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Bankruptcy Courts in Transition Toward Debtor Rehabilitation
Get PDFThis article attempts primarily to cope with the so-called debtor relief provisions of the Bankruptcy Act rather than with its ordinary or straight bankruptcy provisions. The different emphasis upon liquidation in ordinary bankruptcy and rehabilitation in debtor relief proceedings justifies their separate treatment. It must be cautioned, however, that not only the philosophy but many of the administrative and procedural precepts of chapters I-VII of the Bankruptcy Act are incorporated, either by word or implication, into the debtor relief chapters. Moreover, most types of cases filed under the Bankruptcy Act are administered by the same personnel in the same court of bankruptcy. However ineffective and impractical it may be, the inevitable fact of the matter is that the bankruptcy court functions in the same environment and through the same operatives, whether confronted with an economic cadaver, in which event dissection and distribution are the order of the day, or with a yet viable but economically unsound subject, in which case either therapy or surgery, or both, may be required to restore economic health. So long as this superficial treatment of the serious economic woes of the nation\u27s businesses and consumers continues to be the legislative prescription by which the bankruptcy courts are bound, it is obvious that no total dichotomy between the rehabilitative and dispositive functions of the court is advisable
Real Property Taxes in Maine and the Impoverished: An Expose?
Get PDFAs the clamor for war against poverty increases throughout our society, there are few social and legal spheres that remain unscathed. Congress and the state legislatures have finally begun to show compassion in enacting new laws concerning virtually every social field in an attempt to alleviate the atrocious conditions under which this nation\u27s poor exist. Moreover, the judicial system seems to have gained more awareness of the legal standing of the poor man and has begun to vindicate his once-dormant constitutional and statutory rights. One poverty target that has been hit by both the lawmakers and the courts concerns the inequities of our tax system. The harshness with which taxes affect the poor has been exposed and, to a certain extent, the disproportionate sting which poor people feel from taxation has been minimized. There is a trend in some states away from the oppressive sales tax and toward the more progressive income tax. Part of the theory behind our federal income tax is that the poor pay little or no taxes. Perhaps the obvious finally has been realized—the more poor people pay for taxes, the poorer they become. Furthermore, a logical extension from this premise is that the poorer these people become, the more money will be needed to provide public assistance for them. Of course, the bulk of public assistance funds must in turn be extracted from the pockets of the nonpoor by the vehicle of taxation. However, it appears that one significant form of taxation has been almost totally neglected in tax modernization and reform. This is the real property tax. The property tax remains the mainstay of local government finances. It usually falls most heavily upon those who are the least able to pay. It is now and always has been a fact that real estate taxes take greater proportions of income from lower than from higher income groups. Herein lies the acute regressiveness of the property tax system. Many states have devised means to alleviate this inequity without destroying the entire real property tax institution. Among the more prevalent of such artifices are homestead exemptions, aged exemptions, and veteran exemptions. The wisdom and fairness involved in such methods have often been questioned. Of course, each of these tax exemptions entails favored tax treatment for a special interest group, e.g., certain homeowners, old people, and military veterans. Although some poor people are often de facto members of one of the favored groups, the primary purpose and practical effect of each exemption is to relieve members of a certain class, regardless of their actual financial situation. The poor, in particular, have not been provided for. If a poor family does not happen to fall into one of the exempted categories, to maintain some semblance of a house its members must go without basic necessities, such as proper food or clothing, to pay the annual property tax. Inevitably, many of these families end up on the welfare rolls and ultimately lose their homes. At first sight, this does not appear to be the case in the State of Maine. No other state has gone as far in the area of property tax relief for the poor—at least as far as enabling legislation goes. Maine currently has a statute which appears to exempt from taxation the property of all poverty-stricken people. However, it will be seen that the law is at best a hollow victory for the many impoverished property owners throughout the State
Right to Jury Trial: Lemieux v. Robbins
