Join the Maine Law Review and the Muskie School of Public Service in Celebrating the Legacy of Ed Muskie

MLR Muskie Symposium

Introducing the Maine Law Review, Volume 67!

On behalf of the Executive Board, we would like to welcome the new members of the Maine Law Review, Volume 67:

The Editorial Board and Staff of the Maine Law Review, Volume 67


Samuel J. Baldwin

Editorial Team

Executive Editor:       Juliana O’Brien*

Symposium Editor:    Elizabeth Frazier*

Articles Editors:        Xi Chen & Benjamin Wahrer

Production Team

Managing Editor:      Ari Solotoff*

Production Editor:     Derek Jones

Technical Editor:       Laura Shaw

Research Editors:      Mikala Noe

Writing Team

Head CN/C Editor:      Joseph Gousse*

CN/C Editors:             Pardis Delijani & Brandon Farmer



* Executive Board Members


Maine Law Review Staff

Anthony Aloisio

Emily Atkins

Kasey Boucher

Benjamin Dexter

Cynthia Hunter

Samuel Johnson

Daniel Keenan

Peter Kenlan

Nicholas Kline

Benjamin McCall

Carson Phillips-Spotts

Patrick Redding

Mark Rucci

Daniel Taylor

Elizabeth Tull

Academic Advisors

Professors Dave Owen and Dmitry Bam




Maine Law Review, Vol. 66, No. 2


Symposium: Who’s Governing Privacy?  Regulation and Protection in a Digital Era


Peter J. Guffin, Kyle J. Glover, and Sara M. Benjamin


The Glass House Effect: Big Data, The New Oil, and the Power of Analogy

Dennis D. Hirsch

Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information

Bryce Clayton Newell

The Promise and Shortcomings of Privacy Multistakeholder Policymaking: A Case Study

Omer Tene and J. Trevor Hughes

Privacy Law’s Precautionary Principle Problem

Adam Thierer

Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era

Joris V.J. van Hoboken and Ira S. Rubinstein


Waiting for Gluskabe: An Examination of Maine’s Colonialist Legacy Suffered by Native American Tribes under the Maine Indian Claims Settlement Act of 1980

Joseph G.E. Gousse

Case Notes

Trott v. H.D. Goodall Hospital: When Analyzing Employment Discrimination Cases Under Maine Law, Should Maine Courts Continue to Apply the Mcdonnell Douglas Analysis at the Summary Judgment Stage?

Ari B. Solotoff

What is the Scope of Searches of Cell Phones Incident to Arrest?  United States v. Wurie and the Return of Chimel

Benjamin Wahrer 


Maine Law Review, Vol. 66, No. 1

Maine Law Review, Vol. 66, No. 1


Death, Taxes, and Property (Rights): Nozick, Libertarianism, and the Estate Tax

Jennifer Bird-Pollan

The Magic Mirror of “Original Meaning”: Recent Approaches to the Fourteenth Amendment

Bret Boyce

The State Response to Hazelwood v. Kuhlmeier

Tyler J. Buller

Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School

Shailini Jandial George

Election SLAPPs: Effective at Suppressing Political Participation
and Giving Anti-SLAPP Statutes the Slip

Leah McGowan Kelly

Book Review

More Than a Ramble: A Law Student’s Review of Hugh G. E. MacMahon’s Progress, Stability, and the Struggle for Equality: A Ramble Through the Early Years of Maine Law, 1820-1920

Christopher Harmon


Allocating Power: Toward a New Federalism Balance for Electricity Transmission Siting 

Kevin Decker

The Post-Crawford Rise in Voter ID Laws: A Solution Still in Search of a Problem

David M. Faherty

Of Asthma and Ashtrays: Examining the Rights of and Exploring Ways to Protect Maine Tenants Living in Multi-Unit Rental Housing Who are Involuntarily Exposed to Secondhand Tobacco Smoke in Their Homes

Amy K. Olfene

Case Notes

Personal Jurisdiction in the Data Age: MacDermid v. Deiter’s Adaptation of International Shoe Amidst Supreme Court Uncertainty

Ryan Almy

Fuhrmann v. Staples Office Superstore East, Inc.: A Split in the Law Court as to the Definition of “Employer” Demonstrates the Need for Legislative Action to Amend the Maine Human Rights Act in Order to Protect Maine Employees

Stephen B. Segal 


Maine Law Review 2014 Privacy Symposium

Who’s Governing Privacy?  

