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Articles 1 - 30 of 47
Full-Text Articles in Public Law and Legal Theory
One Year's Seeding: Looking Back On The Last Seven Years Of Maine's Progress Toward Rural Justice, Christopher Northrop, Seth Main
One Year's Seeding: Looking Back On The Last Seven Years Of Maine's Progress Toward Rural Justice, Christopher Northrop, Seth Main
Maine Law Review
Nationally, the crisis in access to legal services in rural areas continues to grow despite significant attention and efforts to reverse this troubling trend. This Article explores Maine’s efforts to address our legal deserts. The Article’s starting point is a retrospective look at our 2019 national symposium on rural justice and accompanying Maine Law Review issue. We will try to measure successes and failures, while also addressing the significant impact caused by the intervening pandemic. The Article will then shift to an analysis of the current landscape, focusing on the role of the University of Maine School of Law. We …
The Other Right To Counsel: The Civil Guarantee In State Constitutions, Dmitry Bam
The Other Right To Counsel: The Civil Guarantee In State Constitutions, Dmitry Bam
Maine Law Review
When most people speak of the right to counsel, they speak in the singular. After the Supreme Court’s seminal decision in Gideon v. Wainwright, the right to counsel in criminal prosecutions has become one of our most cherished fundamental rights. It is a right ingrained in our culture. Even children can recite the mantra that the accused have the right to a lawyer, and if they can’t afford a lawyer, one will be provided to them free of charge. It is no surprise, then, that our constitutional focus is trained on the criminal defendant’s right to counsel. After all, there …
Legal Deserts Over Time, Cory L. Dodds
Legal Deserts Over Time, Cory L. Dodds
Maine Law Review
Legal deserts—counties with exceptionally low attorney availability—shape housing stability, personal safety, health outcomes, and economic security in rural communities. Yet, national scholarship has not yet determined whether attorney scarcity is transient or durable and relies largely on cross-sectional snapshots and population-based headcounts benchmarked to the American Bar Association’s (ABA) threshold of one attorney per 1,000 residents. These measures can obscure temporal dynamics, overstate functional supply, and embed contested normative assumptions about adequacy. This Article offers a national, longitudinal, and definition-sensitive analysis of legal deserts using county-level data from the forty-eight contiguous states at three observation points. Attorney supply is measured …
Law Of Rebuttable Presumptions In Maine, Curtis L. Bourdon
Law Of Rebuttable Presumptions In Maine, Curtis L. Bourdon
Maine Law Review
In Hinds v. John Hancock Mut. Life Ins. Co., the Maine Supreme Judicial Court sought to clarify and simplify the law of rebuttable presumptions as to the quantum of evidence that must be introduced before a presumption is dispelled. The Maine court adopted a rule which states that a presumption is rebutted when the probability of the nonexistence of the presumed fact is as probable as its existence. Stated another way, a presumption is rebutted when the jurors' minds are placed in equilibrium. Ten years later, in State v. O'Clair, the court expressly incorporated the Hinds rule into criminal procedure. …
Law Of Rebuttable Presumptions In Maine, Curtis L. Bourdon
Law Of Rebuttable Presumptions In Maine, Curtis L. Bourdon
Maine Law Review
In Hinds v. John Hancock Mut. Life Ins. Co., the Maine Supreme Judicial Court sought to clarify and simplify the law of rebuttable presumptions as to the quantum of evidence that must be introduced before a presumption is dispelled. The Maine court adopted a rule which states that a presumption is rebutted when the probability of the nonexistence of the presumed fact is as probable as its existence. Stated another way, a presumption is rebutted when the jurors' minds are placed in equilibrium. Ten years later, in State v. O'Clair, the court expressly incorporated the Hinds rule into criminal procedure. …
Cross-Appeals In Maine: Pitfalls For The Winning Litigant, Maine Law Review
Cross-Appeals In Maine: Pitfalls For The Winning Litigant, Maine Law Review
Maine Law Review
The question of when a winning party must cross-appeal to challenge non-determinative findings in defense of a favorable judgment was answered for the first time in Maine in the recent case of Littlefield v. Littlefield. Noting a split of authority between the federal and state courts, the Maine Supreme Judicial Court unpredictably determined that an appellee must file a cross-appeal if he seeks to attack adverse findings which, if decided differently, would adequately support the judgment. In Littlefield, the court's objective was to provide notice to opposing parties. Recognizing that this end is a legitimate concern, the question here is …
Bakke, Lochner, And Law School: The Nobility Clause Versus A Republican Form Of Medicine, James E. Lobsenz
