by Andrew W. Eichner
by Mark Marciszewski
by Megan Noonan
by Ryan Clemens
by Andrew W. Eichner
by Mark Marciszewski
by Megan Noonan
by Ryan Clemens
By: Christian D. Petrangelo | Attorney, Regulatory Compliance Specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc.
January 14, 2021
The “unprecedented” year of 2020—the year that COVID-19 took over the world—challenged society in ways not seen in many people’s lifetimes. In the United States, the federal government’s tepid and chaotic response failed to “flatten the curve” of the virus. Just one example is the federal Occupational Safety and Health Administration’s (OSHA’s) reluctance to issue a rule governing employer responses to COVID-19 to protect all workers in the American workplace.
A Patchwork Approach to Addressing COVID-19 in the Workplace
In the absence of federal regulation, some states—including California, Virginia, and Oregon—have begun filling in the gap via COVID-19 workplace emergency temporary standards (ETS). While the content of these state rules varies, employers may be required to conduct workplace exposure assessments, notify infected employees and others in proximity, allow employees to access their own medical records, create return-to-work procedures, enforce social distancing, and conduct sanitation and disinfection of the workplace. A separate section of Virginia’s ETS contains requirements for hazards or job tasks considered “medium,” “high,” or “very high” exposure risks.
For larger companies operating in both ETS and non-ETS states, this patchwork of state requirements presents a potential compliance problem, as well as a legitimate health and safety issue for employees. In the absence of a federal standard, could OSHA attempt to use an employer’s compliance with a state ETS to impute knowledge of a recognized COVID hazard in non-ETS states, through the General Duty Clause (GDC)? To consider this question, we must take a closer look at the GDC.
The General Duty Clause & Employer Hazard Recognition
OSHA’s GDC states: “(a) Each employer – (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .” The GDC is effectively a back-pocket enforcement mechanism for OSHA to use where no specific standard applies to the hazard or situation in question.
To prove a GDC violation, OSHA must show that: “(1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.” The agency also must establish that the employer knew, or could have known based on reasonable diligence, of the hazardous condition.
So what constitutes a “recognized hazard”? The Occupational Safety and Health Review Commission (OSHRC) found that “[a] hazard is deemed ‘recognized’ when the potential danger of a condition or activity is either actually known to the particular employer or generally known in the industry.” The OSHA Field Operations Manual elaborates that a hazard may be recognized on the basis of employer, industry, or “common-sense” recognition. Of these, employer recognition is the most likely to impact the question at hand.
U.S. circuit courts and the OSHRC have weighed in on employer recognition. For example, the U.S. Court of Appeals for the Ninth Circuit found employer recognition where the employer had actual knowledge of a hazardous condition. The Fifth Circuit held that employer recognition may be found “absent direct evidence of subjective belief” where the hazard is “obvious and glaring.” Perhaps most importantly, the Sixth Circuit found that evidence of employer safety efforts is relevant to the question of hazard recognition. However, the OSHRC “has been reluctant to rely solely on an employer’s safety precautions to find hazard recognition absent other ‘independent evidence.’”
On employer safety efforts, OSHA may reference the following documents as evidence of employer recognition of a particular hazard: work rules, company safety programs/policies, handbooks, memoranda, standard operating procedures, operations manuals, collective bargaining agreements and contracts, Job Safety Analysis forms, safety audits, actual prior incidents, near misses known to the employer, injury and illness reports, or workers’ compensation data. In addition, the OSHA Field Operations Manual states that compliance officers may look to prior federal or state OSHA inspection history involving the same hazard.
Multistate Employer COVID Liability on the Cusp of the Biden Era
This high-level overview of current rules and precedent suggests that OSHA, via the GDC, could point to an employer’s safety policies implementing a state COVID ETS to impute knowledge of COVID hazards in non-ETS states. In particular, if a multistate employer has company work rules, safety procedures, and/or standard operating procedures addressing a state COVID ETS, then the employer could be obligated to protect employees in non-ETS-states at a similar level. These preexisting rules, policies, and procedures could also be considered a feasible and effective means of abating COVID-related harm.
The question could then become whether “independent evidence,” such as managerial testimony, would be needed to corroborate this safety-policy evidence. In the event that federal OSHA or an equivalent state agency has conducted an inspection of the company’s premises in which COVID was discovered to be a hazard, this could also impute the necessary knowledge to the employer.
Therefore, large employers operating in both COVID-ETS states and other states should take the utmost precaution and aim to protect all of their employees at the more stringent state-ETS level to minimize liabilities. This confusing state patchwork of compliance requirements may not be around for long, of course. With a Biden administration poised to assume control of the federal government, an overarching OSHA COVID standard may be here sooner than we think.
 While OSHA has not conducted any formal rulemakings on COVID-19, the agency has issued guidance documents clarifying how employers should handle the pandemic under current rules. See, e.g., Lee Anne Jillings & Patrick J. Kapust, Occupational Safety & Health Admin., Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (2020) (clarifying that COVID-19 is a recordable illness under 29 CFR Part 1904), https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
 Cal. Code Regs. tit. 8, § 3205–3205.4 (2020), https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf.
 16 Va. Admin. Code § 25-220 (2020), https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf.
 Or. Admin. R. 437-001-0744 (2020), https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.