Regulation and Protection in a Digital Era

A Privacy Law Symposium Hosted by the Maine Law Review
  Friday, February 21, 2014, 1:00pm-5:30pm 
Registration 12:30pm-1:00pm / Reception 5:30pm-6:30pm


Please note that, due to high demand, 
we have moved the symposium to Talbot Lecture Hall, 
Luther Bonney Hall, 85 Bedford Street, Portland, Maine

The Glass House Effect: Big Data, the New Oil, and the Power of Analogy • Dennis Hirsch, Geraldine W. Howell Prof. of L., Capital University Law School • Exploring whether environmental law’s response to oil spills can be used analogously as privacy law learns to respond to data breaches.

Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information • Bryce Clayton Newell, Ph.D. Candidate, The Information School, University of Washington; J.D. University of California, Davis School of Law • Providing results of a large empirical study on automated license plate recognition (ALPR) systems, and examining popular legal responses for protecting privacy in light to access through state disclosure laws.

Privacy Law’s Precautionary Principle Problem • Adam Thierer, Senior Research Fellow, Technology Policy Program, Mercatus Center at George Mason University • Examining “bottom-up solutions” for dealing with privacy concerns raised by Big Data, social media, and youth Internet access.

Some Realism about Technical Solutions to Transnational Surveillance • Ira Rubinstein, Senior Fellow, and Joris van Hoboken, Microsoft Research Fellow, Information Law Institute, NYU School of Law • Analyzing enhanced protections for addressing transnational surveillance risks in the context of cloud computing.

Bad Samaritanism, the Entirely Predictable Effect of Section 230 ISP Immunity • Ann Bartow, Prof. of L., Pace Law School• Suggesting that the profitability of online bullying, stalking, and harassment may be reduced by increasing the possible avenues of ISP liability through a reevaluation of Section 230 immunity.

The Promise and Shortcomings of Privacy Multistakeholder Policymaking: A Case Study • J. Trevor Hughes, President & CEO, and Omer Tene, V.P. of Research and Education, International Association of Privacy Professionals (IAPP)  • Discussing the  success and failures of multi-stakeholder self-regulatory efforts that provide the foundation for current U.S. privacy law.

Structural Limits on Government Access to Personal Data: A Post-Snowden Multi-National Comparison • Christopher Wolf, Dir., Privacy and Information Management Practice Group, Hogan Lovells, Washington, D.C. • Comparing governmental access to data in ‘the cloud’ in the United States to that in other countries, and the extent of protections afforded by the law.

Members of the Maine Bar May Register to Receive 3.92 CLEs

Sponsors Include:
PA logo 4C process for coated paper jpeg (W3040343x7AC2E)IAPP New Logo 1209 FINALML_Logo_SBA_CMYK_r3idexx-laboratories-color-rgb[1]Unum May, 08' new logo!!!

Introducing the Maine Law Review, Volume 66!

On behalf of the Executive Board, we would like to welcome the new members of the Maine Law Review, Volume 66:

The Editorial Board and Staff of the Maine Law Review, Volume 66


Amy Olfene

Editorial Team

Executive Editor:       Rachel White*

Symposium Editor:    Sara Murphy*

Articles Editors:         Kevin Decker, David Faherty, Stephen Segal

Production Team

Managing Editor:       Adam Quinlan*

Production Editor:     Anna Polko

Technical Editor:        Meghan Myers

Research Editors:      Emily Gaewsky, Ashley Janotta

Writing Team

Head CN/C Editor:      Ryan Almy*

CN/C Editors:        Christopher Harmon, Elizabeth Valentine

* Executive Board Members

Maine Law Review Staff

Samuel Baldwin

Xi Chen

Caitlin Clark

Pardis Delijani

Brandon Farmer

Elizabeth Frazier

Joseph Gousse

Derek Jones

Mikala Noe

Juliana O’Brien

Laura Shaw

Austin Smith

Ari Solotoff

Kathleen Taylor

Benjamin Wahrer

Academic Advisors

Professors Dave Owen and Dmitry Bam


Maine Law Review 2014 Call for Papers

The Maine Law Review invites you to participate in its 2014 Privacy Law Colloquium.  The Colloquium presents an opportunity for discussion and debate about the current privacy laws in Maine, the United States, and beyond.  To complement the Colloquium, the spring volume of the Review will be devoted to high-quality legal scholarship focusing on a contemporary issues in privacy law, specifically those which concern the intersection of privacy and the constitution, the ever-evolving technological landscape, and challenges to civil liberty.

