Constitutional Law Commons^™

In Re Misty Lee H.: Application Of The Best Interests Standard In Parental Rights Terminations, William L. Dawson Jr.

Maine Law Review

The family unit is perhaps America's most deeply rooted social institution. The integrity of the family unit has been repeatedly recognized by the United States Supreme Court as warranting constitutional protection. As a means of protecting family autonomy, natural parents possess a fourteenth amendment liberty interest in the care and custody of their children. The parental liberty interest encompasses a wide range of rights. Although substantial, these parental rights are not absolute. By virtue of the parens patriae power, the state may interfere with parental rights in order to preserve and promote the welfare of the child. The most extreme …

A Defendant's Right To Counsel In Commitment Hearings For Nonpayment Of A Criminal Fine, Barbara A. Appleby

Maine Law Review

The federal constitutional right of an indigent defendant to appointed counsel in state court proceedings derives from two constitutional provisions. First, the sixth amendment, as incorporated by the due process clause of the fourteenth amendment, provides the basis for an absolute right to counsel in criminal prosecutions leading to actual imprisonment. Second, the due process clause, as an independent source of individual rights, provides the basis for the right to counsel in civil proceedings. Both the sixth amendment and the due process rights may be implicated in a hearing for non-payment of a criminal fine. Title 17-A, section 1304 of …

Separation Of Powers Restrictions On Judicial Rulemaking: A Case Study Of Federal Rule 4, Ralph U. Whitten

Maine Law Review

Debates over the validity of Federal Rules of Civil Procedure have historically centered on the "substantive rights" restriction of the Rules Enabling Act of 1934. While Supreme Court decisions from Sibbach v. Wilson & Co. through Hanna v. Plumer and beyond have arguably deprived the restriction of any practical force, scholars have consistently favored a more rigorous interpretation of the directive that federal rules not "abridge, enlarge, or modify any substantive rights." Despite the historic impotence of the substantive rights restriction, discussions of the validity of the Federal Rules of Civil Procedure continue, even today, to center on the substantive …

City Of Portland V. Depaolo: Defining The Role Of Stare Decisis In State Constitutional Decisionmaking, Thad B. Zmistowski

Maine Law Review

Five years ago, the Maine Supreme Judicial Court, sitting as the Law Court, aligned itself with a growing number of states by adopting the primacy method of state constitutional decisionmaking. Under the primacy method, a state court decides an issue of constitutional law by first looking to that state's own constitution; if the issue is resolvable on state constitutional grounds, the federal constitutional grounds are not reached. Adoption of the primacy method by numerous state courts has generated considerable debate concerning issues of state constitutional law. Little discussion, however, has focused on the methodology of state constitutional adjudication. As a …

Taxpayer Standing And The Preventive-Remedial Distinction: A Call For Reform, Alicia E. Flaherty

Maine Law Review

The Maine Law Court has observed that, "a central function of American courts [is] to protect and relieve the individual from injurious unconstitutional conduct by government officials." Apart from the political process, the judicial process is the only means through which citizens can ensure that government conforms to the law. The courts provide a forum for citizens to challenge the legality of official acts, and serve as a "means of correcting illegal practices of government officials which would otherwise be irreparable." The question of standing is a critical element of the court's task of balancing the individual's right to challenge …

Coping With Confusion: A Unitary Procedure For Judicial Review Of The Referendum Process, Daniel L. Cummings

Maine Law Review

Although our state and national political systems are models of representative government, the Maine Constitution provides an important mechanism for direct democracy. Indeed, the people of Maine expressly reserve in the state constitution "power to propose laws and to enact or reject the same at the polls independent of the Legislature." Maine people propose such laws by means of the referendum process. Use of the referendum has become an increasingly widespread mechanism for addressing pervasive societal concerns such as land use regulation, environmental policy and public health issues. The prevalence of interest group politics undoubtedly influences Maine's electorate to use …

In Re Gardner: Withdrawing Medical Care From Persistently Vegetative Patients, John K. Veroneau