 16 Va. Admin. Code § 25-220-40 (2020) (using Virginia as an example).
 16 Va. Admin. Code § 25-220-50–80 (2020). These heightened requirements address engineering controls, administrative and work practice controls, personal protective equipment (PPE), employee training, and infectious disease preparedness and response plans.
 Occupational Safety and Health Act of 1970 §5(a)(1), 29 U.S.C. § 654(a)(1), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT.
 Occupational Safety & Health Admin., CPL-02-00-160, Field Operations Manual (FOM) (2016), at 4-16–4-17, https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-160_2.pdf.
 MPS Products Corp., No. 17-0372 (OSHRC Oct. 13, 2020), at 31, https://www.oshrc.gov/assets/1/18/17-0372_Decision_and_Order_DATED.pdf?11392 (emphasis added); Kimberly Stille, Occupational Safety & Health Admin., Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits (2018), https://www.osha.gov/laws-regs/standardinterpretations/2018-11-02; Field Operations Manual, supra note 8, at 4-10.
 OSHA has the burden of proving a “recognized hazard.” Adele L. Abrams, OSHA’s General Duty Clause: A Guide to Enforcement and Legal Defenses 3, https://www.assp.org/docs/default-source/standards-documents/osha’s-general-duty-clause—abrams.pdf?sfvrsn=89cdb147_2.
 Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2003, 1995-97 CCH OSHD ¶ 31,301, p. 44,014 (No. 89-0265, 1997).
 Field Operations Manual, supra note 8, at 4-12.
 Under industry recognition, OSHA has stated that state and local laws and regulations can be used to impute knowledge; however, the agency specified that these rules must “apply in the jurisdiction where the violation is alleged to have occurred,” which would not address the situation of multistate employers operating in ETS and non-ETS states. Field Operations Manual, supra note 8, at 4-13.
 Magma Copper Co. v. Marshall, 608 F.2d 373, 376 (9th Cir. 1979).
 Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984) (quoting Tri-State Roofing v. OSHRC, 685 F.2d 878, 880–81 (4th Cir. 1982)).
 Duriron Co. v. Secretary, 750 F.2d 28, 30 (6th Cir. 1984).
 Mid South Waffles, Inc., d/b/a Waffle House #1283, No. 13-1022 (OSHRC Feb. 15, 2019), at 8 (quoting Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2007 (No. 89-0265, 1997)), https://www.oshrc.gov/assets/1/18/Mid_South_Waffles%5E13-1022%5EDecision_(Assembled)%5E021519%5EFINAL.pdf?8299.
 Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).
 Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 18 (1st Cir. 1984).
 Abrams, supra note 10.
 Field Operations Manual, supra note 8, at 4-12.
By: Sophia Kruszewski| Vermont Law School, Center for Agriculture and Food Systems’ Clinic Director & Assistant Professor of Law
December 10, 2020
Vermont is known for its vibrant local food culture and small-but-mighty farm economy. Home to 6,800 farms, Vermont leads the nation in maple syrup production and ranks among the top 10 states for certified organic farms (in terms of both acreage and number of farms) and for local food sales. In 2016 alone, sales from Vermont producers directly to consumers, retailers, institutions, and local distributors like food hubs totaled $250 million. Vermont’s farm and food businesses also directly employ over 64,000 Vermonters; food manufacturing is the second-largest manufacturing industry in the state. Clearly, Vermont’s local food sector is a strong driver of the state’s economy.
The picture is not entirely rosy, however. Even before Covid-19 exacerbated low milk prices, Vermont dairy farms were in crisis. The average age of Vermont farmers is just under 56 years old and over 30 percent are over 65, presaging the significant degree of farmland that will change hands in the coming years. Whether that land remains in agriculture depends not only on having the next generation of farmers ready to step in, but also on whether land prices offer a competitive option for the exiting farmer, while still being affordable for the incoming one.
The vast majority of farms in Vermont are small, family farms; the average Vermont farm is 175 acres, significantly smaller than the national average of 441 acres. Strikingly, 72 percent of Vermont farms bring in less than $25,000 in average annual sales; only 16 percent have $100,000 or more in sales. What’s more, the average net cash farm income is only $26,215, well below the national average of $43,053, making it unsurprising that many farmers work additional off-farm jobs for some portion of the year.
Recently proposed and enacted Vermont legislation recognizes and seeks to overcome some of the varied challenges the agriculture sector faces. Act 83, which became law in 2019, calls for the Vermont Agency of Agriculture, Food, and Markets to lead in developing a report with recommendations to stabilize, diversify, and revitalize Vermont’s agriculture economy. (The report, presented to the legislature in early 2020, provides a comprehensive assessment of the need and opportunity by agricultural product, market, and issue.) Act 83 also established a legislative working group to explore how farmers can receive payments for the ecosystem benefits they produce on their farms. And a bill introduced in early 2020 would significantly expand the state’s purchasing of local food in schools and correctional facilities through numeric targets and reimbursements.
In addition to public policy, affordable legal services play an important role in sustaining and growing Vermont’s local food sector. Lawyers can assist with a wide range of farm business needs including: farm transfer and acquisition; business and estate succession planning; legal entity formation; drafting and reviewing contracts; advising on employee classification and compliance with labor laws; liability and risk management; and navigating the increasingly complex web of federal, state, and local regulations that apply to food and farm businesses. Indeed, farm and food clients share much in common with other clients seeking business and legal advice. Yet, many small-scale farmers and food entrepreneurs may be unfamiliar working with an attorney or unable to afford one, even when transactional legal counseling could significantly benefit their businesses. That’s why, in January 2020, Vermont Law School’s Center for Agriculture and Food System launched the Vermont Legal Food Hub. This new program seeks to overcome some of these barriers and help bridge the gap between the agricultural and legal sectors. Not only does the Vermont Legal Food Hub offer free support to our state’s farmers and food producers, but also it can open new doors for VLS students and graduates.
