University of Maine School of Law
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Jurisdiction of the Land Use Regulation Commission Within Baxter State Park
Get PDFBaxter State Park is a 200,000 acre preserve located in north-central Maine that contains, among other natural features, Maine\u27s highest mountain, Katahdin. The park was created through the efforts of a former Governor of Maine, Percival Proctor Baxter, who bought the land himself and then donated it to the people of the State of Maine. His Deeds of Gift, which were accepted by the Maine Legislature, created a trust, under the terms of which the Park is to remain forever wild. The park is supervised by the three-member Baxter State Park Authority, which is composed of the Attorney General, the Commissioner of Inland Fisheries and Wildlife, and the Director of the Maine Forest Service. A 1973 Opinion of the Attorney General maintains that the Baxter State Park Authority has control and management of Baxter State Park paramount to any other state agency. Acting in reliance on that memo, the Maine Land Use Regulation Commission (LURC), which serves as the planning and zoning board for the state\u27s 10.5 million acres of unorganized territory, has foregone any exercise of jurisdiction over the area comprising Baxter State Park. The 1973 Opinion is wrong because it misconstrues the nature of the trust over the park; the trust is a creature of statute, not of traditional trust law. Moreover, the 1973 Opinion wrongly interprets the controlling statutes. Accepted principles of statutory construction would compel the conclusion that Baxter State Park is subject to LURC jurisdiction
Public Access and the New England Shoreline: Editors\u27 Foreword
Get PDFIn August 1989, the Marine Law Institute and the Maine Law Review cosponsored a symposium, Moody Beach and Beyond: Public Use and Private Rights in the New England Shoreline, in Portland, Maine, to provide a forum for presentation of ideas regarding public access rights to intertidal lands. The controversy at Moody Beach was the starting point for the discussion, but the conference included papers dealing with public access issues in other states as well. Four of the papers from this symposium are included in this issue of the Maine Law Review. As were the presentations last August, these articles are only a starting point for the discussion of these issues. They cannot provide conclusive answers, but should raise more questions, engender further thought and debate, and, one hopes, suggest possible solutions to these increasingly pressing problems
30 Years Removed, Oil-Spill Liability Insurance\u27s Evolution since the 1989 Exxon Valdez Incident
Get PDFIn the thirty years since the Exxon Valdez incident, much has changed. This article looks back at the events of the accident and the subsequent changes to the marine pollution insurance industry, from the statutes regulating oil tankers in 1989 to the Oil Pollution Act of the 1990. The regulatory framework resulting from the Exxon Valdez is examined and compared to the litigation deriving from the spill
The Case for Second Chances: A Pathway to Decarceration in Maine
Get PDFThe Article argues that Maine incarcerates too many people, for too long, for too many things, at too great of an expense. We offer evidence to support this claim, briefly review some of the criminal legal legislation that shaped our present reality, and show how recent efforts at reform have been, at best, only modestly successful. In concert with a growing number of expert voices across the country calling for strategies of decarceration, our goal is to demonstrate the need for second chance legislation in Maine in the form of the reinstatement of parole, an effective clemency process, a far-reaching reevaluation of custody levels, and a new revision of the Maine Criminal Code. We argue that Maine needs a restorative pathway to decarceration that would meaningfully reduce the number of people in prison and recidivism rates, while emplacing broader and more effective responses to harm than that afforded by incarceration alone
Re/Descheduling Marijuana Through Administrative Action
Get PDFIn October 2022, President Biden requested that the Secretary of Health and Human Services and the Attorney General initiate a procedure to review how marijuana is scheduled under the federal Controlled Substances Act (“CSA”). The announcement was historic. After more than fifty years of federal prohibition, decades of advocacy and litigation from reform groups, and dozens of stalled efforts in Congress, a President finally decided to wield the Executive Power with an eye towards rescheduling or descheduling marijuana. But just how far does that power go? Given President Biden’s request, the question is in serious need of scholarly attention. This Article accomplishes just that, diving deeply into the thicket of statutory and administrative law that dictates the scope of the President’s power to unilaterally reschedule or deschedule marijuana. In doing so, we conclude that the CSA’s administrative drug-scheduling procedure is broader than prior scholarship has let on. We identify several avenues for the President to move marijuana to a less restrictive schedule. The pathway to descheduling marijuana is, however, far narrower and more uncertain. These findings are immediately relevant. They can help guide the Executive Branch as it reconsiders how marijuana is scheduled and will prove useful to courts when the Biden Administration’s eventual decision is subjected to judicial review. Indeed, while this Article was in production, the Secretary of Health and Human Services recommended that the Drug Enforcement Agency (“DEA”) transfer marijuana to Schedule III of the CSA. The DEA’s decision of whether to accept that recommendation will, inevitably, be challenged in the courts
Social Media: One of Fast Fashion’s Biggest Influencers Why Legal Intervention is Essential to Reduce Social Media’s Promotion of Fast Fashion– An Industry Founded on Unsustainable Business Practices
Get PDFThe purpose of this paper is to convey why legal intervention is an essential step in curtailing social media’s promotion of fast fashion, which often occurs through brand utilization of various predatory advertising methods. Research has suggested growing opposition to both social media and clothing regulations. As a result, the most proactive way to confront the issue is by attacking corporate activity head-on. This will occur through the implementation of a mandatory three-factor sustainability compliance program, required for all fast fashion corporations advertising via social media. Additionally, to ensure brand transparency, compliance with the program will require the publication of the aforementioned sustainability practices. Enforcement of the program will occur through conformity assessments, which is currently an integral aspect of other government agencies\u27 compliance investigation protocol
Constitutionalizing the Human Right to Food in Maine: A People’s Tool to Advance Food Sovereignty in the U.S.