Maine Law Review

As medical science and technology progress, the distinction between traditional notions of life and death becomes increasingly blurred. Persons in dire medical conditions, lacking all cognitive and sensory abilities, may now be kept "alive" for indefinite periods of time. In the seminal case of In re Quinlan, a court was first asked whether it was ever legally permissible to withhold or withdraw life-preserving care from a persistently vegetative person. Since In re Quinlan, the courts of many states, including Maine, have confronted this issue. In In re Gardner, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a …

Milton V. Cary Medical Center: A Viable Fetus Is Not A Person Under Maine's Wrongful Death Statute, Stan Piecuch

Maine Law Review

In Milton v. Cary Medical Center, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, refused to recognize a right of action for the wrongful death of a viable fetus. The court held that a viable fetus is not a person for purposes of applying Maine's wrongful death statute and that, consequently, the mother of a stillborn child could not maintain an action for the child's death. The court determined that the legislative history of the statute indicated that the Legislature did not intend the remedy to apply in the case of a child not born alive. …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

Legal Standards Governing Modification Of Child Custody Orders, Christian T. Chandler

Maine Law Review

Child custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child's legal protector when a change of custody issue is …

Forgive And Forget: Honoring Full And Unconditional Pardons, Philip P. Houle

Maine Law Review

With few words, the Great Bard summarized the popular understanding of full and unconditional pardons as unrestrained acts of mercy which approximate, as best as humans can, the divine ability to forgive and forget. Perhaps in light of that sentiment, the common law held that a royal pardon blotted out any guilt or infamy resulting from commission of a crime, as well as the legal existence of the conviction itself. Following much discussion of the issue, the Supreme Court adopted the forgive-and-forget rule in a series of decisions following the Civil War. Yet, despite clear common law and Supreme Court …

Habeas Corpus—A Better Remedy In Visitation Denial Cases, James A. Albert, Gregory A. Brodek

Maine Law Review

Most family law statistics are sobering. For example, in 1986, there were 2,400,000 marriages in the United States and 1,159,000 divorces. In 1985, there were 2,425,000 marriages and 1,187,000 divorces. Millions of children are affected by these divorces each year as courts decide which parent should be awarded their custody. In 1986, there were approximately 63,000,000 American children and 6,139,000 of these children came from broken homes. According to official census statistics, twenty-one percent of America's children live only with their mother while less than three percent live only with their father. In most divorce cases, Mom gets custody and …

Constitutional Challenges To Caps On Tort Damages: Is Tort Reform The Dragon Slayer Or Is It The Dragon?, Kathryn L. Vezina

Maine Law Review

Liability insurance consumers are convinced the dragon is only sleeping. Because insurance has become a near necessity for businesses, professionals, and municipalities, it is no surprise that fears of the return of insurance unavailability and prohibitive cost cause the boldest policyholders to break out in a cold sweat. In many states, this fear has prompted legislative changes in the civil justice system—tort reform, as a sure-fire way to kill the insurance-crisis dragon. One such tort reform is a statutory limitation on tort damages. In Maine, a legislative proposal capping noneconomic tort damages in medical negligence cases at $250,000 has received …

Withdrawal Of Life-Sustaining Treatment: Patients' Rights—Privacy Rights, Patricia Lerwick

Maine Law Review

As medical expertise and technologies improve, many patients who would otherwise die of their illnesses or injuries survive. For many of these patients and their families, the knowledge and therapies that save their lives are a blessing. Unfortunately for some, survival means not recovery, but rather a severely limited existence dependent on some form of life-sustaining treatment, such as a ventilator or feeding tube. For some of these patients, such an existence is not a blessing, but a curse, not a triumph over death, but rather a cruel prolonging of their dying. These patients, or their families, seek to have …

The Problem Of Third-Party Consent In Fourth Amendment Searches: Toward A "Conservative" Reading Of The Matlock Decision, Robert Deschene