A joint initiative between CAFS and Conservation Law Foundation (CLF), this innovative program connects farmers, food entrepreneurs, and food system organizations across the state with free legal services, building on a regional program that Dean Jennifer Rushlow started while head of Food & Farm at CLF. The first Legal Food Hub launched in 2014 in Massachusetts. Since then, Hubs have opened in Maine, Rhode Island, Connecticut, and Vermont, connecting over 500 participants across the region with free legal support and leveraging over $3M in pro bono assistance. To be eligible for free assistance, applicants must meet certain income eligibility requirements and go through an intake process, after which they are connected with a skilled attorney who practices in that area of the law.
Not only does this program provide a much needed service, increasing access to legal assistance for low-income food and farm businesses, but also it is providing unique opportunities for VLS students and alumni to build food and agriculture law practices. The Legal Food Hub now has over 160 firms in its regional network of volunteer attorneys; 20 of those are in Vermont, including CAFS’ Food & Agriculture Clinic, and including many VLS alumni.
CAFS operates the Vermont Hub, and since we launched in January 2020, we have placed over twenty cases with participating law firms. Farmers have comprised 60% of our placements, nonprofits 30%, and food entrepreneurs 10%. Across all categories of participants, assistance selecting and forming a legal entity is by far the most commonly identified legal need, accounting for over 70% of all requests. Other common legal issues that have come in through the Hub relate to land use and real estate, contracts, intellectual property, and employment and labor.
While we have placed many of these cases with our ever-growing network of volunteer attorneys, we also place some cases in CAFS’ Food and Agriculture Clinic, providing an opportunity for students to work with local food clients on a range of transactional and regulatory matters. For example, we worked with a food hub navigating food safety regulations and licenses at the state and federal level. We reviewed a contract agreement for a farmers’ association that rents out conservation equipment so farmers can plant seeds with minimal disturbance to the soil. We provided consultation on a trademark matter for a nonprofit that works to increase access to and availability of local food through marketing, aggregation, and distribution. And students enrolled in the Spring Food and Agriculture Clinic will have the opportunity to work with a group of Vermont processors exploring options for establishing a collaborative business model that enables them to share processing and marketing infrastructure.
Not only do these experiences enable students to build their issue-spotting, legal reasoning, client counseling, and other legal and professional skills, but also they provide invaluable opportunities to build relationships within the community. As we see it, providing direct legal services complements our Clinic’s other more policy-oriented work. Not only do we get to give back to those who work tirelessly to feed us, but also we can identify areas of the law where additional legal resources or policy solutions are needed, fueling our work as advocates for the community and world.
By: Robert Sand | Vermont Law School, Founding Director, Center for Justice Reform
November 20, 2020
Generations of law students have learned the IRAC method of legal analysis. IRAC: Issue – Rule – Apply – Conclude. IRAC provides a consistent and straightforward way to analyze legal disputes in all areas whether property, torts, contracts, criminal law, or anything else typically studied in law school. The clarity of IRAC informs legal reasoning, the practice of law, and judicial decisions. For all its straightforward simplicity, IRAC is also remarkably reductionist.
Noted Norwegian criminologist Nils Christie writes: “Training in law is training in simplification. It is a trained incapacity to look at all values in a situation, and instead to select only the legally relevant ones, that is, those defined by the high priests within the system to be the relevant ones.”
Perhaps Christie goes too far, denying the power of the law to effect change. Yet, he is correct about the reductionist nature of the law and, by extension, legal education. Human disputes, and the harm at their root, are complex, messy, emotionally laden matters. We have developed a legal system to place a framework around all that messiness and in the process have lost, perhaps, some of our humanity.
Consider criminal law. An individual is harmed. How do we respond? We outsource that harm and the attendant obligations to the government. The harmed party may have a small voice in shaping the outcome, yet the available responses are largely constrained, packaged, and limited to some prefabricated options. And what about the person who caused the harm? The system encourages silence and denial until, if there is an apology, it seems entirely self-serving. And what about real acceptance of responsibility and amends? Our system imposes punishment (pain) to teach people they are not supposed to cause harm to others. The system is so reductionist we don’t even concern ourselves with the counterproductivity of state-inflicted pain. Nor do we provide a meaningful way for the party who caused the harm to make things right.
But maybe there is another way or, at least, an additional way. What if IRAC stood not only for Issue-Rule-Apply-Conclude but also for Injured (Harmed) – Responsibility – Amends – Change? We would ask:
Let’s look at each of these questions:
Question 1: Who has been Injured or harmed? Our response must include giving the immediately harmed party (the victim) a real voice in influencing case outcomes. Often victims are more interested in getting answers to questions, an assurance the harm will not reoccur, and a meaningful apology than they are in seeing punishment. And injury and harm run more deeply and profoundly than the elements of the criminal offense. Harm and injury ripples to family members, friends, and community. A just response addresses a much broader scope of harm than we currently consider. Every time the state intervenes an opportunity arises to consider the immediate harm and broader, systemic issues and injustices that contribute to harmful behavior. We squander this opportunity and obligation for deeper reflection and engagement.
