University of Maine School of Law
University of Maine, School of Law: Digital CommonsNot a member yet
1960 research outputs found
Sort by
Under the Shadow of Absolute Sovereignty: Exploring Conditional Sovereignty in the Case of Svalbard Geopolitics
Get PDFThis Article analyzes different sovereignty approaches in the context of Svalbard. Since the signing of the Svalbard Treaty, establishing Norway’s absolute sovereignty over the archipelago, the geopolitics of the region have evolved, particularly given Svalbard’s geographical position in the European Arctic. This Article concludes that Svalbard\u27s sovereignty deviates from the classical concept of absolute sovereignty, instead operating under the framework of conditional sovereignty
Indigenous Peoples as a Tool for Russia\u27s International Publicity in the Arctic Region
Get PDFThe Arctic region is strategically significant with its economic activity, resources, and its Indigenous populations. Russia has recognized the significance of the Indigenous peoples living in the Arctic and has fueled its international publicity by using these peoples as a tool for public relations. The colonizing of these regions and the strategic use of propaganda by the Russian government weaves a complicated tale—one in which the Russian administration voices support for the Indigenous populations while removing protections for these same peoples
An Appreciation of L. Kinvin Wroth
Get PDFKinvin Wroth is a man who sports many hats. After wearing his Dean\u27s hat for twelve years with confidence and grace, Kinvin, at the end of the year, is taking off that hat and returning to wearing full-time his wide assortment of other headgear. He takes off his Dean\u27s hat just after he reaches the age of 58, at the height of his productive powers of scholarship, teaching, and public service. For many years to come, we of the State of Maine will continue to benefit from his labors, performed under his many other hats. But the end of his highly successful deanship provides an appropriate occasion to take stock of Kinvin Wroth\u27s contributions to the legal community and more broadly to the public good in all his many roles. I am pleased to join the Maine Law Review and my fellow authors in putting those contributions on the record
Libby v. Calais Regional Hospital: Contracting Out of Maine\u27s Employment-At-Will Doctrine
Get PDFIn Libby v. Calais Regional Hospital, Elizabeth Libby, a medical technologist at Calais Regional Hospital, brought suit against her former employer claiming breach of contract for improper discharge and alleging that the hospital failed to honor the terms of their mutually binding employment agreement. In particular, the plaintiff maintained that the hospital did not follow the termination procedures that had been set forth in her employee handbook and that were incorporated as terms of her employment contract. The trial court granted defendant\u27s motion for a directed verdict, concluding that the plaintiff did not present sufficient evidence to show that her discharge was a breach of contract. The plaintiff subsequently appealed to the Supreme Judicial Court of Maine, sitting as the Law Court. The Libby case required the Law Court to analyze the circumstances under which an employee who has been hired for an indefinite period of time can be found to have entered into a discharge for cause employment contract rather than a common law employment at will contract. Libby specifically required the court to interpret and apply the rule announced in Larrabee v. Penobscot Frozen Foods, which held that: [P]arties may enter into an employment contract terminable only pursuant to its express terms—as for cause —by clearly stating their intention to do so, even though no consideration other than services to be performed or promised is expected by the employer, or is performed or promised by the employee. By finding that the parties did not contract out of the employment-at-will presumption, the Libby court interpreted the Larrabee rule as requiring a clear expression of intent in the employment contract in order to limit discharge to for-cause only, i.e., a contract out of the at-will presumption. This Note initially undertakes an overview of the employment-at-will doctrine in order to gain a perspective into its common law foundation. The Note then describes different approaches courts in other jurisdictions have used to determine whether employee handbooks can be considered part of an employment contract for purposes of governing discharged procedures. In light of this overview, the Note examines the rule seet forth in Larrabee and reviews the court\u27s purpose in establishing such a rule. The Note then analyzes the Maine Law Court\u27s decision in Libby and describes the court\u27s present stance on the relationship between employee handbooks and employment contracts out of the employment-at-will presumption. The analysis also considers whether the Libby court\u27s application of the Larrabee rule serves to address modern employment relationship public policies by examining the concerns that initially prompted both the employment-at-will doctrine and the rule set forth in Larrabee. Based on the above analysis, the Note concludes that the Libby court\u27s extension of the Larrabee rule is inconsistent with ordinary principles of contract law, and consequently fails to recognize the concern set forth in Larrabee that employers and employees remain free to contract against discharge without good cause. Ignoring both the current trend of those jurisdictions presently addressing the scope of the at-will doctrine and the purpose that the rule was meant to serve in employment relationships, the Libby court construed the Larrabee rule in a manner inconsistent with the majority of jurisdictions adopting an identical or a similar exception to the terminable-at-will rule. Although the Libby court recognized that parties should be allowed to contract out of the terminable-at-will presumption, its decision creates a heightened standard with respect to what will constitute a finding of a contract for purposes of defeating the at-will presumption. As a result, employers remain freer than ever to utilize employment handbooks as devices of enticement and to create responsibilities on the part of the employee in return for illusory reciprocal obligations on the part of the employer
