Author Archive

States as Laboratories: State Environmental Policy Acts Are Tools to Address Pressing Environmental Harms

By Greta Raser | Editor in Chief

December 5, 2023

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State laws are important tools in a federalist system. They can serve as experiments for more advanced and ambitious policies than those existing at the federal level. This famous sentiment was expressed by Justice Brandeis who stated, “It is one of the happy incidents of the federal system that a single courageous state may . . . serve as a laboratory; and try novel social and economic experiences without risk to the rest of the country.”[1] Today, this sentiment may be used to recognize the ability of states to take initiative on pertinent societal issues instead of waiting for the federal government to act. In a time where there are increasingly pressing environmental issues, the restraints on federal power make the use of state law more important.[2] This may be an important avenue to address novel environmental issues that are not adequately addressed by the National Environmental Policy Act (NEPA), which functions as merely procedural.

            Various states have developed their own versions of NEPA.[3] Fifteen states and the District of Columbia have these little-NEPAs,[4] also referred to as State Environmental Policy Acts (SEPAs).[5] Some of these state acts are nearly identical to NEPA, and others share many similarities.[6] While the state jurisprudence oftentimes follows the federal NEPA jurisprudence, some states have diverged further in their case law.[7] In doing so, certain states have enhanced their SEPA requirements.

            SEPAs can include substantive requirements with language that can be interpreted to address a broader variety of environmental issues than NEPA. Certain states, including California, Massachusetts, Minnesota, New York, and Washington, have substantive requirements in their state environmental policy acts.[8] These allow states to require that projects address the environmental impacts discovered while gathering information through the procedural side of the statutes. This pushes action to address the harms that industries are creating in communities. Substantive requirements give environmental statutes teeth. The teeth allow the statutes to fulfill their goals of addressing environmental harms. Enacting these types of statutes at the state level may be more feasible in modern times than aiming to alter NEPA.[9]

            SEPAs also have room to vary from other states’ policies through relying on localized knowledge and addressing state-specific issues.[10] These policies may apply to a wider range of industries and may subject state and local activities to environmental review, as opposed to just “major federal actions,” which is all that NEPA covers.[11] Finally, states may expand on the Environmental Impact Statement requirements to require the reviewers to address specific issues.

State powers allow states to craft various new policies that may be indicative of the future changes that existing laws need. States may fill in NEPA’s gaps by increasing SEPAs’ responsiveness to issues like environmental justice, climate change, animal welfare, and industrial farming pollution in human communities. One may view these policies as working supplementally with NEPA because they may operate to address more than just procedural issues. The more innovative and inclusive SEPAs serve as models of what improvement is needed in other states’ SEPAs to address continuous environmental damage. Having states with more stringent environmental policy acts allows governments to experiment with new policy requirements and applications on a smaller level than the national level. As industries become more pressured to switch to fewer polluting alternatives, state policies like this can serve as a model for other states and eventually the federal government to adopt more stringent amendments to NEPA.

            Due to the federal legislative gap in addressing environmental justice, climate change, industrialized agriculture, and animal harm, SEPAs may be an option to provide stronger oversight on these heavily protected systems. States and local governments are more politically accountable to their residents. They are more knowledgeable of the dire state-specific environmental issues and how their communities are harmed by industries. The difficulty that exists when trying to pass strong federal environmental protections demands that the states become leaders and experiment with their State Environmental Policy Acts.

 

[1] New State Ice Co. v, Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

[2] See, e.g., Lawrence Hurley & Valerie Volcovici, U.S. Supreme Court limits federal power to curb carbon emissions, Reuters (June 30, 2022), https://www.reuters.com/legal/government/us-supreme-court-limits-federal-power-curb-carbon-emissions-2022-06-30/ (highlighting that the Supreme Court’s decision in West Virginia v. EPA signals the Court’s aversion toward federal executive agency power and that the decision limits the federal power to address climate change through ambitious national policy); Chris Henry, A Succinct, Holistic Look at Climate Change Legislation, 39 S. Ill. U. L. J. 231, 234 (2015) (noting that many attempts at passing federal climate legislation and regulations have not been successful).

[3] Daniel R. Mandelker et al., Generally, NEPA Law and Litigation § 12.1 (2022).

[4] Id.; The states with state environmental policy acts are: California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Carolina, South Dakota, Virginia, Washington, Wisconsin. New Jersey has an executive order that functions equivalently to a State Environmental Policy Act. State environmental policy acts, Ballotpedia, https://ballotpedia.org/State_environmental_policy_acts#New_Jersey (last visited Dec. 3, 2023).

[5] Not all of the states with environmental policy acts refer to them as SEPA, but this blog will do so to avoid confusion.

[6] Mandelker et al., supra note 3, § 12.1.

[7] Id.

[8] Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 619 (2001).

[9] As previously stated, federal powers are limited. Changing an act at the federal level may pose more controversy than state legislatures acting.

[10] States may have different land-use laws, a variety of terrains for farming, and distinct ecosystems that may support different animals than other states.

[11] See 42 U.S.C. § 4332.

Vermont Pumped Hydropower Energy Storage: Sustainably Sourcing Electricity in The Green Mountain State

Image created using OpenAI’s DALL-E.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By Theodore Pupilla | Alumni Editor

December 4, 2023

Humanity urgently needs to address unsustainable development and adapt to the ever-growing world population.[1] The use of fossil fuels has led to harmful impacts on the atmosphere. Traditional non-renewable fuels are not sustainable.[2] Thus, clean, affordable, and reliable energy is a crucial issue that needs to be addressed. A combination of various generation sources and programs will likely be required to provide electricity sustainably.[3]

            The energy trilemma, also known as the three-legged stool of sustainability, is essential to consider because it represents the environmental, financial, and social implications of any decision addressing sustainable development.[4] Renewable energy is seen as the sustainable solution, and individuals, businesses, and governments must invest in it.[5] Vermont legislators must now come together and encourage pumped hydropower energy storage technologies.

            Pumped hydropower energy storage is an energy storage technology that pumps water from a lower elevation to a higher elevation and uses the natural power of gravity to generate electricity when needed.[6] There are two primary forms of pumped hydropower energy storage: open-loop and closed-loop.[7] Closed-loop pumped hydropower energy storage has considerably less potential for an adverse environmental impact than an open-loop system.[8] Open-loop projects connect a naturally flowing waterway from a lower elevation to a reservoir at a higher elevation for the energy storage system.[9] In contrast, closed-loop pumped hydropower energy storage systems are not connected to a naturally flowing waterway.[10]

            Pumped hydropower energy storage systems are essential to combat issues of curtailment.[11] Curtailment is the process that occurs when there is more energy produced than required by the demand within the energy grid.[12] An energy grid is a network of power generation sources, transmission lines, and distribution systems that work to provide electricity for end-use consumers.[13] The electricity grid is designed to deliver reliable and continuous electricity to meet the required demand of the end-use consumers.[14] Wind power only produces energy when the wind is blowing, and the sun only produces energy when the sun is shining.[15] This intermittent power supply does not always match the needed demand of the electricity grid.[16] A pumped storage hydropower energy system can store the energy when demand is needed rather than let the excess energy be produced from renewable sources.[17]

            Humanity has developed an antagonistic relationship with Mother Earth, and it’s time to stop it. It is possible to change the sources of energy that provide power for society. Closed-circuit pumped hydropower storage is necessary for the renewable energy mix to provide a sustainable grid. Investing in reliable renewable energy in Vermont will help contribute to a sustainable future.

[1] See 1771 U.N.T.S. United Nations Framework Convention on Climate Change (1992) (showing the human effect on the environment).

[2] Joseph Manning, Myopic Madness: Breaking the Stranglehold of Shareholder Short-Termism to Address Climate Change and Build a Sustainable Economy, 10 Ariz. J. Env’t L. & Pol’y 425, 438 (2020).

[3] See generally John A. Sautter, The Energy Trilemma in the Green Mountain State: An Analysis of Vermont’s Energy Challenges and Policy Options, 10 Vt. J. Env’t L. 477 (2009).

[4] Id.

[5] Steven Chu & Arun Majumdar, Opportunities and Challenges for a Sustainable Energy Future, 488 nature 294 (2012).

[6] Types of Hydropower Plants, Energy.gov, https://www.energy.gov/eere/water/types-hydropower-plants#:~:text=SIZES%20OF%20HYDROELECTRIC%20POWER%20PLANTS&text=Although%20definitions%20vary%2C%20DOE%20defines,than%2030%20megawatts%20(MW).&text=Although%20definitions%20vary%2C%20DOE%20defines%20small%20hydropower%20plants%20as%20projects,100%20kilowatts%20and%2010%20MW (last visited Dec. 3, 2023).

[7] WPTO Studies Find Big Opportunities to Expand Pumped Storage Hydropower, Energy.gov (June 13, 2022), https://www.energy.gov/eere/water/articles/wpto-studies-find-big-opportunities-expand-pumped-storage-hydropower.

[8] Id.

[9] Id. A naturally flowing waterway is an overly broad term used as an ambiguous catch-all term to entail all waterways that naturally flow without man-made origins. Id.

[10] Id.

[11] Paul Denholm et al., Overgeneration from Solar Energy in California: A field Guide to the Duck Chart 1-10 (2015); David Roberts, Solar Power’s Greatest Challenge was Discovered 10 Years ago. It Looks Like a Duck., Vox (Aug. 29, 2018), https://www.vox.com/energy-and-environment/2018/3/20/17128478/solar-duck-curve-nrel-researcher.

[12] Paul Denholm et al., supra note 11; David Roberts, supra note 11.

[13] Paul Denholm et al., supra note 11; David Roberts, supra note 11.

[14] Paul Denholm et al., supra note 11; David Roberts, supra note 11.

[15] David Roberts, supra note 11, at 15.

[16] Paul Denholm et al., supra note 11; David Roberts, supra note 11.

[17] Energy.gov, supra note 7.

Regenerative Agriculture: A Pro-Cattle Approach to Climate Change Mitigation

Healthy soil as the result of regenerative agriculture on Breen Mesa Farm in Hesperus, Colorado.

 

By Katherine Potter | Articles Editor

December 1, 2023

Agriculture touches nearly every element of human life.[1] Despite increased urbanization within the United States,[2] agriculture retains it substantial influence. While four in five United States citizens currently reside, work, or recreate in urban settings, urban land comprises merely 3.6% of domestic land coverage.[3]

            The remaining 96.4% of the 2.3 billion acres of United States land is subject to some other type of land management.[4] Forested land constitutes 28% of total United States land use and cropland accounts for 17%.[5] Grassland pasture and rangeland comprise the largest type of land use, totaling nearly one third of United States land management.[6] Combined, the United States uses 897,400,000 acres for farming.[7]

            Mismanaged agriculture is a key contributor to global climate change. Conventional agricultural practices like mechanized plowing of the land, grazing animals in stationary paddocks, and monocropping cause soil erosion and land depletion.[8] These practices also pollute water, threaten ecosystems, and increase invasive species.[9] Conventional agriculture is extractive.[10]

            The harm that many conventional agricultural practices cause demonstrates the need to shift the agricultural paradigm from the current extractive land management approach to a restorative land management approach. Regenerative agriculture answers this call.[11] Multiple principles of land management define regenerative agriculture, including reducing land tillage, using cover crops, and most importantly, integrating livestock into the land.[12] These principles all aim to achieve regenerative agriculture’s goal of “nourishing” human relationships with the earth.[13] In other words, regenerative agriculture is restorative.

