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2017

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Full-Text Articles in Law

Telecommuting: The Escher Stairway Of Work/Family Conflict, Michelle A. Travis Dec 2017

Telecommuting: The Escher Stairway Of Work/Family Conflict, Michelle A. Travis

Maine Law Review

According to Working Mother magazine, telecommuting is a “wonderful arrangement for working moms.” Advertisements for telecommuting jobs and related technologies show us pictures of these happy telecommuting moms, who are conducting important business on the telephone or typing busily at their computers, as their smiling toddlers play quietly by their sides or sit contentedly in their laps. Some employers have offered this wonderful experience in direct response to concerns raised by “women's issues” committees. That was probably just what Jack Nilles had in mind when he first coined the term “telecommuting” in the 1970s and described it as a way …

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Job Segregation, Gender Blindness, And Employee Agency, Tracy E. Higgins Dec 2017

Job Segregation, Gender Blindness, And Employee Agency, Tracy E. Higgins

Maine Law Review

Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to “break[] down old patterns of segregation and hierarchy,” the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …

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The Miseducation Of Welfare Reform: Denying The Promise Of Postsecondary Education, Rebekah J. Smith, Luisa S. Deprez, Sandra S. Butler Dec 2017

The Miseducation Of Welfare Reform: Denying The Promise Of Postsecondary Education, Rebekah J. Smith, Luisa S. Deprez, Sandra S. Butler

Maine Law Review

When Congress enacted “welfare reform” in 1996, decades of progress in assisting low-income mothers obtain a college education in order to escape poverty was nearly eradicated. The federal welfare reform law strongly discouraged states from incorporating postsecondary education into their welfare reform programs and focused instead on “work-first” policies. As a direct result, hundreds of thousands of low-income mothers across the country were forced to drop out of college and find jobs in order to comply with strict “work-first” welfare rules. Despite the pressure imposed by the federal law, the State of Maine persevered in its effort to make college …

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An Essay On The Production Of Youth Prostitution, Libby Alder Dec 2017

An Essay On The Production Of Youth Prostitution, Libby Alder

Maine Law Review

Youth prostitution is more multidimensional than I think most of us are prone to admit. This essay is designed to raise the profile of some of its less prominent aspects—aspects which are not unknown exactly, but which are underrecognized and generally ignored in the context of legal analysis. The phenomenon of youth prostitution involves some thorny, sometimes confusing, issues, but those issues are eclipsed by an ideology that fails to grapple with the complexity of youth agency and the consequent position of youth in law. The result is that some kids are left inadequately served and others are utterly unknowable. …

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Lessons From The Fields: Female Farmworkers And The Law, Maria L. Ontiveros Dec 2017

Lessons From The Fields: Female Farmworkers And The Law, Maria L. Ontiveros

Maine Law Review

In both the fields of labor law and gender studies, we learn the most from experience. The experience of workers coming together to demand equality and respect and the experience of women coming together to share their experiences has led to most of what we study in these fields. Unfortunately, too many times traditional legal doctrine does not fit these experiences. In those cases, we must struggle to change the law to be responsive to the lived experiences of women and workers. This Article explores the lived experiences of one particular group of workers—immigrant farmworking women in California. From their …

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Gender Typing In Stereo: The Transgender Dilemma In Employment Discrimination, Richard F. Storrow Dec 2017

Gender Typing In Stereo: The Transgender Dilemma In Employment Discrimination, Richard F. Storrow

Maine Law Review

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against men because they are men and against women because they are women. This familiar characterization of the Act has been quoted in dozens of sex discrimination cases to support a narrow view of who is protected against sex discrimination in this country. When transsexuals file suit, “[e]mployment discrimination jurisprudence at both the federal and state levels ... captures transsexuals in a discourse of exclusion from social participation. This wide net, using a remarkably refined system of semantic manipulations, snags all claims launched by transsexuals and reveals …

