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Author Archive

Trusting Nonprofits: Applying Trust Principles to the Assets of Charities

Malachi Brennan

 

First arising in England as charitable trusts with the Statute of Uses in 1601,[1] nonprofit organizations[2] currently represent 10 percent of the U.S. economy.[3] The assets employed by these 1.7 million nonprofits represent an invaluable public resource.[4] Nonprofits alleviate the burden on public funds,[5] and provide important services that private businesses avoid:[6] “For every dollar that a [person] contributes to these public charities, . . . the public gets 100 percent.”[7] But how do we ensure that the public gets 100 percent?

SHE MUST BE MUTILATED, FIRST: HOW THE UNITED STATES VIOLATES ITS DUTIES UNDER THE CONVENTION AGAINST TORTURE BY DENYING RELIEF TO WOMEN WHO FEAR FUTURE FEMALE GENITAL MUTILATION

Kathryn Steffy

An estimated three million girls are expected to suffer Female Genital Mutilation (FGM) in 2018.[1] Also known as Female Genital Cutting or Circumcision, FGM is performed for the purposes of curbing sexual behavior and increasing a perception of cleanliness and feminism.[2] It is encouraged and perpetuated through social norms, like receiving increased dowries and bride prices for circumcised women, in many cultures across the globe.[3] In actuality, there are no health benefits to the practice, but instead FGM causes a massive number of health effects.[4] Viewed as a violent violation of human rights by the United Nations (UN) and other entities worldwide, FGM is still a principal practice within at least 30 countries and on three continents.[5]

Taming America’s Rogue Roads: Unsolved R.S. 2477 Claims in the Tenth Circuit and Beyond.

Evan Baylor

The United States boasts some of the world’s most stunning vistas, picturesque landscapes, and diverse scenery. From the Green Mountains in Vermont to the mesas of Utah, many of the most pristine examples of America’s beauty are carefully managed and protected by the federal government.[1] However, these lands are under attack.

Wiretapping in a Wireless World: Should Vermont Codify a Statute on Intercepting Communications?

Hannah Clarisse

As technology continues to evolve, the need to prevent unconsented recording of communications is more important than ever before. The way that Americans communicate has changed considerably in the 140 years since the installation of the first telephone lines.[1] In 1968, when Congress enacted the Federal Wiretap Act,[2] 20 percent of American homes did not have a telephone.[3] Today, over 95 percent of Americans own some type of mobile phone, and 49 states have passed some form of wiretapping statute.[4] Vermont is the only state that has not.[5]

Under-Depreciated: Can Public Utility Commissions Accelerate Depreciation for Fossil-Fuel Assets to Hasten the Renewable Energy Transition and Avoid Looming Stranded Costs?

Benjamin Civiletti

The renewable energy revolution is taking shape across the United States, carrying the potential for environmental and economic benefits.[1] Developments in clean energy are encouraging, but the transition is not happening fast enough. One significant barrier is the traditional ratemaking model, where investor-owned utilities are incentivized to build large generation projects and keep them running for as long as possible.[2] This is partly because the cost of these projects is built into electric rates in the form of an operating expense called depreciation.[3] Depreciation is spread over the expected life of the project, which often stretches 30 years or more.[4]

Same-Sex Marriage, Religious Accomodation, and the Race Analogy

Shannon Gilreath & Arley Ward

Can a state government allow its officials to opt-out of issuing marriage licenses based on religious objections to same-sex marriage? Similarly, can a state create special religion-based exceptions to anti-discrimination laws? This article examines these questions by comparing traditional objections to same-sex marriage and racial integration, and by delving into how each category is treated by anti-discrimination law. We examine the ultimate refusal to legally accommodate analogous religiously-motivated objections to racial integration. We conclude that any such exemptions would be unconstitutional violations of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Understanding the history of religion-based arguments justifying discrimination is crucial to this analysis. Proponents of far-reaching religious exemptions from otherwise generally applicable anti-discrimination laws too often portray the advent of same-sex marriage as unprecedented and terrifyingly unique. So terrifying and unique, it is claimed, that the law must recognize unprecedented new rights for individuals refusing to accept the evolution of the law because of their religious beliefs. Understanding the striking similarities between arguments justifying anti-gay discrimination and anti-black discrimination for religious reasons is crucial to exposing this fallacy.