            Mismanagement of livestock has fostered widespread anti-livestock sentiment.[14] Public perceptions direct the most negative feelings toward cattle, overshadowing the positive impacts cattle can have on the environment.[15] Managing cattle in accordance with regenerative agriculture—namely integrating them into the land—mitigates soil erosion,[16] increases the resiliency of soils to climate change,[17] and is a fundamental element of grassland health, which is particularly significant considering the prevalence of grasslands in the United States.[18] Most importantly, cattle management that complies with regenerative agriculture increases soil health which sequesters more atmospheric carbon dioxide and substantially mitigates climate change.[19]

            To combat the damaging environmental effects of conventional agriculture, law and policymakers should direct more effort to moving the United States away from conventional agriculture and towards regenerative agriculture. The Federal Government is already increasing funding for progressive agricultural programs through its Inflation Reduction Act.[20] The Federal Government should capitalize off this momentum by enhancing its other laws and programs.

            On a smaller scale, state lawmakers should work within existing state land-use regimes to mandate changes to livestock management. For example, the state of Colorado’s legislature codified the 1954 Dust Blowing Act.[21] The Act requires Colorado’s landowners and occupiers to fulfill listed obligations—like planting perennial grasses—to prevent soil erosion.[22] The Colorado Legislature should strengthen this list by requiring Coloradans to integrate their cattle into their land. Likewise, other state legislatures should examine their statutory codes and amend those statutes to require that cattle owners integrate their cattle into the land. Shifting states with robust animal agriculture regimes to regenerative agriculture allows cattle to serve as a climate change solution.

 

[1] See generally, Emily M. Broad Leib et al., The Urgent Call for a U.S. National Food Strategy 7–8 (Esther Akwii et al. eds., 2020) (describing the interrelated impacts of food and agriculture on the environment, economy, and human health during the aftermath of the COVID-19 pandemic).

[2] Daniel P. Bigelow & Allison Borchers, Major Uses of Land in the United States, 2012, U.S. Dep’t. of Agric. (2017), https://www.ers.usda.gov/webdocs/publications/84880/eib-178_summary.pdf?v=4455.7 (noting that urban land increased from by 10 million acres from 2002 to 2012 and increased twice as fast as population increased across most of the 1900s).

[3] Dave Merrill & Lauren Leatherby, Here’s How America Uses Its Land, Bloomberg (2018), https://www.bloomberg.com/graphics/2018-us-land-use/.

[4] Bigelow, supra note 2.

[5] Id.

[6] Id.

[7] Nat’l Agric. Stat. Surv., Farms and Land in Farms 2019 Summary, U.S. Dep’t. of Agric., 4 (2020), https://www.nass.usda.gov/Publications/Todays_Reports/reports/fnlo0220.pdf.

[8] Moises Valasquez-Manoff, Can Dirt Save the Earth?, N.Y. TIMES MAG. (2018), https://www.nytimes.com/2018/04/18/magazine/dirt-save-earth-carbon-farming-climate-change.html.

[9] What are the trends in land use and their effects on human health and the environment?,  Env’t. Prot. Agency (October 4, 2022), https://www.epa.gov/report-environment/land-use.

[10] Jenileigh Harris, Managed Rotational Grazing Policies: An Overview of Farm Bill Programs to Support Regenerative Agriculture 6 (Cathy Day et al. eds., 2023).

[11] NRDC, Regenerative Agriculture 101, NRDC (2021), https://www.nrdc.org/stories/regenerative-agriculture-101. While the phrase “regenerative agriculture” has only recently entered public discourse, Indigenous Peoples and Native Americans first stewarded the land. Regenerative agriculture draws significantly from Indigenous knowledge and practices.

[12] Peter Newton et al., What Is Regenerative Agriculture? A Review of Scholar and Practitioner Definitions Based on Processes and Outcomes, 4 Frontiers in Sustainable Food Sys. 1, 5 (2020).

[13] NRDC, supra note 11.

[14] Debra L. Donahue, Livestock Production, Climate Change, and Human Health: Closing the Awareness Gap, 45 Envtl. L. Rep. News & Analysis 11112 (2015) (arguing that “[l]ivestock should be removed from public lands for myriad reasons”).

[15] Alexia Brunet Marks, (Carbon) Farming Our Way Out of Climate Change, 97 Denv. L. Rev. 497, 501–2 (2020); John A. Stanturf, Soils are fundamental to landscape restoration, in Soils and Landscape Restoration 22–3 (John A. Stanturf & Mac A. Callaham Jr. eds., 2020) (describing why misconceptions about cattle causing significant methane emissions and creating desertification are scientifically misdirected).

[16] Shannon Avery Hughes, Global Sustainable Farming and the “SoCo” Soil Conservation Project, 45 Denv. J. Int’l L. & Pol’y 431, 439–40 (2017)

[17] Diana Rodgers & Robb Wolf, Sacred Cow: The Case for (Better) Meat 119 (Claire Schulz, ed., 2020).

[18] Id. (stating that “grasslands need [cattle] to be healthy”).

[19] Marks, supra note 15, at 509.

[20] See generally, Harris, supra note 10, at 8.

[21] Colo. Rev. Stat. § 35-72-101.

[22] Colo. Rev. Stat. § 35-72-102.

Redefining Debt: Reducing Incarceration Through Expanded Debt Collection Protections

 

By Serena Nelson | Senior Managing Editor

November 30, 2023

Fun fact: Debt collectors can harass formerly incarcerated individuals paying off court-related debt without legal repercussions. Why? Certain payments—justice-related charges—fall outside the regulatory scope of consumer protection law.

Justice-related Charges

Justice-related charges are an “assortment of fees assessed by the justice system” including “costs associated with pretrial detention,” “a public defender,” and “general court administration.”[1] These charges also include fees associated with financial products and services incarcerated individuals must use throughout the criminal justice system.[2] The Fair Debt Collection Practices Act of 1977 (FDCPA), the most comprehensive debt collection law, does not prohibit abusive collection practices involving justice-related charges.[3] Justice-related charges fall outside the law’s definition of debt because these charges are not traditional forms of consumer debt like mortgage loans.[4]

Why We Should Care About Justice-related Charges

Due to the increased number of incarcerated people in federal, state, and local correctional facilities over the past several decades, state legislatures have “sought ways to pay for these systems.”[5] The most common solution imposes a variety of fees and fines on the individual charged with the crime.[6] Reliance on these fees and fines could “incentivize certain policing behaviors”[7] such as issuing more traffic tickets when localities face revenue declines.[8] This reliance may incentivize certain policing behaviors and indicate that state legislatures are not taxing and budgeting properly. These actions open the door to an exploitive and unregulated debt collection market monopolized by a few private entities.

Federal and state agencies contract with private parties to collect justice-related charges.[9] These private entities tend to control a large share of the justice-related debt collection market,[10] using their government relationships to threaten formerly incarcerated individuals.[11] Normally, these threats would violate the FDCPA if the law covered justice-related charges. In effect, governments and private entities work together to exploit these individuals and sabotage any chance for successful reentry into society.

Unsurprisingly, the consequences of incarceration and justice-related charges fall heavily on people of color,[12] often leading to prolonged contact with the criminal justice system. These individuals face various financial challenges at each stage of the justice system, from arrest to reentry.[13] At the pretrial stage, people may accept commercial bond agreements “under duress” without reviewing the terms and conditions.[14] During incarceration, people and their families must use high-cost money-transfer services to pay for essential goods.[15] Upon reentry, formerly incarcerated individuals often must choose between making payments they may struggle to afford and risk arrest, prosecution, or reincarceration.[16]

Additionally, justice-involved individuals face “barriers” to accessing the broader financial marketplace, including consumer credit, jobs, housing, and higher education opportunities.[17] These barriers increase the likelihood of continued involvement in the criminal justice system.[18] This comes at a significant cost to the individual, the justice system, and their communities[19] forcing a person to seek other avenues—potentially illegal avenues—to make income. Thus, the system jeopardizes a person’s attempts to successfully reenter society and avoid committing repeat offenses.

Ensuring successful reentry into society for justice-related individuals is in the public interest.[20] In the interest of justice, fairness, and safety, Congress should amend the FDCPA to redefine “debt” to include justice-related fees and fines and close the loophole.

We Have the Tools to Address the Problem

Congress enacted the FDCPA to target debt collectors engaging in these abusive behaviors.[21] Before the law’s enactment, debt collectors frequently used abusive and deceptive tactics including sending consumers “phony legal documents”; harassing consumers via “phone at home and work” by “impersonat[ing] attorneys and policemen”; and using “threats of bodily harm or death.”[22] Once these practices began crossing state lines (through toll-free long-distance phone calls[23]), Congress stepped in to prohibit these acts. [24] In a successful lawsuit, plaintiffs can collect actual and punitive damages.[25]

The law protects consumers, promotes consistent and uniform state action in debt collection regulation, [26] and promotes fairness among debt collectors who already refrain from these practices.[27] The key to winning an FDCPA lawsuit is proving the collection activity relates to a “debt” as defined by the FDCPA. Justice-related charges “claims” struggle to meet the FDCPA’s “debt” definition.[28]

Why the FDCPA Ignores Justice-related Charges

The FDCPA defines “debt” narrowly, basing the definition on the debt most prevalent when Congress enacted the law—mortgages and other consumer loans.[29] To determine whether something is FDCPA debt, courts look to the purpose of the debt at its initiation.[30] A debt must arise out of a transaction for “personal, family, or household purposes.”[31] For example, if a person purchases socks using a credit card, the purchaser incurred a “debt” for “personal” purposes.

In contrast, justice-related charges are public payments because they arise from a crime or a form of punishment.[32] Public payments include delinquent tax payments[33] and toll charges.[34] However, courts consider some arguably public payments such as utility and parking fees to be FDCPA “debts.” For example, a homeowner’s obligation to pay government entities for water and sewer service is a FDCPA debt[35] as is a debt to pay a parking ticket.[36] Thus, justice-related charges imposed on a person are not considered “debts” under the FDCPA, leaving a hole in the most comprehensive debt collection law for debt collectors to manipulate.

How We Fix This

Congress must act now to bring the FDCPA into the 21st century. Expanding the FDCPA’s “debt” definition to include justice-related charges furthers the law’s original purpose to prevent abusive debt collection practices and promote fairness among debt collectors. Because incarceration rates increased over the past four decades,[37] justice-related charges are slowly becoming one of the most prevalent forms of debt plaguing Americans—especially the poor and people of color. [38]

Amending the law also supports states’ recidivist goals. Under the FDCPA’s protections, formerly incarcerated individuals may successfully reenter society without living under the fear of abusive practices. Amending the FDCPA is Congress’s best option for tackling this issue because Congress is familiar with the FDCPA and already has an independent agency—the Consumer Financial Protection Bureau—dedicated to enforcing this law. Congress must amend the FDCPA’s definition of “debt” to include justice-related charges.