Maine Law Review

In United States v. Matlock, the United States Supreme Court delivered its most recent and comprehensive statement on the doctrine of third-party consent. Under the doctrine, police may search a defendant's home or effects without first obtaining a judicially issued search warrant. Instead of this traditional prerequisite for a valid fourth amendment search, the police need only have the voluntary consent of a third person who possesses "common authority" over or a "sufficient relationship" to the area to be searched. At that point, the defendant's own consent becomes largely irrelevant. Both the United States and Maine constitutions provide protection against …

Shoreline Access In Rhode Island: A Case Study Of Black Point, Michael Rubin

Maine Law Review

Access to the shoreline in Rhode Island has been a strong tradition since the colonial era. However, with increasing development pressures on the formerly rural shore areas, especially in the region of the state commonly called "South County," it was only a matter of time before public and private interests collided over the diminishing resource. That inevitable collision occurred at a particular piece of shorefront property known as Black Point, in the Town of Narragansett, when a developer purchased this large tract of ocean-front property and proposed the construction of luxury condominiums. The project would entail the closing of an …

Rethinking The History Of The Seventeenth-Century Colonial Ordinance: A Reinterpretation Of An Ancient Statute, Mark Cheung

Maine Law Review

In 1648, the Massachusetts colonial government ordered into print The Book of the General Laws and Libertyes that included an ordinance, commonly known as the Colonial Ordinance. The Ordinance extended private seashore property rights to the low water mark but to no more than one hundred rods beyond the high-water mark. The 1648 Ordinance replaced an earlier version enacted in the Body of Liberties of 1641. While both versions of the Ordinance enumerated public rights of fishing, fowling, and navigation in the foreshore, the 1648 Ordinance provided the critical language extending the private boundary to the low water mark. Prior …

Expanding Public Access By Codifying The Public Trust Doctrine: The Massachusetts Experience, William L. Lahey, Lauren Sandler Zurier, Kenneth W. Salinger

Maine Law Review

The Commonwealth of Massachusetts is dramatically expanding public access to the coast through statutory and regulatory codification of the public trust doctrine. Is this legislative and administrative experiment relevant to other states, particularly to Maine? The initial answer to this question may depend on the meaning of the Bell v. Town of Wells decision. For better or for worse, Massachusetts jurisprudence set the course followed by the majority of the Maine Supreme Judicial Court in Bell. To some, including several of the authors in this symposium, the bearing of the Massachusetts courts leads to a civic wasteland where the public's …

Intellectual Indifference—Intellectual Dishonesty: The Colonial Ordinance, The Equal Footing Doctrine, And The Maine Law Court, Orlando E. Delogu

Maine Law Review

Perhaps the most disappointing aspect of the recent Bell decision was the fact that it was 4-3, that significant public interests were lost because a bare majority refused to examine, in the detail necessary, the Colonial Ordinance, old and new United States Supreme Court cases, Maine law, or the reasoning of their own colleagues who filed a compelling dissenting opinion in the case. A mere recitation of the dissenting opinion would serve no useful purpose—it is a part of the public record; its rationale speaks for itself. Had the rationale of the dissent been adopted by the majority it would …

Public Access And The New England Shoreline: Editors' Foreword, Kathryn L. Vezina Editor-In-Chief

Maine Law Review

In August 1989, the Marine Law Institute and the Maine Law Review cosponsored a symposium, "Moody Beach and Beyond: Public Use and Private Rights in the New England Shoreline," in Portland, Maine, to provide a forum for presentation of ideas regarding public access rights to intertidal lands. The controversy at Moody Beach was the starting point for the discussion, but the conference included papers dealing with public access issues in other states as well. Four of the papers from this symposium are included in this issue of the Maine Law Review. As were the presentations last August, these articles are …

Public Trust, Public Use, And Just Compensation, Alison Rieser

Maine Law Review

In its recent decision, Bell v. Town of Wells, the Maine Law Court declined to grapple with one of the major legal conceptual problems presented by the case. The court failed entirely to reckon with the intersection of two competing, dynamic principles of American property law; these principles are increasingly significant in an era of growing conflict between public and private interests in land and natural resources. The first principle protects particular expectations of private owners of property through application of the just compensation (or "takings") clause of the fifth amendment. The second principle recognizes that certain property is held …

Tax Delegation Post-Loper Bright, Reuven S. Avi-Yonah

Law & Economics Working Papers

In its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court's decision in Loper Bright, it becomes imperative to clarify the parameters …

Stand-Ins: Causes And Consequences Of Temporary Leadership, Anne Joseph O’Connell

BYU Law Review

Hafen Lecture, BYU Law School, September 13, 2023.