Bakke, Lochner, And Law School: The Nobility Clause Versus A Republican Form Of Medicine, James E. Lobsenz
Maine Law Review
Alan Bakke, an unsuccessful medical school applicant, filed suit challenging the constitutionality of the minority admissions program administered by the Medical School of the University of California at Davis. The practice of reserving sixteen special places for minority students out of a total of 100 positions in the entering class, Bakke contended, constituted a denial of the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Bakke's suit afforded the justices of both the California Supreme Court and the United States Supreme Court a unique opportunity to examine the substantive nature of the "equality" …
Coastal Recreation: Legal Methods For Securing Public Rights In The Seashore, Jeffrey D. Curtis
Coastal Recreation: Legal Methods For Securing Public Rights In The Seashore, Jeffrey D. Curtis
Maine Law Review
The coastal shores of the United States are a peculiar form of property in that both the littoral landowner and the general public have legally protected interests in the use and enjoyment of the land. In most coastal states the title to the land below the high-water mark is vested in the state in trust for the beneficial use of the public, subject to certain limited rights of the littoral owner. Maine and Massachusetts, however, share a unique allocation of public and private interests which vests the title to the foreshore, the land between the high and low water marks, …
The Dilemma Of Local Land Use Control: Power Without Responsibility, Orlando E. Delogu
The Dilemma Of Local Land Use Control: Power Without Responsibility, Orlando E. Delogu
Maine Law Review
Land use planning and control has traditionally been perceived as a set of issues best dealt with by local government. State governments historically have been called upon to provide nothing more than a suitable framework of planning and land use control enabling legislation. In recent years some states have sought to address land use issues having regional or statewide impact. This has usually been done on an intra-state basis, however, and meaningful interstate or multi-state approaches to land use problems, though much discussed in the literature, are almost non-existent in practice. Federal involvement in land use issues has also been …
Common Law Sovereign Immunity And The Maine Tort Claims Act: A Rose By Another Name, R. Michael Martin
Common Law Sovereign Immunity And The Maine Tort Claims Act: A Rose By Another Name, R. Michael Martin
Maine Law Review
On October 12, 1976, the Maine Supreme Judicial Court allowed a Bath homeowner to sue the city for damage to her property resulting from the city's negligence. The case was Davies v. City of Bath and its significance was twofold. First, for decades before the Davies decision the Maine Supreme Judicial Court had routinely refused to consider such suits because of the doctrine of sovereign immunity. Fifteen years before Davies the court had expressed dissatisfaction with the doctrine, but until 1976 had repeatedly refused to abrogate it. Second, the Davies decision was significant because the Maine Legislature, under the guiding …
In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue
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 …
Retroactive Application Of Statutes: Protection Of Reliance Interests, Gene A. Maguire
Retroactive Application Of Statutes: Protection Of Reliance Interests, Gene A. Maguire
Maine Law Review
Courts commonly use the term "retroactive" in two senses. On the one hand, it refers broadly to the fact that all new laws to some extent apply to a state of affairs created by past events. The term, on the other hand, embodies a time-honored historical antipathy to laws that disrupt settled expectations. The common law upholds the principle that the citizenry should be able to make everyday decisions with reasonable certainty of the legal consequences of their actions. This principle is based on fundamental notions of fairness and justice. It is well established, however, that the legislature may enact …
Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen
Disparity And The Need For Sentencing Guidelines In Maine: A Proposal For Enhanced Appellate Review, Daniel E. Wathen
Maine Law Review
Perhaps in no other field of judicial endeavor is diversity and variety more apparent than when a sentencing judge considers the circumstances presented by a defendant convicted of a criminal offense. In each case, the sentencing judge confronts an individual who has no exact counterpart in any defendant previously appearing before the court for sentencing. The sentence imposed is primarily a matter of judicial discretion and is based upon consideration of the nature of the offense, the circumstances surrounding the commission of the offense, and the circumstances of the defendant. The sentencing judge formulates a specific sentence within broad statutory …
Coping With Confusion: A Unitary Procedure For Judicial Review Of The Referendum Process, Daniel L. Cummings
