University of Maine School of Law
University of Maine, School of Law: Digital CommonsNot a member yet
1960 research outputs found
Sort by
The Fair Credit Reporting Act
Full text linkWith the increasing importance of credit in the United States economy, a specialized group of agencies has developed to supply businesses with personal information on consumers. These reporting agencies come in two basic forms. Credit bureaus deal with purely economic data and use a file system to develop their reports. Investigative consumer reporting agencies issue a more comprehensive report which is generally the result of a field investigation. Because of subjective judgments, errors of identification, or use of untrustworthy sources, consumer reports often are inaccurate. The direct result of most inaccuracy is harm to the report\u27s subject, the consumer. An erroneous piece of information may deprive him of credit, insurance, or employment. Despite the fact that in the past few years reports of individuals whose lives have been ruined or severely damaged by consumer reports have increased, the majority of American jurisdictions have held, in effect, that in defamation actions against reporting agencies, society\u27s interest in the free flow of commercial information outweighs the interests of individuals who might be harmed by agency reports. This sheltering of the reporting industry from strict liability in defamation has been accomplished largely through the doctrine of conditional privilege. While state legislation has attempted to meet the need to regulate the practices of consumer reporting agencies, only a few states have dealt with the problem in a meaningful way. In response to the excesses of the consumer reporting industry, Congress has enacted the Fair Credit Reporting Act (FCRA). Its purpose is to require that consumer reporting agencies meet the obvious need for their services with a fair and equitable regard for the interests of consumers. While the legislation is deficient in some respects, it is significant in the progression of congressional consumer protection. The Act, technically an amendment to the Consumer Credit Protection Act, is applicable to all consumer reporting agencies which use the facilities of interstate commerce to prepare or send out their reports. Regulation of mercantile or business reporting agencies is omitted. The central concern of the FCRA is to insure accuracy in the reporting system. It also regulates the uses of consumer information and provides federal remedies in certain situations
Uncommon Controversy
Full text linkIn the mid-nineteenth century the Indians of the Northwest were pressured by government agents into signing treaties ceding most of the land they had historically occupied to the United States. In each treaty, besides reserving small tracts of land for themselves, the Indians specifically reserved the right to fish at all usual and accustomed grounds and stations. Because the lands which the Indians were permitted to reserve were selected so as not to interfere with existing [non-Indian] claims, or with the progress of settlements, many traditional fishing places were located outside the reservations. The Indians\u27 grudging acceptance of the treaties was obtained only by insuring their right to continue fishing at such places without interference. The State of Washington assumes that if conservation purposes are to be served, regulation must be done by the Departments of Game and Fisheries. This assumption is based upon an apparent belief that Indians are incapable or unwilling to limit and regulate their own fishing in order to insure the perpetuation of the fish resource. But historically, and to the present day, Indians have practiced conservation in their fishing and have tribal fishing regulations. Undoubtedly, a desire to allocate fish among non-Indian sport and commercial fishermen who figure importantly in Washington\u27s economy is a factor. The conviction that Indians are incompetent to manage the fishery and lack the will to control the fishery for the benefit of non-Indians reveals a callosity not only to the legal rights of the Indians but to their culture—that is, to the fact that they are different. The thesis of Uncommon Controversy is that the battle to preserve Indian fishing rights in western Washington is not about conservation; rather, it is about the attitude of the whole society toward difference
The Coast Guard: Always Ready, Sometimes Careful
Full text linkThe government presently is liable for the negligent conduct of the Coast Guard. Why and how such liability arises is the subject of this comment. In considering this subject three central questions are presented: First, whether the various acts abrogating the sovereign immunity of the federal government have been correctly applied to the Coast Guard; second, assuming that sovereign immunity has been waived, the extent of the duty owed by the Coast Guard to persons in distress; and third, after a finding of liability, the effect of the statutory extension of the admiralty doctrine of limitation of liability upon damage awards. Finally, it will be demonstrated that the resolution of each question proceeds along essentially the same basis, and that an analytical framework designed to answer any one of these problems will serve to answer them all. Hence the legal system to be applied in immunity actions is not the independent analysis of three separate areas as the courts have tended to construe it; it is rather a unified approach presenting a series of governmental and individual interests to resolve all issues. The Coast Guard, by statute and court decision, is liable for its negligent acts. This result has not been reached without several elaborate fictions. The desirability of applying the statutes to the Coast Guard has been challenged. And recent cases indicate that the courts will continue to circumscribe the extent of liability either by the imposition of a narrow duty or by a strict causative analysis in the application of the doctrine of limitation of liability