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Sex, Allies And Bfoqs: The Case For Not Allowing Foreign Corporations To Violate Title Vii In The United States, Keith Sealing Dec 2017

Sex, Allies And Bfoqs: The Case For Not Allowing Foreign Corporations To Violate Title Vii In The United States, Keith Sealing

Maine Law Review

The extent to which foreign corporations as well as their domestic subsidiaries can discriminate against American employees on the basis of sex, age, religion, and national origin in a manner that would be acceptable under their own laws and customs but inimical to American law is currently determined by a muddled jumble of circuit court opinions interpreting a “[w]e express no view” Supreme Court footnote. As a result, American victims of sexual discrimination have much less protection under Title VII of the Civil Rights Act of 1964 when the discriminating actor is a foreign corporation or its domestic subsidiary than …

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Congressional Power To Regulate Sex Discrimination: The Effect Of The Supreme Court's "New Federalism", Calvin Massey Dec 2017

Congressional Power To Regulate Sex Discrimination: The Effect Of The Supreme Court's "New Federalism", Calvin Massey

Maine Law Review

Congressional power to prevent and remedy sex discrimination in employment has been founded almost entirely upon the commerce power and Section 5 of the Fourteenth Amendment, which gives Congress power “to enforce, by appropriate legislation” the equal protection guarantee. The commerce power has enabled Congress to prohibit private sex discrimination in employment, and the combination of the commerce and enforcement powers has enabled Congress to prohibit such sex discrimination by public employers. From the late 1930s until the early 1990s the doctrinal architecture of these powers was relatively stable, even if statutory action to realize the promise of a nondiscriminatory …

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The Unenforced Promise Of Equal Pay Acts: A National Problem And Possible Solution From Maine, Elizabeth J. Wyman Esq. Dec 2017

The Unenforced Promise Of Equal Pay Acts: A National Problem And Possible Solution From Maine, Elizabeth J. Wyman Esq.

Maine Law Review

Equal pay for women is a concept that has been around for a long time. It was during World War I that women were first guaranteed pay equity in the form of regulations enforced by the War Labor Board of 1918. The Board's equal pay policy required manufacturers, who put women on the payroll while male employees were serving in the military, to pay those women the same wages that were paid to the men. The National War Labor Board continued that trend through World War II. Shortly after the war, states began enacting statutes that required employers to pay …

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Keynote Address: The Difference "Difference" Makes, Deborah L. Rhode Dec 2017

Keynote Address: The Difference "Difference" Makes, Deborah L. Rhode

Maine Law Review

Over the last two decades, we have witnessed a transformation for women in law, but not a transformation in leadership positions. Almost 30% of lawyers are women, but they represent only about 15% of federal judges and law firm partners, and about 10% of law school deans and general counsel positions at Fortune 500 companies. The same patterns are apparent in other leadership sectors, such as management and politics. Women are half the electorate but only 15% of Congress and 6% of state governors. They account for about half of managers but only 1% of the Chief Executive Officers of …

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Foreword: Law, Labor And Gender, Jennifer B. Wriggins Dec 2017

Foreword: Law, Labor And Gender, Jennifer B. Wriggins

Maine Law Review

The theme of the conference, Law, Labor, & Gender, came out of a working group comprised of law students, lawyers, a judge, and myself. We thought that a number of issues deserved attention, ranging from current jurisprudence on employment discrimination to more theoretical issues having to do with work/family dilemmas. Professor Deborah Rhode kindly accepted our invitation to be the keynote speaker, and various other academic speakers also agreed to present papers. The working group, and the editors of the Maine Law Review, drafted and sent out a call for papers to approximately 1600 law professors and others. The Law …

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Editorial Board Vol. 55 No.1, Jennifer A.W. Williams Editor-In-Chief Dec 2017

Editorial Board Vol. 55 No.1, Jennifer A.W. Williams Editor-In-Chief

Maine Law Review

No abstract provided.

