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Maine\u27s Plant-Closing Law: Analysis and Proposals
Get PDFOn February 4, 1989, the first United States statute specifically directed at plant closings officially took effect. The enactment of this statute comes some seventeen years after Maine adopted the first extensive plant-closing law in the nation. In the interval, eight other states adopted legislation addressing the problems created by large-scale industrial or commercial shutdowns. These laws represent a considerable range of approaches, both voluntary and compulsory, to the plant-closing problem. The purpose of this Comment is to analyze the plant-closing law of Maine in the context of such laws nationally. Part II provides an overview of the state and federal laws addressing the problem of plant shutdowns, focusing finally upon the functioning of the Maine law in light of the enactment of the federal statute. Part III examines in detail the content and the history of the law of plant closings in Maine, identifying potentially litigable issues arising under that law, and suggesting how these issues may be resolved both legislatively and judicially. Proposals to resolve ambiguities in the Maine law are informed by reference to the laws enacted in other states and are based on the understanding, developed below, that the legislative intent in enacting the Maine law is primarily to protect Maine communities from the destructive effects of plant closings
Windward Woes: The Misalignment of Economic Incentives and Renewable Energy Development Goals
Get PDFEnergy tax credits have always been a significant driver of renewable energy development, but the recent Inflation Reduction Act in response to new national development goals represents the most significant change in several decades. The Inflation Reduction Act is certainly a step in the right direction, but there are numerous factors that limit the impact on future developments that should be remedied to allow for the nation’s best chance to reach 2030 renewable energy goals
Beyond the Equity Power of Bankruptcy Courts: Toxic Tort Liabilities in Chapter 11 Cases
Get PDFIn 1982, three asbestos product manufacturers filed voluntary petitions for business reorganization under Chapter 11 of the United States Bankruptcy Code. The common reason for each of these filings was that tort liabilities threatened the financial survival of the corporation. Never, in the history of United States bankruptcy law, had any business sought bankruptcy relief for such a reason. By 1985, two more firms, another asbestos product manufacturer and a pharmaceutical company, filed Chapter 11 petitions for the same reason. The torts of these debtors in bankruptcy are similar; they extend from the manufacture and wide-spread marketing of products that cause insidious human diseases. These diseases do not manifest themselves when individuals are initially exposed to such products. Rather, they develop over varying periods of time. Thus, firms continue producing the toxic products without incurring significant tort liabilities until the first exposures develop into human disease. After that, tort liabilities accumulate rapidly and continue into the future even if production of the product is discontinued. The novel use of Chapter 11 by corporations beset with massive, future tort liabilities raises the question of whether bankruptcy courts have the legal power or statutory means to effectuate bankruptcy remedies for these tortfeasors. The issue of whether or not these so-called toxic tort liabilities should be affected by reorganization plans of corporate tortfeasors engenders legal and policy debates which pit the fundamental policies of United States bankruptcy law against those of the common law tort system. This debate is brought into sharp focus when a bankruptcy court endeavors to decide how or whether a debtor\u27s future liabilities to unknown toxic tort victims can be resolved in Chapter 11 cases. This Comment focuses on the public policy and legal issues that challenge the use of the bankruptcy forum for the resolution of a corporation\u27s toxic tort liabilities. Although the discussion centers on issues that have been raised in the bankruptcy proceedings of asbestos product manufacturers, it is relevant to any reorganization involving a tortfeasor whose purpose in petitioning for bankruptcy relief is to dispose of massive tort liabilities including those of putative plaintiffs who have not accrued or filed tort claims at the time the tortfeasor files its petition for relief. Part II explores the treatment of future tort liabilities in the pending Chapter 11 cases of certain asbestos product manufacturers and points out the unresolved issues that challenge the ultimate resolution of these liabilities in the bankruptcy context. Part III analyzes the social and economic policy conflicts between the tort law regime and the bankruptcy system that are engendered by the use of Chapter 11 for the resolution of toxic tort liabilities. Part IV discusses legal obstacles to the resolution of unknown future tort liabilities of a debtor in Chapter 11 cases. These obstacles range from basic problems of statutory construction to questions concerning a federal bankruptcy court\u27s power to preempt state statutes of limitations for the purpose of identifying tort claimants. Finally, Part V weighs the equity powers of a bankruptcy court against the social and legal issues, analyzed in earlier sections, to consider whether a full resolution of a debtor\u27s toxic tort liabilities in Chapter 11 warrants departures from established legal precedents