Get PDFA sagacious English liveryman named Tobias Hobson allowed each customer to choose the horse nearest the door, thereby presenting these customers with no real alternative. The State of Maine made a like proposition in Lemieux v. Robbins by implementing a novel criminal procedure whereby a defendant has a choice of either accepting his district court misdemeanor conviction as final, or appealing for a de novo trial by jury in superior court and possibly being convicted of a felony for contravening the same statute under which he was originally charged. The implementation of this procedure began with a complaint filed in Maine\u27s district court charging defendant with committing an assault. He was found guilty by a judge and sentenced to pay a fine of $100, or serve 30 days in the county jail. He thereafter appealed to the superior court to receive a de novo trial by jury. Before this trial began, the county attorney secured an indictment against the defendant charging him with the same assault that was alleged in the district court complaint. Defendant moved to dismiss the indictment, alleging that concurrent prosecutions under the complaint and the indictment constituted double jeopardy. While defendant\u27s motion was pending, the county attorney dismissed the district court complaint, and defendant\u27s motion was thereafter denied. The case proceeded to trial upon the indictment, and at the trial the jury found defendant guilty of assault. Under the then existing sentencing procedure, the judge concluded that this assault was of a high and aggravated nature and sentenced defendant to serve one and one-half to five years in the state prison. The arguments presented by defendant\u27s counsel before the court of appeals were that the procedure in Lemieux constituted double jeopardy and that the subsequent imposition of a harsher sentence was an unconstitutional limitation on defendant\u27s appeal from district court. The court rejected both these contentions. A more effective argument would have been that this procedure violated defendant\u27s federal and state rights to receive a trial by jury. When the Lemieux procedure is employed, in order for a defendant to receive a trial by jury he first must be adjudged guilty by a judge in district court and post an appeal bond as security. Then he must risk losing the protection of this verdict; having his bail increased; being reprosecuted for a felony; and having his sentence increased
Gaps in Accountability for Submarine Cable Protection: Inadequacies in the Current Legal Framework
Get PDFSubmarine cable protection has become a hotly discussed topic as the risk of damage has dramatically increased amidst wars and geopolitical tensions. This Article critically analyzes six gaps in accountability for cable protection. First, there is no civil accountability for non-territorial damage. The United Nations Convention on the Law of the Sea (UNCLOS) allows no residual jurisdiction, and the English case of Virgin Media Ltd. v. Joseph Whelan reasoned that the absence of exclusive jurisdiction to lay cables in those waters means no civil jurisdiction by the coastal state. But this Article argues that it is an exclusive right, taking into account the oft-neglected Article 79(5)’s ‘first in time, first in right’ nature. Furthermore, the Permanent Court of Arbitration has offered a more compelling understanding of sovereign/exclusive right. The maxim expressio unius (est) exclusio alterius and the Lotus principle would support finding civil jurisdiction because UNCLOS only explicitly rejects criminal jurisdiction. Second, there is insufficient public accountability by the tortfeasor to the end users. Despite the fact the APEC (Asia-Pacific Economic Cooperation) Policy Report “highly recommended” the establishment of tort law liabilities, end users cannot bring a tort claim. Third, there is inadequate accountability on the part of cable operators to the public. UNCLOS has not expressly imposed a duty on them to ensure stability. Fourth, focusing on a cable’s ownership structure (private vs. public property) to attribute responsibility overlooks its nature as a public good. Fifth, Article 114 holds operators accountable to other operators for damage to cables, but such a generic duty of care would have existed anyway. It is awkward to formally emphasize this aspect, but not the more important ones above. Article 114 also deters repair. Ultimately, the central problem is that UNCLOS has not made clear who bears the primary responsibility to protect the cables and maintain stability. Reading UNCLOS together with generic critical infrastructure law will help close the gaps
Unconsented Educational Pelvic Exams on Anesthetized Patients: The Collapse of Legal and Ethical Safeguards for Patient Consent
Get PDFIt is a troubling reality that medical students in some U.S. teaching hospitals perform pelvic examinations on anesthetized surgical patients without their explicit knowledge or consent. These unconsented educational pelvic examinations raise serious ethical and legal concerns. Although professional medical societies agree that specific and voluntary consent is a fundamental ethical prerequisite for conducting such examinations, this standard has been frequently disregarded in practice. The law offers little practical deterrence to this violation of patient autonomy. Tort law provisions on battery and informed consent are ineffective in addressing the issue, while state legislatures have largely failed, or outright refused, to pass enforceable prohibitions on the practice. Criminal prosecution is problematic for multiple reasons. Even the United States Department of Health and Human Services, which has the authority to regulate procedures performed on anesthetized patients, has issued guidance that stops short of providing an enforceable solution. Given the inability to reliably ensure patient consent, this Article argues that educational pelvic examinations on anesthetized patients must be categorically prohibited. Ethical and legally sound alternatives exist to train medical students in pelvic examination techniques without compromising patients’ autonomy
Maine’s Arctic Future: Balancing Economic Opportunity, Geopolitical Risk, and Legal Responsibility