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Vermont Food Access and the “Right to Food”: Using the Human Right to Food to Address Hunger in Vermont

K. Heather Devine

The greatest health risk in the world today is hunger.[1] One out of nine people in the world do not get enough to eat—meaning they do not get enough calories, nutrients, or both.[2] Hunger and malnutrition threaten global health at a greater rate than AIDS, malaria, and tuberculosis combined.[3]

Hunger is not restricted to developing nations. Fourteen percent of United States households are food insecure—they cannot consistently access enough food for their households.[4] Closer to home, nearly 80,000 Vermonters, more than 20,000 of whom are children, are food insecure.[5] More than a third of Vermonters report they cannot afford to buy nutritious food, or they cannot buy enough food.[6]

Building an Alternative Jurisprudence for the Earth: The International Rights of Nature Tribunal

Michelle Maloney

In January 2014, members of the civil society network, Global Alliance for the Rights of Nature, held the world’s first International Tribunal for the Rights of Nature and Mother Earth (International Tribunal) in Quito, Ecuador. Since that time, the International Tribunal has met in Lima, Peru and Paris, France in parallel with the Conference of Parties for UN climate change negotiations, and Regional Chambers of the International Tribunal have been held in the United States and Australia.[1] Given that the International Tribunal has emerged from civil society rather than state-centered international law, and given that countries like Australia and the United States do not recognize, in State or Federal law, the intrinsic rights of plants, animals, or ecosystems to exist, what possible benefits do Rights of Nature Tribunals offer the natural world, and what impact can they have on the current legal system?

In this paper, I outline the creation and ongoing hearings of the International Tribunal and its Regional Chambers and provide an overview of Earth jurisprudence, the emerging theory of Earth-centered law and governance from which the Tribunals have emerged. I then contextualize the Rights of Nature Tribunals within the phenomenon of peoples’ tribunals during the twentieth and twenty-first centuries. I suggest that like many “peoples’ tribunals” before them, Rights of Nature Tribunals provide a powerful voice for civil society concerns and create an alternative narrative to that offered by western legal systems regarding environmental destruction. They also have the potential to play a role in transforming existing law and offer a welcome, cathartic contribution to the burgeoning field of Earth jurisprudence.

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[1] International Rights of Nature Tribunal, Global Alliance for Rts. Nature, http://therightsofnature.org/rights-of-nature-tribunal (last visited Nov. 23, 2016).

In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort

Rodrigo M. Caruço

American military criminal law does not often receive much attention outside the military and its law journals. But for the first time in over three decades, Congress will debate sweeping reforms to the United States military’s legal system proposed by the Department of Defense (DoD) that, if enacted, would further civilianize the military’s criminal code.[1] Just a few years ago, the acclaimed documentary The Invisible War brought the issue of sexual assault in the U.S. military to the forefront of national attention.[2] This film prompted sustained attacks by certain members of Congress regarding how the military prosecutes sexual assault cases, as well as the creation of numerous panels to study different aspects of the military’s approach to sexual assault investigation and prosecution.[3] On its own initiative, the DoD took a broader view and initiated a comprehensive review of the entire military legal system.[4] The result of this review is the DoD-proposed Military Justice Act of 2016, a wide-ranging proposal that substantially civilianizes a legal system already radically civilianized compared to its original enactment in 1775.[5] However, one institution critical to the military’s legal system will escape all scrutiny by both Congress and the DoD—its highest court, the United States Court of Appeals for the Armed Forces (CAAF). This article closes that gap.

