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Articles 1 - 30 of 70
Full-Text Articles in Jurisprudence
Foreword, Adam Fortier-Brown
Foreword, Adam Fortier-Brown
Maine Law Review
Access to legal services in America has emerged as one of the most pressing structural challenges facing the legal community. As attorneys increasingly concentrate in metropolitan areas, large areas are left with few practicing attorneys and challenging prospects of attracting many more. The consequences of this challenge reach across nearly every aspect of life in these communities—from housing and family stability, to starting or winding down businesses, and critically, to the constitutional guarantees that attach when someone is charged with a crime. Yet, these challenges have also generated a period of genuine creativity and collaboration between communities and different institutions. …
The Arbitration Web Ensnaring Every Consumer: The Next Evolution In Corporate Strategy To Compel Arbitration, Michael Conklin
The Arbitration Web Ensnaring Every Consumer: The Next Evolution In Corporate Strategy To Compel Arbitration, Michael Conklin
Maine Law Review
This first-of-its-kind Article uses a novel hypothetical to explore the expanding role of compelled arbitration. The hypothetical involves numerous large corporations agreeing to cross-reference each other in their arbitration agreements, thus attempting to create a massive arbitration web ensnaring nearly every American and allowing corporations to compel arbitration against parties with whom they never interacted. This Article presents the case that courts might enforce such a scheme based on the judicial trend toward ever-expanding compelled arbitration jurisprudence, the docket-clearing incentives faced by judges, existing case law allowing some non-signatories to enforce arbitration agreements, the strong assumption in favor of arbitration, …
Maine's Judicial Machinery At The Crossroads, Armand A. Dufresne Jr.
Maine's Judicial Machinery At The Crossroads, Armand A. Dufresne Jr.
Maine Law Review
There is really no such thing as "a court"; in modem society, at least, there is only something which may be called a court system. Even that designation, however, may be a misnomer; a court system is really no more than a group of people, judges, clerks, lawyers, bailiffs, and so forth, tied together by certain functional arrangements. Even the finest institutional organization for a court system will produce delay and injustice if it is not staffed by competent people. Conversely, the most competent and dedicated people cannot produce satisfactory results from an institutional arrangement which does not permit them …
The Validity Of The Restrictions On The Modern Advisory Opinion, Maine Law Review
The Validity Of The Restrictions On The Modern Advisory Opinion, Maine Law Review
Maine Law Review
In 1831 the Maine House of Representatives, relying on its constitutional authority to request advisory opinions, sought the counsel of the Justices of the Supreme Judicial Court regarding voting requirements for the election of state officers. Because the House was about to adjourn, it requested that the Justices forward their answers to the Governor for publication. The Justices, without mentioning any constitutional limitation on their power to answer questions propounded by the Governor or the Legislature, complied with this request. One hundred and forty years later, the Senate requested the Justices' advice regarding the reapportionment of the House of Representatives. …
The Precedential Weight Of Summary Dispositions Of Appeals, Maine Law Review
The Precedential Weight Of Summary Dispositions Of Appeals, Maine Law Review
Maine Law Review
The extent to which the Supreme Court's summary dispositions of appeals are entitled to precedential weight presents a serious problem for lower courts confronted with cases involving issues similar to those previously disposed of in a summarily decided appeal. A recent source of confusion in this area was the Supreme Court's 1975 opinion in Hicks v. Miranda. In Hicks, the lower court held a California statute unconstitutional despite the fact that one year earlier the Supreme Court had summarily dismissed an appeal from a decision upholding the constitutionality of the same statute., The Supreme Court reversed, pointing out that its …
Maine's Reception Of The Common Law, Maine Law Review
Maine's Reception Of The Common Law, Maine Law Review
Maine Law Review
From the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine's Supreme Judicial Court, reception "was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals." After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell …
Tort Law Developments, Maine Law Review
Tort Law Developments, Maine Law Review
Maine Law Review
Any discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners' and occupiers' duties to …
Workmen's Compensation: Compensable Injuries; Awards; Relation Of Court And Commission, Maine Law Review
Workmen's Compensation: Compensable Injuries; Awards; Relation Of Court And Commission, Maine Law Review
Maine Law Review
During Justice Dufresne's term as Chief Justice of the Maine Supreme Judicial Court, the court considered over sixty-five cases presenting issues that involved the state Workmen's Compensation Act. These decisions attempted to define both the concept of a compensable injury and the nature of workmen's compensation awards. Examination of the court's treatment of these two major components of the workmen's compensation system reveals the Law Court's attitude toward the system itself, the statutory scheme utilized by the Maine Legislature, and the administrative procedure employed in handling workmen's compensation claims. Consideration of the relationship between the court and the Industrial Accident …
Stare Decisis, Maine Law Review
Stare Decisis, Maine Law Review
Maine Law Review
Stare decisis, a doctrine fundamental to common law decisionmaking, requires a court to resolve disputes within the framework provided by the rationales and results of prior cases addressed to similar legal and factual relations. It seeks to reconcile the law's two great warring imperatives, that which requires a rational scheme of consistent authority serving the broad social goals of predictability, uniformity, and finality, with that which demands individual results informed by principle and applied with flexibility and discretion—in a word, justice. On the one hand, by focusing on how legal theory has interacted with fact on correlative earlier occasions the …
Statutory Construction, Maine Law Review
Statutory Construction, Maine Law Review
Maine Law Review
The various rules a court may invoke as the time-worn tests of a statute's meaning reveal little of its institutional approach to statutory construction unless considered in the light of particular cases to which they are applied. Mindful that courts generally have failed to develop consistent approaches to statutory construction, the following survey attempts to rough out the contours of Maine doctrine. The reader should note that any critical evaluations derive from stated preferences for particular approaches to problems of statutory construction, and should recall that opinion on these topics varies widely.