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Volume 91, Issue 7 (2017) Dec 2017

Volume 91, Issue 7 (2017)

Obiter Dicta

No abstract provided.

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Stable And Integrated Housing For America's Working Poor, University Of Michigan Law School Dec 2017

Stable And Integrated Housing For America's Working Poor, University Of Michigan Law School

Event Materials

Program for a presentation of work from the Problem Solving Initiative. Working as a group, students were tasked with designing a comprehensive plan to tackle the crisis in affordable housing in Detroit, Issues of law, policy, public health, urban planning, financing, and other matters.

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Artificial Intelligence: Application Today And Implications Tomorrow, Sean Semmler, Zeeve Rose Dec 2017

Artificial Intelligence: Application Today And Implications Tomorrow, Sean Semmler, Zeeve Rose

Duke Law & Technology Review

This paper analyzes the applications of artificial intelligence to the legal industry, specifically in the fields of legal research and contract drafting. First, it will look at the implications of artificial intelligence (A.I.) for the current practice of law. Second, it will delve into the future implications of A.I. on law firms and the possible regulatory challenges that come with A.I. The proliferation of A.I. in the legal sphere will give laymen (clients) access to the information and services traditionally provided exclusively by attorneys. With an increase in access to these services will come a change in the role that …

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Nailing Jello To A Tree: A Christian Approach To Ethics In Intelligence, Melanie Scherpereel Dec 2017

Nailing Jello To A Tree: A Christian Approach To Ethics In Intelligence, Melanie Scherpereel

Senior Honors Theses

This paper will discuss Christian involvement in the intelligence field in addition to the ethical issues inherent to intelligence, specifically deception, including lying and manipulation, and technology as a force multiplier. Many Christians believe that intelligence is fundamentally a field of extensive deception that should be avoided. Ethics and morality, what it means to tell the truth, and biblical examples of people who used deception and were commended, will be analyzed from a Christian worldview perspective. The arguments will be presented in order that Christians may be able to understand how to apply the two greatest commandments, to love our …

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How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of “A Condition Analogous To That Of A Slave” In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad Dec 2017

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of “A Condition Analogous To That Of A Slave” In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

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Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner Dec 2017

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

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How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad Dec 2017

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

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United States V. Osage Wind, Llc, Summer Carmack Dec 2017

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

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Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor Dec 2017

Close Enough For Government Work: Proving Minimal Nexus In A Federal And Firearms Conviction: United States V. Corey, Barbara H. Taylor

Maine Law Review

In United States v. Corey, Alvin Scott Corey was found guilty of possessing a firearm as a felon. Although Corey's possession of a Smith and Wesson shotgun violated Maine law, Corey was prosecuted in the United States District Court under the federal statute 18 U.S.C. § 922(g)(1) and its penalty statute, § 924(e). On appeal, Corey argued that one of the requirements for his conviction, proof of the statute's jurisdictional element, had not been satisfied because that proof rested on expert testimony based, in part, on hearsay. The First Circuit Court of Appeals, in a split decision, affirmed Corey's conviction, …

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Protective Claims For Refund: Protecting The Interests Of Taxpayers And The Irs, Kristy M. Bowden Dec 2017

Protective Claims For Refund: Protecting The Interests Of Taxpayers And The Irs, Kristy M. Bowden

Maine Law Review

The Internal Revenue Code provides taxpayers wishing to claim a refund of an overpayment of taxes with a simple, straightforward provision setting forth a taxpayer's right to make such a claim. Additionally, regulations exist that provide for the procedure to be followed in order to claim a refund, further clarifying what is expected of the taxpayer. Unfortunately, not all situations that give rise to the right to claim a refund are so straightforward and simple. Taxpayers may find themselves in a situation that seems to have very little direct connection with tax, but may nonetheless result in significant tax consequences. …

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Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan Dec 2017