Though an Article I court, CAAF is an independent judicial body.[6] Its budget flows through the DoD, but Congress has made it clear that CAAF is located within the DoD “for administrative purposes only . . . .”[7] Like all judicial bodies, it should benefit from ongoing scrutiny. Its early judges agreed and invited such scrutiny.[8] Though the military services law review journals and numerous civilian journals publish works analyzing specific aspects of military law, few, if any, include structural analyses of the military’s appellate institutions generally, and CAAF specifically.[9] This type of study has not occurred since the 1970s.[10] Thus, CAAF, and consequently military law, has evolved over the last 50 or so years without much scrutiny of its role within the military justice system and whether its conduct is consistent with its role. No comprehensive understanding of the military justice system is complete without a better understanding of its highest court.

This article attempts to further the understanding of CAAF’s role in the military justice system by examining CAAF’s effectiveness as the court of last resort within this system. This is accomplished by answering a series of questions. First, what is a court of last resort? Second, is CAAF viewed as a court of last resort in the military judicial hierarchy, or is it viewed as the first real intermediate appellate court, with the service courts acting as mere reviewing agencies? Third, if CAAF is viewed as a court of last resort, does it act like one?

This article concludes that CAAF is a court of last resort that, far too often, acts as an intermediate error-correction court. This conclusion raises both concerns and opportunities for a legal system facing ongoing scrutiny over its legitimacy. Each of the questions presented above are answered in order. Part I introduces the role of a court of last resort in a judicial system. Courts of last resort in a two-tiered system primarily focus on declaring what the law is, not error correction. This role is concerned with the development of the law. Error correction is the primary task of intermediate courts.[11] Part II turns the focus to the perceptions of CAAF, perceptions by both the Supreme Court of the United States (Court) and CAAF itself. Even during periods in which the Court expressed grave concern over the legitimacy and competency of the military justice system, it has always viewed CAAF as the court of last resort within that system.[12] Likewise, CAAF has always asserted itself as the court of last resort in the military justice system.[13] Though CAAF expressed this view less in recent years, it has never retreated from its earlier declarations that it was the military’s supreme court.[14]

Part III begins the inquiry into whether CAAF acts like a court of last resort describing the methodology used to obtain, review, and classify the relevant data. The sample size consisted of each published decision from four select terms: 1951–52, 1968–69, 1994–95, and 2014–15. The first three selected terms followed the enactment of legislation that specifically intended to clarify CAAF’s status as an independent and important federal court. Presumptively, these terms transpired when CAAF was most aware of its enhanced prestige. The 2014–15 term represents CAAF’s most recent full term, thus presenting the opportunity to examine its recent conduct. Based on the criteria established in Part I, each decision in these terms was given one of ten codes to classify it as either an error correction decision or a declaration of law. Nine of the codes mark the nine bases for granting review common amongst courts of last resort. The tenth code marks the decision as one of error correction. In addition to the first three terms, the Court’s 2014–15 term was reviewed and coded for validation. Proper coding should result in a high total number, indicating more declaration decisions by the Court.

Part IV analyzes the results of this examination. It concludes that each term contained an extraordinary number of error correction decisions, at times making up nearly 90% of all decisions in a given term. Furthermore, when CAAF does issue a law declaration decision, thus acting as a court of last resort, it often does not frame the issues or address them in a manner one would expect from such a court. The discussion in Part IV offers some initial potential explanations, which ultimately narrow down the question to whether CAAF understands its role, and if it is properly served by its lower courts and appellate counsel. Part V offers a procedural and substantive framework for approaching petitions for review and subsequent decisions based on the available data. This includes suggesting CAAF make clear when it is conducting error correction and when it is conducting law declaration—and why the distinction is important. Finally, this article concludes with a call for examination of the historically high level of error correction decisions issued by CAAF.

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[1] See, e.g., Military Justice Improvement Act of 2013, S. 967, 113 Cong. (2013) (providing that prosecution determinations in sexual assault cases cannot be made by commanding officers).

[2] The Invisible War (Chain Camera Pictures 2012).   