Keeping Big Issues Off the Table: The Supreme Court on Entrepreneurial Discretion and the Duty to Bargain
Get PDFOver the past decade a number of major American industries have declined or radically restructured in the face of foreign competition. In 1982, for example, more than 1.2 million American workers were either temporarily or permanently laid off as companies curtailed operations or moved abroad. Two hundred thousand people lost their jobs in 1982 due to plant shutdowns. In recent times the steel and auto industries have provided the most visible examples of massive cutbacks in employment, but jobs have also disappeared in other industries such as electrical manufacturing, machine manufacturing and textiles. Although much public debate and disagreement exists concerning the causes of America\u27s industrial decline, very few doubt the tragic consequences for people when their jobs move abroad or simply cease to exist. It is not surprising that when an employer is considering whether to shutdown part of its business, labor unions have sought to bargain about the decision. The union\u27s legal theory in such a case is that an employer\u27s decision which results in the loss of jobs is a matter which affects terms and conditions of employment and therefore is literally within the duty to bargain as defined in the National Labor Relations Act (NLRA). Some employers have disagreed. In management\u27s view there is no duty to bargain about decisions which go to the basic scope or direction of a business. Such matters should be considered within a managerial prerogative and outside of the obligation to bargain under the NLRA. In 1981, in First National Maintenance Corp. v. NLRB, the United States Supreme Court endorsed an employer\u27s basic premise that there exists a class of entrepreneurial decisions which are not subject to the duty to bargain under the NLRA even though such decisions may terminate the employment of workers. The Court held that on the facts of the case the employer was under no duty to bargain about his decision to shut down part of his business where the employer\u27s decision was economically motivated. As the law of bargaining has developed over the past three decades, the Supreme Court has distinguished between what it has labeled mandatory subjects and non-mandatory subjects of bargaining. When the Court declares a particular issue to be mandatory, it thereby obligates an employer or a union to bargain about the issue at the other party\u27s request. Each side may use the economic weapons it possesses under the NLRA in support of its bargaining position on a mandatory subject. When the Court declares an issue to be non-mandatory, there is no obligation to bargain about that issue. Furthermore, neither party can insist upon bargaining about the issue. A union therefore cannot legally strike to force discussion of a non-mandatory issue
Backing-Into Internal Revenue Code Section 338
Get PDFIn recent years there has been an increasing incidence of corporate takeovers. Typically, the takeover begins with a purchasing corporation acquiring a controlling but less than 100% interest in the target corporation. Often, the partial ownership is merely a transitory step toward complete ownership, shortly after which the target is liquidated or merged into what is now the parent corporation. In other instances, the target retains its separate corporate existence within a parent/subsidiary relationship. The choice between termination and continued corporate existence is made only after a careful appraisal of the economic and tax consequences to the parent and the target. This growing trend revealed fundamental and far reaching loopholes in the operation of pre-TEFRA law. It also inspired the Corporate Takeover Tax Act of 1982, which was introduced in the House of Representatives in May of 1982 by Fortney (Pete) Stark, Chairman of the Subcommittee on Select Revenue Measures and member of the Ways and Means Committee. The basic purpose of the Stark legislation was twofold. First, it was intended to further the concept of achieving parity in the tax treatment of similarly situated corporate taxpayers. Second, it was designed to discourage the use of scarce investment capital to finance tax motivated corporate takeovers. One of the most significant provisions of the proposed legislation was Title II which empowered a purchasing corporation to elect to treat its controlling stock purchase as an asset purchase for the purpose of determining the purchasing corporation\u27s or target\u27s basis in the target\u27s assets. Title II has since been enacted as present section 338 of the Internal Revenue Code
Who Should Recover for Loss of Consortium?