[1] U.S. Dep’t of Just.: Off. of Just. Programs Diagnostic Ctr., Resource Guide: Reforming the Assessment and Enforcement of Fines and Fees 2 (2016), https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/finesfeesresguide.pdf

[2] Consumer Fin. Prot. Bureau, Justice-Involved Individuals and the Consumer Financial Marketplace § 4, at 27 (2022), https://files.consumerfinance.gov/f/documents/cfpb_jic_report_2022-01.pdf (discussing “prepaid release cards,” the device correctional facilities use to return confiscated money to individuals once incarceration ends).

[3] U.S. Dep’t of Just., supra note 1, at 2; Consumer Fin. Prot. Bureau, supra note 2, § 4, at 27.

[4] Fair Debt Collection Practices Act of 1977, 15 U.S.C. § 1692a(5) (2018).

[5] Consumer Fin. Prot. Bureau, supra note 2, § 5.1, at 37.

[6] Id. (including charges related to court, court-appointed lawyers, drug testing, prison library use, jail or prison room and board, and probation supervision).

[7] Id. § 5.1, at 38–39, n.191. In 2012, 19,522 municipalities existed in the United States. Census Bureau Reports There Are 89,004 Local Governments in the United States, U. S. Census Bureau (Aug. 30, 2012), https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[8] Consumer Fin. Prot. Bureau, supra note 2, § 5.1, at 38–39.

[9] Id. § 5.2, at 41.

[10] See Parolee Restitution Payment Instructions, Cal. Dep’t of Corr. & Rehab., https://www.cdcr.ca.gov/victim-services/parolee-payment-instructions (last visited Nov.      6     , 2023). JPay, Inc. is one of the largest private entities. JPay offers corrections-related services in over 35 states across the United States. See About JPay, JPay, https://www.jpay.com/AboutUs.aspx (last visited Nov.      6     , 2023); see also CFPB Penalizes JPay for Siphoning Taxpayer-Funded Benefits Intended to Help People Re-enter Society After Incarceration, Consumer Fin. Prot. Bureau (Oct. 19, 2021), https://www.consumerfinance.gov/about-us/newsroom/cfpb-penalizes-jpay-for-siphoning-taxpayer-funded-benefits-intended-to-help-people-re-enter-society-after-incarceration. Because there is little to no choice over which service providers to use, incarcerated individuals—including formerly incarcerated individuals—and their loved ones are often backed into a corner. Consumer Fin. Prot. Bureau, supra note 2, § 1, at 4.

[11] Consumer Fin. Prot. Bureau, supra note 2, § 1, at 3, 5. For example, private companies that contract with governments to run diversion programs sometimes make misleading claims about the legal consequences of not participating in diversion programs. They then use their relationship with prosecutors to threaten people with criminal prosecution for unpaid fees.

[12] Id. § 1, at 3–4. In 2019, Black adults were five times more likely to be incarcerated than whites. Hispanics were two and a half times as likely and American Indians and Alaskan Natives were twice as likely as whites to be incarcerated.

[13] Id. § 1, at 3.

[14] See id. at 2 (noting private bond companies may not provide agreement terms in a language a person understands).

[15] See id. § 3.1, at 14, § 1, at 4. JPay, Inc. is one of the main private entities state governments contract with to collect justice-related fees and fines. See Evan Weinberger, Inmate Families Face Cash-Transfer Fees ‘Just to Stay Connected’, Bloomberg L. (Jan. 11, 2022), https://news.bloomberglaw.com/banking-law/inmate-families-face-cash-transfer-fees-just-to-stay-connected.

[16] Id. § 1, at 4.

[17] Id. § 4.5, at 35 (“Imprisonment leads to a gap in a prospective borrower’s employment history and income that could pose problems when a lender examines an application’s creditworthiness and ability to repay the loan.”).

[18] Incarceration & Reentry, Off. of the Assistant Sec’y for Plan. & Evaluation, https://aspe.hhs.gov/topics/human-services/incarceration-reentry-0 (last visited Nov. 6     , 2023).

[19] Consumer Fin. Prot. Bureau, supra note 2, § 1, at 4.

[20] Id.

[21] Fair Debt Collection Practices Act of 1977, 15 U.S.C. § 1692e(4) (2018); H.R. Rep. No. 95-131, at 144 (1977).

[22] H.R. Rep. No. 95-131, at 144 (1977).

[23] Wide Area Telephone Service (WATS) was a long-distance phone service that allowed customers to make calls across state lines, and it was the first toll-call system. WATS – Wide Area Telephone Service, pulsar360, https://www.pulsar360.com/resources/glossary/wats-wide-area-telephone-service (last visited Nov. 6     , 2023).

[24] H.R. Rep. No. 95-131, at 145 (1977). At the time, there were 5,000 debt collectors across all states—37 states and the District of Columbia had laws that regulated debt collectors. Id. Only a small number of these laws prohibited abusive practices and provided consumers with remedies.

[25] 15 U.S.C. § 1692k(a) (2018) (noting a consumer may collect actual damages, punitive damages up to $1,000 for each individual, and up to $500,000 or one percent of the debt collector’s net worth, whichever is less).

[26] Id.

[27]24 15 U.S.C. § 1692(e).

[28] See Franklin v. Parking Revenue Recovery Servs., Inc., 832 F.3d 741 (7th Cir. 2016).

[29] Between 1940 and 1970, the most prevalent forms of debt were “farm loans, home mortgage loans, and corporate debt” and “consumer loans.” See Robert A. Kagan, The Routinization of Debt Collection: An Essay on Social Change and Conflict in the Courts, 18 L. & Soc’y Rev. 323, 329 (1984) (footnote omitted).

[30] Dressler v. Equifax, Inc., 805 F. App’x 968, 973 (11th Circ. 2020).

[31] 15 U.S.C. § 1692a(5) (emphasis added).

[32] See St. Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898 F.3d 351, 364 (3d Cir. 2018); see also, e.g., Mabe v. G.C. Servs. Ltd. P’ship, 32 F.3d 86, 88 (4th Cir.1994) (holding child support payments are not “debt” because they are “not incurred to receive consumer goods or services”); Hawthorne v. Mac Adjustment Inc., 140 F.3d 1367, 1371 (11th Cir.1998) (holding obligation to pay damages arising from tort was not a “transaction” under the FDCPA); Sheriff v. Gillie, 578 U.S. 317, 321 (2016) (defining debts owed to state agencies such as “past-due tuition owed to public universities and unpaid medical bills from state-run hospitals” as “debts” under the FDCPA).

[33] See Dressler, 805 F. App’x at 973 (reasoning taxes cover a public benefit rather than a private benefit).

[34] St. Pierre, 898 F.3d at 361 (3d Cir. 2018).

[35] See Piper v. Portnoff L. Assocs., 274 F. Supp. 2d 681, 687–88 (E.D. Pa. 2003), aff’d, 396 F.3d 227 (3d Cir. 2005) (reasoning money owed for water and sewer service were “debts” because they originated as part of a contractual obligation with the government for a household service).

[36] Franklin v. Parking Revenue Recovery Servs., Inc., 832 F.3d 741, 744 (7th Cir. 2016).

[37] Briana Hammons, Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?, Fines & Fees Just. Ctr. 4 (2021), https://finesandfeesjusticecenter.org/content/uploads/2021/04/Tip-of-the-Iceberg_Criminal_Justice_Debt_BH1.pdf. This number reflects court debt in the following states: Alabama, Alaska, Arkansas, California, Colorado, Delaware, Florida, Hawaii, Iowa, Kentucky, Minnesota, Missouri, New Hampshire, New York (NYC only), North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, and Washington.

[38] Consumer Fin. Prot. Bureau, supra note 2, § 1, at 34.

Book Bans and the First Amendment: How the Removal of LGBTQ-centric Books Violates the First Amendment’s Prohibition on Viewpoint Discrimination

Images were generated using AI, specifically OpenAI’s DALL·E

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By Ian McDonald | Articles Editor

November 29, 2023

Introduction

            There has been an “unprecedented uptick” in book challenges.[1] There are some similarities between this moral panic and those that have preceded it, specifically the focus on protecting children.[2] This time, however, the challenges target LGBTQ-authored or LGBTQ-centric books.[3] While these challenges are justified by smearing the materials as obscene or inappropriate, the claim is often entirely without merit.[4] Instead, the differential treatment against materials with a pro-LGBTQ lean constitutes a viewpoint-based regulation on speech, prohibited by the First Amendment.[5]

            Public school libraries have been one of the primary locations for this battle.[6] The unique nature of public school libraries has left the question of when a book is protected by the First Amendment murky. When analyzing the removal of books from public school libraries, there are at least three parties with implicated legal interests: parents, schools, and students.

  1. Parents

            Parents have an interest in how they raise their kids. The Supreme Court has long recognized that the Fourteenth Amendment’s Due Process Clause protects parents’ right to “establish a home and bring up children.”[7] However, this right is not absolute[8]—particularly with regards to public school curriculum.[9] Most relevant here, a parent’s right to control their child’s upbringing does not “encompass[] a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children.”[10] Parents cannot be forced to send their children to a state-sponsored school.[11] Once enrolled, though, a parents interest in directing their child’s education does not supersede the government’s interest in controlling curriculum.[12]

  1. Schools

            The government, through school boards, has an interest in “inculcating fundamental values necessary to the maintenance of a democratic political system.”[13] As “a principal instrument in awakening the child to cultural values,”[14] the Supreme Court has granted school administrators broad discretion over curriculum and curricular activities.[15] Curricular expressive activity may be restricted so long as the restriction is reasonably related to legitimate pedagogical concerns.[16] In this context, curricular activities are activities: (1) “supervised by faculty members”; (2) “designed to impart particular knowledge or skills to student participants and audiences”; and that (3) “might reasonably [be] perceive[d] to bear the imprimatur of the school.”[17] However, the discretion is limited when analyzing speech rights in a non-curricular context.[18]

  1. Students

            It is well established that students do not “shed their constitutional rights . . . at the schoolhouse gate.”[19] Even so, those rights must be evaluated in the unique context of the school environment.[20] Under Tinker, students are free to exercise their First Amendment rights so long as that exercise does not “materially and substantially interfere” with the “work of the school.”[21] Restrictions on non-curricular student speech are evaluated under this more speech-permissive test.

            In summary: when material is properly considered curricular, the school may restrict students’ First Amendment rights when the restriction is reasonably related to legitimate pedagogical concerns. On the other hand, the First Amendment rights of students in non-curricular environments can be curtailed only if the speech would “materially and substantially interfere” with the “work of the school.”[22]

  1. First Amendment Rights in the Context of Public School Libraries

            If, under the conditions outlined above, students retain First Amendment rights while at school, the question becomes this: does the First Amendment offer any protection for books in a public school library? The Supreme Court has never coherently answered this question.[23] The lone opinion on point features seven opinions (a plurality, two concurrences, and four dissents).[24] There was broad agreement, however, that it would be improper for a school board to remove books from a public school library for discriminatory reasons.[25] Further, the principle that the First Amendment prohibits the removal of books from a public school library for discriminatory purposes tracks with Supreme Court jurisprudence on public forums and government speech. 

