Constitutional Law Commons^™

Extending The Smith V. Hooey Duty To The Holding Jurisdiction, Ronald D. Russell

Maine Law Review

The right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, "The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution." …

Bernier V. State - The Right To Counsel In Entrustment Revocation Proceedings, Peter J. Detroy

Maine Law Review

Theodore Bernier was adjudicated a juvenile offender in September, 1966, and was subsequently committed to the Boys Training Center (BTC) for the term of his minority. In February, 1968, he was released on entrustment to his parents. Almost a year and a half later, Bernier was questioned by local police regarding his possible involvement in the theft of greenstamps from a local store. Although he was released without the police taking further action, they notified an aftercare and placement worker assigned to the BTC of the questioning. As a result, the BTC revoked the entrustment, and the police took him …

State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?, Francis J. O'Toole, Thomas N. Tureen

Maine Law Review

Because of their strategic location on the sparsely settled Canadian border, the Passamaquoddy Indians were of great importance in the American Revolution, and played a decisive role in securing eastern Maine for the United States. As soon as the hostilities had ended, however, the federal government promptly forgot about these Indian allies in what is now the State of Maine and, whether intentionally or not, left the Passamaquoddy Tribe in its dealings with the dominant society to the mercy of Massachusetts and, after 1820, Maine. The Passamaquoddy Tribe is a relatively small one, but there are approximately 120,000 other tribal …

Search And Seizure, Daniel G. Lilley

Maine Law Review

Search and Seizure, authored by Colorado Judge Edward C. Fisher, is a book of better than 300 pages which purports to be a recent survey of the law dedicated to "peace officers of America." The foreword states that it is written for law enforcement officers and is a ready reference for attorneys, judges, and others concerned with the administration of criminal justice. The book is clearly written. It tells police officers how to conduct searches and seizures and it tells them why restrictions are imposed. Where there is still conflict and doubt, it gives the officer some "safe" approaches to …

Stewart V. Smith: A Misapplication Of North Carolina V. Pearce, Alton C. Stevens

Maine Law Review

Gordon Stewart was convicted of a felony and sentenced to fifteen to nineteen months in the house of correction and a $2,000 fine, or an additional 2,000 days in lieu thereof. Since he was indigent this represented a total sentence of approximately seven years. Upon petition to the Windsor County Court this original sentence was set aside as being in excess of the twenty-four month statutory maximum. Resentencing was ordered and a different judge sentenced respondent anew to a term of twenty-three to twenty-four months in the state prison with appropriate credit given for time already served. On appeal to …

In Re Adoption Of E: First Amendment Rights And Religious Inquiry In Adoption Proceedings, Francis J. Scanlon

Maine Law Review

The New Jersey Supreme Court decision, In re Adoption of E, represents an effort to define what considerations are to be given the religious beliefs of prospective adoptive couples in the screening process of the adoption courts. The majority opinion is emphatic in spelling out what courts cannot do. In overruling the lower court's decision, it was held that the first amendment prohibits the denial of a couple’s adoption request solely because the court disapproves of their religious beliefs. Though holding that a couple's religion cannot be a controlling factor in an adoption denial, the court did not see religion …

Nonstatutory Judicial Review Of Federal Agency Action: A New Approach To Sovereign Immunity, William P. Hardy

Maine Law Review

In deciding whether to review administrative agency action, an astute court seeks to maintain a delicate balance between over-interference with administration of legislatively created programs and denial of plaintiff's rights. This balancing process historically has been hindered by federal courts treating the doctrine of sovereign immunity as a jurisdictional bar to unconsented suits against the United States Government. Regardless of the validity of a plaintiff's grievance and in spite of the relative infrequency of such suits, the courts adhering to this traditional approach mechanically dismiss such actions solely because they seek relief against the sovereign. A few federal courts have …