Labor Law: Teacher Disputes, Maine Law Review
Labor Law: Teacher Disputes, Maine Law Review
Maine Law Review
The vast majority of labor law issues presented to the Maine Supreme Judicial Court during the previous seven years were rooted in the confusion surrounding the role of collective bargaining in public school teacher disputes. Indicative of the unsettled nature of this area is the tension between the teacher termination statutes and the Municipal Public Employee Labor Relations Law (hereinafter referred to as MPELRL). Despite the later enactment of MPELRL and its more specific provisions, the court has consistently refused to give it wide application in teacher disputes, choosing instead to rely on the more amorphous statutory provisions defining the …
Standing To Challenge Governmental Action, Maine Law Review
Standing To Challenge Governmental Action, Maine Law Review
Maine Law Review
Perhaps no inquiry reveals so much of a court's sense of identity as does that into justiciability, a concept employed by courts to limit the availability of judicial redress when a litigant's remedy more properly resides with another governmental body. When the subject-matter the litigant seeks to put in issue itself concerns governmental action or policy, the court must address a sensitive problem: to what extent might its resolution of the controversy intrude upon the policymaking function with which the legislative branch has been charged? Slow either to open themselves to claims they function "anti-democratically” or to override the informed …
The Durfresne Years: A Preliminary Overview, Charles A. Abbott
The Durfresne Years: A Preliminary Overview, Charles A. Abbott
Maine Law Review
Maine Law Review's timely decision to survey the work of the Supreme Judicial Court will enable our Bench and Bar to review past developments, analyze present positions, and, perhaps, chart with greater facility the future course of Maine's legal development. The retirement of Chief Justice Armand A. Dufresne, Jr., provides an excellent occasion for a look back at the Court's accomplishments.
Administrative Law: Approaches To Delegation, Maine Law Review
Administrative Law: Approaches To Delegation, Maine Law Review
Maine Law Review
As do most state courts, the Maine Supreme Judicial Court purports to require that legislative delegations of power to administrative agencies be accompanied by legislatively articulated "primary standards" sufficient to prohibit arbitrary exercise of administrative discretion. The requirement is rooted in the non-delegation doctrine, once the principal stumbling-block to the creation of an effective administrative arm of government. Originally a liberalization of the non-delegation rule, the primary standards test can become an unwarranted restraint on legislative discretion, particularly when invoked to nullify delegations necessarily broad in scope. Often, the very reason behind a legislature's choice of administrative means to effectuate …
Predicting What The Law Court Will Do In Fact, Harry P. Glassman
Predicting What The Law Court Will Do In Fact, Harry P. Glassman
Maine Law Review
Over eighty years ago Oliver Wendell Holmes announced what became the manifesto of the legal realists when he stated: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Legal philosophers and professors of jurisprudence may justifiably quarrel with Holmes' definition of law, but that definition continues to be useful to the practicing attorney engaged in the everyday business of counseling clients and advising them concerning the legality of anticipated activities. It is useful also to the trial court judge, bound by the decisions of an appellate court, who, …
Prejudice And Promise In The Early Years Of The Federal Judiciary, George L. Haskins
Prejudice And Promise In The Early Years Of The Federal Judiciary, George L. Haskins
Maine Law Review
Preserving the dignity of the human individual and protecting individual rights from the excesses of governmental power have been endemic problems for politically organized society in the western world for centuries. From antiquity and the early middle ages comes the thought that "government" became necessary because of he sinfulness or depravity of man. But it was not suggested that rulers should be all-powerful nor that the people who are governed should be entirely at the mercy of government. Indeed, our classic ideal of the democratic state first emerged in Greece, then briefly again in Rome, and later — but for …
The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough
The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough
Maine Law Review
The past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or "floor," it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering …
Perreault V. Parker: Findings Tainted By Error, Gisele M. Nadeau
