world of school choice, they are also the natural outgrowth of a greater push toward educational freedom for parents. They join the ranks of more established programs like school vouchers, tax credits, and charter schools.

Unlike …

Roving Extraterritoriality: The Murky Doctrine On State Laws Regulating Absent Citizens, Leo Schlueter

Notre Dame Law Review

It is generally agreed that sovereigns have the power to punish the crimes of their citizens abroad, at least in some situations. But sovereigns rarely exercise this power, and its contours are not well understood. This is especially true in the context of American federalism. It is unclear to what degree states have retained their sovereign extraterritorial powers, and the Supreme Court has never had occasion to fully explain their limits. Recent political developments, however, make it plausible that the question will soon arise. This Note attempts to provide some insight into the future debate over state criminal extraterritorial jurisdiction …

Teaching Dobbs: On The Role Of Ideology In Constitutional Interpretation, Steven J. Heyman

Chicago-Kent Law Review

No abstract provided.

Imperfect Protection Against Perfect Enforcement: When Procedure Is Not Enough, William S. Fallon

Connecticut Law Review

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior.

Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of …

Teaching Constitutional Law In A Crisis Of Judicial Legitimacy, William Baude

Chicago-Kent Law Review

No abstract provided.

On Teaching Constitutional Law: Challenges And Opportunities, Christopher W. Schmidt

Chicago-Kent Law Review

No abstract provided.