University of Maine School of Law
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Coastal Recreation: Legal Methods for Securing Public Rights in the Seashore
Get PDFThe 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, in the littoral owner, subject to certain public rights. Although the issue has been settled in Massachusetts, in Maine it is not clear whether these public rights include a general right to use the foreshore for recreation. Because Maine\u27s economy relies heavily on tourism, which depends in turn on recreational use of the state\u27s vast coastline, the controversy over public and private rights in the shorelands concerns all Maine citizens. The exclusion of the public from coastal lands would have detrimental effects upon the state\u27s economy. Such a decision would also conflict with the traditional belief of Maine citizens that the coastline is open to all who care to use it. When eventually presented with the issue of public versus private rights in coastal lands, the Maine courts should not deny the public\u27s rights in these areas unless there is no legal theory upon which such a right can be supported. In light of the importance of the issue, this Comment will examine the legal theories by which the public may have retained or acquired rights to use the coastal shores of Maine. Finally, the Comment proposes legislation to preserve and to protect whatever public rights are found to exist in the shorelands of Maine
A Final Note on The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses
Get PDFThe Baker criticism of my article is flawed in several major respects. First, while tacitly accepting the basic premise of the article that impermissible exclusion may be achieved by local misuse of a wide variety of facially permissible land use control tools, Ms. Baker argues that merely because the article did not demonstrate a sufficient degree of misuse in Maine, the corrective measures suggested are unwarranted. But a full reading of the article makes clear that no such exhaustive indictment of Maine towns was intended. The article was not an empirical study. The article intended to point out a widening variety of ways in which local land use control powers are capable of being abused. In so doing, it cited numerous case examples both within and out of Maine evidencing that impermissible exclusion is not merely a theoretical possibility but an all too unfortunate reality in many parts of the country, including Maine
The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses
Get PDFMunicipal governments in almost all parts of the country are frequently inclined to exercise their police, spending, and policymaking powers in an impermissibly exclusionary manner. Their objective in many instances is simply to keep population growth and local property taxes down. In Maine these tendencies are very much in evidence. This misuse of local governmental powers is almost totally predicated on a misconception of the status of local governments and the purposes for which they exist. Local governments are not sovereign. They are not independent units of government. They are subunits of state government, creatures of the state analogous to state agencies and possessed of limited jurisdiction and powers. They do not exist, as some believe, to legislate local wishes, aspirations, mores, biases, conceptions of the good life, aesthetic values, political predilections, or desires to resist change. Local governments exist to provide necessary public services to those living within their borders and to facilitate the avoidance of harms. Municipalities must be made to shoulder the responsibilities for which they were created. Municipal tendencies to exclude, to shun difficult and admittedly costly problems, and to overregulate the use of land cannot be countenanced. It is the responsibility of the courts to provide a process of review which will enable the reasonableness of unicipal actions to be tested. It is the responsibility of state legislatures to develop inclusionary mechanisms designed to curtail or end municipal inclinations to exclude. The tenor, comment, and recommendations offered in this article may not be particularly welcome or politically popular, but that is not the issue. The question is: What are the minimal requirements of the law, and do we have the courage to meet them
Time-Share Condominiums: Property\u27s Fourth Dimension
Get PDFTime-shared ownership of condominiums is a concept which, though virtually unheard of in this country ten years ago, has now gained a foothold in America\u27s real estate market. Essentially, time-sharing involves the division of ownership of a condominium into a number of fixed time periods during which each purchaser has the exclusive right of use and occupation. While condominium ownership itself is an ancient and well-established method of joint property ownership, what is novel about time-sharing is the division of joint ownership rights into binding periods of exclusive use and possession. The methods of creating time-shared interests are varied and diverse but can generally be grouped into three major categories for purposes of analysis: (1) tenancy in common, (2) interval, and (3) fee simple. Because of the novelty of time-sharing, the diverse labels that have been applied to time-share projects, and the hybrid interests that have been created by time-share developers proceeding without the benefit of enabling legislation, real estate lawyers must become familiar with the legal principles governing the creation of time-shared interests to determine the rights and obligations of parties to a time-share scheme
The Maine Marital Property Act: The Duties of Divorce Courts and The Right to an Equitable Share of Marital Assets
Get PDFIn 1971, the Maine Legislature enacted a statute entitled An Act Relating to Division of Real and Personal Property by the Court under a Decree of Divorce. In adopting section 722-A, the Maine Legislature replaced inequitable divorce laws with provisions patterned after section 307 of the Uniform Marriage and Divorce Act (UM & DA). Under the previous Maine statutory scheme, status of title and notions of fault governed the distribution of property at divorce. Relying upon equitable principles drawn from partnership law and community property doctrines, section 307 of the Uniform Act, and section 722-A of the Maine Act, place primary reliance upon the recognition of the spouses\u27 actual contributions to marriage as the fundamental guideline for dividing the property. This Comment\u27s central thesis is that section 722-A, embodying the concept of marital partnership, creates an equitable rule mitigating the unjust results generated by prior divorce laws that emphasized title and ownership as guidelines for property division. This duty to divide marital, or jointly acquired, property includes responsibility to review property settlements and to insure widest discovery and fair valuation of assets. While the statute itself injects considerations of flexibility and justice into the process of property disposition at divorce, equitable doctrines and community property principles which promote flexibility in application of the statute and a fair division of assets should be grafted upon the Maine statutory scheme