Searching For The Radical Constitution, Robert L. Tsai

Faculty Scholarship

Due to its length and richness, The Constitutional Bind could be considered several books in one. It is a socialist critique of American political development that highlights the tradeoffs from incremental rather than transformational progress. It is also a partial intellectual history of radical and alternative constitutional theories marginalized by the set of ideas that came to rule. Finally, the book serves as an urgent plea for fellow citizens to give up the mesmerizing, yet frustratingly confining rhetoric of twentieth-century liberal constitutionalism.

Given Rana’s central objective of investigating the rise of the “creedal” approach to American constitutionalism, I believe it …

Who Decides: Judges Or Experts? Loper Bright, The End Of Chevron, And It's Impact On Corporate Governance, Heyman Center On Corporate Governance, Floersheimer Center For Constitutional Democracy

2024–2025 Flyers

No abstract provided.

Crypto & The Climate: Will Local & National Environmental Regulation Save Or Stifle The Cryptocurrency Boom?

Fordham Environmental Law Review

As cryptocurrencies continue to gain traction among mainstream investors and consumers, regulators and lobbyists are increasingly taking note of the potential environmental impacts of the industry. At its core, the process of mining new currency for virtual wallets is energy intensive, which can place strains on electrical grids and accelerate the impacts of climate change. However, these effects are felt very differently depending on what source of electricity the mining operation utilizes and the methodology behind the specific currency. These variable factors are on the minds of legislators and regulators as public pressure to better understand and regulate the industry …

A Shifting Focus: How Algal Turf Scrubbers (Ats) In Natural Waterways Can Prevent Toxic Blooms And Could Save The Algae Energy Industry

Fordham Environmental Law Review

Biofuels have generated global interest among oil companies and governments. In particular, algal biofuels are slated to be more promising than traditional biofuel feedstocks, like corn and sugarcane, which are simultaneously cultivated as food products. However, the drawbacks of harvesting algae on a large industrial scale has led to intense criticism. Most critics focus on issues of sustainability, scalability of production, and the legal and ethical concerns of genetically modified crops. New research in cyanobacteria, however, illustrates algae’s potential to produce clean electricity in addition to oil, ethanol, and gasoline. Moreover, using Algal Turf Scrubbers (“ATS”) in natural waterways offers …

Why We Need A Constitutional Right To Healthy Environment In Canada

Fordham Environmental Law Review

The increasing demand for constitutional recognition of the right to a healthy environment (‘RTHE’) has been a matter of public concern and debate in many countries, including Canada.2 This paper asks, will a constitutional RTHE within the Canadian Constitution add any value when statutes already exist to protect the environment (and thereby health)? The present environmental statutes work towards protecting the environment, and by protecting the environment, public health can be protected.3 Together, both of them form a ‘healthy environment’, ie., an environment that fosters a healthy life.4 This paper will argue that there is additional value in recognizing a …

State V. Cloutier: Implied Invitees, Pretext And Plain View Under The Fourth Amendment, Dennis M. Doiron

Maine Law Review

Law enforcement officers often have occasion to follow the path to the front door of a residence in order to speak to its occupant. Upon answering the door, the occupant may hear a complaint about his barking dog, a query as to whether he witnessed the burglary next door, or a plea seeking support for the police department's Christmas charity drive. Occasionally, a police officer follows the path to a person's door and unexpectedly observes incriminating evidence or activities. In such cases, the police officer's conduct generates the issue of whether his observation implicates the fourth amendment's prohibition against unreasonable …

Legal Standards Governing Modification Of Child Custody Orders, Christian T. Chandler

Maine Law Review

Child custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child's legal protector when a change of custody issue is …