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Dunham v. Ware Savings Bank: Economic Policy and Federal Law Justify Enforcement of Due-on-Sale Clauses by State-Chartered Institutions
Get PDFEconomic policy should replace state property doctrines as the controlling factor in determining enforceability of due-on-sale clauses. A due-on-sale clause provides mortgagees (lenders) with the means to accelerate the term of a mortgage upon transfer of the original mortgagor\u27s (borrower\u27s) interest in the mortgaged property. Lenders originally used due-on-sale clauses for the purpose of evaluating whether the party to whom the original borrower sought to assign the mortgage was creditworthy. As interest rates have risen, lenders increasingly have used due-on-sale clauses to terminate their commitments to lend mortgage funds at relatively low interest rates. Mortgage instruments secure a borrower\u27s promise to repay a mortgage loan issued by a lender. Because the basic transaction between the parties involves financing real estate transactions, property law traditionally has controlled litigation concerning enforcement of due-on-sale clauses. The issues in due-on-sale clause litigation have multiplied as the residential real estate market has been adversely affected by volatile money markets. Concern for the economic health of the residential real estate market has begun to pervade due-on-sale litigation. Consequently, state courts have been forced to abandon the general practice of limiting the use of mortgage foreclosure to those cases in which lenders successfully demonstrate that the mortgaged property is endangered. This Comment examines the incorporation of economic policy into the developing body of law regarding enforcement of due-on-sale clauses in conventional residential mortgage instruments. After a brief history of litigation concerning enforcement of due-on-sale clauses, the development of federal law authorizing enforcement of such clauses and the development of secondary mortgage market policies concerning enforcement are examined in detail. The Federal Home Loan Bank Board (Bank Board) regulations and the policies of the Federal National Mortgage Association (FNMA) and the Federal Home Loan Mortgage Corporation (FHLMC) pervade this field of law. Both must be considered by a state court or legislative body deliberating whether due-on-sale clauses should be enforced
The Art of NFTs: Copyright, Contracts, and the Fallacy of Ownership
Get PDFWith cryptocurrency Bitcoin’s prices continuing to hit record highs, overall public interest in NFTs will likely increase significantly as it ordinarily has in the past. But before purchasing an NFT, it is important that consumers understand exactly what they are buying. Many assume their purchase will include the associated art that is shown in the individual NFT marketplace listing, whether it be a CryptoKitty, a Bored Ape, or a single video clip from an NBA game. However, in reality, most buyers are getting little more than a few lines of code on the blockchain. What explains these misconceptions, especially when some NFTs are being sold for over a million dollars? More often than not, it is due to a combination of misunderstandings relating to technology, copyright law, and contracts. Complicating matters is that an NFT does not fit within a single existing legal framework, whether it be property law, copyright law, or contract law. Additionally, there are significant differences between NFT marketplaces, each one with its own set of contractual terms and conditions. Furthermore, individual artists and sellers on these sites invariably have their own agreements that often define how, if at all, the NFT buyer may utilize the artwork linked to the NFT. Lastly, but especially problematic, is how difficult it is to locate these contractual provisions, often requiring a consumer to essentially go on a virtual scavenger hunt to try to find the terms and conditions that purportedly control. Accordingly, in this article, I advocate for increased transparency to ensure consumers have an adequate opportunity to identify what rights they may or may not have in the underlying artwork. This is necessary not just to avoid disappointment but to prevent purchasers from opening themselves up to potential legal liability, including copyright infringement. A possible NFT buyer should be able to discern whether reproducing, distributing, or otherwise commercially exploiting a work is permitted to calculate the true cost of an NFT purchase. This Article begins in Section II by discussing the technical aspects of NFTs. Next, Section III studies the fundamental copyright rights, doctrines, and limitations pertinent to NFTs. Additionally, the Section provides a real-life example of how confusion over copyright rights can lead to very costly mistakes. Section IV explores how methods of contract formation have evolved in response to technological advancements, including the increased use of “clickwrap” and “browsewrap” agreements in the digital age. Section V examines the problematic ways NFT contractual terms are presented to consumers by studying the actual listings of several NFTs currently offered for sale and detailing the copious number of steps a user must take to locate the agreement that supposedly controls the parties’ transaction. These provisions are then analyzed and compared to illustrate the extent to which an NFT seller may or may not choose to provide the purchaser with rights to any digital artwork associated with the non-fungible token. Lastly, Section VI provides recommendations for improving transparency in the NFT marketplace