Question 2: Who is Responsible for the harm? This inquiry involves a complexity lost in our current system. A Responsible party caused something but also has duties and obligations attendant to the harm caused. Consider the word “responsible” and its dual meaning. A responsible person caused an outcome. A responsible person is also someone to whom an obligation is imposed. A person can be both responsible for causing the harm and responsible for repairing it. Other than occasionally paying restitution, most people convicted of an offense are relieved of any obligation to make amends. While they are deemed responsible for causing harm, they are denied the duty and responsibility of putting things right.
A deep consideration of responsibility necessarily involves probing into forces that influence conduct. This does not relieve the individual of personal accountability but does introduce historic and contemporary forces that shape behavior. We cannot completely divorce immediate actions from the historic inequities and systemic injustices perpetrated by legal and other institutions in this country.
Question 3: How can the responsible party make Amends? The reductionist nature of our response barely asks what the responsible party can do to make things right. They become passive actors in a system that imposes something on them rather than requiring affirmative restorative actions by them. Bizarrely, taxpayers bear the weight of financial sacrifices to sustain prisons, providing a setting where no affirmative action is imposed on the responsible party. This is not to suggest that incarceration is easy. It is brutal, violent, and dehumanizing — an environment uniquely ill-suited for positive personal growth. The state imposition of consequences divests the responsible party of the important ability to try to reset the balance with the party they harmed.
Question 4: How can the overall response lead to Change? With remarkable shortsightedness, we rarely ask whether the imposition of punishment will create a net societal improvement. We punish without regard for the fact that punishment, especially incarceration, often leads to increased criminality. Incarceration is a criminogenic risk factor for further offending behavior. Instead, why are we not focusing on responses that yield a net improvement in health, safety, personal well-being, and satisfaction for the people most directly harmed?
This new version of IRAC brings the real world into the classroom and by extension to justice systems and beyond by discussing the complexity of harm and its ripple effects, the systemic injustices that permeate law and society, and creates a space and place for a broad array of voices. Law school classes could consider the two forms of IRAC sequentially, probing first into the new version and then drilling down more narrowly into the traditional version. This dual inquiry, while taking more time, makes the study of law a deep contemplation of human interaction as much as a consideration of rules.
A new vision for IRAC needs a new vision of justice. As Professor Lindsey Pointer of the VLS National Center on Restorative Justice asks: “Why is Lady Justice blindfolded, armed with a sword, and on a pedestal?” Maybe she should use all the senses, sit or walk among the people, and carry a first aid kit not a weapon.
I went to law school in the 1980s. My father went to law school in the 1950s. Our first-year courses were almost identical. I suspect the method of conducting classes and analyzing cases was the same then as in the 1980s as it is today. The world has changed dramatically in the past 70 years. Let’s bring IRAC into this century and transform and humanize legal education and the practice of law.
By: Andrew Cliburn | Vermont Law School, JD Candidate 2021
November 20, 2020
When the Supreme Court issued McGirt v. Oklahoma last summer holding that Congress never disestablished the Muscogee (Creek) reservation—a reservation that encompassed most of modern-day Tulsa, Oklahoma—the reaction was profound. Indigenous leaders, lawyers, journalists, and others celebrated the Court’s full-throated affirmance of Muscogee (Creek) sovereignty. The majority opinion, authored by Justice Gorsuch, was the latest in an emerging line of Supreme Court cases upholding treaties the North American tribes made with the United States.
In contrast, the reaction among some of Oklahoma’s non-Indigenous population was decidedly not as positive. Some groups in Oklahoma called on Oklahoma’s congressional delegation to introduce legislation to “fix” McGirt. Given the widespread reaction and controversy surrounding the case, it is important to understand the question the Court sought to answer in McGirt, and how, precisely, it did so.
The question in McGirt was straightforward enough: did the wrong sovereign convict Jimcy McGirt? In 1997, Oklahoma convicted McGirt—an enrolled member of the Seminole Nation—of heinous crimes involving the sexual exploitation of a minor, sentencing him to a draconian 1000 years. However, McGirt maintained that his crimes occurred not in Oklahoma, but on the Muscogee (Creek) reservation, and this fact—if true—meant that Oklahoma had no right to try him for these particular crimes. This is so because in 1885, Congress passed the Major Crimes Act (“MCA”), arrogating to itself the sole authority to try certain crimes committed by “Indians” in “Indian Country.” In 1948, Congress amended the MCA to define Indian Country as, in part, reservations. Thus, if McGirt’s crimes really did take place on the Muscogee (Creek) reservation, the wrong sovereign convicted him.
The Muscogee (Creek) Nation and the United States signed a treaty in 1832 guaranteeing the tribe that its reservation “would be secure forever.” Soon after, the United States government forcibly marched the Muscogee (and others) in a series of removals from the southeast to what would become the State of Oklahoma 80 years hence. These removals are now collectively known as the Trail of Tears. In the decades following the tribe’s removal from their homelands, the United States continued to impose new treaty terms on the Muscogee. For example, a new treaty term diminished the reservation boundaries in 1866. However, the Court held, at no point was the reservation disestablished by treaty or by an act of Congress. In 1871, Congress summarily stopped treaty-making with Native Americans.