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 …
Withdrawal Of Life-Sustaining Treatment: Patients' Rights—Privacy Rights, Patricia Lerwick
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 …
Rethinking The History Of The Seventeenth-Century Colonial Ordinance: A Reinterpretation Of An Ancient Statute, Mark Cheung
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 …
Shoreline Access In Rhode Island: A Case Study Of Black Point, Michael Rubin
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 …
Expanding Public Access By Codifying The Public Trust Doctrine: The Massachusetts Experience, William L. Lahey, Lauren Sandler Zurier, Kenneth W. Salinger
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
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
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
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 …
Primacy In Theory And Application: Lessons From A Half-Century Of New Judicial Federalism, Catherine R. Connors, Connor Finch
Primacy In Theory And Application: Lessons From A Half-Century Of New Judicial Federalism, Catherine R. Connors, Connor Finch
Maine Law Review
In his 1977 article, State Constitutions and the Protection of Individual Rights, Justice Brennan famously reminded jurists that our governmental system includes two constitutions applicable to each state, and New Judicial Federalism was born. Since then, state courts have applied their own Bills of Rights using different approaches with varying degrees of enthusiasm. The primacy approach, requiring state courts to consider the state constitution first, and turning to the federal constitution only if needed to resolve the case, is theoretically optimal but inconsistently followed, even in the few jurisdictions professing to adopt that approach. This Article posits that the reason …
Frenemey Federalism, Scott P. Bloomberg
Frenemey Federalism, Scott P. Bloomberg
Faculty Publications
This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point …
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey
Maine Law Review
There seems to be no absolute freedom of information. Even President Lyndon B. Johnson's declaration made on July 4, 1966, as he signed the Freedom of Information Act (FOIA) into law, indicates the limitations accompanying most right-to-know laws from their inception. A delicate balance must be struck between the public's access to public business and the public interest, between the public's access and a person's right to privacy, and, at the federal level, between the public's access and national security. Maine also crafted a limited freedom of information law, the Freedom of Access Act ("FOAA" or "the Act"), seven years …
Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello
Are Marine National Monuments "Situated On Lands Owned Or Controlled By The Government Of The United States?", Tyler C. Costello
Ocean and Coastal Law Journal
The ocean offers what may seem like endless supply of natural resources, ecosystem services, or for some, simple enjoyment. Yet, in the face of climate change and overexploitation, many of these unique ecosystems and their inhabitants face an uphill battle. A president's use of the Antiquities Act establishing a national monument is an efficient and effective method of protecting these diverse ecosystems, as long as the area to be protected satisfies one of the Act's limitations that the monument be "situated on land owned or controlled by the federal government." Prior to a 2017 lawsuit concerning President Obama's use of …
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Ocean and Coastal Law Journal
In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …
Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph
Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph
Ocean and Coastal Law Journal
This article offers perspective on how Alaska Native Villages (ANVs), which are small and rural indigenous communities, are adapting to changes in flooding and erosion. It considers which adaptations might be maladaptations and what might be done to facilitate adaptation short of relocating entire communities. It outlines the United States' legal framework applicable to flooding and erosion and considers why this framework may do little to assist ANVs and similarly situated small and rural communities. Findings regarding adaptation strategies and obstacles are drawn from my Ph.D. research, which involved a review of plans for fifty nine ANVs and 153 interviews …
Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton
Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton
Ocean and Coastal Law Journal
Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine should …
Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam
Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam
Faculty Publications
Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and …
President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler
President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler
Faculty Publications
Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation …