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Transforming Constitutional Doctrine Through Mandatory Appeals From Three-Judge District Courts: The Warren And Burger Courts And Their Contemporary Lessons,
2025
University of Cincinnati College of Law
Transforming Constitutional Doctrine Through Mandatory Appeals From Three-Judge District Courts: The Warren And Burger Courts And Their Contemporary Lessons, Michael E. Solimine
Faculty Articles and Other Publications
Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court …
Is Federal Question Jurisdiction Arising Or Setting,
2025
University of Missouri - Kansas City, School of Law
Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan
Faculty Works
In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …
Video Analytics And Fourth Amendment Vision,
2025
American University Faculty Account
Video Analytics And Fourth Amendment Vision, Andrew Guthrie Ferguson
Articles in Law Reviews & Other Academic Journals
What does the Fourth Amendment have to say about video analytics running on citywide camera systems? Video analytics (also known as computer vision) involves hardware and software in cameras that turns video surveillance streams into useful data, identifying, categorizing, matching, and alerting police about objects, people, and incidents. Video analytics can identify objects (e.g., hat, backpack, person, car) and track that person or thing back in time and through the streets using video surveillance footage. For police officers conducting virtual patrols or retrospective investigations, video analytics lets police scan thousands of linked cameras for suspicious behavior or a particular suspect, …
A Neo-Federalist View Of The Supreme Court’S Docket: Analyzing Case Selection And Ideological Alignment,
2025
University of Pittsburgh School of Law
A Neo-Federalist View Of The Supreme Court’S Docket: Analyzing Case Selection And Ideological Alignment, Arthur D. Hellman
Articles
For more than 70 years, scholars have engaged in an intense debate over a core constitutional question: what restraints does the Constitution place on Congress’s power to limit the jurisdiction of the federal courts? Far less attention has been given to an equally important real-life question: how does the operation of the jurisdiction, as defined by Congress and the Supreme Court, comport with the assigned role of the federal courts in the system of government established by the Constitution? This Article takes a novel approach: it draws on constitutional theory to devise a set of tools for addressing the operational …
Deadlocked Juries And The Allen Charge,
2024
University of Maine School of Law
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,
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) …
In Re Caulk: A Prisoner's Right To Die—The Factor Of Intent,
2024
University of Maine School of Law
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 …
In Re Daniel C.: Reunification Efforts And The Termination Of Parental Rights,
2024
University of Maine School of Law
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 …
State V. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule,
2024
University of Maine School of Law
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,
2024
University of Maine School of Law
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?,
2024
University of Maine School of Law
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 …
Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication,
2024
University of Maine School of Law
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 …
The Primacy Method Of State Constitutional Decisionmaking: Interpreting The Maine Constitution,
2024
Univeristy of Maine School of Law
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 …
State V. Boilard: Are Jury Instructions On Statutory Defenses Essential To A Fair Trial?,
2024
Univeristy of Maine School of Law
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 …
Federal Agency Nonacquiescence: Defining And Enforcing Constitutional Limitations On Bad Faith Agency Adjudication,
2024
University of Maine School of Law
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,
2024
University of Maine School of Law
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,
2024
University of Maine School of Law
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,
2024
University of Maine School of Law
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,
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 . . .