When interpreting treaties with tribes, Courts must apply special canons of construction. This is because the relationship between the tribes and the United States is unique. For example, grants of land are grants from tribes to the United States, not vice versa. Moreover, the United States owes tribes heightened responsibilities generally known as the “trust responsibilities” because—as the Supreme Court long ago held—the tribes are “domestic dependent nations.” Moreover, the United States drafted the treaties in English. Consequently, since 1832, the Supreme Court has recognized that it should ordinarily resolve any ambiguities in treaties in the tribes’ favor as a result of a prudential understanding that the tribes were in a subordinate negotiating position. Flowing from the contours of this relationship then are a series of interpretive canons the Supreme Court has developed to answer questions arising in Indian Country.
The majority’s answer to the question of whether Congress ever disestablished the reservation was a resounding “no,” and it arrived at this answer using the canon requiring Congress to clearly express itself if it intends to disestablish a reservation. Indeed, the Court seemed to go further by discarding factors of the previous disestablishment test developed in Solem v. Bartlett, 465 U.S. 463 (1984).
This brief summary cannot be the place where one develops the full implications of McGirt. As the reader might intuit by this point, the decision is hard to fully understand without much context. Suffice it to say, federal Indian law is a fascinating, important, and very much alive area of the law.
 140 S.Ct. 2452 (2020).
 Julian Brave NoiseCat, The McGirt Case is a Historic Win for Tribes, Atlantic (July 12, 2020), https://www.theatlantic.com/ideas/archive/2020/07/mcgirt-case-historic-win-tribes/614071/.
 E.g., Herrera v. Wyoming, 139 S.Ct. 1686 (2018) (holding that statutes establishing the State of Wyoming and the Bighorn National Forest did not extinguish treaty-secured aboriginal hunting rights).
 Barbara Hoberock & Randy Krebhiel, Oklahoma Conservative Group Wants Tribal Boundaries Gone, Tulsa World (Oct. 19, 2020), https://tulsaworld.com/news/state-and-regional/govt-and-politics/oklahoma-conservative-group-wants-tribal-reservation-boundaries-gone/article_5ff72b0e-0a5f-11eb-9ee3-afcf85c16b89.html.
 McGirt v. Oklahoma, 140 S.Ct. 2452, 2459 (2020).
 Id. at 2459 (Roberts, C.J., dissenting).
 In this context “Indian” is a legal term of art. A person who is an Indian belongs to a federally-recognized tribe, and as such is entitled to certain benefits flowing from the government-to-government relationship between the tribal nation and the United States federal government. Carol E. Goldberg, et al., American Indian Law: Native Nations and the Federal System 137 (7th ed. 2015) [hereinafter American Indian Law].
 Congress took this action after the Supreme Court held in Ex Parte Crow Dog, 109 U.S. 556 (1883) that the federal government had no criminal jurisdiction over tribal members. Id. at 85.
 The MCA also defined Indian Country as “dependent Indian communities” and allotted lands held in trust title outside of reservations. Id. at 150–58.
 McGirt, 140 S.Ct. at 2459
 Trail of Tears, Museum of the Cherokee Indian, https://www.cherokeemuseum.org/archives/era/trail-of-tears (last visited Oct. 19, 2020).
 McGirt, 140 S.Ct. at 2459 (“On the far end of the Trail of Tears was a promise.”).
 Id. at 2461.
 Id. at 2474. Though beyond the scope of this summary, Congress possesses—by fiat—the power to unilaterally abrogate signed treaties between the tribes and the United States. This power is known as congressional plenary power. See Hillary M. Hoffmann, Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism, 97 Or. L. Rev. 353, 358 (2019).
 American Indian Law, supra note 9, at 78.
 American Indian Law, supra note 9, at 204.
 See, e.g., Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 9, 2000) (describing the unique government-to-government relationship between the two sovereigns).
 American Indian Law, supra note 9, at 204.
 Cherokee Nation v Georgia, 30 U.S. 1, 10 (1832).
 Worcester v. Georgia, 31 U.S. 515 (1832).
 McGirt v. Oklahoma, 140 S.Ct. 2452, 2462–63 (recounting the canon that the Supreme Court will not “lightly infer” reservation disestablishment, that Congress must “clearly express its intent” to disestablish, and collecting cases where Congress’s language did disestablish reservations).
 See, e.g., Oneida Nation v. Vill. of Hobart, 968 F.3d 664, 668 (7th Cir. 2020) (“We read McGirt as adjusting the Solem framework to place a greater focus on statutory text.”).
By: Theophilus Agbi | Vermont Law School, JD Candidate 2022 & Université de Cergy-Pontoise, DJCE Candidate 2022
August 28, 2020
Kansas v. Glover is a 2020 decision that deals with how much evidence law enforcement needs to support a traffic stop under the Fourth Amendment. In this case, a Kansas Deputy Sheriff ran a license plate check of a passing pickup truck. This check revealed that the registered owner was Charles Glover, and that Mr. Glover’s license was revoked. At the time of the license plate check, the Deputy Sheriff did not know who was driving the vehicle. He assumed that Mr. Glover was driving. Relying solely on the information gleaned from the license check, the Deputy Sherriff pulled the truck over. Upon pulling the vehicle over, the Deputy Sheriff confirmed that the current driver was Mr. Glover and issued him a ticket.
