Constitutional Law Commons^™

Stitch Incoming: Lindke V. Freed’S Impact On Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

Washington and Lee Law Review Online

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining …

Corpus Linguistics And The Original Meaning Of The Sixth Amendment, Wesley White

BYU Law Review

The Sixth Amendment guarantees the right of an accused to have the assistance of counsel in a criminal prosecution. Put simply, under the U.S. Supreme Court’s current framework, an accused does not enjoy this right until the government has brought a formal charge. Thus, an accused who engages in plea bargaining before being formally charged is not guaranteed the Sixth Amendment right to counsel. Many critics of this framework focus on the purpose of the Sixth Amendment to argue that the right to counsel should be guaranteed in pre-charge plea bargaining. Others point to policy concerns.

This Note is among …

Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk

Maine Law Review

In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …

The Status Of Jury Trial Waivers In Maine's District Court, Robert M. Knight

Maine Law Review

The power of a defendant to waive jury trial in state and federal criminal prosecutions has long been recognized. At the same time, when the offense charged is serious, i.e., one which invokes a federal constitutional right to jury trial, the United States Supreme Court has required a careful examination of the validity of such a waiver. The waiver rule applicable in Maine's superior court fully appreciates this strict waiver standard. Exercising its rulemaking authority, however, Maine's Supreme Judicial Court adopted a rule (effective in 1982) for waiver of jury trial in the state's district court which seemingly obscured the …

The Constitution At Sea, Louis Henkin

Maine Law Review

Time was when it was assumed that the United States Constitution, like a deity of old, ruled only in its territory and did not apply outside the United States. Since 1957 we know that the Constitution applies wherever the United States exercises authority. If, as the Supreme Court then held, the Constitution governs the acts of the United States in the territory of a foreign state, where the Constitution might be deemed a foreign "intruder" on local sovereignty, it would seem to apply also — indeed a fortiori — to acts of the United States on the high seas, where …

Deadlocked Juries And The Allen Charge, Karen Pelletier O'Sullivan

Maine Law Review

Juries in cases requiring a unanimous verdict have three alternatives: a guilty verdict, a not guilty verdict, or no verdict for lack of unanimity. Deadlocked juries have long created a problem for efficient judicial administration. Early common law judges carried hung jurors around in oxcarts until a verdict "bounced out." More recent methods of forcing jurors to reach verdicts have included requiring them to deliberate all night and threatening to deprive them of water and heat. A more subtle method of encouraging jurors to reach verdicts is a trial judge's supplemental instruction to deadlocked jurors. A verdict-urging instruction is commonly …

Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends, James A. Trowbridge

Maine Law Review

Prosecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) …

In Re Daniel C.: Reunification Efforts And The Termination Of Parental Rights, James W. Claus

Maine Law Review

In In re Daniel C., the Maine Supreme Judicial Court, sitting as the Law Court, affirmed an order terminating a father's parental rights pursuant to title 22, section 4055 of the Maine Revised Statutes. The issue on appeal concerned the effect of a failure by the Department of Human Services (DHS) to make efforts toward family reunification. The appellant, Daniel C.'s father, Everett Co., argued that the DHS failed to make adequate reunification efforts as required by title 22, section 4041 of the Maine Revised Statutes and that this failure precluded the termination of his parental rights. The Law Court …

In Re Caulk: A Prisoner's Right To Die—The Factor Of Intent, Laurence H. Leavitt

Maine Law Review

In prisons throughout the United States, prisoners commonly use hunger strikes as an avenue of protest to make personal demands, to call attention to poor prison conditions, or to make various political statements. Prisoners typically choose this route because they view their own bodies as one of the few things over which they actually have control and because the extreme slowness of a hunger strike gives others the chance to meet their political or personal demands. When confronted with such attempts at starvation, prison officials almost invariably have resorted to force-feeding the hunger strikers, although in recent years some prison …

State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, Andre D. Bouffard

Maine Law Review

As one might have anticipated, the broad substantive mandates of the major Warren Court exclusionary rule decisions have not been left completely intact by later Supreme Court decisions. Instead, the scope of the evidentiary exclusionary doctrine established by the Warren Court has been significantly narrowed by later Supreme Court decisions that have created numerous exceptions to the general command of the exclusionary rule that evidence obtained through unconstitutional means is inadmissible in a criminal trial. Although some members of the present Court argue that the exceptions to the exclusionary rule are consistent with the purposes of the rule, and therefore …

State V. Farnham: The Defendant's Exercise Of The Right To Stand Trial As Negative Character Evidence, Richard F. Buckley

Maine Law Review

A defendant in a criminal case may not receive a more severe sentence because he exercised his sixth amendment right to stand trial. However, determining when a court has more severely sentenced a defendant for exercising his constitutional right to a jury trial is a difficult task. Some argue that a defendant's choice to stand trial is relevant to the sentencing process as character evidence. The decision to stand trial, the argument goes, indicates a defendant's lack of remorse and an unwillingness to take the first step toward redemption by admitting his guilt. Others take the position that consideration in …