The Maine Law Review seeks submissions of papers for oral presentation at the Colloquium and for publication in its Spring 2014 volume.  We invite contributions in the form of articles or essays primarily focusing on: big data and concerns for civil liberties; government surveillance and Fourth Amendment protections; and issues involving Free Speech and First Amendment protections within the privacy context. Paper submissions should range from 10,000 to 35,000 words in length (including footnotes).

Draft papers and queries may be addressed to Sara Murphy, Symposium Editor, at, no later than September 20, 2013.  Please include “Privacy Colloquium” in the subject line.  Submissions should include an abstract, curriculum vitae, and indication of your willingness and availability to travel to Portland, Maine, to participate in the Colloquium on Friday, February 21, 2014.


Maine Law Review, Vol 65 No. 2 (2013) Contents

Maine Law Review
Volume 65, No. 2 (2013)

Colloquium:  Local Food || Global Food:  Do We Have What It Takes to Reinvent the U.S. Food System?
Symposium:  Law, Religion, and Lautsi v. Italy
Case Notes


Colloquium:  Local Food || Global Food:
Do We Have What It Takes to Reinvent the U.S. Food System?



Legal Institutions of Farmland Succession:  Implications for Sustainable Food Systems
Jamie Baxter

From “Food Miles” to “Moneyball”:  How We Should Be Thinking About Food and Climate
Bret C. Birdsong

The Symbolic Garden:  An Intersection of the Food Movement and the First Amendment
Jaime Bouvier

Obesity Prevention Policies at the Local Level:  Tobacco’s Lessons
Paul A. Diller

Zoning and Land Use Controls:  Beyond Agriculture
Lisa M. Feldstein

Food Safety and Security in the Monsanto Era:  Peering Through the Lens of a Rights Paradigm Against an Onslaught of Corporate Domination
Saby Ghoshray

The Renewable Fuel Standard:  Food Versus Fuel?
Brent J. Hartman

The New England Food System in 2060:  Envisioning Tomorrow’s Policy Through Today’s Assessments
Margaret Sova McCabe and Joanne Burke

A National “Natural” Standard for Food Labeling
Nicole E. Negowetti

Whatever Happened to the “Frankenfish”?:  The FDA’s Foot-Dragging on Transgenic Salmon
Lars Noah

Follow the Leader:  Eliminating Perverse Global Fishing Subsidies Through Unilateral Domestic Trade Measures
Anastasia Telesetsky

When Fox and Hound Legislate the Hen House:  A Nixon-in-China Moment for National Egg-Laying Standards?
Lucinda Valero and Will Rhee

Preempting Humanity:  Why National Meat Ass’n v. Harris Answered the Wrong Question
Pamela Vesilind

A Hungry Industry on Rolling Regulations:  A Look at Food Truck Regulations in Cities Across the United States
Crystal T. Williams

How Reliance on the Private Enforcement of Public Regulatory Programs Undermines Food Safety in the United States:  The Case of Needled Meat
Diana R. H. Winters

Liberty of Palate
Samuel R. Wiseman


Symposium:  Law, Religion, and Lautsi v. Italy

Malick W. Ghachem


Freedom of Religion and Freedom from Religion:  The European Model
JHH Weiler

The Lautsi Decision and the American Establishment Clause Experience:  A Response to Professor Weiler
William P. Marshall

The Lautsi Decision As Seen from (Christian) Europe
Pierre-Henri Prélot


Case Notes

State v. Brown:  A Test for Local Food Ordinances
Ryan Almy

Recognizing Gestational Surrogacy Contracts:  “Baby-Steps” Toward Modern Parentage Law in Maine After Nolan v. LaBree
Adam Quinlan

