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Maine Law Magazine - Issue No. 92, University Of Maine School Of Law

Maine Law Magazine

FEATURES

• 2016 Commencement
  A graduating class of 82 J.D.s
• Justice for Women
  Five years of inspirational speakers
• Maine Law PLUS Program
  Stellar debut of a new program
• Refugee and Human Rights Clinic
  Making a difference for an asylum seeker
• Health Law
  Graduates are leaders in a growing field
• Student Spotlight
  Felix Hagenimana, ’18

Bangor Gas: An Analysis Of The Law Court's Decision In Office Of The Public Advocate V. Public Utilities Commission, Taylor Talmage

Maine Law Review

With a turn of the thermostat, your gas furnace fires up to provide heat on a cold winter night. With the flick of a switch, the lights come on in your home. Both of these actions are common everyday occurrences, and both rely on regulated public utilities to supply the energy necessary to achieve the desired ends. For a vast majority of Mainers hardly any thought is likely given to these actions or the complicated regulatory framework that allows this energy to reach their homes. Yet energy use, as well as the accompanying body of law and policy that regulates …

Michigan V. Epa And The Erosion Of Chevron Deference, Connor P. Schratz

Maine Law Review

The deference that courts grant agency statutory interpretation has long been a source of tension between the three branches of government. Within that tension lies vital issues concerning political accountability, technical expertise, and the methods courts use to deal with a massive modern administrative state that was unimaginable at the time that the Constitution was dr afted. When it was decided in 1984, Chevron U.S.A. v. Natural Resources Defense Council sought to alleviate that tension, leaving broad interpretative authority to executive agencies, so long as their interpretations did not conflict with c ongressional intent and were reasonable. Just over three …

Brown V. Delta Tau Delta: In A Premises Liability Claim, How Far Should The Law Court Go To Assign A Duty Of Care?, Toby Franklin

Maine Law Review

In 2015, Maine’s premises liability law made an evolutionary leap. In Maine, the elements of a premises liability claim are the same as a negligence claim: duty of care, breach of that duty, causation, and harm to the plaintiff. Since the late nineteenth century, the duty element had remained consistent and predictable: a property owner, possessor, or proprietor owes a duty of reasonable care to individuals who are lawfully on the premises. As a result, premises liability defendants had always shared the common trait of owning, possessing, or managing the premises in question. In Brown v. Delta Tau Delta , …

Keeping Kids First: Trial Court Discretion And The Best Interest Of The Child In Light V. D'Amato, Stanley W. Abraham

Maine Law Review

Family dissolution is a difficult ordeal for everyone involved: the parties, their lawyers, and the court. After all, these are not parties engaged in an arm’s length dealing, or strangers involved in an accident. On the contrary, the parties are generally intimately involved and often share property and children. Spouses frequently struggle to agree on even the most trivial of property divisions, with the ownership of a simple rocking chair a potential issue for appeal. As contentious as such property division disputes can be, disputes between divorcing parents regarding the allocation of parental rights and responsibilities are particularly bitter. Most …

Reviving Maine's State Constitutional Protection Against Unreasonable Searches And Seizures, Jamesa J. Drake

Maine Law Review

Whatever the merits of new judicial federalism, it has not translated well in practice. Doctrinal reasons are probably partly to blame, but utilitarian factors matter, too. Using the State of Maine as an example, this article develops a litigation roadmap specifically geared to overcoming the pragmatic reasons against reviving the protections embodied in the state constitution’s search and seizure clause. This fills a gap in the existing literature, which often argues either for or against state constitutionalism, but neglects the most di fficult part: explaining to practicing lawyers how to start a state constitutional dialogue with the court.

General Jurisdiction 2.0: The Updating And Uprooting Of The Corporate Presence Doctrine, Edward D. Cavanagh

Maine Law Review

For well over a century, state courts have exercised personal jurisdiction over foreign corporations if they engage in commerce within the state “not occasionally or casually, but with a fair measure of permanence and continuity.” This assertion of judicial power, referred to as general jurisdiction and also as the corporate presence doctrine, permitted courts to entertain claims that had no nexus with the forum state against foreign companies “doing business” within that state. The United States Supreme Court, however, sent this line of cases “careening into the abyss” in Daimler AG v. Bauman , wherein the Court held that “the …

Editorial Board Vol. 68 No. 2 (2016), Benjamin T. Mccall Editor-In-Chief

Maine Law Review

No abstract provided.

