Judge Edward T. Gignoux — A Personal Appreciation,
2024
University of Maine School of Law
Judge Edward T. Gignoux — A Personal Appreciation, Frank M. Coffin
Maine Law Review
Most occasions for encomia about judges occur when the subject has departed the scene of his accomplishments. Happily, the subject of this issue of the Maine Law Review is still with us and likely to be so for a long time. He also happens to measure up precisely to the overused word "paragon." I use it in the original Latin sense of "whetstone," something to sharpen against or to compare oneself with. My thesis is that Judge Gignoux gives observers of any age, but particularly the young, an inspiring role model. This volume is felicitously dedicated. The ever-present problem is …
Restraining The Prosecutor: Restrictions On Threatening Prosecution For Civil Ends,
2024
University of Maine School of Law
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) …
Prejudice And Promise In The Early Years Of The Federal Judiciary,
2024
University of Maine School of Law
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 …
Tuttle V. Raymond: Drawing The Line On Punitive Damages,
2024
Univeristy of Maine School of Law
Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith
Maine Law Review
In Tuttle v. Raymond, the Maine Supreme Judicial Court, sitting as the Law Court, reconsidered the appropriateness of Maine's common law doctrine of punitive damages. Under the doctrine, punitive or exemplary awards are permitted in tort actions, at the factfinder's discretion, for the purpose of deterring wrongful conduct. Prior to Tuttle, a plaintiff raised a claim for such an award if he proved by a preponderance of the evidence that the defendant was guilty of intentional, wanton, malicious, reckless, or grossly negligent behavior. Because of the doctrine's uncertain justification and vague standards, however, punitive damages had become the subject of …
Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases,
2024
Univeristy of Maine School of Law
Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases, Kaighn Smith
Maine Law Review
In 1982, three asbestos product manufacturers filed voluntary petitions for business reorganization under Chapter 11 of the United States Bankruptcy Code. The common reason for each of these filings was that tort liabilities threatened the financial survival of the corporation. Never, in the history of United States bankruptcy law, had any business sought bankruptcy relief for such a reason. By 1985, two more firms, another asbestos product manufacturer and a pharmaceutical company, filed Chapter 11 petitions for the same reason. The torts of these "debtors" in bankruptcy are similar; they extend from the manufacture and wide-spread marketing of products that …
Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis,
2024
Univeristy of Maine School of Law
Affirmative Judicial Case Management: A Viable Solution To The Toxic Product Litigation Crisis, Patrick Francis Harrigan
Maine Law Review
With increasing frequency, federal courts throughout the nation have confronted a multiplicity of "toxic tort" claims, claims for relief arising from chronic and latent illnesses or diseases allegedly caused by toxic substances. Toxic substances are substances whose manufacture, processing, distribution, use, or disposal presents or will present an unreasonable risk of injury to a person's health or to the environment. Because many of these unreasonable health risks are caused by consumer and industrial products, many toxic tort claims are actually "toxic product" claims. Examples of toxic product claims include those arising from the use, exposure to, or consumption of chemicals …
Perreault V. Parker: Findings Tainted By Error,
2024
University of Maine School of Law
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" …
State V. Harding: Municipal Police Authority And The Fresh Pursuit Statute,
2024
University of Maine School of Law
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,
2024
University of Maine School of Law
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 . . .
The Trouble With Classifications,
2024
University of Chicago Law School
The Trouble With Classifications, Aziz Z. Huq
Notre Dame Law Review
The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …
The Lost History Of Judicial Restraint,
2024
Catholic University Columbus School of Law
The Lost History Of Judicial Restraint, Derek A. Webb
Notre Dame Law Review
For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …
Batson Challenges In Federal, Kansas, And Missouri Courts,
2024
University of Missouri-Kansas City School of Law
Batson Challenges In Federal, Kansas, And Missouri Courts, Matt Champagne
Law Student Works
In Batson v. Kentucky, 474 U.S. 79 (1986), the Supreme Court of the United States (“SCOTUS”) ruled generally that the use of peremptory strikes to disqualify potential jurors based solely on their race violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the Court held that the use of peremptory strikes by the prosecution to exclude all four Black potential jurors from a jury pool, thus seating an all-white petit jury, on no other grounds besides the perspective jurors’ race violated a Black man’s right to equal protection under the Fourteenth Amendment. The Court reasoned that the exclusion of …
Not-So-Special Solicitude,
2024
Texas A&M University School of Law
Not-So-Special Solicitude, Katherine Mims Crocker
Faculty Scholarship
In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators had depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal-government defendants.