            First Amendment rights on government property implicates the public forum doctrine. Broadly speaking, the public forum doctrine describes types of public property and the varying levels of government power to regulate private speech rights on each type.[26] The Supreme Court has never clarified how to categorize a public school library.[27] Regardless, even at its most restrictive, the public forum doctrine does not allow viewpoint-based discrimination.[28]

            Additionally, an “important interplay exists” between the public forum doctrine and the government speech doctrine.[29] Under this doctrine, the “government may engage in viewpoint discrimination in choosing what positions to favor . . . in the exercise of its own speech.”[30] Thus, government speech is immune from challenge under the First Amendment.[31] In the context of schools, curricular material covered by Hazelwood is analogous to government speech.[32] The government retains broad, even discriminatory, discretion.[33] Non-curricular speech, then, is covered by the public forum doctrine—and the accompanying prohibition on viewpoint-based discrimination.[34]

            Accordingly, public school administrators should tread lightly around removing LGBTQ-centric materials from libraries. While school administrators may remove materials under certain conditions, a pro-LGBTQ message is not a permissible reason for removal. Rather, removing pro-LGBTQ material over disagreement with the message is prohibited viewpoint discrimination.

 

[1] Susanna Granieri, An Unprecedented Uptick in Book Bans Brings First Amendment Scrutiny, First Amendment Watch (Sept. 14, 2022), https://firstamendmentwatch.org/an-unprecedented-uptick-in-book-bans-brings-first-amendment-scrutiny. See also Toby Chavez, As LGBTQ book challenges rise, some Louisiana librarians are scared to go to work, PBS (Feb. 27, 2023), https://www.pbs.org/newshour/nation/as-lgbtq-book-challenges-rise-some-louisiana-librarians-are-scared-to-go-to-work.

[2] See, e.g., Jeremy C. Young & Jonathan Friedman, Opinion, Today’s book bans echo a panic against comic books in the 1950s, Washington Post (Oct. 17, 2022), https://www.washingtonpost.com/made-by-history/2022/10/17/book-ban-comic-books-panic/ (comparing today’s book bans to the 1950s panic against comic books).

[3] See, e.g., Scott McFetridge et al., School library book bans are seen as targeting LGBTQ content, AP NEWS (Mar. 20, 2023), https://apnews.com/article/lgbtq-book-bans-91b2d4c086eb082cbecfdda2800ef29a (discussing how school library book bans are targeting LGBTQ content); Sabrina Baêta, Frequently Banned Books Featuring Transgender Stories, PEN (Mar. 30, 2023), https://pen.org/banned-books-transgender-stories (noting that stories featuring transgender individuals and characters make up roughly 9% of banned books, despite their underrepresentation); Chavez, supra note 1 (“The majority of the book challenges across Louisiana last year focused on titles for children and young adults with LGBTQ themes.”).

[4] For example, the children’s book And Tango Makes Three—a heartwarming tale based on a true story about two male penguins hatching and nurturing a chick of their own—has been, and remains, one of the most challenged titles. See Barbara Jones, And Tango Makes Three waddles its way back to the number one slot as America’s most frequently challenged book, American Library Association (Apr. 11, 2011), https://www.ala.org/news/press-releases/2011/04/and-tango-makes-three-waddles-its-way-back-number-one-slot-america’s-most (noting how Tango was the fourth-most frequently challenged book of the 2000’s and the sixth-most challenged book of the 2010’s). See also Brooke Leigh Howard, Florida School District Bans a Book on . . . Penguins, Daily Beast (Feb. 22, 2023), https://www.thedailybeast.com/and-tango-makes-three-florida-school-district-bans-a-book-on-penguins; Donald Padgett, Florida School District Bans Book on Penguin Couple, Advocate (Jan. 10, 2023) https://www.advocate.com/news/2023/1/10/florida-school-district-bans-book-penguin-couple-dont-say-gay.

[5] See Elizabeth M. Glazer, When Obscenity Discriminates, 102 Nw. U.L.Rev. 1379, 1426–27 (arguing that, in light of Lawrence v. Texas, 539 U.S. 558 (2003), “homosexuality [was] transform[ed], for First Amendment purposes, from subject matter to viewpoint.”); See also Rosenberger v. Rectors and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (“When the government targets . . . particular views . . . , the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (internal citations omitted).

[6] Am. Libr. Ass’n, The State of America’s Libraries 2 (2022) (noting that 44% of challenges are to books in school libraries).

[7] Meyer v. Nebraska, 262 U.S. 390, 399 (1923). See also, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (striking down a state law on the basis that it “unreasonably interfere[d] with the liberty of parents . . . to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“[T]he custody, care and nurture of the child reside first in the parents.”).

[8] See, e.g., Runyon v. McCrary, 427 U.S. 160, 177 (1976) (holding that a parent’s right to control their child’s education did not include having your child educated in a private racially segregated school); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 291 (5th Cir. 2001) (discussing other cases that have limited parental oversight); Murphy v. State of Arkansas, 852 F.2d 1039 (8th Cir. 1988) (hold that homeschooled children may be subjected to standardized tests, even over parental objection).

[9] Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699 (10th Cir. 1998) (“Parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject.”).

[10] Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525, 533 (1st Cir. 1995). Here, the 1st Circuit rejected this interpretation, holding that “the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.” Id. at 534. Otherwise, “schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter.” Id.

[11] Wisconsin v. Yoder, 406 U.S. 205, 235–36 (1972).

[12] See, e.g., Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005) (concluding that the parents’ right to control a child’s education “does not extend beyond the threshold of the school door”); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005) (“[P]arents may have a fundamental right to decide whether to send their child to public school, they do not have a fundamental right to direct how a public school teaches their child.”) (emphasis omitted).

[13] Ambach v. Norwick, 441 U.S. 68, 76–77 (1979).

[14] Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

[15] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988).

[16] Id. at 273.

[17] Id. at 271.

[18] Id.

[19] Tinker v. Des Moines Indep. City Sch. Dist., 393 U.S. 503, 506 (1969). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (holding that school boards must perform their “important, delicate, and highly discretionary functions . . . within the limits of the Bill of Rights”).

[20] Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)); see also Thomas v. Board of Education, Granville Central Sch. Dist., 607 F.2d 1043, 1057 (CA2 1979) (Newman, J., concurring) (“[T]he First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.”).

[21] Tinker, 393 U.S. at 509

[22] Id.

[23] See generally Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982).

[24] See id. at 855–75 (Brennan, J., plurality); id. at 875–82 (Blackmun, J., concurring); id. at 883–84 (White, J., concurring); id. at 885–93 (Burger, C.J., dissenting); id. at 893–903 (Powell, J., dissenting); id. at 904–20 (Rehnquist, J., dissenting); id. at 921 (O’Connor, J., dissenting). Brennan based his plurality opinion on the students’ right to receive information under the First Amendment. Blackmun concurred in judgment but based his analysis on the First Amendment’s prohibition on viewpoint-based discrimination.

[25] Id. at 870–72 (Brennan, J., plurality) (“[S]chool boards may not remove books . . . simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox . . . .”) (internal citations omitted); id. at 879 (Blackmun, J., concurring) (“[T[he State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.”); id. at 883 (White, J., concurring) (concurring with the judgment on the basis that summary judgment was precluded due to an unresolved material issue of fact. That unresolved material issue of fact, “as [White] underst[oo]d it” was the reason or reasons underlying the book’s removal. By concurring, White’s opinion is best understood as an agreement, however tacit, that school boards exceed their discretion when they remove materials for discriminatory reasons); id. at 907 (Rehnquist, J., dissenting) (“cheerfully conced[ing]” that it would be improper for a school board, motivated by racial animus, to remove all books by Black authors).

[26] See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983). There is a significant amount of confusion over the contours of these categories. See generally, Marc Rohr, First Amendment Fora Revisited: How Many Categories Are There?, 41 Nova L. Rev. 221 (2017) (discussing uncertainty surrounding the public forum doctrine; analyzing the different, often overlapping, ways the Supreme Court and lower courts have defined and applied the public forum categories, and; questioning the usefulness of the doctrine).

[27] In U.S. v. American Library Ass’n, Inc., a plurality of the Court categorized (non-school) public libraries as a non-public forum for the purposes of evaluating an Internet filter. U.S. v. American Library Ass’n, Inc., 539 U.S. 194, 204–07 (2003). However, that case centered on adding material to the library. This distinction is crucial under the public forum doctrine. Once the government opens a nonpublic forum to certain categories of speech, it cannot discriminate within that category based on viewpoint.

[28] See Perry, 460 U.S. at 46; Rosenberger, 515 U.S. at 829. See also Pico, 457 U.S at 881 (Blackmun, J., concurring) (“While the State may act as ‘property owner’ when it prevents certain types of expressive activity from taking place on public lands, . . . few would suggest that the State may base such restrictions on the content of the speaker’s message, or may take its action for the purpose of suppressing access to the ideas involved.”) (citing Police Dept. of Chicago v. Mosley, 408 U.S. at 96) (internal citation omitted).

[29] Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:1:50 (2022).

[30] Id. See also Rust v. Sullivan, 500 U.S. 173, 193 (1991).

[31] See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).

[32] See Pico, 457 U.S. at 908–09 (Rehnquist, J., dissenting) (noting the special role of the government when acting as educator); id. at 921 (O’Connor, J., dissenting); Ronna Greff Schneider, 1 Education Law §2.8 Curriculum (2022) (“The school’s curriculum may be viewed as the speech of the school itself.”).

[33] See, e.g., Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 97 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010) (upholding school’s ability to limit parental speech, when that parent is participating in curricular activities); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir. 1989) (“[T]he [F]irst [A]mendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.”); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332 (6th Cir. 2010), cert. denied, 131 S. Ct. 3068 (2011) (“A teacher’s curricular and pedagogical choices are categorically unprotected, whether under Connick or Garcetti.”). But see Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021) (concluding that a university could not, under the First Amendment, terminate a professor who insisted on misgendering their students in class. The court held that, while the professor had made statements pursuant to their official duties, Garcetti did not apply because of an academic exception to the public employee speech doctrine. Further, the court held that the mandatory use of preferred pronouns in the classroom was a matter of public concern under the Pickering-Connick test. Because of this, and the importance of academic freedom in a state university, the court held that the professor’s speech was protected)

[34] See Brown v. Bd. of Regents of Univ. of Neb., 640 F. Supp. 674 (D. Neb. 1986) (holding that the university’s decision to cancel the viewing of a controversial movie was a non-curricular decision and therefore must be viewpoint neutral)

Environmental Law, Time, and Environmental Disasters

By Alexis McCullough | Articles Editor

November 28, 2023

The law has shaped how humans react and are affected by the environment. Even when the environment is affected by pollution, fires, or other disasters, there is little focus on ecological sustainability and restoration or slow, insidious environmental impacts such as climate change or accumulating plastics on Earth. Instead, the legislature ordered the law around our collective human destiny. Pollution and other environmental disasters can also bring a great risk to nature and to humans, and the cumulative effects are over a long period of time often unknown until too late because of poor cost-benefit and risk analysis.[1] Water and air pollution have been a problem since the earliest days of human civilization––largely because of human activity from farming and metallurgy––and continues even now in the modern era.[2] Humans have a great impact on the Earth’s atmosphere and its water resources, yet the scientific knowledge gained over the last century or so has brought to light just how great our impact really is. 