Safe Harbors: A Comparative Analysis Of Dredging Regulation In New England, Tom Fales

Ocean and Coastal Law Journal

Searsport is home to the second-busiest industrial port in Maine. Imports include heating oil and road salt and come from as far away as Africa. Situated at the mouth of the Penobscot River and linked to northern Maine and Montreal by rail, Searsport’s Mack Point Marine Intermodal Cargo Terminal (hereinafter “Mack Point”) is a significant international trade hub and source of jobs in Maine’s Midcoast Region. Since 2000, a plan to deepen the harbor around Mack Point has stalled. Supporters of the plan, including business groups, argue that deepening the harbor, or dredging, is necessary to increase and streamline the …

Crabs, Clams, And The Corps: Regional Realities And The Federal Framework, Jessica Hollenkamp

Ocean and Coastal Law Journal

Since the invasive European green crab was first detected in the Gulf of Maine over one hundred years ago, its population has dramatically increased, resulting in devastating consequences. This predatory species is remarkably resilient and voracious, feeding on hard- and soft-shell clams, blue mussels, and other bivalve shellfish. There are even reports that the green crab poses a threat to Maine’s most lucrative fishery – the lobster. As the green crab makes its nests in the intertidal zone and subtidal habitats, it destroys native resources such as eelgrass beds and mudflats. Maine’s economy relies heavily on its well-known fishing industry …

Nova Scarred: The Implications Of An International Ferry's Floating Jurisdiction On The Law Of The Sea, The Lands, And The Flag, Stephen Koerting

Ocean and Coastal Law Journal

Regardless of whether the Nova Star is labeled as a “ferry” or “cruise” or a hybrid of the two, legal questions remain concerning application of law and jurisdiction to a foreign vessel traveling daily between two foreign ports during the summer months. The law forming the backdrop to possible legal claims is shaped by general maritime law, the laws of a vessel’s origin, state regulations, and a United States federal statute originating in 1920. The Merchant Marine Act of 1920, better known as the Jones Act, regulates maritime law and commerce in United States ports and between United States and …

Fishing For Protection At Cashes Ledge: The Ineffective Habitat Protection Measures Of America's Oceans, Ryan P. Woodward

Ocean and Coastal Law Journal

This comment reflects on the current debate of Cashes Ledge as an example to the effectiveness of the MSA and other legislation. Part II considers the background of the MSA and Cashes Ledge. Part III looks at both sides of the debate over Cashes Ledge, namely the view of the fisherman and the view of conservationism. Parr III concludes with the likely course of action the fishery council anticipates regarding the protectioin of Cashes Ledge in the coming months. Part IV critiques the system of habitat protection through the MSA and fishery management councils. It looks at the inefficiencies in …

Nothing Gold Can Stay? How Tommy Thompson Lost His Golden Ticket And Gained Decades Of Legal Turmoil, Chris Ryan

Ocean and Coastal Law Journal

The story of Tommy Thompson manages to call into question whether the laws of salvage "may need to be updated for the moder age." Part I of this article focuses on the timeline of Thompson’s particular salvage; from his success in currying favor from local investors to his recent arrest and extradition to Ohio. Part II focuses on the evolution of the laws of salvage and finds, as applied to both international and domestic salvage. Part III discusses whether those laws still make sense, or whether there needs to be an inquiry made into a new model.

American Eel: A Symposium. Session Six, Dr. William Bradnee Chambers, Dr. David Freestone, Charles H. Norchi, Jeffrey A. Thaler, Dr. David Vanderzwaag

Ocean and Coastal Law Journal

Session Six concludes with a Keynote Address that provides a global perspective on the conservation of migratory species, delivered by the Executive Secretary of the CMS, followed by a robust discussion of projections and pathways.

American Eel: A Symposium. Session Five, Charles Norchi, Dr. David Vanderzwaag, Dr. John Dettmers, Rachel White Sears, Laura Hussey-Bondt, Mike Waine

Ocean and Coastal Law Journal

Session Five elaborates law and policy frameworks for the conservation and sustainability of American eels from both the United States and Canada.

American Eel: A Symposium. Session Four, Dr. William Bradnee Chambers, Dr. David Freestone, Dr. Matthew Gollock, Dr. Alan Walker

Ocean and Coastal Law Journal

Session Four considers lessons from European eel research and conservation.

American Eel: A Symposium. Session Three, Jeff Thaler, Steven Shepard, Dr. Gail Wippelhauser, Jon Truebe

Ocean and Coastal Law Journal

Session Three panelists provide an overview of threats to eels.

American Eel: A Symposium. Session Two, Dr. David Vanderzwaag, Shelley Denny, Amber Giles, David Dow, Mitch Feigenbaum, Genna Carey

Ocean and Coastal Law Journal

Session Two's panel focuses on the socio-economic and cultural significance of American eels. The discussion covers an overview of eel fisheries, socio-economic uses, international eel markets, dominance of Asian aquaculture, and the role of the American eel for aquaculture seed stock and for the consumption market.

American Eel: A Symposium. Session One, Dr. James Mccleave, Dr. David Cairns, Dr. Barry Costa-Pierce

Ocean and Coastal Law Journal

Session One's panel covers an overview of American eel scientific research and understandings.