[3] Senator Kristin Gillibrand, D-NY, first introduced the Military Justice Improvement Act of 2013, which sought to remove the authority to decide whether to prosecute sexual assault cases from military commanders and place that authority in senior attorneys outside the chain of command. S. 967. Sen. Gillibrand’s bill did not make it out of committee, but the substantial interest she generated had an impact. The subsequent National Defense Authorization Act (NDAA) created two panels focused on the prosecution of sexual assault cases. National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, § 576, 126 Stat. 1632, 1758–62 (2013). The charter of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel) directed its membership to review judicial proceedings in such cases for the purpose of gathering statistics, determining trends, and making recommendations on improving military judicial proceedings. The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel, Charter 1–3 (2012). In addition, the charter of the Response Systems to Adult Sexual Assault Crimes Panel (Response Systems Panel) directed its members to investigate “the systems used to investigate, prosecute, and adjudicate . . . .” sexual assault and related offenses. Response Sys. to Adult Sexual Assault Crimes Panel, Charter 1 (2013). Part of this directive included investigating whether military commanders should retain their authority in the military legal system, known as the military justice system. Id. at 1. The panel concluded they should. Carl Levin, et al., Report of the Response Systems to Adult Sexual Assault Crime Panel 6–7, 22–23, 36–37, 161–71, 173–74 (2014). Partly in response, Sen. Gillibrand re-introduced the Military Justice Improvement Act. Military Justice Improvement Act of 2014, S. 2992, 113th Cong. (2014). It fell a few votes short in a cloture vote, 55-45. On the Cloture Motion S. 1752, GovTrack, https://www.govtrack.us/congress/votes/113-2014/s59 (last visited Nov. 22, 2016).

[4] During the same period that the NDAA directed the establishment of the Judicial Proceedings Panel and the Response Systems Panel, the DoD established the Military Justice Review Group (MJRG) to perform a comprehensive review of the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial (MCM), and the applicable service regulations. Memorandum from the Secretary of Defense on a Comprehensive Review of the Uniform Code of Military Justice to Secretaries of the Military Departments, et al. (Oct. 18, 2013), http://www.dod.gov/dodgc/images/mjrg_secdef_memo.pdf. The last such review occurred in 1983, with many piecemeal amendments since then. Id. The MJRG conducted hearings and received information for two years; its proposals then underwent approximately a month of internal DoD review. See Military Justice Review Group, Dep’t of Defense, http://www.dod.gov/dodgc/mjrg.html (last visited Nov. 22, 2016) (providing documents related to the DoD’s review of the military justice system). Subsequently, the DoD proposed the Military Justice Act of 2016 on December 28, 2015, based on the MJRG’s initial report. Press Release, U.S. Dep’t of Def., Department of Defense Forwards to Congress Proposed Changes to the Uniform Code of Military Justice (Dec. 28, 2015), http://www.defense.gov/News/News-Releases/News-Release-View/Article/638095/department-of-defense-forwards-to-congress-proposed-changes-to-the-uniform-code.

[5] Bryan Koenig, DOD Proposes ‘First Comprehensive’ UCMJ Update in 30 Years, Law360 (Jan. 4, 2016), http://www.law360.com/articles/742081/dod-proposes-first-comprehensive-ucmj-update-in-30-years.

[6] In its report, the MJRG stated that “[i]n view of the judicial independence of the Court, the Department of Defense, as a matter of policy, typically has deferred to the Court with respect to initiating any legislative proposal that might be necessary in the interests of judicial administration.” Military Justice Review Group, Report of the Military Justice Review Group, Part: 1: UCMJ Recommendations 1020 (Dec. 22, 2015), http://www.dod.mil/dodgc/images/report_part1.pdf.

[7] 10 U.S.C. § 941 (2012).

[8] Robert E. Quinn, The Court’s Responsibility, 6 Vand. L. Rev. 161, 162 (1953). Chief Judge Quinn eagerly welcomed scrutiny: “It is my hope that the bar, individually and through its legal journals, will follow closely the work of this Court. They can perform a most valuable function in weighing individual cases against the dichotomatic concept of military justice and tell the public, the services and us, the judges, whether we are performing properly our task of enunciating principles worthy of existence in this relatively new field of law.” Id.