Get PDFFor more than three centuries courts have recognized a husband\u27s right, where a tortious injury to his wife detrimentally affects the spousal relationship, to recover damages for loss of consortium. For many years the prevailing view was that a wife had no corresponding right to bring a similar action in response to a tortious injury to her husband. Most jurisdictions, however, now allow both the husband and the wife to recover for loss of spousal consortium. The right to recover for loss of consortium was extended to the wife largely because modern courts recognized that it was inconsistent and unjustifiably unfair to recognize impairment of consortium as a compensable injury, but to treat it as an injury for which only the husband could recover. The same criticisms which led to the recognition of the wife\u27s action now are being advanced in support of the argument that the child also must be allowed to recover damages for loss of parental consortium where a tortfeasor has negligently injured one or both of the child\u27s parents. In a small but growing number of cases, the argument again has proven successful. Consideration of the question whether the child should be allowed to recover for loss of consortium—a question courts in Maine and other jurisdictions inevitably will face with increasing frequency—should provide an opportunity for re-examination of consortium recovery. If the courts take a narrow approach to this issue, however, and answer only the isolated question whether the child should be allowed to recover, little real progress toward a fair and consistent approach to consortium will be made, and more fundamental aspects of consortium recovery will remain unexamined and unchanged. The courts should instead consider the question in the context of a broader and more fundamental analysis
Comeau v. Maine Coastal Services: The Quantum Theory and the Rescue Doctrine in Workers\u27 Compensation
Get PDFSection 51 of the Maine Workers\u27 Compensation Act provides that in order to be compensable, an employee\u27s injury must arise out of and occur in the course of the employment. The decision of the Maine Supreme Judicial Court in Comeau v. Maine Coastal Services upheld the Workers\u27 Compensation Commission\u27s denial of the plaintiff\u27s petition for an award of compensation. In reaching its decision, however, the Law Court departed from the long-settled analytical approach of treating the arising out of and the in the course of requirements as separate criteria both of which must be met in order to establish a compensable injury. Justice Carter, concurring, argued that this departure marks the adoption of Professor Larson\u27s quantum theory of work connection which accomplish[es] an enormous expansion of the parameters of the work-connection test as that has long been articulated by . . . [the] Court.”A related issue presented in Comeau involved the so-called rescue or emergency doctrine, a doctrine not previously considered by the Law Court. The rescue or emergency doctrine involves both situations in which employer interest exists and those in which employer interest is absent. The court\u27s analysis of this doctrine, however, failed to consider whether the plaintiff, by virtue of his capacity as a supervisor, acted in the interests of his employer in effecting a rescue in an emergency involving a subordinate coworker. In addition, the Law Court failed to recognize that the aspect of the rescue doctrine which establishes compensability in the absence of employer interest falls outside of the policies governing Maine\u27s Workers\u27 Compensation Act
Hospital Accountability in Health Care Delivery
Get PDFIn recent years, the role of community hospitals in health care delivery has undergone a dramatic change. Until the latter half of the twentieth century, a hospital was merely a doctor\u27s workshop, providing physicians with the physical facilities, equipment, and personnel necessary to treat their private patients. Due to progressive medical technology, today\u27s hospital has moved from a passive role in patient care to more active participation in the delivery of total health care. The hospital has become a health care provider in its own right, furnishing a broad range of diagnostic and outpatient services, home care assistance, and specialized treatment programs. The transformation of hospitals into community health centers has led the public to rely on these institutions to provide the necessary care. Indeed, in public relations activities, hospitals consciously present themselves as unified bodies. As one court observed . . . . Accordingly, when utilizing its facilities, the patient relies upon this projected image of the modern hospital as a highly integrated system. Historically, the hospital\u27s accountability for the negligence of its medical staff has been predicated upon the theory of vicarious liability arising from either an employer-employee relationship or ostensible agency. It was not liable, however, for the torts of independent contractor physicians. Because the modern hospital assumes a more active role in the overall treatment of patients, the traditional bases of hospital liability are now undergoing judicial scrutiny. This reassessment has resulted in a determination by a growing number of jurisdictions that hospitals may be responsible directly for the quality of medical care rendered by independent practitioners through the application of the corporate negligence theory of liability. According to this theory, the hospital, as a corporate entity, is considered to owe certain duties directly to the patient for his care, management, and safety. Upon a showing that the hospital has breached this independent duty, it will face direct tort liability, notwithstanding any negligence on the part of an attending physician. This Comment illustrates the desirability of imposing an independent duty of care upon the hospital as a corporate entity. First, this Comment outlines the present methods relied upon to control professional incompetence, with particular emphasis on their deficiencies. After briefly tracing the development of the corporate negligence theory, this Comment then examines the scope of the hospital\u27s affirmative duty under this doctrine. Finally, this Comment explores the practicality of implementing this theory of liability in Maine
Maine Law Magazine - Issue No. 98
No full textMaine Law’s Privacy Program Continues to Grow How The Maine Center is Strengthening the Environmental Law Program COP28 — A Formative Experience Profile: Seth Goodall, CEO & Executive Director — Maine Center Complex Problem-Solving Across Disciplines Expanding Rural Access to Justice Activating Change: The Center for Youth Policy & Law Students Working Across Borders on Behalf of Asylum Seekers Friends and Defenders of the Casco Bayhttps://digitalcommons.mainelaw.maine.edu/maine-law-magazine/1098/thumbnail.jp