Another Veil of Protection for Exclusionary Zoning Ordinances: Warren v. Municipal Offices of Gorham
Full text linkIn Warren v. Municipal Officers, the Maine Law Court refused to alter the rules it articulated eighteen years ago for reviewing municipal zoning decisions and reaffirmed the application of a narrow standard of review of allegedly exclusionary zoning ordinances. The plaintiffs asserted that the Gorham zoning ordinance, which prohibited them from locating a single-unit modular home\u27 on their land and restricted such units to mobile home parks, unconstitutionally discriminated against them. On appeal of the denial of a permit for the Warrens to place their modular home on their property, the Superior Court held that state statutes regulating the construction of manufactured housing in Maine required a change in the mode of judicial inquiry into the actions of municipal zoning bodies. But the Law Court rejected the attempt to revise the standard of review and, in so doing, indicated that municipalities have considerable control over the location of manufactured housing within their borders
Administrative Law: Approaches to Delegation
Full text linkAs 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\u27s choice of administrative means to effectuate its purposes will also provide a compelling justification for statutory silence regarding the limits of administrative discretion, for to attach precise standards to the delegation would be to frustrate its purpose. As a result, courts have increasingly abandoned the primary standards approach to delegation and have relied instead on procedural safeguards, such as judicial review, to keep the exercise of administrative powers within bounds
Labor Law: Teacher Disputes
Full text linkThe 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 duties and powers of local school districts. Its unwillingness to subject teacher termination to the arbitration provisions of MPELRL evidences the court\u27s decision to distinguish teachers from other groups of municipal employees, at least for purposes of collective bargaining. Although public policy arguably provides a basis for the court\u27s decision, the broad statutory language of MPELRL does not appear to support such a construction
Statutory Construction
Full text linkThe various rules a court may invoke as the time-worn tests of a statute\u27s 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
Prentiss Mellen, Maine\u27s First Chief Justice: A Legal Biography
Full text linkIt is in the bosoms of his contemporaries of the profession, and of his clients and personal friends, that the memory of the lawyer is embalmed . . . . [Chief Justice Mellen\u27s] life furnishes a striking illustration of the justness of the preceding remarks, since it was that of one almost exclusively conversant with the active practice of the law. Thus wrote Simon Greenleaf shortly after Prentiss Mellen\u27s death. Greenleaf, perhaps due to the modesty of one in a similar position, was only partially correct. True, few today, even in the legal profession, recognize the name of Maine\u27s first United States Senator and Chief Justice. Greenleaf\u27s pessimism is, nevertheless, overstated. Prentiss Mellen\u27s contribution to the first two decades of statehood survives as the foundation of today\u27s state government, and the existing materials tell more about that contribution than this brief study can relate
Public Employees Labor Relations Law: The First Five Years
Full text linkIn 1965 the 102d Maine Legislature passed the Fire Fighters Arbitration Law, authorizing collective bargaining between bargaining agents designated by municipal fire fighters and their municipal employers. After four years of experience with the Fire Fighters Law, the Legislature enacted the Municipal Public Employees Labor Relations Law (MPELRL) in 1969, a more comprehensive statute mandating collective bargaining between municipalities and bargaining agents designated by the majority of municipal employees in units appropriate for bargaining. In 1974 in An Act Extending Collective Bargaining Rights to State Employees, the 106th Legislature accorded to most state employees substantially the same organizational and bargaining rights already enjoyed by municipal employees. Employees of judicial and legislative branches and county employees are the only remaining public servants not covered by bargaining legislation. Legislation has just been adopted by the 106th session which extends collective bargaining rights to state university employees. The legislative progression in Maine, from a brief statutory statement prescribing a self-administered collective bargaining system for a selected group of employees, to comprehensive legislation administered by a state agency and covering virtually all public-sector employees, parallels the experience of a growing number of state and local governments. The purpose of this modest study is to identify, inquire into, and analyze the administrative problems and interpretive issues that have emerged during the first five years of MPELRL existence