Bouford v. Bath Iron Works: Defining Double Recovery Under State and Federal Compensation Laws for Maritime Workers
Get PDFIn Bouford v. Bath Iron Works Corp., the Maine Supreme Judicial Court, sitting as the Law Court, held that an employer is not entitled to credit disability payments made under the federal Longshore and Harbor Workers\u27 Compensation Act (LHWCA) against a subsequent obligation to pay a permanent impairment award for the same injury under the Maine Workers\u27 Compensation Act (MWCA). While adhering to the principle against double recovery by employees in cases in which there is concurrent jurisdiction of federal and state compensation schemes, the Law Court reasoned that state permanent impairment awards are not duplicative of LHWCA disability benefits because of different policy concerns underlying each. The significance of the Law Court\u27s decision is that, at least implicitly, it held that defining double recovery is a matter of state law when state benefits follow federal. Two members of the Law Court dissented. Although agreeing with the majority that the permanent impairment award to Bouford under the MWCA was separate and distinct from the disability benefits Bouford received under federal law, the dissent argued that the majority had implicitly, and erroneously, resolved the issue as a matter of state law. In the dissent\u27s view, the double recovery issue raised a federal question which had to be resolved by predicting how the United States Supreme Court would decide the matter. Accordingly, the dissent scrutinized decisions of the Supreme Court and recent legislation by Congress, and concluded that the employer was entitled to credit the federal payment notwithstanding the different nature of the state and federal benefits
State v. Boilard: Are Jury Instructions on Statutory Defenses Essential to a Fair Trial?
Get PDFIn State v. Boilard, the Maine Supreme Judicial Court, sitting as the Law Court, recently addressed the question of when the failure to instruct the jury regarding a defense available under the Maine Criminal Code constitutes error. The court held that the trial court\u27s failure to give an instruction on the defense of justification did not rise to the level of obvious error. The court reasoned that because the instruction conflicted with the defendant\u27s theory of defense, and because counsel for the defendant did not claim error at trial or on appeal, any argument that the defendant had been prejudiced by the omission of the justification instruction was waived. Because the court\u27s reasoning is inconsistent with other decisions of the court that have required jury instructions on statutory defenses if the defense was generated by the evidence admitted at trial, this Note analyzes the rationale and result in Boilard in light of the legislative directive of section 101 of the Maine Criminal Code—which provides that the state must disprove the existence of a defense if evidence is admitted sufficient to place the existence of the defense in issue—and examines the impact of the standard of review articulated by the court in Boilard on the defendant\u27s right to a fair trial
Burns v. Smith: Assessing the Sufficiency of Affidavits Supporting Prejudgment Attachments in Medical Malpractice Actions
Get PDFThe process of attachment allows a plaintiff to request that the court bring a defendant\u27s property into the court\u27s custody for the purpose of satisfying any subsequent judgment that the plaintiff may obtain. In Maine, a plaintiff may proceed either with notice to the defendant or ex parte. In order to proceed ex parte, by which only the plaintiff appears before the court without notice to the defendant, the plaintiff must satisfy the requirements of Rule 4A of the Maine Rules of Civil Procedure. Rule 4A embodies two distinct safeguards for defendants whose property a plaintiff seeks to attach ex parte: one, the plaintiff must support his motion with an affidavit; and two, the affidavit must set forth specific facts sufficient to allow the court to make certain findings required by the Rule. The affidavit requirement of Rule 4A(h) states . .
Public School Integration of Children with Handicaps after Smith v. Robinson: Separate but Equal Revisited?