Rising greenhouse gases drive climate change and alter the atmosphere composition, which can bring dangerous weather and the warming of the Earth.[3] Substances not occurring in nature and human-invented such as per- and polyfluorinated alkyl substances (PFAS), or forever chemicals, can be found in the water and air.[4] Unfortunately, PFAS can also be found in human and animal blood all over the world and cannot safely be broken down.[5] The above environmental problems pose a gap in the law: the law can only go so far in its reach when the scale goes beyond what the human mind can comprehend.

There is a question of risk. How much humans are willing to tolerate if the body was never meant to defend itself against pollution? Quite a lot because humans are adaptable. But tolerance might come from ignorance or the lack of being able to track the changes over years and years. Unravelling the slow violence of environmental harm and harm to human health and starting the path to a sustainable restoration requires restructuring of environmental law. Environmental law needs to adapt so that it can control rapid and far-reaching harms from long-term health effects on humans and the ecosystem, and ensure an obligation to the future to prevent nature from unraveling in response to anthropogenic changes. 

Adapting environmental laws to be more flexible would control situations when harms occur slowly or too quickly.[6] Resonance is likely necessary to allow the law to reach across other timespans––giving the law more flexibility would allow governments to anticipate the new harms and to prepare for the future; flexibility is also needed to adapt from past events.[7] Layering different timespans within the structure of environmental law would provide redress for many different problems that are continuous in nature or accumulate after some period of time.[8] While this kind of structure is not used in environmental statutes listed above, it is used in energy law.[9]

Energy governance already brings infrastructure risks using “statistical and probabilistic calculations, foresight technologies, and construct[ing] . . . scenario models.”[10] By foreseeing future events, energy governance is successful in adapting for disruptive events in the power sector, adjusting as needed based on energy demands and keep the systems functioning.[11] There must be a way to bounce back and to ensure resilience in environmental law just as the energy grid does after a power blackout or if the energy infrastructure breaks down.[12] There are certain scenarios where allowing for more flexibility would assist environmental law.

When an environmental law’s response to risk or harm that is not apparent until later or is rooted far in the past, then a change in the regulatory scheme based on disruptive environmental events in the regulatory scheme is vital to improve responses to disasters. Examples include climate change, accumulated pollution, and reckless harm to the environment such as depleting natural resources. This change in environmental law would assist in reducing the risk and uncertainty of the harms on human health and the environment. The first example would be people who are harmed slowly over a period of years without realizing the effects of the pollutant.[13] The second example would be that the pollution or harm is able to extend beyond the human lifespan or that multiple generations of humans could be affected.[14] This is particularly important in the context of environmental justice where majority poor or minority communities are affected by pollutants. Third, the temporality of pollution exposure reaches across generations and can affect both the longevity and the general health of humans. This concept is particularly worrying in the context of air pollution when it can reduce humanity’s overall lifespan.[15] Unfortunately, with the above scenarios, it is difficult to face human mortality and the environment’s degradation at the same time.

Overall, environmental law needs to change to expand beyond the limitations set in the linear-temporal framework as well as consider the sometimes-deadly temporal amnesia that occurs when society does not remember past harms or accepts the slowly-occurring harms to humans and the environment because it is easier to adapt to slow harms than to perceive the enormity of them. This change should also be in conjunction with allowing for the environment and natural resources to recover as well as ensuring justice for people harmed by long-lived environmental disasters. 

[1] Ecological Disasters, COUNCIL ON FOREIGN RELATIONS, https://www.cfr.org/timeline/ecological-disasters (last visited Nov. 8, 2022).

[2] Joseph Stromberg, Air Pollution Has Been a Problem Since the Days of Ancient Rome, Smithsonian Magazine (Feb. 2013), https://www.smithsonianmag.com/history/air-pollution-has-been-a-problem-since-the-days-of-ancient-rome-3950678/.

[3] Global Climate Change: Vital Signs of the Planet, NASA, https://climate.nasa.gov/ (last visited Nov. 8, 2023).

[4] PFAS Explained, U.S. EPA, https://www.epa.gov/pfas/pfas-explained (last updated Oct. 25, 2023).

[5] Id.

[6] Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time 15–18 (2017).

[7] Id. at 7–8.

[8] Id. at 15–18.

[9] Antti Silvast et. al, Energy Governance, Risk and Temporality: The Construction of Energy Time Through Law and Regulation in Law and Time 212–28 (Sian Beynon-Jones & Emily Grabham eds., 2021).

[10] Id. at 213.

[11] Id. at 214.

[12] Id. at 217–18.

[13] Pollution Could Be Harming Every Part of Your Body. Here’s How, WORLD ECONOMIC FORUM (May 23, 2019), https://www.weforum.org/agenda/2019/05/pollution-could-be-harming-every-part-of-your-body-here-s-how/.

[14] Id.; John Voorheis, Air Pollution Diminishes Future Generations’ Economic Opportunities, U.S. Census Bureau (Feb. 22, 2021), https://www.census.gov/library/stories/2021/02/air-pollution-diminishes-future-generations-economic-opportunities.html.

[15] Air Pollution Cuts Life Expectancy By More Than Two Years, Study Says, REUTERS (June 15, 2022), https://www.reuters.com/business/healthcare-pharmaceuticals/air-pollution-cuts-life-expectancy-by-more-than-two-years-study-2022-06-14/.

Confronting Maine’s Indigent Defense Crisis: Lessons to be Learned from the Green Mountain State

By: Natalie May | Vermont Editor

November 27, 2023

Recent reporting reveals that Maine’s indigent defense system is on the brink of catastrophe.[1] During the 2022 fiscal year, Maine reported a record 31,257 indigent defense cases.[2] The annual average number of indigent defense cases in Maine is approximately 26,500.[3] Meanwhile, the number of attorneys willing to take court-appointed cases has dropped by more than 50% statewide over the past three years. In May 2019, there were 410 attorneys on the Commission’s roster.[4] The COVID-19 pandemic compounded preexisting challenges in Maine’s judicial system.[5] In September 2022, there were less than 170 attorneys on the roster.[6] By January 2023, there were just 136 attorneys, 64 attorneys accepting adult criminal cases and 72 attorneys willing to take on child protective cases, in the entire state of Maine.[7]

This situation is a result of how Maine provides counsel to indigent defendants. Maine is the only state in the country that does not have a public defender’s office providing counsel to indigent individuals who have been charged with crimes.[8] Instead, a shrinking roster of private, court-appointed defense attorneys provide (almost) all of Maine’s constitutionally required indigent defense.[9] This method of providing defense is failing Maine’s indigent defendants. Maine need only look west, over the tops of the White Mountains to Vermont, for an example of how a rural state successfully fulfills its constitutional duties.

Vermont provides counsel to indigent defendants through two hybrid programs: public defense and assigned counsel.[10] Of the fourteen offices statewide, seven are staff offices—staffed by public defenders—and seven are contract offices.[11] When conflicts arise with public defense, the court appoints an assigned counsel contractor. When conflicts arise with both public defense and assigned counsel, the court will assign an attorney ad hoc.[12] Caseload relief contractors provide assistance to staff offices statewide.[13] Vermont’s Office of the Defender General also has specialized offices that handle juvenile matters, prisoners’ rights, and appeals to the Vermont Supreme Court.[14]

Every other state has moved away from utilizing private defense attorneys to provide principle indigent defense services for two primary reasons.[15] The first is the challenge associated with forecasting and containing the costs of a private defense system.[16] The second is the difficulty of supervising and training private attorneys to ensure adequate representation is being provided to indigent clients.[17] To address these concerns, and because of Vermont’s successful hybrid model, Maine should adopt Vermont’s method of providing counsel to indigent criminal defendants.

Now is the time for Maine to act, as reporting indicates that the situation continues to evolve on a near daily basis. Leadership is in flux. In January, Maine’s first supervisory public defender resigned after just one month on the job.[18] He was one of the first five public defenders hired by the State of Maine in December 2022.[19] Then, in February, the executive director of the Commission, Justin Andrus, announced his resignation.[20]

The funding landscape is also shifting. In late February, the Commission voted to increase pay for court-appointed attorneys from $80 to $150 per hour.[21] Governor Janet Mills had approved the supplemental budget, which included funding that authorized the Commission’s decision.[22] This announcement may have persuaded some Maine attorneys in returning to court-appointed work.[23] According to the Commission, within a few weeks, the number of rostered attorneys had increased by roughly 40%.[24]

Then, in mid-March, the Maine Advisory Committee to the U.S. Commission on Civil Rights sent a letter to high-ranking Maine officials, urging them to increase funding for the state’s indigent defense system.[25] The Advisory Committee is working on a report, to be published later this year, outlining the civil rights implications of Maine’s “overburdened” indigent defense system.[26] Because the State’s biennium budget is currently being considered by the Legislature, however, the Advisory Committee released preliminary recommendations that align with the Maine Commission on Indigent Legal Services’ budget proposal.[27] Maine’s Judiciary Committee has proposed a more modest budget, but a budget that nonetheless includes $3 million to open the first county-based public defender office and funding to maintain the wage for court-appointed lawyers at $150 per hour.[28] All this news in the last three months.

Maine is on the brink of real change; is finally grappling with the best path forward. Suddenly, “Maine has an opportunity to realize a modern, just and equitable legal system.”[29] But Maine’s work will not be done until there is a lawyer for every Mainer who finds themselves caught up in the criminal legal system. Whether a public defender or a contracted private attorney, in Portland or in Presque Isle, charged with petty theft or with murder. Every day without such a system is a day when Mainers are being denied a constitutional right—the right to counsel.

[1] See, e.g., Kevin Miller, Commissioner Warns Maine’s Indigent Legal System has ‘Gone Over a Cliff,’ Me. Pub. (May 24, 2022), https://www.mainepublic.org/courts-and-crime/2022-05-24/commissioner-warns-maines-indigent-legal-system-has-gone-over-a-cliff (explaining that criminal defendants are being held in jail without counsel because there are not enough attorneys willing to represent indigent defendants).

[2] Samantha Hogan, Availability of Maine Defense Lawyers Reaches All-Time Low, Me. Monitor (July 5, 2022), https://www.themainemonitor.org/availability-of-maine-defense-lawyers-reaches-all-time-low/.

[3] Id.

[4] Miller, supra note 1. Note that this roster does not appear to be publicly available.

[5] See Emily Allen, Backlogs Causing Delays in Thousands of Maine Court Cases, Portland Press Herald (Apr. 3, 2022), https://www.pressherald.com/2022/04/03/backlogs-causing-delays-in-thousands-of-maine-court-cases/ (describing thousands of cases pending in Maine’s judicial system, both criminal and civil).

[6] Kevin Miller, Indigent Legal Defense Commission Asks Lawmakers to Approve $13M for ‘Emergency’ Situation, Me. Pub. (Sept. 28, 2022), https://www.mainepublic.org/politics/2022-09-28/indigent-legal-defense-commission-asks-lawmakers-to-approve-13m-for-emergency-situation.

