University of Maine School of Law
University of Maine, School of Law: Digital CommonsNot a member yet
1960 research outputs found
Sort by
The Case for a Federal Data Privacy Law From a National Security Perspective - What the U.S. Can Learn From Overseas
Full text linkThe collection of personal data in the private sector has grown exponentially over the years, leading to an exponential growth in the theft and the purchase of personal data by criminals and foreign adversaries. While the United States has implemented EO 14117 and the Protecting Americans’ Data from Foreign Adversaries Act of 2024 to protect against the inherent national security risks associated with data privacy, the United States must create an omnibus federal privacy law if it wishes to mitigate the national security risk. This paper introduces the reader to the increase in personal data collected by private organizations and, briefly, data brokers. The author then focuses on the lack of regulations that protect and restrict the collection of private data, the increase in data breaches in the United States, and how this poses a risk to national security. Next, this article briefly discusses current law and explores data privacy laws worldwide, specifically focusing on the GDPR, DSA, PIPA, PIPL, and POPIA. Lastly, the author then makes the case that the United States can benefit from learning from these laws by incorporating an omnibus federal privacy law that (1) creates personal data protection rights for those whose data is stored and shifts the harm from individuals whose data was stolen to those who stored the stolen data, (2) the creation of an independent governmental agency, and (3) the implementation of law to limit and/or stop the sale and transfer of personal data through cross- border transfers that could end in the hands of transnational criminal organizations or foreign adversaries
A Lockean Theory of Coastal Climate Adaptation
Full text linkWhat rights do coastal residents have as the seas swallow their homes and livelihoods while the government fails to act? Many legal and policy reforms have been proposed to help people better respond to climate-induced coastal erosion. Little has been said about the underlying theories of climate governance. This Symposium Article identifies three theories of climate adaptation in the context of disappearing coastlines: scientific realism; economic realism; and liberal rights. According to scientific realism and economic realism, the key obstacle to effective climate adaptation is an uninformed government facing a scientifically and economically complex climate future. To the extent that better-informed government will make more prudent adaptation decisions, the solution is to update legislatures, judges, administrators, and other government officials on the latest and most relevant scientific and economic information. According to the liberal rights theory of climate governance, the key obstacle to effective adaptation is the lack of public awareness about what moral and political rights individuals have as the climate changes. Rights unawareness manifests as public disempowerment and inertia, which ultimately results in maladaptive laws and fewer available adaptation resources. This Article points out contradictions within scientific and economic realism. It then shows how a liberal rights theory supports robust demands for climate mitigation efforts and climate reparations from the primary contributors to climate change—major carbon polluting countries, corporations, and individuals—to the extent that they are responsible for irreversibly destroying vast domains of habitable coastal land and other natural resources around the world. It then elaborates and defends the liberal rights theory of climate adaptation by examining closely what John Locke, the English Enlightenment philosopher famous for his defense of human rights and property rights, would have said about climate-induced coastal inundation. The Article concludes by discussing what enforcement mechanisms Locke prescribes for rights violations in a pre-political state of nature and civil society, as well as political remedies of last resort when government fails to protect its constituents’ rights
Don\u27t Make Waves: Community Involvement in Offshore Wind Energy Development
Full text linkThe federal government has started the process of ramping up U.S. offshore wind energy production by orders of magnitude for the next decade. In the past, affected communities have shown the ability to delay and even halt offshore wind development, and some stakeholders believe that the environmental impacts of these projects are too uncertain to risk undertaking them. Currently, the regulatory road to a fully commissioned offshore wind farm is lengthy, expensive, and full of hurdles, which include grappling with local community pushback. This Article will explore the regulatory process and its relationship with stakeholder pushback and litigation. The Article will investigate the federal government’s approach to incorporating community stakeholders into offshore wind energy projects and offer suggestions for a more integrative and enforceable scheme for community cooperation
Exploring Due Process Rights and Litigation Strategies for Homeless Youth Under Federal Law
Full text linkOver fifty years after the Runaway and Homeless Youth Act, this Article explores the due process rights youth have in shelter and other transitional housing covered under the Act. Further, this Article explores whether youth have a property interest under the Act’s recent reauthorization under the Reconnecting Homeless Youth Act of 2008. This Article also discusses the Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act and the due process rights youth have in shelter and other housing options covered under the HEARTH Act’s extensive funding of homeless programs. Additionally, this Article explores litigation strategies that youth and advocates have to enforce these rights, including whether many of the service organizations that provide shelter and housing are acting under the color of law when terminating youth from shelter. Finally, this Article explores third-party beneficiary rights that youth may have under certain contracts between service providers and HEARTH Act programs
The Choateness Doctrine and the Federal Loan Programs—A Plea for Federal Legislation