Withholding Tax on Wages: Central Illinois Public Service Co. v. United States
Get PDFSection 3402 of the Internal Revenue Code of 1954 requires every employer to deduct and withhold a tax upon wages paid to its employees. The term wages is defined in section 3401(a) as all remuneration for services performed by an employee for his employer. Despite apparent simplicity, the process of defining wages has generated conflicting interpretations. In Central Illinois Public Service Co. v. United States, the Seventh Circuit confronted the issue of whether meal reimbursements constitute wages for withholding purposes. The meaning of wages in section 3401(a) depends upon an assessment of the policy objectives underlying income tax withholding. In the Central Illinois litigation, the district court and the Seventh Circuit adopted two very different functional models for defining the term wages. This Note examines each of the wage withholding models applied in Central Illinois, as well as two other models, in light of the policies income tax withholding was designed to serve. The Note concludes that the preferable, but universally rejected, model equates employee income from the employer with wages
Attorneys and Subornation of Perjury
Get PDFFederal law has made the crime of subornation of perjury depend on a showing that the suborned witness has made an intentional false statement under oath. For a prosecution to be successful, it must be shown first, that the witness gave false testimony under oath; second, that the witness knew the testimony to be false; third, that the defendant induced the false testimony; and fourth, that the defendant knew the induced testimony to be false. Thus, if the criminal intent of the witness cannot be proven, the defendant must be acquitted. The curious result is that the prosecution fails not because the defendant\u27s conduct is found innocent, but because it is irrelevant. Because this problem of inducement of innocently false testimony commonly arises in the context of an attorney preparing a witness to testify, there are unique dangers to the proper administration of justice, which are neither prevented nor punished by the present federal subornation statute. Prosecutions under the current law, also, can provide little or no guidance in determining the distinction between proper coaching of witnesses and improper inducement of false testimony because this question is rarely, if ever, raised. Thus, unless the courts or Congress reconsider the construction and rationale of the existing subornation statute, other means must be sought to meet the particular subornation problem of inducing innocently false testimony
Corenco v. Schiavone: The Cash Tender Offeror as Corporate Raider
Get PDFThe concern of both the federal and state courts in the litigation between Schiavone and Corenco was to provide adequate protection to the existing shareholders of the target company during the battle for corporate control. Viewed together, these cases illustrate the limits of federal protection and the possibility of further protection through state law. This Note analyzes the rationales of both decisions and considers whether further regulation is warranted
Comparative Negligence and Comparative Contribution in Maine: The Need for Guidelines
Get PDFIn the recent case of Packard v. Whitten, Maine became the second state to adopt the doctrine of comparative contribution among joint tortfeasors. The decision stressed the point that comparative contribution was merely a logical outgrowth of Maine\u27s Comparative Negligence Statute and that, in particular, the 1969 amendment to that law would appear to have little purpose except to lay the basis for a comparative contribution. The court concluded that the implementation of this new doctrine would pose no major problems: More than five years\u27 experience in apportioning causal fault under our Comparative Negligence Law convinces us that this change as to contribution will result in no insuperable difficulties for the courts or juries. The success of any comparative fault system depends largely upon the creation of meaningful guidelines to assist in the application of comparative fault principles to various factual situations which may arise in the law of torts. Comparative fault law is potentially quite complex, and it is therefore essential that these guidelines be consistent enough to avoid confusion, yet flexible enough to be capable of just application to any case which may arise. In spite of the seven-year existence of comparative fault law in Maine, complete and satisfactory guidelines have not yet been established. The recent extension of comparative fault principles into the area of joint contribution among tortfeasors re-emphasizes this existing void and brings with it some new problems of its own. The existing state of Maine\u27s comparative fault law (comparative negligence and comparative contribution) will be examined here, potential problem areas will be discussed, and some possible solutions will be presented. The experiences of other states also will be studied to the extent that they assist in a clearer understanding of these issues
Maine\u27s Public Labor Law
Get PDFThe latter half of the last decade saw a rapid increase in activity on the part of labor organizations formed by public employees in Maine. This activity received an impetus from an opinion of the Attorney General and from a Legislative Research Committee Report based on the Labor Relations Act of 1941. Through different methods of reasoning both documents concluded that public employees had the right to form labor organizations, but neither document defined the relationship between these employees and their public employer. Although the activity of these organizations was evidenced by the formation of agreements with municipalities and by the prospect of strikes, due to the lack of pertinent legislation the procedures for this activity were questionable and the legality of the agreements was in doubt. The entire field of labor relations relative to public employees was in a state of confusion in Maine. The Municipal Public Employees Labor Relations Law (Public Labor Law) was enacted to legitimize the formation of labor organizations by public employees and to provide a structure for the relationship between these employees and their municipal employers