But what if “special solicitude” is not so …
Rwu Law Alumni Newsletter December 2024,
2024
Boston Globe
Rwu Law Alumni Newsletter December 2024, Roger Williams University School Of Law, Pbn Connect, Edward Fitzpatrick, Danna Lorch
RWU Law
No abstract provided.
Preserving The Future Of Juries And Jury Trials,
2024
National Center for State Courts
Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor, Hope Forbush, Miriam Hamilton, Jawwaad Johnson, Morgan Moffett
Faculty Publications
To preserve the future of juries and jury trials, the National Center for State Courts (NCSC) convened a meeting of representatives from a broad array of justice system stakeholders as a project under the Justice for All Reauthorization Act (JFARA). To frame the stakeholder discussions, NCSC employed strategic foresight, a methodological approach designed to explore a range of possible futures of juries and jury trials within the American justice system as a vehicle for identifying critical vulnerabilities within the current jury system and proposing targeted strategies to preserve and strengthen jury trials. Critical vulnerabilities are those areas of weakness that …
Understanding The Equality Of Parties In Arbitration: A Case Comment On International Seaport Dredging Private Limited V Kamarajar Port Limited,
2024
National Law School of India University, Bengaluru
Understanding The Equality Of Parties In Arbitration: A Case Comment On International Seaport Dredging Private Limited V Kamarajar Port Limited, Sahana Ramesh
National Law School Journal
While the Supreme Court of India has emphasised the equality of arbitrating parties in several decisions, the court often had to use various tools to assert this. It is a question of policy as to whether statutory undertakings—that perform public functions by entering commercial transactions—must be given preferential treatment in certain aspects of the dispute settlement process, including when they choose to challenge an arbitral award. This case comment considers the decision of the Supreme Court of India in International Seaport Dredging Private Limited v Kamarajar Port Limited to highlight the nuances involved in the court’s conclusion that all …
Next Steps In Online Courts: Accelerating Access To Justice Through Court Technology,
2024
University of Michigan Law School
Next Steps In Online Courts: Accelerating Access To Justice Through Court Technology, J.J. Prescott
Articles
For more than a decade, state courts have been expanding access to justice by adopting online dispute resolution (ODR) platforms and other outward-facing communication technologies. At a deep level, these reforms aim at improving society by bolstering the rule of law. At a surface level, these innovations recognize that the justice system works better when courts and law are easier and less costly to understand and use. In important respects, these efforts have been a success. The accessibility of many state courts is considerably more robust today than it was ten years ago, at least for small-stakes cases, like traffic …
The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility,
2024
Brooklyn Law School
The Geopolitics Of Group Referrals To The International Criminal Court And Its Implications On The Court's Legitimacy And Credibility, Dr. Destaw A. Yigzaw
Brooklyn Journal of International Law
Under the Rome Statute, situations are referred to the International Criminal Court (“ICC” or “Court”) either by a state party or the Security Council. In recent years, however, referrals from both sources have become difficult to come by. Instead, there is an evolving practice of referrals by a coalition of third states parties (“group referrals”). Yet, a group referral as a trigger mechanism does not have an explicit textual basis under the Rome Statute (“Statute” or “ICC Statute”). There is no rationale for it either, since a referral by a single state party is all that is needed to trigger …
Data Scraping For Generative Ai—To What Extent?,
2024
Brooklyn Law School
Data Scraping For Generative Ai—To What Extent?, Jae Yeon Cecilia Kim
Brooklyn Journal of Corporate, Financial & Commercial Law
Generative AI platforms are developed by scraping data from other platforms. This raises complex copyright infringement issues that are yet to be resolved. Courts have attempted to address these problems using the fair use doctrine, which evaluates four factors to determine whether a use infringes on copyright: (1) the purpose and character of the use, (2) the nature of the use, (3) the amount and substantiality of the copyrighted work’s use, and (4) the impact of the use on the market for the original work. Despite efforts to apply this long-established doctrine, challenges persist, including difficulties in identifying the copyright …
A New Governance Framework In Cross-Border Tax Policymaking,
2024
Brooklyn Law School
A New Governance Framework In Cross-Border Tax Policymaking, Tamir Shanan, Doron Narotzki, Noam Zamir
Brooklyn Journal of Corporate, Financial & Commercial Law
The first tax treaty can probably be traced to the end of the 19th century: the treaty between the Swiss Federal Council (on behalf of the Canton of Vaud) and Great Britain. However, most tax scholars refer to the period following World War I, including the work of the League of Nations, as the formative period in which the international tax regime was founded. In the 1920s, the League of Nations formed a committee of four renowned economists that was asked to formulate a set of rules that would assist states in allocating taxing rights of cross-border income and gains …