Full text linkDuring the Depression of the 1930\u27s, Congress created a number of federal loan programs as part of Roosevelt\u27s New Deal legislation aimed at stimulating economic growth. In the almost fifty years since then, Congress has expanded these programs to the point where today there are over one hundred and sixty of them, representing the nation\u27s largest single source of direct and insured loans. From 1959 until the recent decision in United States v. Kimbell Foods, Inc., the Supreme Court applied the theory of the inchoate lien (now called the choateness doctrine ) to determine priority in suits involving federal consensual liens arising under the loan programs. The choateness doctrine was originally formulated by the Supreme Court to resolve priority disputes between competing federal and non-federal liens, and it has since served to grant priority to the federal lien in almost every case in which it has been applied. The common law rule for determining the priority of liens among competing creditors was that a lien first in time was first in right. The choateness doctrine, however, modified the common law rule by adding that a non-federal lien must also be choate before it can be considered first in time. For a lien to be choate, the identity of the lienor, the property subject to the lien, and the amount of the lien must be established. Failure to meet any of these conditions forecloses priority over the federal lien, even if under state law the non-federal lien was enforceable for all purposes when the federal lien arose. In Kimbell Foods, the Supreme Court found that state law, rather than the choateness doctrine, should determine the priority of a federal consensual lien secured by personalty. The current Maine case of Chicago Title Insurance Co. v. Sherred Village Associates is the first post-Kimbell Foods case to face these issues squarely. Although Chicago Title presents the opportunity to restore some measure of stability in commercial relations involving federal interests, the complex issue of special federal priority under the loan programs seems ripe for a legislative rather than judicial solution. This article will discuss the birth and expansion of the choateness doctrine and recent federal court decisions applying the doctrine; it will conclude by suggesting that the enactment of federal legislation is the most appropriate response by which the federal government can protect its recognized interests while eliminating the inequities of the choateness doctrine
Duty, Foreseeability, and the Negligent Infliction of Mental Distress
Full text linkUnder early common law if the act of a person gave rise to an action at law, he would be liable for resulting damages regardless of fault. A person acted at his peril. The limitation on liability, if any, lay not with a concept of duty but with a medieval sort of proximate cause. “There is little trace of any notion of. . . an obligation to any one individual, as essential to the tort. The defendant\u27s obligation to behave properly apparently was owed to all the world.” With the merging of the common law actions of trespass and trespass on the case and the consequent development of negligence, new independent bases of liability sprang forth. The concept of duty has taken form as a matter of some specific relation between. . . plaintiff and . . . defendant, without which there could be no liability.” Articulating this specific relation has not been easy, as the tort of negligent infliction of mental distress illustrates. The recognition of the negligent infliction of mental distress as a separate basis of liability has produced disagreement over when a plaintiff may recover. The impact rule, once the majority view, remains in only a few jurisdictions. Some courts have attenuated the requirement of a physical impact by demanding only that the plaintiff suffer physical injury contemporaneously with the negligent act. Other courts merely require that the plaintiff be within the zone of danger of physical injury in order to recover. Most courts now employ general negligence standards with major emphasis on foreseeability in allowing recovery for negligent infliction of emotional distress except in the bystander cases. This Comment will trace the development of the law of negligently inflicted mental distress, analyze the foreseeability test in light of its restrictive effect on other considerations of duty, and propose greater judicial flexibility so that the courts might address individual circumstances in a just and equitable manner
Union Liability for Wildcat Strikes: A Look at Carbon Fuel
Full text linkFor several years the federal district courts and circuit courts of appeal wrestled with the question of a labor union\u27s liabilities and obligations when its members engaged in a wildcat strike. Concern for halting wildcat strikes increased considerably after the Supreme Court\u27s decision in Buffalo Forge Co. v. United Steelworkers. In Buffalo Forge the Court held that a union-sanctioned strike over an issue not subject to binding arbitration could not be enjoined pending an arbitrator\u27s determination of whether the strike violated the no-strike provision of the collective agreement. The Court refused to expand its 1970 Boys Markets, Inc. v. Retail Clerks Local 770 decision, thus precluding employers who previously had utilized injunctive relief to force striking employees to return to work from using that device when work stoppages occur over issues not subject to binding arbitration. In December 1979 the Supreme Court, in Carbon Fuel Co. v. United Mine Workers, resolved the issue of whether an international union could be held liable for damages after its members engaged in wildcat strikes where the union did not use all reasonable means available to it to prevent the strikes or to bring about their termination. This article will review and analyze Carbon Fuel and three recent related decisions
The Tort Triangle: Contribution from Defendants Whom Plaintiffs Cannot Sue
Full text linkThe rights of contribution and indemnity between tortfeasors often conflict with other rules foreclosing or limiting one tortfeasor\u27s liability to the plaintiff. Take a simple case involving interspousal immunity. The plaintiff, spouse of one tortfeasor (the protected tortfeasor ), is injured in a collision between an automobile driven by the spouse and another driven by the second tortfeasor (the claiming tortfeasor ). The plaintiff brings an action against the claiming tortfeasor, who then claims over against the protected spouse. Many courts hold that because the claiming and protected tortfeasors owe no common liability to the plaintiff, contribution will not lie. In some situations, however, even courts adhering generally to the common liability formula will allow contribution despite the plaintiff\u27s inability to enforce recovery against the protected tortfeasor. The thesis advanced here is that while contribution is based on the claiming tortfeasor\u27s discharge of a common obligation to the plaintiff, the definition of this obligation should not depend on the plaintiff’s ability to enforce legal liability against both tortfeasors. Rather, contribution rests on broader notions of fairness in the division of the burden of damages between persons participating in tortious acts or omissions which result in injury to the plaintiff. Where the protected tortfeasor enjoys a defense against the plaintiff, the court should resolve the conflict between the equitable basis of contribution and the purposes underlying the protected tortfeasor\u27s defense against the plaintiff. This article attempts to illustrate how courts have resolved and should resolve such conflicts through a policy analysis