Get PDFThis Paper explores the dynamic intersection of climate change, geopolitical strategy, and economic development in the rapidly changing Arctic landscape, focusing on existing legal paradigms and Maine’s unique position as a pivotal player in this context. Maine, with its historic ties to the Arctic, scientific partnerships, and strategic location as the northernmost port on the United States East Coast, is well-placed to capitalize on emerging economic opportunities. However, these opportunities are accompanied by substantial risks, including climate change impacts, operational challenges in the harsh Arctic environment, and geopolitical tensions among rival states vying for influence in the region. This Paper discusses the importance of adherence to customary international law and the role of international institutions in mitigating geopolitical risks and fostering cooperative problem-solving. It analyzes Maine’s role in this evolving scenario, including the state’s capacity to nurture relationships with key Arctic nations, foster strong trade connections, and support national security objectives. This Paper emphasizes the need for sustainable development in the Arctic that benefits local communities and minimizes environmental impacts. It concludes that Maine’s strategic positioning and existing infrastructure, including its security relationship with the Department of Defense (DOD) and research initiatives, position it to play a key role in the Arctic’s future by balancing economic opportunities with the challenges of the region’s complex geographical and geopolitical terrain
What is Wrong with Maine\u27s Occupational Disease Law?
Get PDFBy enacting occupational disease laws, state legislatures stepped ahead of limited medical knowledge concerning the etiology of disease. Responding to public and political pressures, legislatures placed the responsibility for adjudicating claims based on disease on administrators whose procedural and evidentiary systems were designed for claims due to injuries. But the causal connection of disease to employment is not so easily shown; until quite recently, diseases were not thought to support the common law causes of action that gave rise to the quid pro quo of workers\u27 compensation systems. This Comment first sketches the development of Workers\u27 Compensation law and its extension of coverage to occupational disease. Following a brief legislative history of Maine\u27s occupational disease law and a discussion of the law\u27s application by the Law Court, this Comment demonstrates how and why the law fails to compensate adequately victims of industrial disease for disabilities related to employment
The Dilemma of Concurrent Coverage: Carriers Insurance Co. v. American Policyholders Insurance Co.
Get PDFInsurance draftsmen responding to consumers\u27 demands for comprehensive automobile liability protection have attempted to create precise, extensive coverage for the insured while at the same time limiting the insurer\u27s liability if possible. One consequence of this effort is that when two or more policies cover the same risk and person and concurrent coverage results, the insurers may attempt to reduce their liability on the grounds that other insurance is available. Insurers achieve this contingent coverage through the device of other insurance clauses—a judicially approved means of reducing or avoiding liability if other valid and collectible insurance exists. These clauses originated in the field of property insurance to preclude windfalls caused by overinsurance, and their use gradually spread throughout the insurance industry. In Carriers Insurance Co. v. American Policyholders Insurance Co., the Maine Law Court grappled with a conflict between two excess insurance clauses. Although the Law Court strove for a rule capable of bringing certainty and simplicity to the resolution of concurrent coverage disputes, it nevertheless failed to diminish the confusion surrounding the twin issues of how to assign liability and how to apportion the loss. The mode of analysis undertaken by the court, and its decision to dismiss the conflicting excess clauses and to divide the loss equally between the two insurers, illustrate the inadequacy of courts generally to deal with concurrent coverage problems without guidance from the insurance industry or the legislature. The purpose of this Note is to suggest that in Carriers the Law Court missed an opportunity to clarify concurrent coverage law and instead announced a rule that may produce unintended, inequitable results
A Reexamination of Passamaquoddy v. Morton
Get PDFIn December 1975, the United States Court of Appeals for the First Circuit issued its historic decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton. That decision set in motion a sequence of events that only the most prescient of the original participants could have imagined. At its height the litigation that grew out of Passamaquoddy involved a threatened suit by the United States Justice Department on behalf of two Indian groups in Maine against the State of Maine, several of the nation\u27s largest corporations, 350,000 residents, and scores of Maine municipalities. The plaintiffs sought possession of 12,000,000 acres of privately-owned lands, 500,000 acres of publicly-owned lands, plus $25 billion in trespass damage claims. Recognizing the enormous import of this action, the Justice Department once described the suit as potentially the most complex litigation ever brought in the federal courts with social and economic impacts without precedent and incredible potential litigation costs to all parties