At trial, Mr. Glover challenged the ticket arguing that the Deputy Sherriff did not have sufficient evidence to support the initial traffic stop. Deputy Sherriff admitted that he “assumed” that the registered owner was also the current driver, even though he had no evidence to support that. Mr. Glover argued that this assumption was not enough to support the reasonable suspicion standard, which says that officers need “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” A “mere hunch” does not support reasonable suspicion.
The Kansas Trial Court, agreed with Mr. Glover and found that an officer cannot simply assume the registered owner is the present driver without having other corroborating evidence. On Appeal, the Trial Court’s ruling was reversed. Later, the Kansas Supreme Court reversed the Court of Appeals holding and affirmed the Trial Court’s decision. The State appealed the Kansas Supreme Court’s ruling at the United States Supreme Court.
DISPOSITION OF U.S. SUPREME COURT: Reversed and remanded.
In an 8-1 decision, the Supreme Court reversed the Kansas Supreme Court. Justice Clarence Thomas, delivered the majority opinion to which Chief Justice Roberts and Justices Breyer, Alito, Kagan, Gorsuch, and Kavanaugh joined. Justice Kagan issued a concurring opinion to which Justice Ginsburg joined. Justice Sotomayor delivered the dissenting opinion.
MAJORITY HOLDING & REASONING:
The majority found that the officer had enough evidence to support the traffic stop under the Fourth Amendment. The majority held, that “when [an] officer lacks information negating an inference that the owner is the driver of the vehicle, the [traffic] stop is [constitutional].” In other words, the Court is saying that officers are allowed to infer the registered owner is also the current driver until they find evidence to the contrary. The majority notes that the reasonable suspicion standard “is an ‘abstract’ concept that cannot be reduced to ‘a neat set of legal rules.’” Since reasonable suspicion “depends on the factual and practical considerations of everyday life on which reasonable and prudent men . . . act,” officers can rely on commonsense inferences. In this case, the majority considered the Deputy Sherriff’s inference that the registered owner was the current driver as a commonsense one. Since the Deputy Sherriff did not find any evidence to the contrary, the majority found his actions constitutionally permissible.
Through this ruling, the Supreme Court affirmed that reasonable suspicion can be satisfied by inferences drawn either from professional expertise or common sense.
While Justices Kagan and Ginsburg join the majority, they do so on slightly different grounds. These two Justices are not prepared to unequivocally adopt the “common sense” inference. For these Justices, the pivotal fact was that Mr. Glover’s license was “revoked” rather than suspended. Under Kansas law, a driver’s license is only revoked after a driver has committed “serious or repeated driving offenses.” In contrast, Kansas will suspend licenses “for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.” Since a revoked license indicates the registered owner has “shown a willingness to flout driving restrictions,”  it is more likely than not that such a driver would continue driving even without his/her license. This higher probability supports the officer’s common sense inference that the registered owner is also the present driver.
Justice Kagan states unequivocally, that she would have not sided with the majority, if the license had been suspended. Since suspended licenses can result from unrelated driving infractions, a suspended license does not support a higher probability that the driver would flout driving laws. For Kagan, under this circumstance, the common sense inference “would not much differ from a ‘mere hunch.’” As a mere hunch, the officer’s commence sense inference would not support reasonable suspicion.
DISSENT [Justice Sotomayor]:
Justice Sotomayor’s dissents for a few reasons. First, she argues that this new common sense standard, is no different than a mere hunch, which is precisely what the Court previously held as insufficient to support reasonable suspicion. Reasonable suspicion is supposed to be based on “perspectives and inferences of a reasonable officer viewing ‘the facts through the lens of his police experience and expertise.’” Second, Justice Sotomayor finds that the majority opinion “flips the burden of proof.” Rather than obliging the State to produce evidence that justifies its action, the majority allows the State to act so long as there is an absence of evidence. Finally, Justice Sotomayor dissents because this lack of evidence means that officers do not have to tailor their suspicion to the conduct of the individual. Without this requirement, officers are given “free rein to stop a vehicle involved in no suspicious activity simply because it is registered to an unlicensed person . . . [and officers are absolved] from any responsibility to investigate the identity of a driver where feasible.”
Justice Sotomayor rejects Justice Kagan’s distinction between revoked and suspended licenses on the grounds that the laws in other jurisdictions may vary from those in Kansas. Meaning that in other places non-driving related offences could cause a driver’s license to be suspended, revoked, or both. Without this distinction, Justice Kagan’s argument falls apart and the “common sense inference” becomes nothing more than a mere hunch.
 Kansas v. Glover, 140 S.Ct. 1183, 1186 (2020).
 Glover, 140 S.Ct. at 1186.
 Kansas v. Glover, 422 P.3d 64, 66 (2018) (“The driver moved to suppress evidence obtained during the stop, arguing the officer did not have reasonable suspicion of illegal activity when he stopped the car.”).
 Glover, 422 P.3d at 66.
 Glover, 140 S.Ct at 1187.
 Glover, 422 P.3d at 66.
 Kansas v. Glover, 140 S.Ct. 1183, 1186 (2020).
 Glover, 140 S.Ct at 1186.
 Id. at 1190.
 Id. at 1188.
 Id. (“[Based on the facts,] Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”).
 Glover, 140 S.Ct. at 1191(“Here Deputy Mehrer possessed no exculpatory information––let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck––and thus the stop was justified.”).
 Glover, 140 S.Ct at 1189.
 Id. at 1192.
 Glover, 140 S.Ct. at 1192.
