Managing A Fishery Through Contract: Legal Issues Raised By Sector Operating Agreements In The New England Multispecies Fishery

New England boasts one of the most productive marine ecosystems in the world. It has a long and rich tradition of fishing and has supported large scale commercial fisheries for cod and other groundfish (e.g., haddock and flounder) for centuries. The region also has a less envious tradition of fishery management failures including the “collapse” of a number of groundfish stocks in the 1990s. Before 1977, the groundfish fishery was practically unregulated and was open to local and international fishing fleets alike. Overfishing caused dramatic declines in many fish stocks in New England and other regions, prompting passage of the Fishery Conservation Management Act (known as the Magnuson-Stevens Act), which allowed the federal government to regulate fisheries out to 200 miles. The Magnuson-Stevens Act (MSA) created a fishery system that revolved around regional management councils, which developed and implemented fishery management plans (FMPs) and directed fishermen in their activities. The New England Fishery Management Council (NEFMC) has management authority over the New England multispecies groundfish fishery. It implemented a series of fishery management plans for the northeastern United States. These plans adopted a broad suite of management measures designed to achieve the fishing mortality targets necessary to rebuild certain overfished stocks and aspired to meet other requirements of the MSA. When a regional council develops an FMP, the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS), acting on behalf of the Secretary of Commerce, evaluate it for compliance with the ten national standards set forth in the MSA, as amended by the Sustainable Fisheries Act (SFA). A 2001 lawsuit by the Conservation Law Foundation (CLF) against the Secretary of Commerce, NOAA, and NFMS alleged that plans for rebuilding groundfish stocks failed to meet the national standards. CLF argued that the plans failed to adequately mitigate overfishing practices or to comply with bycatch restrictions. The lawsuit’s settlement led to Amendment 13 of the FMP. Among other things, Amendment 13 made possible a new style of fishery management for the New England multispecies groundfish fishery, namely, the creation of harvesting cooperatives known as “sectors.” Sectors are a form of community-based fisheries management. They require that groups of fishermen join together and agree to manage themselves collectively. By law, fishermen are obliged to sign a formal contract setting forth the key terms of their cooperative arrangement. The novelty and complexity of these contracts requires specialized legal drafting. Pursuant to a grant from the National Sea Grant Law Center, the University of Maine School of Law, in partnership with the Gulf of Maine Research Institute, and the New England office of the Ocean Conservancy, convened a workshop in November 2007, to address key legal issues raised by sector operating agreements. This article summarizes the Sector Workshop’s proceedings by highlighting the major legal issues discussed at the meeting. Part II describes community-based management generally and sectors as a management tool for the New England multispecies fishery. Part III discusses the legal issues to be resolved in sector operating agreements and reflects some of the specific concerns and suggestions raised by the workshop participants. Part IV concludes with reflections on sectors as a management tool and provides information on resources for those in the New England multispecies fishing industry who are considering forming or joining a sector

Internet Privacy Law, Policy, and Practice: State, Federal, and International Perspectives

By the summer of 2000, an estimated 90 million United States citizens used the Internet regularly, at least 69 percent of whom purchased goods and services online. As electronic commerce grew, e-businesses implemented technologies to facilitate the online shopping experience. Such technologies included “cookies,” which are small files a website\u27s host computer places on a visitor\u27s hard drive. Cookies allow a website to “remember” information provided by the visitor—such as her password, email address, credit card number, and mailing address—so she does not have to reenter the data on her next visit. They also allow website operators to track a consumer\u27s purchasing habits, monitor how long she views pages on the site, and learn other information about the consumer while she explores the World Wide Web. In June 2001, experts in online privacy law and policy gathered for a conference hosted by the Technology Law Center at the University of Maine School of Law. The conference included a discussion on federal, state, and European privacy initiatives presented by the following panelists: Bryan Harris, former head of the Intellectual Property Division of the Commission of the European Communities and currently an adjunct professor of European Union Law at Franklin Pierce Law Center in Concord, New Hampshire; Laura Mazzarella, attorney in the Division of Financial Practices of the Federal Trade Commission\u27s Bureau of Consumer Protection; Mary Ellen Callahan, associate attorney in the Washington, D.C. office of Hogan & Hartson LLP, practicing in the areas of antitrust, consumer protection, and litigation; and James Tierney, former Attorney General for the State of Maine and currently a Fellow with the Cyberspace Law Institute. Susan Richey, Professor of Law at Franklin Pierce Law Center, moderated the discussion

Trademarks, Identity, and Justice, 11 J. Marshall Rev. Intell. Prop. L. 133 (2011)