[7] Samantha Hogan, New Public Defenders Help but Don’t Fully Alleviate Court’s Troubles Finding Enough Defense Lawyers, Me. Monitor (Jan. 15, 2023), https://www.themainemonitor.org/new-public-defenders-help-but-dont-fully-alleviate-courts-troubles-finding-enough-defense-lawyers/.

[8] Sixth Amend. Ctr., The Right to Counsel in Maine: Evaluation of Services Provided by the Maine Commission on Indigent Legal Services 26 (2019) [hereinafter Sixth Amend. Ctr. Report].

[9] Miller, supra note 1; see Kevin Miller, Maine’s Top Judge Makes Plea For More Attorneys to Address ‘Crisis, Me. Pub. (Nov. 10, 2022), https://www.mainepublic.org/courts-and-crime/2022-11-10/maines-top-judge-makes-plea-for-more-attorneys-to-address-crisis (noting that earlier in 2022, the Commission received stated funding to hire its first five public defenders, and that the Commission’s Executive Director hopes they will be hired and begin their rural-focused work by the end of 2022).

[10] About the Office of the Defender General, Off. of the Def. Gen., https://defgen.vermont.gov/about-us (last visited Nov. 8, 2023).

[11] Id. Contract offices are private firms that contract with the Office to provide primary public defense services. Id.

[12] Id.; Ad hoc, Black’s Law Dictionary (11th ed. 2019) (defining “ad hoc” as “[f]ormed for a particular purpose”).

[13] Id.

[14] Id.

[15] Sixth Amend. Ctr. Report, supra note 8, at 26.

[16] Id. (explaining that private systems rely on estimating what caseloads may look like in the future based on current trends and calculating what level of funding those caseloads may require, but because there is no guarantee that current averages will continue, costs can fluctuate wildly).

[17] Id. (describing the lack of supervision or training required in Maine’s current system).

[18] Patty Wight, Maine’s Lead Public Defender Resigns After One Month, Me. Pub. (Jan. 25, 2023), https://www.mainepublic.org/courts-and-crime/2023-01-25/maines-lead-public-defender-resigns-after-one-month.

[19] Id.

[20] Samantha Hogan, Executive Director of Maine’s Public Defense Agency Will Resign, Me. Monitor (Feb. 21, 2023), https://www.themainemonitor.org/executive-director-of-maines-public-defense-agency-will-resign/.

[21] Phil Hirschkorn, Maine Lawyers Who Represent Indigent Defendants to Receive a Pay Raise, WMTW (Feb. 22, 2023), https://www.wmtw.com/article/maine-lawyers-who-represent-indigent-defendants-to-receive-a-pay-raise/43028531#. Note that this funding runs out at the end of this fiscal year, on June 30, 2023, unless Maine lawmakers choose to make the funding permanent. See Samantha Hogan, Advisors to U.S. Commission on Civil Rights Urge Maine Lawmakers to Pay For Indigent Defense, Me. Monitor (Mar. 10, 2023), https://www.pressherald.com/2023/03/10/advisors-to-u-s-commission-on-civil-rights-urge-maine-lawmakers-to-pay-for-indigent-defense/.

[22] Hirschkorn, supra note 21.

[23] See Christopher Williams, Maine Attorneys Coming Back to Court-Appointed Rosters, Sun J. (Mar. 2, 2023) https://www.sunjournal.com/2023/03/01/maine-attorneys-coming-back-to-court-appointed-rosters/ (noting that attorneys began showing interest in returning to the roster once it looked like the Maine Legislature would be increasing the hourly wage for court-appointed attorneys).

[24] Id. 40%  sounds like a lot of attorneys, but recall that in January 2023, there were just 64 attorneys accepting adult criminal cases. Hogan, supra note 7. Doing some mental math, an estimated 90 attorneys now occupy the roster. Four years ago, there were 410 attorneys. Miller, supra note 1.

[25] See Hogan, supra note 21.

[26] Id. For more information about the Advisory Committee’s ongoing work, see Maine, U.S. Comm’n on C.R., https://www.usccr.gov/states/maine (last visited Nov. 8, 2023).

[27] A pause to emphasize what that budget proposal included: An hourly wage of $150 for court-appointed lawyers, and four new public defender offices, two providing trial-level services, one exclusively for appeals, and one dedicated to post-conviction relief. Samantha Hogan, Maine Reaches ‘Point of Failure,’ Seeks $62.1 Million for Indigent Public Defense, News Ctr. Me. (Aug. 23, 2022), https://www.newscentermaine.com/article/news/crime/maine-reaches-point-of-failure-seeks-621m-for-indigent-public-defense-crime-justice/97-60909103-808e-4baf-876b-b4dbd8429d78. Sound familiar? See About the Office of the Defender General, Off. of the Def. Gen., https://defgen.vermont.gov/about-us (last visited Apr. 14, 2023) (“There are . . . two offices that handle matters post adjudication. The Appellate Defender handles appeals to the Supreme Court. The Prisoners’ Rights Office represents persons in the custody of the Commissioner of Corrections.”).

[28] Hogan, supra note 21.

[29] Eric Floyd, Opinion, It’s Time for Maine to Make Its Legal System Just and Equitable, Bangor Daily News (Mar. 7, 2023), https://www.bangordailynews.com/2023/03/07/opinion/opinion-contributor/maine-poor-legal-system/. Eric Floyd is currently incarcerated at Bolduc Correctional Facility in Warren, Maine. He has studied at the University of Maine at Augusta. Id.

Sneak Peek of “68 Crucial Seconds: Rethinking Sexual Assault Language to Increase Effectiveness”

 

By Hannah Koniar | Head Notes Editor

November 22, 2023 

When someone hears the name “Brock Turner” their head will turn. This is because Brock Turner was a Stanford swimmer before he was “sentenced to six months in county jail after being convicted of sexually assaulting an unconscious, intoxicated woman in January 2015.”[1] If you know about Brock Turner, you most likely know the infamous statement from his father, begging the Court to treat his son gently saying, “[h]is life will never be the one that he dreamed about and worked so hard to achieve.”[2] He continued with his letter, referring to any amount of jail time saying, “[t]hat is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”[3] Implications spread after this sentencing, inclusive of a nationwide petition to remove the sentencing judge, Judge Persky; the questioning of systemic racism; and discussion of “the widespread existence of sexual violence on college campuses across the country.”[4] The sentencing results of Brock Turner sparked conversation.

Sexual assault is a prevalent issue with an incredibly low conviction rate and Congress should implement legislation encouraging states to include specific language to enhance sexual assault statutes that lead to a more successful conviction rate and overall better efficacy. Collected data shows, “[e]very 68 seconds, an American is sexually assaulted.”[5] These statistics do not specify gender, sexual orientation, race, religious beliefs, etc. This statistic proves sexual assault does not discriminate. Sexual violence is not a singular person’s issue, it is a pandemic that can, and does, happen anywhere, anytime, to anyone. Statistics show acts of sexual violence have occurred when the survivor was doing various activities.[6] Activities included survivors who were sleeping, engaging in home activities, travelling to various local locations such as school and work, running errands, working, or simply being at school.[7] With these statistics, the legal system ought to be questioned as to how, “only 25 out of every 1,000 perpetrators [of sexual assault] end up in prison.”[8]

There is a way to address this question by evaluating the language of the sexual assault statutes of the top three states in America with the highest rate of sexual assault per 100,000 people, Alaska, Arkansas, and Michigan.[9] After evaluating the language in these statutes, it is possible to propose language which Congress can encourage states to implement in their sexual assault statutes as a means to increase incarceration and holding people responsible for their actions. Congress will encourage states to implement this new language by allocating funds to state sexual assault forensic exam labs. If the state implements the proposed language, their state forensic lab will receive additional funding. This is allowed under the holding of South Dakota v. Dole, where the Court ruled, “Congress has offered relatively mild encouragement to the States to enact high minimum drinking ages than they would otherwise choose. But the enactment of such law remains the prerogative of the States not merely in theory but in fact.”[10]

Here, similar to South Dakota v. Dole, there would simply be encouragement for the states to implement the newly proposed language. The model for the proposed language is the “only-yes-means-yes” model.[11] This model is one based on affirmative consent.[12] Essentially, sex will only be consensual if both parties freely and expressly give consent to the act.[13] Without a yes, there is no consent because the survivor should bear no burden to say “no” to have a viable case. Survivors lose so much of themselves when they are assaulted. The legal system should not further hurt them, rather find a way to help them. Chanel Miller, survivor to Brock Turner, wrote in her victim statement, “[I had to relearn] [t]hat I am not just a drunk victim at a frat party found behind a dumpster, while you are the All American swimmer at a top university, innocent until proven guilty, with so much at stake.”[14] Sexual assault in this world is a pandemic, one capable of being effectively addressed from the top down. Congress can start at the top by implementing the proposed legislation encouraging states to include specific language as a means to enhance their sexual assault statutes and receive additional funding for their forensic labs.

 

[1] Kayla Lombardo, How a Rape Case Involving a Stanford Swimmer Became National News, Sports Illustrated (June 9, 2016), https://www.si.com/more-sports/2016/06/09/brock-turner-stanford-swimming-sexual-assault-rape-case.

[2] Id.

[3] Id.

[4] Id. (“If a first time offender from an unprivileged background was accused of three felonies and displayed no accountability for his actions other than drinking, what would his sentence be? The fact that Brock was an athlete at a private university should not be seen as an entitlement to leniency, but as an opportunity to send a message that sexual assault is against the law regardless of social class.”) (internal quotation marks omitted).

[5] Statistics, Rape, Abuse, & Incest Nat’l Network, https://rainn.org/statistics (last visited Nov. 5, 2023).

[6] Id.

[7] Id.

[8] Id.

[9] Rape Statistics by State 2022, World Population Rev., https://worldpopulationreview.com/state-rankings/rape-statistics-by-state (last visited Nov. 5, 2023).

[10] South Dakota v. Dole, 483 U.S. 203, 211–12, 1987.

[11] Tatjana Hörnle, The New German Law on Sexual Assault and Sexual Harassment, 18 German L.J. 1309, 1319–20 (2017).

[12] Nicholas J. Little, From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative

Consent Standard in Rape Law, 58 Vanderbilt L. Rev. 1321, 1345 (2019).

[13] Id.

[14] Emily Doe (Chanel Miller), Victim Impact Statement, The American Yawp Reader (2015) https://www.americanyawp.com/reader/30-the-recent-past/emily-doe-victim-impact-statement-2015/.

Ciudadanos Sin Derechos: The Plight of Puerto Rican Prisoners

Puerto Rico Rican flag on flagpole textile cloth fabric waving on the top sunrise mist fog

 

 

 

 

 

 

 

 

 

 

 

 

By Maylee Carbajal | Symposium Editor

November 21, 2023

Thirst, hunger, and no help. This was and continues to be the reality for Puerto Rican prisoners. Milton Pinilla Quintero endured the harsh reality as a Puerto Rican inmate. Milton was an inmate at Metropolitan Detention Center (MDC) in Guaynabo, Puerto Rico when Hurricane Maria struck.[1] Hurricane Maria left Puerto Rico in shambles, the inmates in MDC especially felt the effect of the natural disaster.[2] The abuse and lack of governmental involvement can be directly linked to Puerto Rico’s territory status.