[9] See, e.g., Eugene R. Fidell, Is There a Crisis in Military Appellate Justice?, 12 Roger Williams U. L. Rev. 820, 820 (2007) (“The highest court of the jurisdiction — The United States Court of Appeals for the Armed Forces — is turning out careful, scholarly opinions that are easily on par with the work of the geographical circuits.”); Jonathan Lurie, Presidential Preferences and Aspiring Appointees: Selections to the U.S. Court of Military Appeals 1951-1968, 29 Wake Forest L. Rev. 521 (1994) (exploring the politicized nature of presidential appointments to the U.S. Court of Military Appeals); Scott L. Silliman, The Supreme Court and Its Impact on the Court of Military Appeals, 18 A.F. L. Rev. 81, 82 (1976) (considering the Court of Military Appeals’ status within the military justice system).

[10] See, e.g., Daniel H. Benson, The United States Court of Military Appeals, 3 Tex. Tech L. Rev. 1, 2 (1971) (describing the structure of CAAF); John S. Cooke, The United States Court of Military Appeals, 1975-1977: Judicializing the Military Justice System, 76 Mil. L. Rev. 43, 44 (1977) (discussing the effects of transforming the military justice system during the late 1970s); John T. Willis, The United States Court of Military Appeals: Its Origin, Operation and Future, 55 Mil. L. Rev. 39 (1972) (providing a history of the Court of Military Appeals and its role); John T. Willis, The Constitution, The United States Court of Military Appeals and the Future, 57 Mil. L. Rev. 27, 27 (1972) (examining the decisions and structure of the Court of Military Appeals), John T. Willis, The United States Court of Military Appeals – “Born Again”, 52 Ind. L.J. 151, 153 (1976) (discussing precedent-breaking decisions, supervisory review and civilianization by the Court of Military Appeals).

[11] To be fair, there is some discussion that this distinction is not so clear; courts of last resort and intermediate courts routinely engage in a two-way communication in the law development function. See, e.g., Doni Gewirtzman, Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System, 61 Am. U. L. Rev. 457, 462, 464 (2012) (arguing the circuit courts’ role is to maintain stability and help evolve the judicial system); Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 7–8 (1994) (comparing and contrasting two models of behavior in inferior courts, namely (1) deference to existing superior court precedents and (2) predictions of future superior court rulings). However, this article structures the roles of each level in accordance with the American Bar Association’s Standards Relating to Court Organization. See Gerald B. Cope, Jr., Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Florida’s System with Those of the Other States and the Federal System, 45 Fla. L. Rev. 21, 27 (1993) (citing Standards Relating to Court Org. § 1.13 commentary at 39–40 (1990)).

[12] Silliman, supra note 9, at 82.

[13] Id. at 89–91.

[14] Id. at 91.

Balancing the Fishes’ Scales: Tribal, State, and Federal Interests in Fishing Rights and Water Quality in Maine

Patrick Marass

The state of Maine has a complicated and often adversarial legal relationship with the federally recognized Native American (Indian) Tribes in the state.[1] Perhaps the most contentious legal relationship presently pertains to Maine’s authority to regulate water resources on Indian territories and lands (Indian lands).[2] At their core, legal conflicts often involve disputes over power, money, respect, or any combination of these elements.[3] What makes conflicts between states and Native American tribes so complex, and in this particular case volatile, is that the legal issues often involve clashes of all three of these elements.[4] The legal framework for the current water resource dispute traces back to a series of state and federal laws setting aside reservation and trust land for the Tribes in the 1980s and 1990s, collectively known as the Settlement Acts.[5] The Tribes’ lack of bargaining power during these settlements arguably resulted in a jurisdictionally oppressive framework for the protection of tribal natural resources.[6] The most recent legal conflict erupted in February 2015, and juxtaposes Maine’s right to regulate water quality standards (WQS) against the Tribes’ right to fish for sustenance on their lands.[7] The emotional responses ignited by this conflict illuminate why a comprehensive approach to settling the disputes between Maine its Tribes is needed.

Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.

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