Public School Integration Of Children With Handicaps After Smith V. Robinson: "Separate But Equal" Revisited?, Robert J. Goodwin

Maine Law Review

Under the direction of Chief Justice Burger the United States Supreme Court has issued several opinions limiting the availability of federal causes of action. While one benefit of this trend may be a reduction in the volume of federal litigation, the costs may include the limitation of substantive federal rights. The recent Supreme Court decision in Smith v. Robinson narrowly construed the availability of certain federal causes of action, and it illustrates how such a ruling, although procedural on its surface, in reality can operate to erode substantive rights. In Smith the Court concluded that a handicapped child could not …

State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?, Kristin A. Gustafson

Maine Law Review

In State v. Boilard, the Maine Supreme Judicial Court, sitting as the Law Court, recently addressed the question of when the failure to instruct the jury regarding a defense available under the Maine Criminal Code constitutes error. The court held that the trial court's failure to give an instruction on the defense of justification did not rise to the level of obvious error. The court reasoned that because the instruction conflicted with the defendant's theory of defense, and because counsel for the defendant did not claim error at trial or on appeal, any argument that the defendant had been prejudiced …

The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution, Glen S. Goodnough

Maine Law Review

The past fifteen years have witnessed the steady growth of both the theory and practice of state constitutional law. Initial inquiry focused on whether state supreme courts should provide their residents more expansive substantive and procedural rights under their state constitutions than required by United States Supreme Court interpretations of the federal Constitution. Given the plethora of state constitutional decisions expanding rights beyond the federally required minimum, or "floor," it is apparent that a large number of state supreme courts have settled the question of whether they will in fact interpret their state constitutions in such a manner. Nevertheless, lingering …

Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication, Christopher C. Taintor

Maine Law Review

A leading authority in the field of administrative law has posited that "[t]he availability of judicial review is the necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." There is no question that judicial review is an imperfect check on agency action: it is susceptible to criticism for, on the one hand, the excessive limitations on its exercise, and on the other for the arguably inferior level of understanding from which courts must approach matters uniquely within the competence of particular administrators. Nonetheless, the courts remain "the acknowledged architects …

In Re Debra B.: The Best Interest Standard In Court-Authorized Sterilization Of The Mentally Retarded, Sheila M. Donahue

Maine Law Review

Pursuant to the Due Process in Sterilization Act of 1982, Maine courts may hear petitions for sterilization of the mentally retarded. In In re Debra B., a mother petitioned to have her mentally retarded daughter sterilized. The Maine Supreme Judicial Court, sitting as the Law Court, vacated the order granting the petition. In a unanimous opinion, the court held that a finding of procreative capability is a sine qua non for determining whether sterilization is in an incompetent person's best interest. Through its holding, the court thereby extended the statute's clear and convincing standard of proof to a factor not …

Maine's Living Will Act And The Termination Of Life-Sustaining Medical Procedures, Eric R. Herlan

Maine Law Review

The Maine Legislature recently enacted a law authorizing the execution and use of living wills. The execution of a living will, essentially a document of "informed consent," allows a person to preserve in a legally recognized form his desire that, once he has been diagnosed to have a terminal medical condition and is no longer competent to make treatment decisions, the doctor should discontinue all life-sustaining procedures. With the passage of this act, Maine has joined thirty-four other states and the District of Columbia in enacting living will provisions. In addition, the National Conference of Commissioners on Uniform State Laws …

The Provisional Application Of International Agreements, Martin A. Rogoff, Barbara E. Gauditz

Maine Law Review

The last few decades have seen a tremendous increase in the number of international agreements concluded by states and international organizations. The pace of concluding international agreements is accelerating and will most likely continue to accelerate at an increasing rate. The growing reliance on international agreements by the members of the world community is of course a response to rapidly expanding international interactions and interdependencies. Until the latter part of the nineteenth century, international agreements dealt primarily with political matters: peace treaties, treaties of alliance and friendship, neutrality treaties, and treaties settling territorial claims. Today, international agreements deal not only …

State V. Harding: Municipal Police Authority And The Fresh Pursuit Statute, David S. Schuman

Maine Law Review

As early as 1551, during the reign of King Edward VI, courts held at common law that, except in cases of fresh pursuit, the power of a sheriff or justice of the peace does not extend beyond his jurisdiction. Recognizing the importance of jurisdictional boundaries as limits on a sheriff's authority, the Barons of the Exchequer denounced the possibility of "two several sheriffs in one same county," observing that "in this realm there are divers authorities, and none may exceed his limits or bounds." Modern state statutes setting forth the powers of local police continue to limit the extra-jurisdictional authority …

The Denial Of Bail Under Maine's "Proof Evident Or Presumption Great" Standard, Maureen Dea

Maine Law Review

When the framers of the Maine Constitution gathered in Portland in the fall of 1819, they decided that the document, unlike the Massachusetts Constitution on which it was based, should guarantee a right to bail pending trial. The convention adopted, apparently without debate or dissent, the following provision as part of the Declaration of Rights in article I . . .