Enforcement Of Money Judgments And Divorce Decrees In Maine, S. Peter Mills

Maine Law Review

Until recently divorce decrees in Maine were frequently enforced by capias execution, a remedy at law by which the wife or her attorney could jail the ex-husband for failure to pay money overdue in alimony, support or litigation costs. Most states use contempt proceedings whenever imprisonment is deemed an appropriate sanction in a divorce action, but in Maine a capias execution gave the aggrieved party advantages not available in a contempt petition. First, even though issuance of the capias was a matter for the court's discretion, there was no requirement either in statute or in common law that the court …

Retroactivity Rethought: The Hidden Costs, Pierce B. Hasler

Maine Law Review

The validity of Justice Harlan's contention that retroactivity must be rethought is becoming increasingly evident, and it seems likely that extensive reevaluation of the doctrine will soon be necessary. The past six years have been marked by well over a dozen Supreme Court decisions addressed to the question of the retroactive or prospective effect to be given prior constitutional rulings in the area of criminal procedure. Rarely has an important constitutional doctrine achieved such full-blown proportions so quickly, yet several members of the Court would now vote to reject it and start anew. Linkletter v. Walkers was the landmark decision …

Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review

Maine Law Review

Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …

Contract Zoning: A Flexible Technique For Protecting Maine Municipalities, Maine Law Review

Maine Law Review

Since the constitutionality of comprehensive zoning plans was upheld by the 1926 United States Supreme Court decision in Euclid v. Ambler Realty, municipal zoning has become an acceptable, indeed a necessary, fact of life. Maine, as well as most states, has enacted zoning enabling legislation pursuant to which many Maine municipalities have adopted zoning ordinances. The standard zoning approach which has evolved since Euclid has been based largely on the concept of uniform gridiron districts which conform to a legislatively preconceived comprehensive plan intended to assist municipalities in maintaining an orderly growth. These comprehensive plans, however, frequently have become a …

Argersinger And The Right To Counsel In The Military, Maine Law Review

Maine Law Review

The dramatic advances made since 1965 in recognizing the right to counsel for accused indigents have steadily, albeit unevenly, extended to military courts-martial. Despite this progress, many questions remain unresolved regarding right to counsel both generally and in the military. While the right to counsel is solidified in general courts-martial, it remains precarious in special and summary courts-martial, for the right to lawyer counsel is defeasible where a military exigency is shown in the former and lawyer counsel is not yet required service-wide in the latter. The military exigency exception to full sixth amendment rights to easily degenerates into a …

Lloyd Corp. V. Tanner: A Shopping Center Open For Business But Not For Dissent, Maine Law Review

Maine Law Review

Self-government in the United States is facilitated by adherence to the traditional principles of freedom of speech and private property. The first requirement of a self-governing community is an electorate with sufficient knowledge to regulate its own affairs wisely. Hopefully, that requirement is fulfilled by free interchange of ideas. But the viability of free speech depends in part on the concept of private property, which secures to the individual an area of insulation from societal influences. Both free speech and private property are constitutionally protected from governmental interference, the former by the First Amendment and the latter by the Fifth …

Constitutional Issues In Durational Party Affiliation Requirements, Maine Law Review

Maine Law Review

The recent decision of the Supreme Court declaring durational residency requirements for voting in general elections unconstitutional has raised the analogous question of the constitutionality of state-imposed durational party affiliation requirements for voting in primary elections. These requirements base a voter's eligibility to participate in a primary not solely on his affiliation with the party, but also on the additional requirement that the party affiliation has extended over a period prior to the primary. This additional requirement has recently been successfully attacked in several states as violative of the First and Fourteenth Amendments to the Constitution. However, New York's statutory …

Dismissals For Pregnancy In Government Employment, Maine Law Review

Maine Law Review

For those who litigate sex discrimination cases, the most difficult problems theoretically are those which involve characteristics that are not common to both sexes. Discrimination on the basis of pregnancy is the most obvious example and is probably the most difficult to attack. Male employers, judges and even obstetricians are outsiders to the experience of pregnancy, and to many of them the process verges on the mysterious. Masculine attitudes toward pregnancy range from protectiveness to contempt, but they are seldom neutral. Because counsel for women plaintiffs contesting pregnancy employment regulations work in a sensitive area, they should be especially careful …