Perreault V. Parker: Findings Tainted By Error, Gisele M. Nadeau
Maine Law Review
An appellate court does not disturb a trial court's findings of fact unless they are clearly erroneous, and, therefore, usually confines its review to an assessment of a trial court's legal conclusions based on those findings of fact. The method used by a trial court in making factual findings, however, involves the application of legal principles. If a trial court fails properly to apply these legal principles in arriving at its findings of fact, these findings may be tainted by the error. This is so, for instance, when a trial court's findings of fact have been "manifestly influenced or controlled" …
Separation Of Powers Restrictions On Judicial Rulemaking: A Case Study Of Federal Rule 4, Ralph U. Whitten
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
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 …
Solemn Vow: Solum's Originalism, Treaties, And Tribal Sovereignty In Castro-Huerta, Liam T. Sheridan
Solemn Vow: Solum's Originalism, Treaties, And Tribal Sovereignty In Castro-Huerta, Liam T. Sheridan
Maine Law Review
In Oklahoma v. Castro-Huerta, the Supreme Court held that states have inherent authority to prosecute crimes committed by non-Indians in “Indian country.” Only two years earlier, the Court in McGirt v. Oklahoma held that most of eastern Oklahoma was Indian country, and thus immune from any state criminal jurisdiction. Castro-Huerta limited this immunity and narrowed the Court’s view of tribal sovereignty as a whole. The majority represented the Court’s originalist faction—minus Justice Gorsuch, who had penned both the majority opinion in McGirt and the dissent in Castro-Huerta. The majority and dissent disagreed over whether federal statutes preempted Oklahoma’s criminal jurisdiction. …
The Dark Matter Of Federal Indian Law: The Duty Of Protection, Matthew L.M. Fletcher
The Dark Matter Of Federal Indian Law: The Duty Of Protection, Matthew L.M. Fletcher
Maine Law Review
The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, an international customary law doctrine in which a larger, stronger sovereign, America in this case, agrees to “protect” the small, weaker sovereign, in this case, tribal nations. America agreed to this in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection. What tribal …
Judge, J. Peter Byrne
Judge, J. Peter Byrne
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
An Advocate's Perception, Margaret D. Mcgaughey
An Advocate's Perception, Margaret D. Mcgaughey
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
A Tribute To Judge Coffin, Stephen Breyer
A Tribute To Judge Coffin, Stephen Breyer
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
Judge Frank M. Coffin, Edmund S. Muskie
Judge Frank M. Coffin, Edmund S. Muskie
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Judge Frank M. Coffin. Judge Coffin was appointed to the United States Court of Appeals for the First Circuit by President Lyndon Baines Johnson on October 2, 1965, and took the oath of office six weeks later. Since his retirement on February 1, 1989, he has continued to serve the federal judiciary with distinction in the capacity of a United States Senior Circuit Judge. Each of the four tributes that follow, though brief, resonate with the respect and affection inspired by the …
Vincent L. Mckusick And The Maine Rules Of Civil Procedure: A Thirty-Five Year Perspective, L. Kinvin Wroth
Vincent L. Mckusick And The Maine Rules Of Civil Procedure: A Thirty-Five Year Perspective, L. Kinvin Wroth
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …
Structure Of The Maine Court System, 1956-1991, Edward S. Godfrey
Structure Of The Maine Court System, 1956-1991, Edward S. Godfrey
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …
Law As Integrity: Chief Justice Mckusick's Common Law Jurisprudence, Eric R. Herlan
Law As Integrity: Chief Justice Mckusick's Common Law Jurisprudence, Eric R. Herlan
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …
Vincent L. Mckusick: Chief Justice Of The Maine Supreme Judicial Court, Fred C. Scribner Jr.
Vincent L. Mckusick: Chief Justice Of The Maine Supreme Judicial Court, Fred C. Scribner Jr.
Maine Law Review
The Editorial Board and Staff of Volume 43 of the Maine Law Review enthusiastically dedicate this issue to Vincent L. McKusick, Chief Justice of the Maine Supreme Judicial Court. Chief Justice McKusick took the oath of office on September 16, 1977, having been appointed the previous month by Governor James B. Longley, and will retire on February 28, 1992. As the following tributes make clear, the contributions he has made to the betterment of state and national legal institutions during his tenure evidence the same qualities of integrity and excellence that have been the hallmarks of his long and distinguished …