Get PDFOn November 2, 2021, Maine voters overwhelmingly supported a statewide referendum approving an amendment to enshrine the right to food in Maine’s constitution. This vote was preceded by a decade of food sovereignty advocacy in Maine. This advocacy was led by small farmers and homesteaders and supported by people looking to opt out of the industrial food system, which is dominated by a few corporate monopolies and promotes charity-based solutions to hunger. This vote was a resounding proclamation by the people of Maine in support of the right to food, the right to save and exchange seeds, and the right to grow, raise, harvest, produce, and consume the food of their own choosing for their own nourishment, sustenance, bodily health, and well-being. Maine’s efforts are connected to a wider national and international community of smallholder farmers—or peasants—and people living and working in rural areas, food system workers, and people experiencing hunger and food insecurity. Although Maine is the first U.S. state to enshrine the right to food in its constitution, international human rights law firmly recognizes a right to adequate food. The International Covenant on Economic, Social and Cultural Rights upholds “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions.” The right is further enumerated in international law through additional conventions and standards and is continuously being interpreted and analyzed by United Nations expert bodies. Moreover, the ground-breaking adoption of the U.N. Declaration on the Rights of Peasants and Other People Working in Rural Areas, after seventeen years of global mobilization and negotiations by peasant movements, led to the international recognition of their rights. These include the rights to food sovereignty and individual and collective access to natural resources, including land, water, and seeds. This Article examines Maine’s constitutional amendment on the right to food by looking at its food sovereignty origins and by relying on international human rights law. This analysis reflects on how Maine’s right to food could serve as an antidote for the privatization of water and natural resources and pave the road for people to regain access to land and water, reclaim native seeds, restore biodiversity, and promote sustainability and autonomy in a localized food system. Drawing on their involvement in a growing right to food movement in the United States that is made up of small farmers, legislators, advocates, academics, and people with lived experiences of hunger, the authors also reflect on opportunities to translate Maine’s experience to other states with ongoing legislative and organizing efforts focused on the human right to food
A Tribute to a Colleague Who Has Endured
Get PDFThere is a certain vogue in the academic world, and certainly in the field of Law, that would measure one\u27s worthy and real value to the profession by the number of astute moves from school to school made in the course of a career. One hoped to ascend, at four or five year intervavls, an unpublished but generally accepted institutional hierarchy (or pecking order). Each move would be marked by acknowledged teaching accomplishment and scholarly writing. In the professional life well-lived these moves would culminate in a chair or senior professorship at any one of ten or a dozen national law schools generally regarded as the elite institutions
Solicitation by Lawyers: Piercing the First Amendment Veil
Get PDFHistorically, the legal profession has considered the solicitation of business inappropriate. The profession has articulated this condemnation of solicitation, which developed as a principle of good taste among a small and homogeneous group of practitioners, in the form of specific rules prohibiting its members from engaging in certain forms of conduct. In recent years, the United States Supreme Court has considered various rules that restrict the commercial speech of lawyers. Reviewing these proscriptive rules, the Court struck down categorical bans on lawyer advertising and targeted, direct mail solicitation as violative of the first amendment. Because the free flow of information to the public is the primary justification for protecting commercial speech, the Court upheld the general right of lawyers to disseminate truthful, nondeceptive information and advice to potential clients. Nonetheless, the Court indicated that rules prohibiting in-person solicitation are permissible; they properly address the increased risk of overreaching and undue influence associated with face-to-face communication with potential clients. A review of the analysis implemented by the United States Supreme Court in its treatment of restrictions on lawyers\u27 speech illustrates the tenuous line that has been drawn between permissible and impermissible solicitous conduct. The Court maintains that, provided the speech in question is neither false nor misleading, its regulation must be no more extensive than is necessary to achieve the substantial state interest advanced by the regulation. Viewing lawyers\u27 commercial speech within this context, categorical proscriptions on in-person solicitation are not tailored narrowly enough to prevent the perceived evils of overreaching and undue influence. Far less restrictive and more precise means exist to achieve the stated objectives. As the rules prohibiting in-person solicitation of clients presently stand, they lack a firm historical basis and constitute a violation of the first amendment. This Article will trace the historical development of attitudes about the impropriety of solicitation. It will then discuss the development of first amendment protection for commercial speech, and in particular, the United States Supreme Court cases in which restrictions on the commercial speech of lawyers are specifically at issue. The Article will then demonstrate that, under the present analysis of the Supreme Court, existing categorical bans on direct in-person solicitation of clients are both unconstitutional and detrimental to society in general, and to the legal profession in particular