When Hurricane Maria struck Puerto Rico, the already appalling conditions within the prison became deplorable.[3] Puerto Rico was pleading for “mainland” assistance while inmates like Milton were fighting to stay alive.[4] Milton lived with feces due to improper plumbing, which the officers were aware of.[5] Milton’s numerous requests for plumbing solutions were ignored.[6] Because Milton’s pleas for basic human living conditions were ignored, he had feces and urine throughout the floor of his cell when the toilet overflowed.[7] His requests for water and cleaning supplies were dismissed.[8]

Because Milton’s persistent requests for basic human necessities were disregarded, legal action was taken. In 2018, Milton, alongside his attorneys, filed and submitted an informative motion addressing the unceasing human rights violations.[9] Milton’s is only one story, there are hundreds of thousands of inmates in Puerto Rico with similar stories.

Puerto Ricans have their unfortunate destiny handed by the United States and Puerto Rican prisoners endure the effect of ongoing colonization. Puerto Rico was independent for hundreds of years prior to the Spaniards colonizing and claiming authority over the land.[10] Following the Spanish conquest came bloodshed and tears from the Spanish-American War that awarded the United States dominance over Puerto Rico through a treaty agreement.[11] Puerto Rico was and remains a territory of the United States.[12]

Puerto Rico is considered an “unincorporated territory of the United States.”[13] An unincorporated territory, as defined by United States government, is “[a] United States insular area in which the United States Congress has determined only selected parts of the United States Constitution apply.”[14] Most recently, the Supreme Court of the United States further supported Congress’ ability to limit the applicable aspects of the Constitution for territories by excluding Puerto Ricans from the Supplemental Security Income (SSI), a federal relief program.[15] A territory does not have “the rights, responsibilities, or powers of a state or nation.”[16] Thus, Puerto Rico, a territory, does not have its own sovereignty. Rather, it is a mere possession.[17]

Under the United States’ partial leadership, Puerto Ricans gained U.S. citizenship. In return for the “lavish favor” of granting them citizenship, Puerto Rican men became eligible to conscript into World War I.[18] About 18,000 new citizens of the United States were drafted.[19] The history of the relationship between Puerto Rico and the United States illustrates how the United States profits at the direct expense of Puerto Rico and Puerto Ricans. Consequently, there is a major imbalance of benefits between territories and the “mainland” that persists to this day. The negative consequences and externalities are borne exclusively by one side: Puerto Rico. Such negative effects exist in a multitude of ways: (1) Puerto Ricans—who are United States citizens––cannot cast a vote for the presidency; (2) indigenous and Puerto Rican land is being taken over for manufacturing and tourism, forcing citizens to flee to the “mainland” for agricultural employment opportunities; (3) the island received little federal assistance when Hurricane Maria, which was followed by Hurricane Fiona, devastated the island; and (4) Puerto Rican American citizens being deprived of their basic human necessities.[20]

The United States adopted the Constitution in 1787.[21] Article IV of the U.S. Constitution applies to commonwealths and territories.[22] Puerto Rico is categorized as a “commonwealth”[23] or “territory,” and thus, Art. IV of the United States Constitution applies.[24] Due to Puerto Rico’s territory status, the United States government’s permission was required to establish its own Constitution. [25] United States granted permission and thus, the Puerto Rican Constitution was established in 1952.[26] Although Puerto Rico has its own Constitution, sovereignty and self-governance does not exist within the territory.

Puerto Rico has been a part of the United States for decades but has not reaped the same benefits the 50 states do. The island’s status as a territory is the root cause of the island’s state of turmoil. With each natural disaster the Puerto Rican people suffer, and with their calls for aid being routinely ignored, the island is further abandoned and reduced to an outlier. Puerto Rico’s status as a territory has a direct correlation to the abuse and neglectful conditions inmates incarcerated on the island face. This is especially perceptible when Puerto Rican prison conditions are compared to the inmates housed in the 50 states. Ultimately, the United States must decide whether to grant the island sovereignty or statehood. Importantly, the United States must decide imminently because otherwise, inhumane conditions will continue to sweep and plague Puerto Rican prisons.

[1] See Informative Motion on Violations of Human Rights at MDC-Guaynabo During the Aftermath of Hurricane Maria and Subsequent Transfer of Inmates to the Federal Correctional Institution at Yazoo City, Mississippi, Exhibit 1 at 1, United States v. Pinilla Quintero, 2 (D.P.R. 2018) No. 16-463 [hereinafter Pinilla Aff.].

[2] See generally id.

[3] See generally id.

[4] See generally id; Mainland, Merriam-Webster, https://www.merriam-webster.com/dictionary/mainland (last visited Nov. 20, 2023). The term “mainland” is used here to further emphasize the disparate treatment and lack of acknowledgement for Puerto Rico because it is a territory not connected to the 50 states through physical means.

[5] Pinilla Aff., supra note 1, at ¶ 2.

[6] Id.

[7] See id. at 4.

[8] Id.

[9] Informative Motion on Violations of Human Rights at MDC-Guaynabo During the Aftermath of Hurricane Maria and Subsequent Transfer of Inmates to the Federal Correctional Institution at Yazoo City, Mississippi, United States v. Pinilla Quintero, 2 (D.P.R. 2018) No. 16-463 [hereinafter Informative Mot.].

[10] History.com Editors, Puerto Rico, History, https://www.history.com/topics/us-states/puerto-rico-history (Aug. 1, 2023).

[11] Treaty of Peace between the United States of America and the Kingdom of Spain art. 2, Dec. 10, 1898, 30 Stat. 1754, T.S. No. 343.

[12] See generally id.

[13] Ani Kington, U.S. Territories and Commonwealths, InterExchange, (Aug. 13, 2012) https://www.interexchange.org/articles/career-training-usa/2012/08/13/u-s-territories-and-commonwealths/.

[14] Office of Insular Affairs, Definitions of Insular Area Political Org., U.S. Department of the Interior, https://www.doi.gov/oia/islands/politicatypes#:~:text=unincorporated%20territory,the%20United%20States%20Constitution%20apply (Last visited Nov. 20, 2023).

[15] United States v. Vaello Madero, 596 U.S. 159, 161 (2022).

[16] What Does It Mean to Be a Territory of the United States?, Puerto Rico Rep. (Apr. 17, 2018), https://www.puertoricoreport.com/educators-mean-territory-united-states/#.Y3977ezMLvW.

[17] Id. For Puerto Rico, this means having limited benefits and rights while providing the most profit for the United States.

[18] History.com Editors, supra note 10.

[19] Id.

[20] See generally Fundamental Right, Cornell L. Sch., https://www.law.cornell.edu/wex/fundamental_right (last visited Nov. 20, 2023) see also Nick Brown, How Dependence on Corporate Tax Creaks Corroded Puerto Rico’s Economy, Reuters Investigates, (Dec. 2016), https://www.reuters.com/investigates/special-report/usa-puertorico-economy/; see Damaris Suárez, Inmates Claim Conditions in Prisons are Deplorable After Hurricane Fiona, no Water and Energy, Centro de Periodismo Investigativo (Sept. 24, 2022), https://periodismoinvestigativo.com/2022/09/after-hurricane-fiona-inmates-claim-conditions-in-prisons-are-deplorable-with-no-water-and-energy/ (describing the lack of action taken by the United States when Hurricane Fiona struck Puerto Rico); see also supra notes 1­3, 5­8. Thus, fundamental rights, like voting for president, do not apply to Puerto Ricans.

[21] U.S. Const. art. VII.

[22] U.S. Const. art. IV, § 3, cl. 2.

[23] Territories exist in two forms: a general territory and a commonwealth territory; Puerto Rico is a commonwealth territory. Territories and commonwealth are two similar but distinct terms. See generally Ani Kington, supra note 13; Commonwealths have a “slightly more developed relationship to the U.S. than a ‘territory’ does.” Id. Both the terms “commonwealth” and “territory” are used interchangeably to describe Puerto Rico’s status. Territories of both forms––despite being part of the United States––are not represented in Congress in the same manner states are and “do not have the same rights as states.” Id. The federal government has mounted “significant opposition” against granting territories or commonwealths statehood. Id.

[24] BRIA 17 4 c Puerto Rico: Commonwealth, Statehood, or Independence?, Const. Rts. Found.,

https://www.crf-usa.org/bill-of-rights-in-action/bria-17-4-c-puerto-rico-commonwealth-statehood-or-independence (last visited Nov. 20, 2023).

[25] History.com Editors, supra note 10.

[26] P.R. Const. art. IX, § 10; see H.R.J. Res. 430, 81st Cong. (1952) (enacted).

Raising the Bar: The Case to Modernize Vermont Bar Admission

“Exam” by albertogp123 is licensed under CC BY 2.0. https://www.flickr.com/photos/57280691@N02/5843577306

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By: Phoebe Howe | Senior Notes Editor

November 20, 2023

For third-year law students, the bar exam culminates years of law school and ten weeks of intensive study. Yet the mechanical exam is incompatible with a profession where lawyers rely on strong interpersonal and communication skills. And no evidence proves that the exam ensures minimum competence or protects the public. Instead, test takers face a redundant, dehumanizing exercise that is rooted in elitism and turns on one’s wealth. In response to the bar exam’s deficiencies, Vermont should reform its Rules of Admission to adopt one or more “diploma-plus” pathways to bar admission.

Bar admission practices arose from elitist origins. Starting in the early 20th century, the American Bar Association engaged in a systematic effort to maintain an elite cadre of lawyers through tools such as the bar exam and law school accreditation standards.[1] This desire for “professionalism” was indisputably mixed up with racist motivations.[2] Leaders within the legal community held nativist views, were made aware of the discriminatory impacts of their actions, and continued to alienate poor, immigrant, and non-white law students anyways.

While blatant discrimination is less rampant than 50[3] or 100[4] years ago, the bar exam perpetuates systemic racism today. In 2021, 85% of white law school graduates passed the bar exam on their first try, whereas only 61% of Black graduates did.[5] Two broad theories offer insight into how systemic racism creates the bar passage gap between white and minority test takers. The first theory is that as long as the racial wealth gap persists, the bar exam will continue to privilege white test takers over test takers of color. The second theory is that implicit bias in law school and the pressure of the bar exam may evoke “stereotype threat” that hinders students of color from performing at their full potential.[6]

The bar exam perpetuates systemic classism. The ten-week period between law school graduation and the July bar exam is expensive, and graduates who attempt to work and study simultaneously do markedly worse on the exam.[7] In addition to living-related costs, graduates must budget for prep courses (starting at $2,000)[8] and bar application costs (which can be $1,000 or more).[9] Moreover, states generally hold bar exams in population centers,[10] meaning rural test takers must also pay for travel, lodging, meals, and childcare. Given the staggering costs associated with the bar exam, it is no surprise that graduates with more financial resources do better on the test.[11] Bar passage has become a proxy for wealth.