The Law Court’s Proper Application of Miranda in State v. Bragg:  A “Matter-of-Fact Communication” to the Defendant Regarding Evidence Against Him Will Not Typically Constitute “Interrogation”
Stephen B. Segal


The Portland Phoenix Reports on the Food Law Colloquium

“Maine Law Colloquium Embraces Local Food”

Do front-yard gardens and backyard chicken coops, as leading symbols of our thriving food movement, deserve First Amendment protection, much as black armbands did during the Vietnam War? Does a focus on “food miles” distract from the urgent need to reduce the greenhouse gases agriculture emits as we strive to feed a world population of 9 billion by 2050? Should the government mandate vegetable consumption — just as New York City and others have enacted bans on Big Gulps and trans fats?

Read more:




2013 Food Law Conference, More Than Just Talk


The 2013 Food Law & Policy Conference, “Local Food || Global Food:  Do We Have What It Takes To Reinvent the U.S. Food System?,”  was hosted by the Maine Law Review this past Saturday, February 23rd.  The event drew roughly a hundred attendees comprised of attorneys, law students, farmers, advocates, and interested citizens from Maine and beyond.

The conference brought together a diverse mix of topics and voices.  Fifteen legal scholars from all over the country—New Hampshire, Vermont, Connecticut, Ohio, Nevada, Indiana, Idaho, Arkansas, Florida, California, and Oregon—tackled a spectrum of food issues.  Among the topics covered:  obesity prevention, global fisheries subsidies, farmland succession models, right to know issues, food sovereignty movements, and more.  Even the First Amendment right to free speech was a point of discussion.

The wide range of emerging issues in food law and policy were loosely organized around three broad themes:

(1) The problems with the current federal approach to food regulation, especially to consumer safety;
(2) The legality of so-called food sovereignty and food choice movements; and
(3) How governments should respond to important emerging food trends.

The panel discussions were moderated by Maine Law professors Rita Heimes, Sarah Schindler, and Dave Owen, and included robust and insightful audience question-and-answer sessions.

A delicious, locally-sourced lunch was provided by Rosemont Market & Bakery, spotlighting ingredients from Maine farms and producers, including Fishbowl Farm, Sunset Acres Farm, Nature’s Circle Farm, Belanger & Sons, Freedom Farm, Sunset Farms, Rave’s Mustard, Kate’s Butter, Maine Grains, and VitaminSea Seaweed.

To emphasize the unmet need of access to healthful food in our own community, the conference spotlighted Cultivating Community, a nonprofit in Portland, Maine, that establishes urban and school gardens to implement its three-part mission of hunger prevention, youth and community development, and environmental modeling.  Donations from sponsors and attendees collected during the conference will be passed on to Cultivating Community.

In many respects, the conference was a continuation of a conversation that people in Maine have carried on for many years—in academia, in the legislature, in town halls, and, of course, around the dining room table:

Where are we headed—as a state, as a region, and as a nation—when it comes to the production, processing, distribution, and consumption of food?  Is this where we want to go? And do we have the right tools in the law and policy toolbox to get us there?

The conference reinforced that Maine is a place where people challenge conventional thinking, and test out new approaches—both outside and inside of the courthouse—with respect to food law, policy, and culture.

It also highlighted that, while many legal and policy challenges face Maine farmers and fishermen and there exists room for much improvement in the state’s food system, Maine is nonetheless well-positioned to be a national leader in developing a food system founded on locally grown and sustainably produced food, both from the land and from the sea.

The spring volume of the Maine Law Review, to be published in mid-May, will include academic essays on the food topics discussed during the conference.

Photo Credits: Tomasz Borkowski

The 2013 Food Law Conference was made possible by the generous sponsorship of:

Rosemont Market & Bakery
Sourcing local, seasonal foods so you can eat consciously, slowly, pleasurably, and well.

Coffee By Design
Handcrafted micro roasted coffee.

East End Cupcakes
Better than the cupcakes you remember.

Steamy. Hot. Soup.

LiveME | Maine-Inspired Apparel & Accessories
Proudly proclaim your love for Maine and some of its most cherished activities.

Maine Farmland Trust

Pierce Atwood LLP

The Student Bar Association
University of Maine School of Law

Thank You.