University of Maine School of Law
University of Maine, School of Law: Digital CommonsNot a member yet
1960 research outputs found
Sort by
The Private Offering: Rule 146 and Offeree Sophistication
Get PDFThe fundamental premise of the Securities Act of 1933 is that protection of the investor is achieved by requiring the dissemination of information essential to an informed investment decision. Carved from this general requirement are exemptions from registration dealing with certain types of securities and transactions. This lack of clarity has created a situation in which the SEC continues to list the characteristics of a private offering while the judiciary seizes upon particular factors as determinative tests. In response to the need for greater certainty in the application of the Section 4(2) exemption, the SEC has recently proposed Rule 146 as an alternative definition of the private offering guidelines. While the exemption also depends on other considerations, Rule 146 assumes the fulfillment of other aspects of the statutory scheme and focuses upon the single problem of defining the nonpublic offering. The Rule is structured around four basic conditions: access to information; the nature of the offerees; the manner of the offering; and the number of purchasers. Though the Rule purports to be nonexclusive, it is essentially an accumulation of factors already employed. And, whether or not the Rule is a viable alternative to the existing confusion, it is surely predictive of the future meaning of the section 4(2) exemption. The purpose of this comment is to highlight the problems raised by proposed Rule 146 and to evaluate critically the appropriateness of a sophistication standard in a disclosure statute. A definitional clarification of the private offering is both needed and useful, but the proposed rule merits criticism for its sweeping incorporation of vague and unpredictable standards. Beyond the general deficiencies of the rule, its chief problem is the inclusion of offeree sophistication as a determinative factor in private offerings
Applying Federal Antitrust Law to Banking Services—Noninterest-Bearing Mortgage Escrow Accounts
Get PDFIt is reasonable that lenders should require mortgage escrow accounts on high loan-to-value mortgages, for lenders are extending a significant amount of credit. Since a house is often the single most valuable purchase ever made by a family, that house is often the only asset of sufficient value to secure the loan. Therefore, the lender will want assurances that the value of the house will be maintained. Mortgage escrow accounts help provide that assurance by protecting against tax liens and accidental damage. But noninterest-bearing mortgage escrow accounts have recently come under fire from consumer advocates. The complaint is that the accounts, aside from protecting the mortgagee-lender\u27s security, also provide a hidden profit to the mortgagee at the mortgagor-borrower\u27s expense. At least thirty-two suits have recently been filed, in both state and federal courts, attacking mortgage escrow accounts. One of the possibilities for attacking noninterest-bearing mortgage escrow accounts is the federal antitrust law. The mortgage market is an oligopoly in which antitrust violations are quite likely. Antitrust law is not the only possible solution to this problem. It may be that lending institutions will offer interest on mortgage escrow accounts simply for public relations purposes. Federal legislation is another possibility. There are also possibilities of relief under state law, such as unjust enrichment, unconscionability, and statutory limitations on interest rates. But perhaps the most promising state law possibility is breach of common law trust. This comment will only consider whether noninterest-bearing mortgage escrow accounts violate the federal antitrust laws. There are basically two aspects to that issue. The first is whether mortgagees are immune from any antitrust scrutiny because of federal policies which encourage or require mortgage escrow accounts. The second aspect is whether the accounts actually violate the antitrust laws either as a conspiracy to fix prices or as an illegal tying arrangement
Privileged Communications: A Case By Case Approach
Get PDFPrivileged communications are communications which, because of a special relationship, are protected from revelation during the course of litigation. In the past, grants of privilege have been made by reference to professional groups rather than to the content of the particular communication, resulting in inconsistent treatment. Some professionals have secured absolute privileges for their relationships while others have been partially or totally unsuccessful. The inconsistencies are most clearly demonstrated by examining grants of privilege to medical, psychotherapeutic, and social work personnel, although it is not intended that the case by case approach suggested in the proposed statute at the end of this note should be limited to these professions. The proposed statute suggests a procedure for dealing with claims of privilege in a more uniform way by shifting the emphasis away from the profession involved. The content of the communication and the effect of disclosure on the litigation involved and on the party who made the communication would determine the existence of a privilege on a case by case basis
The Development of Admiralty Jurisdiction and Practice Since 1800
Get PDFThis book undertakes several tasks. It contains a detailed narrative of the ebb and flow of the admiralty jurisdiction exercised by the English Admiralty Courts from earliest times to the present, together with a look at the practice during each period. Unlike our Admiralty jurisdiction which rests on the Constitution and has grown steadily through court interpretation, the jurisdiction of the English Admiralty Court has expanded and contracted with frequent and varying statutory changes
Conservation, Policy and the Role of Counsel
Get PDFThe conservation interests in the State of Maine have been roused to a furor by the decision of Maine\u27s highest court in State v. Johnson. The case, in substance, holds that Maine\u27s Wetlands Act is unconstitutional when applied to prohibit the filling of a specific segment of salt water marsh. While both the decision and the underlying statute are of considerable substantive interest, the case deserves particular study for the light it sheds on the role of counsel in helping the legal process accommodate new policy concerns. A note of caution must, of course, be sounded before seeking to generalize too broadly from a single example. It is always possible that a case of major significance may arise among private parties, or even between government and private parties, without its importance being recognized by those directly involved. Such was not the case with Johnson. When the permit to fill the marshland was denied and the owners sought judicial review, it was recognized as the first contested case to arise under the new Wetlands Act. The parties and the trial justice sought to expedite appeal of the case, the landowners seeking an immediate declaration of the unconstitutionality of the Act. The expedited appeal was rejected, and the case was remanded for the taking of evidence. At that early stage the Natural Resources Council of Maine had already entered the case as amicus curiae, and a law school faculty member who had helped draft the legislation participated in preparing the amicus brief. The case also received comment in a recent study of laws affecting marine resources in Maine. It is precisely because it was a cause celebre by the time of trial that the case deserves careful analysis as an example of the lawmaking process