Intellectual property scholars have written extensively against expanding the scope of intellectual property laws, using social justice and distributive justice principles to support their arguments. A typical argument attacks broad adoption and enforcement of copyright laws that prevent access to information and therefore knowledge, or broad patent protection that reduces access to medicines and other important technologies. In recent years, a few scholars have begun to suggest that certain areas of intellectual property law—primarily copyright—may play a positive role in social justice. These arguments are founded on views of social and distributive justice that consider personal empowerment and freedom to pursue opportunity as viable goals. Very little has been written, however, on the role of trademark law and publicity rights on development and social justice. Several factors support examining these issues. Minorities in the United States are far less likely than non-minorities to seek trademark protection, placing the role of attorneys in assisting underrepresented populations with intellectual property acquisition into question. Additionally, social media has made overnight celebrity and personal branding a real possibility for many individuals, regardless of their socioeconomic status. This article explores the role of trademark and identity law in promoting self-sufficiency and self-reliance among underserved populations. It examines both areas of law through the lens of social justice and personal empowerment. It concludes that a basis in social justice for assisting individuals with acquiring and protecting trademark and identity rights may overcome the broad societal concerns about over-protection of intellectual property rights

Trademarks, Identity, and Justice, 11 J. Marshall Rev. Intell. Prop. L. 133 (2011)

Intellectual property scholars have written extensively against expanding the scope of intellectual property laws, using social justice and distributive justice principles to support their arguments. A typical argument attacks broad adoption and enforcement of copyright laws that prevent access to information and therefore knowledge, or broad patent protection that reduces access to medicines and other important technologies. In recent years, a few scholars have begun to suggest that certain areas of intellectual property law—primarily copyright—may play a positive role in social justice. These arguments are founded on views of social and distributive justice that consider personal empowerment and freedom to pursue opportunity as viable goals. Very little has been written, however, on the role of trademark law and publicity rights on development and social justice. Several factors support examining these issues. Minorities in the United States are far less likely than non-minorities to seek trademark protection, placing the role of attorneys in assisting underrepresented populations with intellectual property acquisition into question. Additionally, social media has made overnight celebrity and personal branding a real possibility for many individuals, regardless of their socioeconomic status. This article explores the role of trademark and identity law in promoting self-sufficiency and self-reliance among underserved populations. It examines both areas of law through the lens of social justice and personal empowerment. It concludes that a basis in social justice for assisting individuals with acquiring and protecting trademark and identity rights may overcome the broad societal concerns about over-protection of intellectual property rights

Ocean Planning And The Gulf Of Maine: Exploring Bi-National Policy Options

Over the twenty-five years since a special Chamber of the International Court of Justice (ICJ) issued its decision in the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Gulf of Maine Case), legal scholars have written extensively on the significance of the ruling to influence Canada-U.S. relations specifically, and international arbitration in general.2 While the rationale behind any particular scholar’s interest in the case has varied over the years, its significance in informing deliberation surrounding maritime boundary delimitation owes much to the fact that the case presented many “firsts.” Among these were: the use of a special Chamber of the Court; the decision by Canada to submit the dispute to an international tribunal on its own behalf;4 and the request that a decision be made on a “single maritime boundary” that would include, not only the seabed beyond the limits of the territorial sea, but also the water column. In addition to its uniqueness, the significance of this request for a single boundary to delineate both seabed and fisheries resources has led many scholars, and even one of the judges of the Chamber, to question the legality and appropriateness of the request. As only the third case of maritime boundary delimitation to be heard by the Court at the time, the Gulf of Maine Case highlighted the Chamber’s novel use of a hierarchy of principles, equitable criteria, and practical methods in reaching its decision. At the same time, it has been subject to much criticism. Commentators have noted that the challenge of maritime boundary delimitation is to “reconcile conflicting claims to a maritime extension of coasts that differ in configuration, length and position in relation to the area to be delimited.” While solutions to this problem have been attempted in decisions rendered by the Chamber and the full Court over its sixty-five year history, assessing these judgments for guidance on maritime boundary delimitation is not the aim of this Article. Rather, its purpose is to focus on the issues confronting Canada and the United States after the Gulf of Maine decision was rendered and to explore how these two “friendly” neighboring states have attempted to pursue the principles of cooperation and agreement following the decision of the Court. As such, this Article is structured around five key components and is aimed at: (1) highlighting the underlying economic rationale behind why the two neighboring countries of Canada and the United States sought to clarify a single maritime boundary in the Gulf of Maine; (2) identifying the challenges confronting the parties in managing their ocean resources, after ownership had been established, particularly in light of growing energy-related exploitation demands; (3) discussing mechanisms for ocean planning and management adopted by each party to utilize its living and non-living resources; (4) presenting two examples of existing bilateral cooperation from which lessons can be gleaned for future collaborative efforts; and (5) identifying policy options and an implementation mechanism for transboundary cooperation in the Gulf of Maine that could potentially meet the objectives of both countries as they seek to implement marine spatial planning in their respective maritime zones