In addition to perpetuating systemic racism and classism, the bar admission process exacerbates access to justice issues. The legal community designed bar admission requirements, including the bar exam, to keep the bar small and maintain high prices.[12] Although bar admission operates with the goal of consumer protection,[13] excessive requirements may harm consumers by limiting competition[14] and increasing the cost of services.[15] Vermont is not immune from this problem. The state strives to provide free or low-cost advice and representation on critical matters,[16] but thousands of Vermonters go unrepresented in serious civil proceedings.[17] And due to lawyer shortages in rural areas,[18] some Vermont criminal defendants receive low-quality or delayed representation.[19]

Furthermore, the bar exam does not ensure attorney competency. The National Conference of Bar Examiners’ organizational vision includes fostering a “competent” legal profession.[20] Yet, the multiple-choice and essay portions of the exam test memorization skills more than legal knowledge and analysis. Memorization is not part of competent legal practice.[21] Competent lawyers double-check their assumptions, do additional research, and talk to colleagues. Legal practice revolves around handling ambiguity and making judgment calls. Multiple-choice questions and formulaic essays cannot reflect this reality.

A final reason for Vermont bar admission reform is that Vermont and its legal workforce face troubling demographic challenges. First, Vermont’s lawyers are aging. Vermont has the third-highest median age in the country,[22] and half of Vermont’s lawyers are over 55.[23] Many retiring lawyers cannot find young graduates to take over their businesses.[24] Second, Vermont is one of the least racially diverse states in the country.[25] Assuming that lawyers of color are as underrepresented in Vermont as they are nationally,[26] there may be as few as 11 Black lawyers, 15 Hispanic or Latinx lawyers, and three Native American lawyers out of Vermont’s 2,198 total lawyers.[27]

Other states have forged the path toward bar admission reform. Wisconsin allows bar admission by diploma privilege: if a student successfully graduates from one of the state’s law schools, there is no bar exam requirement.[28] New Hampshire’s Daniel Webster Scholar Honors Program adds experiential learning to a standard law school curriculum and eliminates the traditional bar exam.[29] Oregon is about to implement experiential and supervised practice programs.[30]

Vermont should build on other states’ work and adopt one or more “diploma-plus” bar admission pathways:

  • A diploma-plus-GPA pathway would build on the strength and simplicity of Wisconsin’s diploma privilege. The Board of Bar Examiners should work with Vermont Law and Graduate School to set a GPA requirement that guarantees minimum competence. Instead of pure diploma privilege, the GPA requirement is necessary because Vermont Law and Graduate School administrators are not confident that the school’s 2.3 GPA requirement for graduation adequately screens for minimum competence.[31] The GPA calculation should include only required courses, most of which are curved, to avoid concerns about grade inflation.[32]
  • An experiential program based on New Hampshire’s Daniel Webster Scholar Honors Program[33] would allow students to complete bar admission requirements via practical classes. The program would amount to a rigorous “two-year bar exam” with frequent assessments[34] and a final presentation to the Board of Bar Examiners.[35] Vermont stakeholders have expressed interest in an experiential program because lawyers find it difficult to train new hires and want practice-ready graduates.[36] Vermont Law and Graduate School faculty and administration[37] and Vermont’s Joint Commission on the Future of Legal Services[38] agree that Vermont should consider experiential learning as an alternative licensure path.
  • A supervised-practice pathway would allow bar applicants to establish competence by completing a certain period of paid, supervised work. Other professions, such as the medical field, rely heavily on the apprenticeship model, as did the legal profession before the standardization of law schools.[39] Applicants would complete a certain number of hours and compile a portfolio of work product to present to the Board of Bar Examiners.[40]

As rising awareness of the bar exam’s elitist origin and gatekeeping effect spurs the national bar admission reform movement, many states seek to implement permanent reform measures. By reforming bar admission with diploma-plus pathways, Vermont can simultaneously eliminate discriminatory bar admission practices and serve the public with a competent attorney workforce that more accurately reflects the diversity of our communities.

 

 

[1] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 96–97 (1983).

[2] Id. at 92; Although the European immigrants of the early 1900s would be considered white today, at the time “whiteness” was narrowly construed to include only people of Anglo-Saxon heritage and Protestant religious beliefs. Thus, racism is an appropriate term to describe anti-immigrant efforts. Xenophobia: Closing the Door, The Pluralism Project, Harv. Univ., https://pluralism.org/xenophobia-closing-the-door (last visited Mar. 13, 2023).

[3] For example, South Carolina abolished reciprocity in 1972 right after a Black lawyer from Oklahoma applied for reciprocal admission. Richardson v. McFadden, 540 F.2d 744, 746–47 (4th Cir. 1976).

[4] Adjoa Artis Aiyetoro, Truth Matters: A Call for the American Bar Association to Acknowledge Its Past and Make Reparations to African Descendants, 18 Geo. Mason U. Civ. Rts. L.J. 51, 72 (2007).

[5] ABA, Summary Bar Pass Data: Race, Ethnicity, and Gender (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2022/2022-bpq-national-summary-data-race-ethnicity-gender-fin.pdf.

[6] Deborah Jones Merritt, Carol L. Chomsky, Claudia Angelos, & Joan W. Howarth, Racial Disparities in Bar Exam Results—Causes and Remedies, Bloomberg L. (July 20, 2021), https://news.bloomberglaw.com/us-law-week/racial-disparities-in-bar-exam-results-causes-and-remedies. Results from a 2021 AccessLex study of over 5,000 bar exam takers supports this conclusion. Email from Deborah Jones Merritt, Professor, Ohio State University Moritz College of Law, to author (Jan. 2, 2023, 08:10 EST) (on file with author) (interpreting statistical analysis in AccessLex Inst., Analyzing First-Time Bar Exam Passage on The UBE in New York State 81 (2021), https://www.accesslex.org/NYBOLE).

[7] Logan Cornett & Zachariah DeMeola, The Bar Exam Does More Harm Than Good, Inst. for the Advancement of the Am. Legal Sys. (Aug. 2, 2021), https://iaals.du.edu/blog/bar-exam-does-more-harm-good; AccessLex Inst., supra note 6, at 15.

[8] E.g., Vermont Bar Review Course, Kaplan, https://www.kaptest.com/bar-exam/courses/vermont-bar-review (last visited Nov. 5, 2023).

[9] Nat’l Conf. of Bar Exam’rs & ABA Section of Legal Educ. & Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 34–35 (2021).

[10] For example, Vermont often holds its exam in Burlington. Admission to the Vermont Bar, Vermont Judiciary, https://www.vermontjudiciary.org/attorneys/admission-vermont-bar (last visited Nov. 5, 2023).

[11] AccessLex Inst., supra note 6, at 38.

[12] See George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. Legal Educ. 103, 147 (2003) (discussing effect of law school accreditation on access to and affordability of legal services).

[13] Interview with Beth McCormack, Dean, Vt. L. Sch., in South Royalton, Vt. (Sept. 19, 2022).

[14] Deborah Jones Merritt & Logan Cornett, Building a Better Bar 5 (2022).

[15] Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429, 441 (2001).

[16] Vt. Access to Just. Coal., Renewing Vermont’s Commitment to Access to Justice 1 (2020), https://legislature.vermont.gov/ (search for “Renewing Vermont’s Commitment to Access to Justice” report).

[17] In one year, the need included about 1,500 tenants facing eviction, 4,000 customers facing credit-card collections, and 1,300 spouses seeking a divorce. Id. at 2.

[18] Justin Trombly, Northeast Kingdom Defenders Worry Hiring Problems Harm Clients’ Rights, VTDigger (Sept. 8, 2019), https://vtdigger.org/2019/09/08/northeast-kingdom-defenders-worry-hiring-problems-harm-clients-rights/.

[19] See, e.g., id. (describing how client’s plans to expand nonprofit organization were delayed when lawyer allegedly failed to address misdemeanor charge); Justin Trombly, NEK Judge Throws Out Drug Conviction, Rules Public Defenders Failed, VTDigger (July 26, 2021), https://vtdigger.org/2021/07/26/nek-judge-throws-out-drug-conviction-rules-public-defenders-failed/ (describing how court vacated client’s drug conviction for ineffective assistance of counsel).

[20] About NCBE, NCBE, https://www.ncbex.org/about/ (last visited Nov. 5, 2023).

[21] Merritt & Cornett, supra note 14, at 72.

[22] Median Age in 2021, StatsAmerica, https://www.statsamerica.org/sip/rank_list.aspx?rank_label=pop46&ct=S09 (last visited Nov. 5, 2023).

[23] Vt. Bar Ass’n, 2020 VBA Members by Age (2020) (on file with author).

[24] Vt. Joint Comm’n on the Future of Legal Servs., Final Reports & Recommendations of the First Year Study Committees 45 (2015) (on file with author); see, e.g., M.D. Drysdale, Where Have All the Lawyers Gone?, Herald of Randolph (Aug. 13, 2015), https://www.ourherald.com/articles/where-have-all-the-lawyers-gone/.

[25] Wilson Ring, Census: Minority Population Growing in VT, 2nd Whitest State, AP (Aug. 12, 2021), https://apnews.com/article/race-and-ethnicity-census-2020-vermont-721d8201122a857b4565b4a37bd77d24.

[26] Nationally, Black (4.5% of lawyers and 13.4% of population), Hispanic or Latinx (5.8% of lawyers and 18.5% of population), and Native American lawyers (0.5% of lawyers and 1.3% of population) remain underrepresented. The share of Asian American lawyers is about the same as the general population (5.5% of lawyers and 5.9% of population), and white lawyers are dramatically overrepresented (81% of lawyers but only 60% of population. ABA Survey Finds 1.3M Lawyers in the U.S., ABA (Jun. 20, 2022), https://www.americanbar.org/news/abanews/aba-news-archives/2022/06/aba-lawyers-survey/.

[27] Calculations on file with author.

[28] Wis. Sup. Ct. R. Ch. 40.

[29] N.H. Sup. Ct. R. 42.

[30] Licensure Pathway Development Committee, Or. State Bar, https://lpdc.osbar.org (last visited Nov. 5, 2023).

[31] Interview with Beth McCormack, supra note 13; Vt. L. & Graduate Sch., Student Handbook 38 (2022).

[32] Vt. L. & Graduate Sch, supra note 31, at 35.

[33] Daniel Webster Scholar Honors Program, Univ. of N.H. Franklin Pierce Sch. of L., https://law.unh.edu/academics/daniel-webster-scholar-honors-program (last visited Nov. 5, 2023).

[34] John Burwell Garvey & Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 Duke Forum for L. & Soc. Change 101, 122 (2009).

[35] Alli Gerkman & Elena Harman, Ahead of the Curve—Turning Law Students into Lawyers 10 (2015), https://iaals.du.edu/sites/default/files/documents/publications/ahead_of_the_curve_turning_law_students_into_lawyers.pdf.

[36] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.

[37] Interview with Jessica Durkis-Stokes, Professor, Vt. L. Sch., in South Royalton, Vt. (Sept. 1, 2022); Interview with Beth McCormack, supra note 13.

[38] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.

[39] Stevens, supra note 1, at 3, 24.

[40] Oregon plans to require a portfolio of non-privileged work product. Memorandum from the Alternatives to the Bar Exam Task Force to the Oregon State Board of Bar Examiners 23 (June 18, 2021), https://taskforces.osbar.org/files/Bar-Exam-Alternatives-TFReport.pdf.

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