Get PDFUnder the direction of Chief Justice Burger the United States Supreme Court has issued several opinions limiting the availability of federal causes of action. While one benefit of this trend may be a reduction in the volume of federal litigation, the costs may include the limitation of substantive federal rights. The recent Supreme Court decision in Smith v. Robinson narrowly construed the availability of certain federal causes of action, and it illustrates how such a ruling, although procedural on its surface, in reality can operate to erode substantive rights. In Smith the Court concluded that a handicapped child could not receive an award of attorney\u27s fees upon prevailing in an action to secure a free appropriate public education. In reaching its conclusion the Court held that certain traditional means of securing civil rights which also provided for the award of attorney\u27s fees are unavailable to children with handicaps. Specifically, the Court held that a child with a handicapping condition could not assert the equal protection clause in a section 1983 action as the basis for a claim to a free appropriate public education. The Court further held that a handicapped child could not assert section 504 of the Rehabilitation Act of 1973, popularly known as the Civil Rights Act for the Handicapped, as the basis for his claim to a free appropriate public education. Removing such causes of action from the grasp of children with handicaps may have repercussions beyond the elimination of attorney\u27s fees. Smith could be viewed as a precursor to the abandonment of the goals of equal educational opportunity and integrated education for the handicapped
American Home Assurance Co. v. Ingeneri: Misrepresentations in Insurance Applications
Get PDFIn American Home Assurance Co. v. Ingeneri, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue of when an incorrect response to a question on an insurance application constitutes a sufficient misrepresentation to render the policy voidable under Maine law. Reversing the trial court, the Law Court held that to render the policy voidable, the applicable statutory provision required the insurer to prove that the insured\u27s misrepresentation was fraudulent, material to the insured risk, and actually relied upon by the insurer. The Law Court determined that the word or in the misrepresentation statute should be read to mean and, thus requiring an insurer to prove all three elements. Although the Law Court reached the correct result in Ingeneri, there are two problems with the decision. First, by reading a statute which clearly uses the disjunctive or to mean and, the Law Court creates uncertainty as to whether statutes really mean what they appear to say. There is an alternative construction available which achieves the result of Ingeneri without contorting the words of the statute. Second, by requiring that an insurer prove all three elements—fraud, materiality, and reliance—to establish misrepresentation, the court may have given the insured more protection than was intended by the Legislature
In re Caulk: A Prisoner\u27s Right to Die—The Factor of Intent
Get PDFIn prisons throughout the United States, prisoners commonly use hunger strikes as an avenue of protest to make personal demands, to call attention to poor prison conditions, or to make various political statements. Prisoners typically choose this route because they view their own bodies as one of the few things over which they actually have control and because the extreme slowness of a hunger strike gives others the chance to meet their political or personal demands. When confronted with such attempts at starvation, prison officials almost invariably have resorted to force-feeding the hunger strikers, although in recent years some prison officials have done so only upon the authority of a court order. In In re Caulk, the New Hampshire Supreme Court held that the state\u27s interests in preserving life, enforcing prison security and order, and maintaining an effective criminal justice system outweigh the prisoner\u27s right, based on the right to privacy, to engage in a hunger strike. Accordingly, the court found that force-feeding the defendant prisoner was not unconstitutional. An important factual difference, however, separates the Caulk case from other hunger strike cases. The prisoner, Joel Caulk, made no demands upon the state and sought no attention by his attempt to starve. Instead, Caulk sought only to accomplish his death. This Note will examine whether both the absence of demands and the presence of a true intent to die affect the state\u27s interests in force-feeding a prisoner. A focus on this important distinction suggests that the state interests, which traditionally have allowed a state to force-feed a prisoner, do not justify the force-feeding of Caulk
Restraining the Prosecutor: Restrictions on Threatening Prosecution for Civil Ends
Get PDFProsecutors in some cases agree to dismiss criminal charges, admit a defendant to a diversion program, or enter a nolle prosequi in exchange for the defendant signing a waiver of any civil claims against law enforcement agents, governments, or private persons. The practice of a prosecutor bargaining for the release of law enforcement personnel or others from civil liability raises serious questions concerning the independence of the prosecutorial function, the relationship of prosecutors to other legal institutions, and the application of rules of professional responsibility. Generally, courts have been critical of these arrangements. The Model Code of Professional Responsibility (Code) specifically prohibits prosecution for the purpose of gaining an advantage in a civil matter, but the Model Rules of Professional Conduct (Model Rules) do not carry forward the Code\u27s prohibition. This Article reviews the questions raised by a prosecutor\u27s bargaining for a waiver of civil liability and examines the response of courts and bar ethics committees. It concludes that there are compelling arguments for amending the Model Rules to include a rule similar to the Code\u27s prohibition of prosecution for the purpose of gaining an advantage in a civil matter. Although courts seldom uphold waivers obtained by prosecutors when they reach the courts, ethical restrictions are also an effective way to protect individuals from this inappropriate activity. The Model Rules, therefore, should contain a provision that makes clear that prosecutors should not bargain for waivers of civil liability
The Constitution At Sea
Get PDFTime was when it was assumed that the United States Constitution, like a deity of old, ruled only in its territory and did not apply outside the United States. Since 1957 we know that the Constitution applies wherever the United States exercises authority. If, as the Supreme Court then held, the Constitution governs the acts of the United States in the territory of a foreign state, where the Constitution might be deemed a foreign intruder on local sovereignty, it would seem to apply also — indeed a fortiori — to acts of the United States on the high seas, where there is no local sovereign. And, in fact, that is established in United States constitutional jurisprudence today. Judge Gignoux contributed to that jurisprudence when he ruled that search and seizure of a foreign vessel on the high seas was governed by the fourth amendment