Intellectual Indifference—Intellectual Dishonesty: The Colonial Ordinance, The Equal Footing Doctrine, and The Maine Law Court
Get PDFPerhaps the most disappointing aspect of the recent Bell decision was the fact that it was 4-3, that significant public interests were lost because a bare majority refused to examine, in the detail necessary, the Colonial Ordinance, old and new United States Supreme Court cases, Maine law, or the reasoning of their own colleagues who filed a compelling dissenting opinion in the case. A mere recitation of the dissenting opinion would serve no useful purpose—it is a part of the public record; its rationale speaks for itself. Had the rationale of the dissent been adopted by the majority it would have provided a sufficient basis for recognizing and protecting contemporary public use rights in the foreshore and for balancing sometimes competing public and private interests in this critical area. Nor does it seem particularly useful to set out or to reexamine the variety of legal theories that would have achieved these same ends had any one of these theories been embraced by the majority. For those who are interested these arguments are laid out in considerable detail in defendants\u27 briefs and in the briefs of amicus curiae filed on behalf of the public\u27s interest as represented by the defendants in this case. Finally, it serves no useful purpose to attempt to lay out all of the arguable errors of omission and commission in the majority opinion. Suffice it to say that if even one of these errors had been perceived and confronted squarely by even one justice who voted in the majority, great public interests might still exist and be protected today in Maine. As it is, these interests are now, and perhaps forever, lost. The limited objective of this paper then is to look at certain aspects of only two of the many issues before the court in this most recent Bell case, i.e., aspects of the intent of the Colonial Ordinance and issues surrounding the equal footing doctrine. The majority\u27s treatment of these issues was cavalier at best, indifferent to the point of intellectual dishonesty at worst. In either case we are left with bad logic, bad law, and bad social and public policy
Habeas Corpus—A Better Remedy in Visitation Denial Cases
Get PDFMost family law statistics are sobering. For example, in 1986, there were 2,400,000 marriages in the United States and 1,159,000 divorces. In 1985, there were 2,425,000 marriages and 1,187,000 divorces. Millions of children are affected by these divorces each year as courts decide which parent should be awarded their custody. In 1986, there were approximately 63,000,000 American children and 6,139,000 of these children came from broken homes. According to official census statistics, twenty-one percent of America\u27s children live only with their mother while less than three percent live only with their father. In most divorce cases, Mom gets custody and Dad gets visitation. The parent who is awarded custody is responsible for ministering to the daily needs of the child while the noncustodial parent is allowed visitation time in order to maintain some relationship with the child. To many noncustodial parents, the term visitation is a derogatory term connoting a visit by the child to a barely known relative in another part of the state or a trip to some inanimate tourist attraction like the Sear\u27s Tower or Mount Rushmore. Ideally, however, the time children spend with the noncustodial parent is frequently quality time, and noncustodial parents would doubtlessly prefer that that time be known as parenting time rather than visitation. Nevertheless, the term visitation will be used in this Article because it is employed throughout the country by state legislatures in their family law statutes. The terminology of visitation reveals an insensitivity on the part of legislatures to the plight of noncustodial parents and, perhaps more importantly, a disregard for the important role that noncustodial parents should play in rearing their children. This attitude is further manifested by the substantive law governing enforcement of court-ordered visitation. Because negative emotions such as vengeance and bitterness frequently attend divorce, custodial parents often deny noncustodial parents visitation with their children. The most common remedy for such denial is the jail-or-comply approach of contempt of court. Many judges, however, refuse to jail the custodial parent who violates visitation rights because imprisonment is considered too harsh for the custodial parent, and potentially detrimental to the child. A noncustodial parent is typically left, therefore, with no effective mechanism for demanding that the custodian obey the visitation provisions of the divorce decree. This Article argues that both the needs of the child and those of the noncustodial parent warrant improved protection of visitation rights
Foreword