Bernier v. State - The Right to Counsel in Entrustment Revocation Proceedings
Get PDFTheodore Bernier was adjudicated a juvenile offender in September, 1966, and was subsequently committed to the Boys Training Center (BTC) for the term of his minority. In February, 1968, he was released on entrustment to his parents. Almost a year and a half later, Bernier was questioned by local police regarding his possible involvement in the theft of greenstamps from a local store. Although he was released without the police taking further action, they notified an aftercare and placement worker assigned to the BTC of the questioning. As a result, the BTC revoked the entrustment, and the police took him into custody for return to the Center. He subsequently was returned without a hearing and the original indefinite commitment was reinstated. To seek relief Bernier filed an action in state court for post-conviction relief. Bernier contended in his writ that the entrustment revocation without a hearing and in the absence of counsel violated the due process clause of the fourteenth amendment, and he also complained that because state probationers and parolees received a statutory hearing, the entrustment procedure discriminated against him in violation of the equal protection clause. Additionally, Bernier argued that the statute from which the superintendent of the BTC derived his authority to revoke entrustments was impermissibly vague. Following dismissal of the writ, appeal was taken to the Maine Supreme Judicial Court. The court answered the vagueness claim by maintaining that upon commitment to the BTC, the juvenile\u27s rights were defined by the state in its role as parens patriae. The lack of specificity of the superintendent\u27s powers under the statute was considered irrelevant because he properly possessed unlimited discretion to act for the juvenile\u27s best interest., Although the court recognized that Maine statutes required hearings for probation and parole revocations, it found this right grounded within the statute rather than the Constitution. Hence, the failure to provide juveniles with a hearing and counsel at entrustment revocation did not contravene due process or equal protection because probation and parole violators also had no right to a hearing and counsel beyond the statutory grant. The court left unresolved defendant\u27s procedural due process argument that the entrustment revocation by the superintendent of the BTC so as to effectuate indeterminate confinement was unconstitutional because it constituted an imposition of sentence without the presence of counsel
A Marketable Title Act for Maine
Get PDFConveyancing procedure in Maine, as in many other states, has become progressively more complex. Under the traditional recording system two elements—an ever-growing labyrinth of land records and the consequent likelihood of a defect in the chain of title—make repetitive, over-meticulous title examinations common, and uncertainty almost inevitable. Both of these elements must be eradicated by effective legislation, redefining and promoting marketability. No longer should landholders be faced with a constant challenge from the past, protection against which is by means of an expensive title report, carefully conditioned and couched in terms of the title-searcher\u27s opinion rather than law. Attorneys should not be continuously compelled to fear that an interest will arise from somewhere which they felt was dead, or at least older than their client could afford to discover and inspect. Under present Maine law, numerous circumstances create long-lasting title defects. Unrecorded conveyances may be effective against the grantor and others with actual notice. Individuals may be fully cognizant of deeds and, therefore, bound by them though they be unrecorded. Undischarged mortgages and contracts to convey real estate may avoid the statutes of limitation by partial payment or reaffirmation, neither of which are recorded within the title searcher\u27s purview. The interests of the United States, Maine and its subdivisions, a real property owner with a legal disability, a cotenant adversely possessing against his co-owner, and all future interests are expressly excepted from at least one of Maine\u27s two real estate statutes of limitation. The doctrine of laches may be of some help on occasion, but equity is far too flexible to be relied upon prior to formal judicial action. This group of old interests, probably stalking in the years previous to the title searcher\u27s root of title, as well as clouding the title exposed by the abstract, is good reason for the Maine attorneys\u27 long and cluttered title reports. Actions to quiet title are not a solution. Not only are the precise elements of the quiet title statute strictly construed, and proof thereof exactingly required by the court, but a cost of 300 to 500 dollars makes it a prohibitive procedure for many land transactions in Maine and at best an additional step in a procedure already too expensive. Further overloading of court dockets and greater expense to individuals and the State are not the desired end. The increasing number of actions to quiet title in Maine is a manifestation of the illness, not its cure
The Identity Factor
Get PDFIdentity development is one of the most important processes that occur during childhood. For certain populations of children, such as those who are LGBTQ+ or multiracial, the path to healthy identity development is substantially more complicated. These children must navigate the development of their identities while existing in a world in which they will frequently encounter a lack of societal understanding and acceptance. Children within these populations face elevated risks of short- and long-term harms, including suicidal ideation, depression, substance abuse, and low self-esteem. As a result, it is critically important that LGBTQ+ and multiracial youth receive support in developing a healthy identity with respect to their sexual orientation, gender, and race. Social science research indicates that the type of identity support that has the greatest protective effect for LGBTQ+ and multiracial youth is the support provided by a child’s parents. Children who are LGBTQ+ or multiracial generally fare significantly better when they are raised by parents who support and encourage their identity development. Despite this reality, under current state laws governing child custody, there is no requirement that courts consider each party’s support (or lack thereof) for a child’s identity development in determining which party should receive custody of a child. This Article argues for legal reform to ensure that, when relevant, courts consider support for a child’s identity development as a factor when making custody determinations. It sets forth detailed proposals addressing how states can integrate identity support into existing laws governing child custody