 See id. (agreeing with the majorities reasoning in her explanation of how things would be different if the driver’s license was suspended rather than revoked).
 Justice Kagan writes “I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws . . . . [F]or example, if Kansas had suspended rather than revoked Glover’s license.”Id.
 Glover, 140 S.Ct. at 1194–95.
 Id. at 1195 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
 Id. at 1195–96.
 Id. at 1195.
 Id. at 1196.
 Id. at 1198.
 Justice Kagan in her concurrence admits that if the facts of this case were the same but instead the license had been suspended then “[she] suspect[s] that any common sense invoked . . . would not much differ from a ‘mere hunch . . . .’”  Glover, 140 S.Ct. at 1193.
By: Jessica Griswold | Vermont Law School, JD Candidate 2021
August 27, 2020
On August 20, 2020, the U.S. Department of Homeland Security (DHS) issued a temporary final Rule, Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities (the “August 20 TFR”), announcing a further extension of H-2A guest-worker visas.
The DHS first issued Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency (the “April 20 TFR”), which initially allowed temporary H-2A workers to extend their employment in response to COVID-19 disruptions to the U.S. food and agriculture sector during the summer growing season. As the “continued disruptions and uncertainty” of the pandemic bleed into the fall agricultural season, the DHS has exercised its authority—under section 102 of the Homeland Security Act of 2002 (HSA) and section 103(a) of the Immigration and Nationality Act (INA)—to amend the April 20 TFR as a matter of national security.
Here, the August 20 TFR provides that the DHS will continue allowing H-2A workers who have valid temporary labor certifications from the Department of Labor (DOL) to begin working for a new employer after the U.S. Citizen and Immigration Service (USCIS) receives an extension of stay petition on their behalf. 
Generally, the H-2A Visa Program allows U.S. employers to hire nonimmigrant foreign nationals seeking agricultural work on a “temporary or seasonal” basis when U.S. workers are not available to fill the jobs. In the absence of a national emergency, H-2A visas are valid for a maximum limit of three years, though most are typically valid for no longer than one. To apply for an H-2A visa, nonimmigrant workers seeking temporary agricultural work must have a job offer from a U.S. employer.
Further, U.S. employers who wish to recruit and hire temporary agricultural workers from other countries must petition for a Temporary Labor Certification (TLC) from the DOL, which requires employers to show that: (1) there are not enough willing, able, and qualified U.S. workers available to fill the jobs when and where employers need them; and (2) employing foreign nationals for temporary agricultural work will not adversely affect the wages or working conditions of U.S. agricultural workers. This requires a series of lengthy procedural steps and paperwork on part of the employers and the recruiters and petitioners they hire to bring nonimmigrant workers into the U.S.
In the age of the coronavirus pandemic—and always—agricultural workers are essential to U.S. food security and the American economy. Here, the DHS’s effort to facilitate nonimmigrant entry into the U.S. for temporary agricultural employment despite the current administration’s ban on immigration highlights the critical role of farmworkers in maintaining the nation’s food supply. Thus, creating a stronger avenue for legal migration to the U.S. serves to benefit our nation during COVID-19 and beyond.
According to the most recent National Agricultural Workers Survey (NAWS) Research Report, 69% of farmworkers that the DOL interviewed and hired in FY 2015–2016 were born in Mexico, and 83% of all farmworkers were Hispanic. The NAWS does not include H-2A workers in its survey sample. Notably, the U.S. Department of State (DOS) issued over 200,000 H-2A visas in FY 2019. On average, each temporary agricultural worker in the H-2A visa program maintained employment in the United States for six months. Although the gradual expansion of the H-2A program likely played an important role in lessening illegal immigration to the United States from Mexico, H-2A visas still fill only 10% of farm labor.
Moreover, Congress should amend the H-2A visa program to mitigate the bureaucratic complexity that is packed into the program’s 200+ rules. As it exists, the H-2A visa program ensures that employers will provide workers with the required wage rate in their state, housing, transportation, and workers compensation. Also, the employer must guarantee the worker a total number of work hours equal to at least three-fourths of the workdays in each 12-week period. Nevertheless, the power imbalance between employers and H-2A employees has led to intolerable violations of workers’ legal rights that commonly go unchecked.
In addition, many migrant and seasonal agricultural are subject to challenges such as: “hazardous work environments; poverty and insufficient support systems; inadequate or unsafe housing; limited availability of clean water and septic systems; inadequate healthcare access; continuity of care issues; lack of insurance; cultural and language barriers; fear of using healthcare due to immigration status; and lack of transportation.” Notably, less than half of farm workers have healthcare. This unacceptable fact is especially problematic during a pandemic, and even more so as coronavirus infections among farmworkers increase. Further, demanding better working conditions puts H-2A workers at risk of deportation. Because temporary agricultural workers may only acquire H-2A visas at the request of a U.S. employer, they often remain focused on getting the job done regardless of living and working conditions.
Simply put, the H-2A should require U.S. employers to provide migrant workers with fair living and working conditions—at minimum.
In sum, Extending H-2A visas in response to the COVID-19 national emergency creates additional opportunities for nonimmigrant workers in the U.S. and supports the nation’s food supply. However, the H-2A program itself is in need of drastic reform.
 Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities, 85 Fed. Reg. 51304 (Aug. 20, 2020) (to be codified at 8. C.F.R. pts. 214, 274) [hereinafter August 20 TFR].
 August 20 TFR, supra note 1, at 51304–51305.
 Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)(H)(ii)(a) (2018).
 8 C.F.R. §214.2(h)(5)(iv)(A) (2020).
 H-2A Program for Temporary Agricultural Workers, Center for Global Development, https://www.cgdev.org/sites/default/files/archive/doc/migration/H-2A_Fact_Sheet8.6.pdf, (last visited Aug.23, 2020).
 8 U.S.C. §1188(a)(1).
 See 20 C.F.R. §§ 655.121, 655.130, 655.135(d), 655.135(g), 655.143, 655.144(a), 655.150, 655.153, 655.154, 655.161(a) (providing the procedural requirements for U.S. employers to obtain a Temporary Labor Certification and bring foreign nationals into the U.S. on a temporary or seasonal basis to perform agricultural work).
 Janeen Madan Keller & Thomas Ginn, Including Immigrants is Good Policy Not Just During the Pandemic, but Afterwards Too (June 29, 2020), https://www.cgdev.org/blog/including-immigrants-good-policy-not-just-during-pandemic-afterwards-too.
 Trish Hernandez & Susan Gabbard, JBS Int’l, Findings from the National Agricultural Workers Survey (NAWS) 2015-2016: A Demographic and Employment Profile of United States Farmworkers, rsch Rep. No. 13 1 (2018), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS_Research_Report_13.pdf.
 Id. at i.
 Daniel Costa & Phillip Martin, Coronavirus and farmworkers: Farm Employment, Safety Issues, and the H-2A Guestworker Program (Mar. 24, 2020), https://www.epi.org/publication/coronavirus-and-farmworkers-h-2a/.
 David J. Bier, H-2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers, Cato Inst., Immigration Rsch & Pol’y Brief No. 17 1 (2020), https://www.cato.org/sites/cato.org/files/2020-03/IRPB-17-update-4.pdf.
 See Id.(describing the H-2A program as “bureaucratically complex”).
 Centro de los Derechos del Migrante, Inc., Ripe for Reform: Abuses of Agricultural Workers in the H-2A Visa Program, 6 (2020), https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf.
 Rural Migrant Health, Rural Health Info. Hub, https://www.ruralhealthinfo.org/topics/migrant-health#msaw, (last visited Aug. 23, 2020).
 U.S. Dep’t. Labor, National Agricultural Workers Survey 17 (2017), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSPAD_Codebook_2003_2016.pdf.
 Coronavirus Infections Among Farmworkers on the Rise, Legal Services Corp. (June 12, 2020), https://www.lsc.gov/media-center/blog/2020/06/12/coronavirus-infections-among-farmers-rise.
 Louis Velarde, How one visa program keeps America fed, The Washington Post (June 17, 2020), https://www.washingtonpost.com/video/national/how-one-visa-program-keeps-america-fed/2020/06/17/ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_video.html.
Most criminal defendants cannot afford their own attorney and instead rely on attorneys provided by the government. Ever since Gideon guaranteed representation to defendants facing possible imprisonment, critics have harshly criticized the quality of that representation, focusing in particular on jurisdictions where public defenders have staggering caseloads that make it effectively impossible to routinely go beyond “meet ‘em, greet ‘em, and plead ‘em,” and where appointed and contract counsel have compensation schemes that demand the rapid resolution of cases. In some jurisdictions, attorneys lack the time—sometimes best measured in minutes per case—to perform even a basic investigation of the facts much less develop a meaningful attorney-client relationship or probe the prosecution’s case for weaknesses. Public defense attorneys with too many cases often also lack support services like investigators or expert witnesses. Although the highly deferential Strickland Test provides a remedy for ineffective counsel in extraordinary cases, it has done little to stop assembly-line justice from flourishing in the years since Gideon, a once-revolutionary decision that is widely considered a broken promise.
“Sustainability momentum—that’s where the magic is going to happen.” – Eddie Perkin
Investors admonish major companies for “hiding” their environmentally related plans to deal with climate change. In fact, worldwide trends indicate that investors have a strong interest in companies’ climate-related plans. And some companies have “bowed to [these] investor demands” already. However, despite this trend, some of the world’s largest and well-known companies still remain silent on how critical climate-related issues affect their business—including Berkshire Hathaway, Facebook, Netflix, PayPal, and even the electric-car maker, Tesla. And, in recent years, fossil-fuel giants—BP, Exxon, and Chevron—have stopped disclosing their climate-related plans. The reason: because disclosures on environmental, social, and governance issues (ESG) are a dollar-and-cents issue, and revealing climate-sensitive information could be bad for certain businesses. In 2016, the Sustainability Accounting Standards Board (SASB) reported that out of 1,500 disclosures by 637 companies across different 72 industries, nearly 30 percent of the disclosures did not include any climate-related information. Most corporations evade climate-related disclosure because companies do not consider the risks of climate change to be material or that the company does not have a duty to report. Further, in the United States, ESG disclosures are an entirely voluntary measure, so companies have no obligation to report it—for now that is. Despite this disclosure dilemma, tackling climate change must ultimately go beyond the corporate dollar-and-cent mentality.
American filmmaker and writer John Waters once said: “I’d be arrested if I still smoked because I’m the one who would be changing the battery in the airplane in the lavatory to take out the smoke detector. I would’ve been those people they warn you against.” Given the current state of federal law, Waters would have not only inconvenienced the passengers and flight crew, but also given many restless nights to his attorney.