Get PDFThe Free Trade Agreement concluded between the United States and Canada, and signed on January 2, 1988, has a number of features that distinguish it among the trade agreements of the United States. It eliminates all tariffs, reduces restrictions on business travel, and establishes ground rules for trade in services and for foreign investment. In this latter respect, the Agreement is unique among major international trade agreements of the world. But one of the most enduring aspects of the Agreement is likely to be the provisions establishing a series of dispute settlement mechanisms. This last observation would probably surprise almost anyone familiar with existing international trade agreements. The dispute settlement mechanisms of the General Agreement on Tariffs and Trade are notoriously weak. Other free trade agreements, such as the European Free Trade Agreement and the free trade agreement between Australia and New Zealand, have been more significant to economists and scholars of international relations interested in the effect of such agreements on trade patterns and the development of international organization than to legal scholars who are attempting to find new forms of dispute settlement. The emerging importance of dispute resolution procedures in the trade context, of which the United States-Canada Free Trade Agreement is the best current example, is an economic legal development that the legal community can ill afford to ignore. The perspectives of legal scholarship must be brought to bear on the formation and implementation of dispute settlement rules to inform legal practitioners of new developments central to the interests of clients for whom, in increasing numbers, international transactions are routine business. The papers in this symposium undertake this examination. The papers provide a series of perspectives that focus on the United States-Canada Free Trade Agreement, the issues surrounding the Agreement, and on broader issues of dispute resolution in international trade
Dispute Settlement Mechanisms Under the Free Trade Agreement
Get PDFThe purpose of this paper is to review the dispute settlement mechanisms that are contained in the Canada-United States Free Trade Agreement. The two countries reached agreement on the main features of the Free Trade Agreement on October 3, 1987. Thereafter, the elements of the Agreement were converted into the legal text of the Free Trade Agreement and signed by Prime Minister Mulroney and President Reagan on January 2, 1988. Legislation implementing the Free Trade Agreement has been introduced in the Parliament of Canada and in the United States Congress. In Canada the ordinary rules for legislative enactments will apply. In the United States the fast track procedure will govern the passing of the legislation. Thereafter, it is expected that the Free Trade Agreement will enter into force on January 1, 1989. The Free Trade Agreement is innovative in many areas. It goes far beyond eliminating tariffs between the U.S. and Canada; it deals, for instance, with investment (Chapter 16), services (Chapter 14), and energy (Chapter 9). In view of the considerable consequences that flow from the Agreement for both countries, it is not surprising that the dispute settlement mechanism also breaks new ground. The dispute settlement provisions of the Free Trade Agreement are contained in Chapters 18 and 19. Chapter 19 is a special chapter which deals only with dispute settlement in countervail and antidumping actions. It provides for binding rulings by ad hoc binational panels. Chapter 18 is the general chapter which establishes a Canada-United States Commission to monitor the implementation of the Free Trade Agreement. This Chapter also provides for dispute avoidance and dispute settlement mechanisms. The dispute settlement mechanism described in Chapter 18 provides for a ruling by an ad hoc binational panel that will not be strictly binding in international law unless both parties agree otherwise
Green Amendments and Ham: How Green Amendment Jurisprudence Can Inform Maine’s Right to Food
Get PDFMaine’s constitutional right to food is the first state constitutional right to food and the extent of the rights created by the amendment is largely unknown. The right to food, as enacted in Article I, Section 25 of the Maine Constitution, provides: Section 25. Right to food. All individuals have a natural, inherent and unalienable right to food, including 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, as long as an individual does not commit trespassing, theft, poaching or other abuses of private property rights, public lands or natural resources in the harvesting, production or acquisition of food. The right to food is new to the Maine Constitution; however, it is the culmination of over a decade of advocacy for food self-sufficiency. Maine is home to predominately small farms and many of its farmers market their goods directly to consumers and have sought to exempt themselves from complex state and federal food production laws. Supporters of Maine’s right to food hold the view that local governments, rather than state or federal actors, are the appropriate sovereigns to establish and enforce standards for local food. Those opposed to the right to food amendment fear that this broadly phrased constitutional right is vague and has the potential, by reducing governmental oversight of food production, to do more harm than good. To decide what the right to food will mean and how it will impact the citizens of Maine, the table has been set for the Maine courts. The right to food is already being invoked in legal challenges and more litigation is sure to follow, challenging a diverse array of governmental functions that could conflict with the right to food. To determine the meaning of the right to food, Maine courts will first construe the plain language of the amendment and if the language is ambiguous, the courts will also consider the purpose and history of the amendment. Given the unique nature of the right, it is possible this analysis will leave the courts without sufficient guidance. This Article suggests it could also be useful for the Maine judiciary to consider the interpretation of state amendments guaranteeing the right to a clean environment, known as green amendments. Although Maine’s right to food amendment and green amendments differ in scope as explained more fully herein, they are both fundamental state constitutional rights that protect basic human needs and minimally prevent government action that infringes upon the protected rights. How courts have interpreted green amendments and struck a balance between development and the right to a clean environment is translatable to the balance that the Maine judiciary will need to strike between government oversight of food production and the right to food