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had …

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An Economic Analysis Of The Law Surrounding Data Aggregation In Cyberspace, Johnathan M. H. Short Dec 2017

An Economic Analysis Of The Law Surrounding Data Aggregation In Cyberspace, Johnathan M. H. Short

Maine Law Review

The emergence of technological advances has traditionally created new and unique legal problems. The solutions to counter these problems are often drawn from our legal traditions and adapted to an ever-modernizing world. However, as Professor Coase opined at the dawn of the communication technology revolution, “lawyers and economists should not be so overwhelmed by the emergence of new technologies as to change the existing legal and economic system without first making quite certain that this is required.” Examination and reflection, in other words, is paramount to instituting a sound legal framework to encompass developing legal problems in technology. This Article …

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Desperately Seeking Solutions: Using Implementation-Based Solutions For The Troubles Of Information Privacy In The Age Of Data Mining And The Internet Society, Tal Z. Zarsky Dec 2017

Desperately Seeking Solutions: Using Implementation-Based Solutions For The Troubles Of Information Privacy In The Age Of Data Mining And The Internet Society, Tal Z. Zarsky

Maine Law Review

Our personal information is constantly being recorded, stored and analyzed. Commercial entities watch our every action, storing this data and analyzing it in conjunction with information acquired from third parties. These entities use this knowledge to their benefit (and at times, our detriment) by discriminating between various customers on the basis of this personal information. At the same time, in the media market, large conglomerates can now provide specifically tailored content to individual customers on the basis of such data, thus potentially controlling their perspectives and impairing their autonomy. The expanding use of data mining applications, which enable vendors to …

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Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen Dec 2017

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Maine Law Review

The subject matter we are going to talk about is variously named and the words have some resonances of importance. I am going to use the phrase “Free Software” to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

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Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier Dec 2017

Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier

Maine Law Review

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …

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Budzko V. One City Center Associates Limited Partnership: Maine's Unique Approach To Business Owners' Duty To Remove Ice And Snow, Jennifer A.W. Williams Dec 2017

Budzko V. One City Center Associates Limited Partnership: Maine's Unique Approach To Business Owners' Duty To Remove Ice And Snow, Jennifer A.W. Williams

Maine Law Review

In February 2001, the Maine Supreme Judicial Court, sitting as the Law Court, decided for the first time in Budzko v. One City Center Associates Limited Partnership, what duty of care a business landowner owes to business invitees regarding the accumulation of ice and snow during a storm. Terry Budzko slipped and fell as she was exiting One City Center, the building in which her employer leased office space. The steps had not been shoveled or sanded and a snowstorm had been progressing throughout the day. The Law Court, placing heavy reliance on the factor of foreseeability, held that “[b]usiness …

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Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly Dec 2017

Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly

Maine Law Review

The Commerce Clause of the United States Constitution provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Interpreting this explicit grant of power to Congress, the Supreme Court has long recognized the existence of an implied limitation on the power of a state to legislate in areas of interstate commerce when Congress has remained silent. Under what is referred to as the negative or “dormant” Commerce Clause, the federal courts have thus scrutinized state legislation for well over one hundred years. In the past several …

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Taking Care Of Business And Protecting Maine's Employees: Supervisor Liability For Employment Discrimination Under The Maine Human Rights Act, Katharine I. Rand Dec 2017

Taking Care Of Business And Protecting Maine's Employees: Supervisor Liability For Employment Discrimination Under The Maine Human Rights Act, Katharine I. Rand

Maine Law Review

On the heels of federal legislation prohibiting employment discrimination most states, including Maine, have enacted their own civil or human rights statutes aimed at eliminating discriminatory behavior in the workplace. Like its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), the Maine Human Rights Act, enacted in 1971, prohibits employers from discriminating on the basis of race, gender, age, religion, or national origin and provides a civil remedy for victims of employment discrimination. Moreover, like Title VII, the question of just who constitutes a liable “employer” under the Maine Human Rights Act has been the …

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