American Eel: A Symposium. Welcome Session, David Freestone, Senator Wilfred Moore, David Vanderzwaag

Ocean and Coastal Law Journal

No abstract provided.

American Eel: A Symposium. Introduction, David Freestone, Charles Norchi, David Vanderzwaag

Ocean and Coastal Law Journal

No abstract provided.

Editorial Board Vol. 21, Nos. 1 & 2 (2015-2016), Stephen Koerting Editor-In-Chief

Ocean and Coastal Law Journal

No abstract provided.

Uniform Maine Citations, 2016 - 2017 Edition (Superseded), Michael D. Seitzinger, Charles K. Leadbetter, Sara Wolff

Uniform Maine Citations

No abstract provided.

An Annotated Guide To The Major Provisions Of The Sustainable Fisheries Act, William K. Terrill Editor-In-Chief

Ocean and Coastal Law Journal

No abstract provided.

Public Access Shoreline Hawaii V. Hawai'i County Planning Commission: Expanding Hawaii's Doctrine Of Custom, Laura C. Harris

Ocean and Coastal Law Journal

Rapid development of coastline areas in Hawaii has sparked the attention of several native Hawaiian public interest groups. The growth of large resort hotels and condominiums along the beaches is eliminating areas once open for the exercise of traditional gathering practices. Tensions have risen between those interested in promoting the development of the land and those interested in preserving the traditional Hawaiian culture. In recent years, disputes have resulted in court challenges to state regulations permitting development on coastal properties. In Public Access Shoreline Hawaii v. Hawai 'i County Planning Commission, the Supreme Court of Hawaii unanimously upheld a lower …

Conoco Inc. V. United States: A Narrowing Of The Sovereign Acts Doctrine, Mary Katherin Roe

Ocean and Coastal Law Journal

In Conoco Inc. v. United States, the United States Court of Federal Claims held that the federal government breached oil and gas lease contracts it entered into for the offshore areas of North Carolina by taking actions as required by the Outer Banks Protection Act of 1990 (OBPA). In an attempt to shield itself from liability for this breach of oil lease contracts, the federal government unsuccessfully attempted to use the sovereign acts doctrine. This Note will present the legal background of the Conoco case and will discuss the sovereign acts doctrine as it relates to the court's eventual holding. …

Fishermen's Dock Coop., Inc. V. Brown: Judicial Review Of Optimum Yield Determinations, Philip L. Curcio

Ocean and Coastal Law Journal

The Fishery Conservation and Management Act of 1976 (Magnuson Act or Act) was enacted by Congress to conserve U.S. coastal fishery resources and to maximize the economic and social utility of those resources for U.S. citizens. The Act has a fisheries management goal of providing the "optimum yield" of all managed species, a concept which is based on the statistically derived quantity of "maximum sustainable yield" as modified "by any relevant economic, social, or ecological factor." The mandatory consideration of these three factors, coupled with the inherent uncertainty of fish stock assessment techniques, effectively places broad discretionary power in the …

The Privatization Of The American Fishery: Limitations, Recognitions, And The Public Trust, Douglas F. Britton

Ocean and Coastal Law Journal

In Douglas v. Seacoast Products, Inc., the United States Supreme Court seemingly laid to rest any lingering contentions of vested ownership theory relating to fisheries resources, stating that "it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to capture." This doctrine, that common resources such as fish are of an inherently wild nature, or ferae naturae, such that actual possession is required in order to establish individual ownership, has survived as an …

Blueprint For Whale Conservation: Implementing The Marine Mammal Protection Act, Nina M. Young, Suzanne Iudicello

Ocean and Coastal Law Journal

Over its twenty-four year history, the Marine Mammal Protection Act of 1972 (MMPA) has had both its successes and its failures, yet it remains one of the cornerstones of marine conservation and one of the most effective mechanisms to protect marine mammals. Marine mammals now face threats, however, that are global in scope and involve humans and our shared use of the marine environment. Diminishing marine resources and diminishing federal funds force fishers and conservationists to develop creative initiatives to conserve marine mammals, marine habitats, and species diversity, while still promoting economically viable fisheries. Marine mammals often compete with humans …

Deep Ecology And The Antarctic Marine Living Resources: Lessons For Other Regimes, Sudhir Chopra, Craig Hanson

Ocean and Coastal Law Journal

Extremely cold temperatures and severe climatic conditions make Antarctica the most lifeless continent in the world. Because the majority of its mainland is ice-covered, Antarctica is unable to support most forms of plant and animal life. The animal life that is able to survive is primarily marine dependent, living in the Southern Ocean. The Southern Ocean is the habitat for a unique and diverse collection of marine living resources. Interestingly, this marine life, because of the small number of species, comprises one of the simplest ecosystems in the world. The existence of a peculiarly short food chain focuses much of …