Attorneys And The Summary Contempt Sanction, Maine Law Review

Maine Law Review

It is indisputable that an orderly, disciplined courtroom is a prerequisite for the administration of justice. Rules necessarily backed by sanctions insure needed decorum and sobriety within the courtroom. One method used to promote courtroom order is the summary criminal contempt procedure embodied in 18 U.S.C. § 401(1) and implemented under Rule 42(a) of the Federal Rules of Criminal Procedure. In practice, the nature of the procedure has triggered criticism that summary criminal punishment of indecorous courtroom conduct fails to provide constitutional safeguards of due process of law. Most recently, the decision of In re Dellinger has reemphasized the problems …

Argersinger And The Right To Counsel In The Military, Maine Law Review

Maine Law Review

The dramatic advances made since 1965 in recognizing the right to counsel for accused indigents have steadily, albeit unevenly, extended to military courts-martial. Despite this progress, many questions remain unresolved regarding right to counsel both generally and in the military. While the right to counsel is solidified in general courts-martial, it remains precarious in special and summary courts-martial, for the right to lawyer counsel is defeasible where a military exigency is shown in the former and lawyer counsel is not yet required service-wide in the latter. The military exigency exception to full sixth amendment rights to easily degenerates into a …

Forbes V. Wells Beach Casino And The Contemporaneous Ownership Rule, Maine Law Review

Maine Law Review

Prior to the enactment of Title 13-A of the Maine Business Corporation Act in January 1972, it was unsettled in Maine law whether a stockholder suing in a derivative action had to allege ownership of stock at the time of the wrongful transaction. In Forbes v. Wells Beach Casino, Inc., initiated before Title 13-A became effective, the Maine Supreme Judicial Court handed down its initial pronouncement on the stockholder standing issue. The decision makes clear that even in those jurisdictions where contemporaneous ownership is required, the rule is not absolute. The Maine court found that there are instances in which …

Due Process And Supremacy As Foundations For The Adequacy Rule: The Remains Of Federalism After Wilbur V. Mullaney, Maine Law Review

Maine Law Review

Stillman E. Wilbur, Jr., was found guilty of murder by a jury in a Maine Superior Court and appealed, contending that the trial judge's instructions violated due process. In essence, the trial court instructed the jury that if it were satisfied beyond a reasonable doubt that Wilbur had committed a voluntary and intentional killing, malice aforethought was presumed, and therefore, the defendant would be guilty of murder unless he established by a preponderance of the evidence that he had killed in the heat of passion upon sudden provocation, in which case the jury could find him guilty of manslaughter. The …

Beyond The Ivy League: Stopping The Spread Of Antisemitism On American Campuses: Hearing Before The H. Comm. On Educ. & The Workforce, 119th Cong., May 7, 2025 (Statement Of David D. Cole), David Cole

Testimony Before Congress

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of …

Law School News: Rising Leaders In Justice: Celebrating Rwu Law's Class Of 2025 Honorees 05-07-2025, Jane Govednik

Life of the Law School (1993- )

No abstract provided.

Examining The Brazilian Supreme Federal Court’S Expanded Powers In The Bolsonaro Era: A Win For Democracy Or A Turn Toward Autocracy?, Théo G. De Sá-Kaye

University of Miami Inter-American Law Review

As Jair Bolsonaro rose to popularity and was elected the 38th president of Brazil in 2018, the global community grew concerned over his very public disdain for the country’s democratic institutions and admiration for Brazil’s 22-year-long military dictatorship. The Bolsonaro administration was marked by repeated attacks on the judiciary, a heavily criticized response to the COVID-19 pandemic, and, eventually, the storming of Congress and the Brazilian Supreme Court by Bolsonaro’s supporters– mirroring the January 6th insurrection in the U.S. However, the most significant aspect of the Bolsonaro presidency may not lie solely in his actions, but in the response from …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …