Author Archive

A Brighter and Cleaner Future in Energy

By Theo Rose | Staff Editor

April 12, 2024

Fossil fuels as an energy source powered considerable socioeconomic development, which created environmental challenges that need a global solution.[1] Renewable energy provides a bridge to supply increased power demands and reduce humans’ environmental impact.[2] However, renewables present their own environmental challenges and cannot meet current energy demand.[3] Yet, the International Energy Agency predicts that renewable energy will supply 95% of the increase in global demand between 2023 and 2025.[4] To prevent renewable energy from perpetuating environmental damage, however, policymakers must develop sustainable and diverse energy policies.

            Photovoltaic solar relies on panels that have limited lifespans. One hundred thousand tons of solar panel waste sit in United States landfills today.[5] Projections indicate that the United States will have one million tons of solar panel waste by 2030and 22 billion tons of solar waste by 2050.[6] Disposing of panels in landfills wastes valuable materials[7] and can allow harmful substances to leach from the panels to surrounding environments.[8] But panels can be recycled.[9] Accordingly, legislation that requires panels to contain minimum recycled content offers an attractive solution to establish a sustainable solar energy industry.

            Yet, improvements should not stop with solar panels. As the world shifts from fossil fuels, policymakers need to encourage development and implementation of other clean energy sources. For example, nuclear fusion could produce electricity without carbon emissions.[10] Nuclear fusion powers the sun and other stars.[11] In 2021, scientists in California reignited interest in nuclear fusion power when they produced more energy from a nuclear fusion reaction than they used to create the reaction.[12] Nuclear fusion’s energy-generating potential warrants further government investment and could factor into future energy policies.[13]

            Additionally, the United States increasingly relies on existing nuclear technology to further clean energy goals.[14] Nuclear fission offers the second largest source of low-carbon electricity today.[15] Nuclear technology could meet energy needs while waiting for more and better renewables.[16] Nuclear energy helps prevent over 500 million tons of carbon dioxide from entering the atmosphere annually.[17] To continue reaping the benefits of nuclear energy, United States utilities will need to extend the lifespan of existing reactors, implement small modular reactors, and continue to invest in technological development, like nuclear fission.[18]

[1] EPA, Causes of Climate Change, Climate Change Science, (Apr. 25, 2023), https://www.epa.gov/climatechange-science/causes-climate-change.

[2] Renewable energy sources include solar photovoltaic, concentrated solar, geothermal, biomass, hydropower, and marine and hydrokinetic power. See generally Samuel Koebrich et al., 2018 Renewable Energy Data Book 4 (Mike Meshek & Gian Porro eds., 2020); see also Merrian C. Fuller et al., Toward a Low-Carbon Economy: Municipal Financing for Energy Efficiency and Solar Power, 51 Env’t. Mag. 22, 24 (2009).

[3] Intl. Energy Agency, Nuclear Power in a Clean Energy System 8 (2019), https://iea.blob.core.windows.net/assets/ad5a93ce-3a7f-461d-a441-8a05b7601887/Nuclear_Power_in_a_Clean_Energy_System.pdf.

[4] Intl. Energy Agency, Electricity Market Report 2023 6.

[5] Yan Xu et al., Global Status of Recycling Waste Solar Panels: A Review, 75 Waste Mgmt. 450, 453 (2018).

[6] Stephanie Weckend, et al., End-of-Life Management: Solar Photovoltaic Panels, Intl. Renewable Energy Agency 25, 34 (2016); see also Atalay Atasu, et al., The Dark Side of Solar Power, Harvard Business Review, (June 18, 2021), https://hbr.org/2021/06/the-dark-side-of-solar-power (explaining that solar panel waste might exceed current projections if consumers opt for early replacement).

[7] Hernandez-Lopez Daniela-Abigail et al., Does Recycling Solar Panels Make This Renewable Resource Sustainable? Evidence Supported by Environmental, Economic, and Social Dimensions, 77 Sustainable Cities & Soc’y 103539, 39 (2022) (explaining that recycling panels would enable a 66% reduction in the total materials and energy consumed to develop solar energy); Rachel Snead, Washington State Tackles Solar Panel Waste, the Dirty Side of Clean Tech, Envtl. And Energy Study Institute (Feb 24, 2021), https://www.eesi.org/articles/view/washington-state-tackles-solar-panel-waste-the-dirty-side-of-clean-tech.

[8] Michael Shellenberger, If Solar Panels Are So Clean, Why Do They Produce So Much Toxic Waste?, Forbes (May 23, 2018), https://www.forbes.com/sites/michaelshellenberger/2018/05/23/if-solar-panels-are-so-clean-why-do-they-produce-so-much-toxic-waste/#3e355219121c (explaining that solar panels contain toxic materials that can become contaminate environments when they leech).

[9] See generally C.C. Farrell et al., Technical Challenges and Opportunities in Realizing a Circular Economy for Waste Photovoltaic Modules, 128 Renew. Sustain. Energy Rev. 12 (2020) (explaining that recycling solar panels prevents waste and promotes sustainability).

[10] U.S. Gov. Accountability Office, Fusion Energy, Potentially Transformative Technology Still Faces Fundamental Challenges (Mar. 30, 2023), https://www.gao.gov/products/gao-23-105813.

[11] Id.

[12] Daniel Cleary, With Historic Explosion, A Long-Sought Fusion Breakthrough, Sci. News (Dec. 13, 2022), https://www.science.org/content/article/historic-explosion-long-sought-fusion-breakthrough.

[13] Pearle M. Lipinski, Considering the Price-Anderson Act’s Federal Public Liability Action Provisions in the Future of Nuclear Fusion Power, 22 Colo. Tech. L. J. 1, 16–18 (2023); David A. Repka & Tyson R. Smith, Deep Decarbonization and Nuclear Energy, 48 ELR 10244, 10248 (2018).

[14] See, e.g., Energy Act of 2020, Pub. L. 116-260 Div. Z §§ 2001-2008, 116th Cong. (2021) (offering Congressional support for billions of dollars for programs that include advanced fuel development, demonstration projects for advanced nuclear reactors, and development of fusion power plants); Nuclear Energy Innovation and Modernization Act, Pub. L. 115-439, 115th Cong. (2019) (calling for developments that would “allow innovation and commercialization of advanced nuclear reactors”); Dep’t of Energy, DOE Establishes $6 Billion Program to Preserve America’s Clean Nuclear Energy Infrastructure (Feb. 11, 2022) (stating that nuclear power plants are essential to achieving the United States’ clean energy goals).

[15] Intl. Renewable Energy Agency, supra note 3, at 8.

[16] Id. at 80 (explaining that renewable energy has failed to lower overall carbon emissions because it often replaces nuclear generation); Ahab Abdel-Aziz, Reimagining the Future of Nuclear Power Generation, 69 Nat. Res. & Energy L. Inst. 3-1, 1, 2, 4 (2023) (explaining that nuclear can meet energy demands that grow with global populations and electrification).

[17] Intl. Energy Agency, supra note 3, at 20; Dept. Of Energy, Three Reasons Why Nuclear Is Clean and Sustainable (Mar. 31, 2021); see also Mass. Inst. Tech., The Future of Nuclear Energy in a Carbon-Constrained World, at xi (2018) (explaining the cost effectiveness of using nuclear).

[18] Abdel-Aziz, supra note 17, at 33–37.

Purpose Over Prestige: In Defense of the Student-Run Law Review

By Isabella Pickett | Staff Editor

April 10, 2024

The first successful student-edited law review was founded in 1886 at Harvard Law School by future Supreme Court Justice Louis D. Brandeis.[1] In the beginning, the Harvard Law Review was called the Langdell Society, christened after the man who popularized the case method for legal education.[2] From there on, dozens of student-edited law reviews have followed in the Harvard Law Review’s footsteps, editing and publishing legal scholarship.[3]

Student-edited law reviews have contributed significantly to the profession.[4] True to their mission, student-edited law reviews advance legal thought and discussion through student initiative, responsibility, and autonomy.[5] The enterprise of student-edited law reviews pervades through one vital crux: they are student-controlled.[6] From selecting articles, daily operating, editing, and more, student-edited law reviews present an unparalleled learning experience for law students.[7]

Following their heyday, the gradual shift in legal scholarship in the 1970s to 1990s caused student-edited law reviews to fall out of favor with jurists.[8] Law review articles simultaneously began disappearing from judicial citations.[9] The profession scrambled, searching for what caused this scholarly snag and what solutions could redress it.[10] Naturally, the “student-edited” part of the student-edited law review was targeted with polemic critiques.[11]

Well-intentioned faculty have often tried to seize the reigns from students. However, attempts to replace student-run law reviews with faculty-run ones have been rebuffed with routine success.[12] Noticeably, no faculty journal is ranked higher than 65th in terms of impact on the Washington and Lee Journal Rankings.[13] Out of the top 100 law reviews for impact, only 2 faculty journals even place.[14] Beyond student rebukes and rankings, faculty-run law reviews fail to address the problem facing law reviews generally, and in fact threaten to exacerbate it.

The problem is the decreasing persuasive weight of citing law review articles.[15] Law review articles mean less and less to practitioners because legal scholarship has become increasingly niche.[16] However, faculty-run law reviews tend to give prestige undue weight and tend to twist law reviews into esoteric echo chambers of niche legal academia.[17] The natural result is a feedback loop: faculty law reviews publishing more enigmatic articles, the said articles are cited less, leading legal academia further away from its practicing counterparts.

Faculty-run law reviews fail to replace student-run ones in two major ways. First, they are plainly contrary to the purpose of student-run law reviews—for students to learn.[18] The article selection process alone exposes student editors to topics they would not otherwise learn about. On a practical basis, the ingenuity of a student-edited law review is it requires hands-on learning, peer-to-peer instruction, and more responsibility than any seminar-style class.[19] Put simply, faculty-run law reviews remove the “sink or swim” motivation student-edited law reviews provide.[20] If this motivation is not present in a student editor’s law review (for example, if it is faculty-run) potential employers are deprived of a reliable way to distinguish candidates that have cut their teeth in these kinds of environments.[21]

Second, faculty-run law reviews are incapable of performing the gatekeeping function that students do. Student editors act as gatekeepers, often aggravating academics.[22] Their unfamiliarity with the topics makes student editors powerful filters for stuffy arcane legal writing. If the article is not clear enough for them to understand, as people with some legal exposure and experience, it is too complex to publish. The law is already a complex beast, and student editors ensure ordinary people do not need formal legal education to make head or tail of it.[23] If faculty were able to select, edit, and unilaterally publish articles, it would only further entrench the institution of legal thought in the trappings of academic elitism.

There are alternative answers to the problem facing law reviews generally today.[24] While it is clear faculty-run law reviews are one answer, it is not the correct one. To be clear, faculty involvement is still beneficial in the student-run law review. Because the legal profession is self-regulated, faculty have an ethical obligation to help maintain the minimum standards by guiding and mentoring fledgling lawyers who may be moonlighting as student editors.[25] In fact, faculty may go beyond and encourage student editors to strive for excellence. However, these benefits, and many more, may be bestowed without eroding the autonomy and purposes of the student-run law review.

[1] Erwin N. Griswold, The Harvard Law Review—Glimpses of Its History as Seen by an Aficionado, Harv. L. Rev.: Centennial Album (1987), available at https://harvardlawreview.org/print/no-volume/glimpses-of-its-history-as-seen-by-an-aficionado/.

[2] Lindsay Rogers, The Centennial History of the Harvard Law School 1817–1917, 6 Va. L. Rev. 70 (1919).

[3] See Thomas W. Merrill, The Digital Revolution and the Future of Law Reviews, 99 Marq. L. Rev. 1101 (2016) (“As you may know, Harvard established the first student-edited law review in 1887. Once the Harvard experiment was seen to be a success, other schools followed suit.”).

[4] For example, The Bluebook: A Uniform System of Citation is a descendant of the “Instructions for Editorial Work” booklet created by Harvard Law Review student editors for its new members. Griswold, supra note 1. Now the Bluebook is used pervasively throughout the legal profession beyond law reviews. Id.

[5] See Griswold, supra note 1 (“The fact that the [Harvard Law]Review has been operated with student initiative and responsibility has contributed greatly to the education it provides its members.”).

[6] Id.; see also James W. Harper, Why Student-Run Law Reviews, 82 Mich. L. Rev. 1261, 1262–71 (1998) (defending student-run law reviews not only for the learning opportunity they present, but for their ability to “restrain[] legal scholarship to something ordinary people can understand”).

[7] James W. Harper, Why Student-Run Law Reviews, 82 Mich. L. Rev. 1261, 1271 (1998).

[8] Most notably would be Chief Justice Roberts, who commented on the change, stating:

There is a great disconnect between the academy and the profession. Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

John Roberts, A Conversation with Chief Justice Roberts, C-SPAN (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts, at 30:42.

This attitude shift can be credited to the changes in legal scholarship from doctrinal to scholarship focused on “interdisciplinary, theoretical, nondoctrinal” as noted by Judge Posner, a common critic of the student-edited law review. Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, at 1133.

[9] Brian T. Detweiler, May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals, 39 Legal Ref. Servs. Q. 87 (2020) (noting the downward trend of judicial citations decreasing 70% since the mid-1970s).

[10] Harper, supra note 7, at 1262 (“The literature on student-run law reviews is almost universally critical.”).

[11] Id.

[12] Harper, supra note 7, at 1271 (explaining one attempt by George Mason University Law School to replace its student-run law review in favor of two faculty-led ones failed after students announced they would simply “run their own, ‘underground’ law review”).

[13] 2022 W&L Law Journal Rankings, WASHINGTON and LEE SCHOOL OF LAW, https://managementtools4.wlu.edu/LawJournals/Default.aspx (last visited Mar. 31, 2024) (ranking the peer-edited (faculty-led) journal Tax Law Review as 65th overall in terms of impact).

[14] Those two journals being the Tax Law Review and the Cato Supreme Court Review. Id.

[15] Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, at 1133.

[16] Roberts, supra note 8.

[17] Id.; Harper, supra note 7.

[18] See, e.g., Griswold, supra note 1 (noting the first issue of Harvard Law Review stated its primary purpose was “to set forth the work done in the school with which we are connected,” but the editors of course “hoped” the “Review would be serviceable to the profession at large”).

[19] Given the striking veracity of Harper’s words, I must cite them in full:

If a faculty advisor took an active interest in the operations of the law review, the articles it selects, and the editing it does to them, this would stamp out about half the learning students get from law review. . . . Conducting a class that addresses the practical problems of law review publishing, and holding the hands of post-graduate students through all the law review publishing stages, is a little too parental and a little too likely to strangle “real” learning.

Harper, supra note 7, at 1290. As someone who has undergone this learning firsthand without faculty handholding, I speculate that being entrusted wholly with the publication of our volume is the primary motivating factor for learning. See, e.g., Griswold, supra note 1 (noting the first issue of Harvard Law Review stated its purpose was “to set forth the work done in the school with which we are connected,” but the editors of course “hoped” the “Review would be serviceable to the profession at large”).

[20] Id.

[21] Id. On a pragmatic level, navigating real-world conflicts and practicing management develops a student editor’s practical skills substantially more than any lecture-style course ever could. Id.

[22] See Neil Hamilton, The Law Faculty’s Ethical Failures Regarding Student-Edited Law Reviews, 23 No. 4 Prof. L. 34 (2016) (pontificating on the topic of student-edited law reviews as a whole and why faculty must act to reign in their “apprentices”).

[23] Harper, supra note 7.

[24] For example, the article-selection process could be made “double blind,” ensuring that the reviewing editor nor the author know the other’s name or school affiliation. See Hamilton, supra note 22. Perhaps there could be a return to more doctrinal scholarship. Or perhaps there are not any solutions at all. Perhaps this is the result of judges and justices having access to precedential authority thanks to research engines like Westlaw and LexisNexis, and they no longer need to rely on secondary nonbinding authorities like law review articles. Thomas W. Merrill, The Digital Revolution and the Future of Law Reviews, 99 Marq. L. Rev. 1101 (2016).

[25] Hamilton, supra note 22, at 38.

It’s Time to (Climate) Change Food Labels: Promulgating New FDA and USDA Food Labeling Regulations

By Whitney Roth | Staff Editor

April 8, 2024

You are at the grocery store, going about your everyday shopping routine, when suddenly you encounter a food label. You look at the label and try to obtain the information. However, you feel confused about what the label means and whether it is accurate or not. You are also wondering why there is no information regarding how that food product impacts the environment. If you relate to this grocery store experience, then climate labels are a helpful solution.

 

The government agencies responsible for food labeling in the United States are the Food and Drug Administration (FDA) and the United States Department of Agriculture (USDA).[1] The USDA regulates labeling for meat and poultry products, whereas the FDA is responsible for all other food products.[2]

 

There are a wide variety of different types of food labels. “Eco-labels” are one form of labeling that educates consumers on how a particular food item impacts the environment.[3] Some examples of eco-labeling include using the terms “organic” or “sustainable” on food products.[4] One rare type of eco-label used in the United States, however, relates to climate labels.[5]

 

Climate labels specifically represent an individual food item’s carbon footprint and environmental impact score based on how its greenhouse gas emissions effect climate change.[6] In 2007, two Swedish companies, KRAV and Swedish Seal of Quality, first introduced climate labels.[7] In 2022, Denmark also proposed its own form of climate labeling on food products.[8] Currently, the FDA and USDA do not mandate climate labels on food products. It is crucial that the United States starts utilizing climate labels because it will help combat climate change, which ultimately impacts the whole world.[9]

 

In the United States, food production generates about 68% of greenhouse gas emissions.[10] Each individual food item releases a certain amount of carbon into the atmosphere, some more than others.[11] For instance, meat products generate about 60% greenhouse gas emissions and beef specifically emits the most amount of greenhouse gas in the food industry.[12] This is because cows eat so much grass that it emits harmful greenhouse gasses as a result.[13] In contrast, plant-based food products such as nuts and vegetables have a lower overall carbon footprint.[14]

 

Food products emit varying amounts of carbon, therefore some are considered more carbon-neutral while others have a much higher carbon footprint.[15] Consequently, it is important for consumers to understand which foods directly impact climate change by analyzing its carbon footprint and environmental impact score through climate labels.[16] Climate labels can help reduce climate change because consumers will be conscious and aware about whether a food product is harming the environment.[17] Furthermore, climate labels can help consumers make more informed decisions when purchasing food.[18] If climate labels are placed on every food item, then people can efficiently compare and contrast which products they want to buy based on the environmental impact that the climate label reveals.[19]

 

The Fair Packaging and Labeling Act (FPLA) mandates that food labeling is fair and accurate.[20] The FPLA requires the FDA to ensure that food labeling is not deceiving to consumers.[21] However, the current lack of climate labels misleads consumers because food labels do not provide enough essential environmental information. From an environmental perspective, a food’s carbon footprint and environmental impact score is an important component so it should be displayed on a food label because it accurately represents the individual food item.

 

The FDA and USDA can promulgate a new climate label rule within the FDA’s and USDA’s existing regulations because of its Administrative Procedure Act rulemaking powers.[22] The FDA and USDA most likely would follow an informal rulemaking process and conduct a public notice and comment period in order to promulgate a new climate label regulation.[23] The climate label regulation should appear in the FDA’s food labeling regulations, the USDA’s Federal Meat Inspection Act, and the USDA’s Poultry Products Inspection Act.[24]

 

The Federal Trade Commission’s (FTC) “Green Guides” is a set of guidelines for manufacturers to consider when making “environmental claims” on their products.[25] The Green Guides is not the best model for proposing mandatory climate labels, however, because it is not binding law.[26] In contrast, climate labeling should be a mandatory regulation because it is most effective in reducing climate change if it serves as a uniform labeling practice throughout the United States.

 

In addition, climate labels on food products can help the USDA and Environmental Protection Agency (EPA) in their goal to reduce food waste in half by the year 2030.[27] About 98% of food waste releases greenhouse gases and significantly impacts climate change.[28] In 2016, each individual in the United States contributed about “328 pounds of food waste.”[29] Therefore, the USDA and EPA made it their mission to cut this amount of food waste in half.[30] By reducing food waste, it will also reduce greenhouse gas emissions, and ultimately lower the harmful impacts of climate change.[31] Climate labels can also help reduce food waste because consumers will be more aware of which foods harm the environment and ensure that those foods do not get thrown out if unconsumed.[32]

 

Ultimately, consumers care about how food impacts the environment and want the most accurate information.[33] Therefore, mandating climate labels on food products in the United States is important to educate society on environmental impact information and reduce climate change.[34]

[1] Regulation of Advertising and Labeling: Conditions of Private Information Supply, Econ. Rsch. Serv. U.S. Dep’t of Agric., 11, 11 https://www.ers.usda.gov/webdocs/publications/41905/51665_ah715c.pdf?v=0#:~:. (last visited Mar. 27, 2024).

[2] Id.

[3] Seth Gitner, Food Labels as a Method to Combat Climate Change, Geo. Env’t. L. Rev. Online 1,1 (March 5, 2017).

[4] Jason J. Czarnezki, The Future of Food Eco-Labeling: Organic, Carbon Footprint, and Environmental Life-Cycle Analysis, 30 Stan. Env’t. L.J. 3, 6–7 (2011); Gitner, supra note 3.

[5] Jeff Gelski, Under 50% Aware of Carbon-Neutral Labels, Food Bus. News, (Aug. 8, 2022), https://www.foodbusinessnews.net/articles/21942-under-50-aware-of-carbon-neutral-labels.

[6] See, e.g., Oatly Introduces Climate Footprint Labeling in North America; Launches Reformulated Oatgurt Line, OATLY, (Jan. 21, 2023), https://investors.oatly.com/news-releases/news-release-details/oatly-introduces-climate-footprint-labeling-north-america/ (describing Oatly’s climate footprint labels that display the yogurt’s calculated carbon emission amount); see, e.g., Gavin Haines, Carbon Labelling for Food and Drink Products is Coming – Will it Make a Difference?, Positive.News, (Sep. 28, 2021), https://www.positive.news/environment/food/carbon-labelling-for-food-and-drink-products-is-coming-will-it-make-a-difference/ (describing how food products are labeled with a letter and color-coded grade, which is determined by how its greenhouse gas emissions impact the environment).

[7] Bettina Dahlbacka, Swedish Climate Labeling became Climate Certification, USDA Foreign Agric. Serv. Glob. Agric. Info. Network 1, 2 (June 28, 2010).

[8] See Marissa Sheldon, Denmark to Become First Country to Develop Climate Label for Food, HUNTER COLL. N.Y.C. POL’Y CTR., (May 3, 2022), https://www.nycfoodpolicy.org/food-policy-snapshot-denmark-climate-label/ (“The Danish Ministry of Food, Agriculture, and Fisheries has announced that it will create a state-controlled climate label for food that promotes climate-friendly food production.”); Flora Southey, Denmark ‘First Country in the World’ to Develop its Own Climate Label for Food, Food Navigator Eur., (Apr. 19, 2022) https://www.foodnavigator.com/Article/2022/04/19/denmark-first-country-in-the-world-to-develop-its-own-climate-label-for-food.

[9] See Michael Vandenbergh et al., How Carbon Labels Can Aid in the Fight Against Climate Change, VANDERBILT UNIV., (Jan. 27, 2022), https://news.vanderbilt.edu/2022/01/27/how-carbon-labels-can-aid-in-the-fight-against-climate-change/ (“Carbon labels are an important, feasible way to reduce carbon emissions, and these types of feasible options are more important than ever given the combination of the growing threat of climate change and the inability of the international and national processes to make sufficient progress.”).

[10] Carbon Footprint Factsheet, CTR. FOR SUSTAINABLE SYS. UNIV. MICH. (2023), https://css.umich.edu/publications/factsheets/sustainability-indicators/carbon-footprint-factsheet#:~:.

[11] Hannah Ritchie, You Want to Reduce the Carbon Footprint of Your Food? Focus on What You Eat, Not Whether Your Food is Local, Our World in Data, (Jan. 24, 2020), https://ourworldindata.org/food-choice-vs-eating-local.

[12] Martina Igini, Climate Labels on Food Can Change Eating Habits for the Better: Study, EARTH.ORG, (Dec. 29, 2022), https://earth.org/climate-labels/; Food and Climate Change: Healthy Diets for a Healthier Planet, United Nations, https://www.un.org/en/climatechange/science/climate-issues/food (last visited Mar. 27, 2024).

[13] Food and Climate Change: Healthy Diets for a Healthier Planet, supra note 12.

[14] Ritchie, supra note 11.

[15] Id.

[16] Id.

[17] See Igini, supra note 12.

[18] See, e.g., Charlotte Pointing, What Are Climate Labels? And Can They Really Change Our Food Habits?, VegNews, (Mar. 30, 2023), https://vegnews.com/vegan-news/climate-labels-change-food-habits (“The researchers found that 84 percent of people went for vegetarian or chicken over beef when presented with the climate-labeled version of the menu.”).

[19] Id.

[20] 15 U.S.C. § 1451.

[21] Fair Packaging and Labeling Act: Regulations Under Section 4 of the Fair Packaging and Labeling Act, FED. TRADE COMM’N, https://www.ftc.gov/legal-library/browse/rules/fair-packaging-labeling-act-regulations-under-section-4-fair-packaging-labeling-act (last visited Mar. 27, 2024).

[22] A Guide to the Rulemaking Process, The Off. of the Fed. Reg. 1, 2; FDA Rules and Regulations, U.S. FOOD & DRUG ADMIN., (June 1, 2020), https://www.fda.gov/regulatory-information/fda-rules-and-regulations; Rulemaking, Agric. Mktg. Serv. U.S. Dep’t Agric., https://www.ams.usda.gov/rules-regulations/rulemaking (last visited Mar. 28, 2024).

[23] FDA Rules and Regulations, supra note 22; Rulemaking, supra note 22.

[24] 21 C.F.R. § 101; 9 C.F.R. § 317; id. § 381.

[25] 16 C.F.R. Part 260; id. § 260.1(a).

[26] Roscoe B. Starek, III, A Brief Review of the FTC’s Environmental and Food Advertising Enforcement Programs, FED. TRADE COMM’N, (Oct. 13, 1995), https://www.ftc.gov/news-events/news/speeches/brief-review-ftcs-environmental-food-advertising-enforcement-programs.

[27] See United States 2030 Food Loss and Waste Reduction Goal, U.S. Env’t Prot. Agency, (last updated Feb. 21, 2024), https://www.epa.gov/sustainable-management-food/united-states-2030-food-loss-and-waste-reduction-goal#goal.

[28] Bonnie L. Smith, Heat Up Those Leftovers, Not the Planet: How Combatting Food Waste Can Affect Climate Change, 18 Vt. J. Env’t. L. 648, 650 (2017).

[29] United States 2030 Food Loss and Waste Reduction Goal, supra note 27.

[30] Id.

[31] Id.

[32] Orla Dwyer, Food Waste Accounts for ‘Half’ of Global Food System Emissions, Univ. of Illinois Urbana-Champaign Coll. of Agric., Consumer, & Env’t Scis. Food Scis. & Hum. Nutrition, (June 23, 2023), https://fshn.illinois.edu/news/food-waste-accounts-half-global-food-system-emissions#:~:.

[33] See Igini, supra note 12.

[34] Id.

The Ball Is in Your Court: Why the Bureau of Land Management Should Remove Blanket Bonding Financial Assurances and Institute an Oil and Gas Well Reclamation Tax

By Nicholas Kiss | Staff Editor

April 5, 2024

In the summer of 2023, the Bureau of Land Management (BLM) proposed a rule to increase federal bonding rates for onshore oil and gas wells.[1] This rule would seemingly adjust blanket bonding requirements and further eliminate the ability to acquire nationwide bond coverage for oil and gas wells on federal lands.[2] These rules and regulations may seem insignificant to the untrained eye, but they dramatically impact the ability to clean up harmful spills caused by oil and gas wells.

The procurement of natural gas wells has increased significantly in recent years, with many energy companies purchasing orphaned and abandoned natural gas wells. This profit comes at a time when carbon dioxide emissions create a climate crisis to rival the more significant issues of our generation. Natural gas, which burns clean, seemingly solves this issue, but what is not stated is the impact methane emissions have on global warming. Methane which possesses a warming potential 84 times that of Carbon Dioxide over a 20-year period is just the beginning.[3] What often results are natural gas wells that have been abandoned, leaking into their surrounding environment.[4] This creates billions in potential cleanup costs around the United States and the required financial assurances only amount to fractions of the cost.[5]

To remedy this issue both federal and state governments require proof of bond coverage: money set aside in the case of an environmental accident.[6] However, federal blanket bonding rates are caught in time as companies can acquire a nationwide bond for $100,000 that can cover every oil and gas lease within their operation.[7] BLM has not adjusted these rates for inflation since 1951,[8] and they pale in comparison to state bonding requirements.[9] This prompted BLM to act. Last year BLM released a proposed rule that would eliminate nationwide blanket bonding and raise statewide blanket bonds from $25,000 to $500,000 on federal lands.[10]

It is not clear why these rules haven’t seen updates, but reports suggest that BLM officials had no desire for updating the bonding requirements due to fears that energy companies would struggle paying higher bond costs.[11] Nevertheless, BLM has now proposed a rule which it believes falls within its statutory discretion from the Federal Land Policy and Management Act, the Mineral Leasing Act, and the recently enacted Inflation Reduction Act.[12] The discretion given within these statutes directs BLM to manage federal lands with the principle of multiple use and sustained yield.[13] Or in other words, BLM must manage the lands to preserve a balanced use of the land that considers both long-term and short-term needs and desires.[14]

This proposed rule is not perfect, but it is a step in the right direction. The practice of blanket bonding should end, and the proposed rule does well to end this practice nationally.[15] However, BLM still allows statewide bonds, and despite increasing bond minimums there would still exist a significant disparity of funds available for clean-up costs.[16] Financial assurances should be completed on a case-by-case basis where the oil or gas well is evaluated on its individual risk to the surrounding environment. States are already doing this with oil and gas drilling on state specific land and coal mines use this process.[17] Of course, it is often that fully abandoned oil and gas wells are the most dangerous, a common occurrence when an energy company declares bankruptcy. Often state sponsored taxes and reclamation funds are the only options to plug these wells.[18] This does not exist on the federal level, and BLM must include this provision in its proposed rule. Further, BLM has authority to seek fees from oil and gas operators that provide more financial assurances for plugging oil and gas wells under the Energy Policy Act of 2005.[19] This should look like the establishment of a tax on oil and gas wells, where the revenue generated returns directly to the conservation of unplugged oil and gas wells’ surrounding environment.[20]

BLM’s approval of blanket bonding has created a custom that encourages energy companies to abandon oil and gas wells causing pollution. The propensity of greenhouse gas emissions to warm our planet among other public pressures have caused BLM to adjust its current rule on blanket bonding.[21] However, this proposed rule does not go far enough as energy companies can easily sidestep well plugging obligations and still provide financial assurances for wells that fall short of the necessary clean-up costs. The Energy Policy Act provides BLM with the statutory authority to collect reclamation funds from oil and gas operators to force operators to clean up their wells. The only question left is: will they act?

[1] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47562 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).

[2] Id. at 47579.

[3] Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 714 (Thomas F. Stocker et al. eds., 2013).

[4] Zachary R. Milder & Rachel Adams-Heard, An Empire of Dying Wells, Bloomberg (Oct. 12, 2021) https://www.bloomberg.com/features/diversified-energy-natural-gas-wells-methane-leaks-2021/; Douglas Hale Gross, Annotation, Duty and Liability as to Plugging Oil or Gas Well Abandoned or Taken Out of Production, 50 A.L.R. 3d 240, § 2 (1973) (discussing general environmental impacts from leaking abandoned oil and gas wells).

[5] See id.

[6] Nicole Layton & Ginger Sprong, Cut and Run: Bonding, Bankruptcies, and the Orphaned-Oil-Well Cut and Run: Bonding, Bankruptcies, and the Orphaned-Oil-Well Crisis, 10 LSU J. of Energy L. & Res. 1, 9 (2022).

[7] See id. at 13.

[8] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47579 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).

[9] See also Wyo. Admin. Code 055.0001.3 § 4 (noting that Wyoming statewide blanket bonds must be $100,000 or more).

[10] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47562 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).

[11] U.S. Gov’t Accountability Off., GAO-18-250, Bureau of Land Management Needs to Improve its Data and Oversight of its Potential Liabilities 29 (2018) (discussing how “officials from one BLM state office expressed concerns about operators with multiple wells covered by the minimum bond amounts, which the officials believed to be inadequate to cover total potential reclamation costs”).

[12] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47619 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3100).

[13] 43 U.S.C. 1712 § 202.

[14] See id.

[15] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47579 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3104).

[16] See Mark Olalde, It Will Cost Up to $21.5 Billion to Clean Up California’s Oil Sites. The Industry Won’t Make Enough Money to Pay for It, ProPublica (May 18, 2023) https://www.propublica.org/article/cost-of-california-oil-cleanup-exceeds-industry-profits (discussion of how it will cost more than the California oil and gas industry makes to clean up the state’s oil well locations).

[17] BLM Oil and Gas Bonding Rules Leave Lands a Mess and Taxpayers Responsible, Western Organization of Resource Councils (2020) https://www.worc.org/media/2020.04-Oil-and-Gas-Bonding-Federal-vs-State-sm2.pdf.

[18] Often collected through tax, reclamation funds are specifically set aside for the reclamation of an abandoned oil and gas well when bonds come up short. BLM Oil and Gas Bonding Rules Leave Lands a Mess and Taxpayers Responsible, Western Organization of Resource Councils (2020) https://www.worc.org/media/2020.04-Oil-and-Gas-Bonding-Federal-vs-State-sm2.pdf.

[19] See 43 U.S.C. § 1734(a) (establishing a reclamation tax on oil and gas well use is not directly stated; rather BLM has the authority to institute “reasonable charges,” a claim that BLM currently opposes).

[20] Layton & Sprong, supra note 6, at 22–23.

[21] Fluid Mineral Leases and Leasing Process, 88 Fed. Reg. 47562 (proposed July 24, 2023) (to be codified at 43 C.F.R. 3000–3180).

Free Exercise or Forced Establishment? Why the Supreme Court got Carson v. Makin Wrong and What Vermont Can Do About It

By Lindsey Wood | Staff Editor

April 2, 2024

Vermont and Maine are the only states to offer school choice programs that supplement their public school system.[1] These programs allow districts that do not operate their own public school to send their students to approved schools in other districts.[2] In Maine, any school receiving tuition assistance payments must be “a nonsectarian school.”[3] A sectarian school is one that is associated with a particular faith, and that “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”[4] In Carson v. Makin, the Supreme Court struck down the Maine program as unconstitutional because it excluded religious schools.[5]

In Carson, the Court upending constitutional doctrine and mandated that taxpayers subsidize religious education. Despite the long history of antiestablishment in the United States, the Court held that a state’s desire to comply with the Establishment Clause is not a valid basis for a Free Exercise violation.[6] The Court also discarded the previously recognized status-use distinction. Under this doctrine, it was impermissible for a state to discriminate based on the religious status of a person or church.[7] However, a state was allowed to limit the uses of public funds. [8]

The Maine program excluded schools that were engaged in religious instruction.[9] Therefore, the Court should have applied the status-use distinction to uphold the program. The majority flatly rejected this argument.[10] In its cursory treatment, the majority explained that although prior cases forbade discrimination on the basis of religious status, they “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”[11] With no further legal analysis, the Court put an end to states using use-based restrictions to prevent public tuition funds from going to religious schools. Therefore, any state with a school choice program can no longer exclude a religious school because of its religious nature or instruction.

This decision had major implications for Vermont’s school choice program. The prohibition on state funding for private religious schools comes from the Compelled Support Clause of Article 3 of the Vermont Constitution.[12] However, under Carson, Vermont can no longer use its constitution to avoid including religious schools in its school choice program. To ensure that public money is not used to fund discrimination, Vermont has imposed further approval requirements on independent schools. Independent schools must affirmatively agree to not discriminate on the basis of religion, sexual orientation, or gender identity as a condition of receiving public tuition funds.[13]

Mid Vermont Christian School has filed a federal lawsuit against the state after being denied approval based on its refusal to sign the statement of nondiscrimination.[14] The school alleges religious hostility and challenges the Vermont approval requirements as neither neutral nor generally applicable.[15] Vermont has a fair chance of winning this lawsuit, as it has not shown outright hostility to religious groups receiving public funding. In the absence of religious hostility, it is possible that Vermont can demonstrate to the Court that the antidiscrimination requirements are rooted in the Equal Protection Clause rather than the Establishment Clause.[16] Although it is difficult to predict how this lawsuit will be resolved, this demonstrates the difficulty of entangling religious schools with state funding. Thus the importance of the now defunct status-use distinction.

To comply with both Carson and the Compelled Support Clause of the Vermont Constitution, a seemingly simple solution for Vermont is to eliminate its school choice program. Ending payments to all private schools regardless of religious status would mean that no tax revenue is going to religious organizations, while maintaining the neutrality required by the First Amendment.[17] As suggested by the Court in Carson, expanding the public school system would eliminate the need for a school choice system.[18]

However, adding public schools in any state, but especially in Vermont, is a costly endeavor. During the 2018 to 2019 school year, 3,407 students attended approved independent schools.[19] It is highly unlikely that all those students can be incorporated into the existing public schools, so new public schools must be built. However, this is not a simple endeavor. The State of Vermont is currently facing a whopping $6.3 billion dollars in construction costs just to maintain the state’s 384 school buildings.[20] Building a new school costs even more: Burlington’s new high school is projected to cost $210 million.[21] Although this may have seemed like a simple solution to the majority in Carson, the high price tag makes it untenable for states that rely so heavily on school choice.

Finally, the Court in Carson suggested a hybrid education system that allowed for “some combination of tutoring, remote learning, and partial attendance . . . .”[22] This would potentially fill the gap created by eliminating school choice. The Court failed to describe exactly how this would equate to in-person attendance—perhaps because the Court recognized the absurdity of such a proposal. Although some families may homeschool their children or use remote learning programs, that is a far cry from imposing this option on families who live too far away from a physical school. If Vermont offered this as an alternative to in-person education, rural families may be forced to accept this alternative rather than being able to opt into in-person education.[23] This would likely violate the requirement of “providing every school-age child in Vermont an equal educational opportunity.”[24] Therefore, until Vermont is better positioned to expand its public school system, eliminating school choice would pose new problems regarding equal access to education.

The majority in Carson got it wrong. The Court mandated that taxpayers subsidize religious education in an opinion inconsistent with decades of precedent. Nothing in the Constitution requires this decision. The shortsightedness of this decision is unmistakable. Why should we dismantle the wall of separation that has served us so well for so long? The Court has no answer to this question. Rather, it continues its destruction of the Establishment Clause with reckless abandon.

[1] Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.

[2] Id.

[3] Me. Rev. Stat. Ann., Tit. 20–A, § 2951(2).

[4] Carson v. Makin, 979 F.3d 21, 38 (1st Cir. 2020).

[5] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 18 (U.S., June 21, 2022).

[6] Carson, slip op. at 10–11. For an example of an antiestablishment law, see “A Bill Establishing A Provision for Teachers of the Christian Religion” in Virginia. The bill sought to tax citizens to support “Christian teachers,” but was rejected after a public outcry. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 853 (1995) (Thomas, J., concurring) (explaining that purpose of the bill was to support “clergy in the performance of their function of teaching religion”). As a result, the “Virginia Bill for Religious Liberty was enacted instead, which guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950).

[7] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (striking down a playground resurfacing program because it excluded a church based solely on its religious status).

[8] See, e.g., Locke v. Davey, 540 U.S. 712, 721 (2004) (upholding the program at issue because Davey was denied a scholarship because of how he planned to use it, not because he was religious); Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2256 (2020) (emphasizing that discrimination based on religious status is distinct from discrimination based on religious use).

[9] Carson v. Makin, 979 F.3d 21, 30 (1st Cir. 2020).

The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented. . . . whether a school is ‘nonsectarian’ depends on the sectarian nature of the educational instruction that the school will use the tuition assistance payments to provide. . . . [s]ectarian schools are denied funds not because of who they are but because of what they would do with the money – use it to further the religious purposes of inculcation and proselytization.

Id.

[10] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 16 (U.S., June 21, 2022).

[11] Id.

[12] Vt. Const. ch. I, art. 3 (“[N]o person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience . . . .).

[13] 22 000 004 Vt. Code R. § 2226.6(1).

[14] Mid Vermont Christian School v. Bouchey, No. 2:23-cv-00652-kjd (D. Vt.).

[15] Id.

[16] See, e.g., Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (holding that Equal Protection Clause requires an “exceedingly persuasive justification” for gender-based distinctions in educational admissions.”).

[17] See Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 878 (1990) (A government policy is not neutral if it is “specifically directed at . . . religious practice”); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (holding that failure to meet either the neutrality or general applicability test is sufficient to trigger strict scrutiny).

[18] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 14–15 (U.S., June 21, 2022).

[19] Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.

[20] Ethan Weinstein, House Panel Confronts ‘Eye Popping’ Cost of School Construction Needs, vtdigger (Jan. 3, 2024) https://vtdigger.org/2024/01/03/house-panel-confronts-eye-popping-cost-of-school-construction-needs/.

[21] Katherine Huntley, Cost of Building New Burlington High School Going Up, WCAX (Sept. 5, 2023) https://www.wcax.com/2023/09/05/cost-building-new-burlington-high-school-going-up/.

[22] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 14–15 (U.S., June 21, 2022).

[23] As of July 2020, 45 of the State’s 110 school districts did not operate either an elementary or a secondary school. Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.

[24] Brigham v. State, 692 A.2d 384, 386 (1997) (per curiam) (holding that “the state must ensure substantial equality of educational opportunity throughout Vermont.”).

Put Up or Shut Up: The Power of Proceeding to Trial in Stemming Climate Denialism

By Evan Kern | Staff Editor

March 29, 2024

The evidence of climate change is all around us. Microplastics, which are small particles of plastic broken down by the ocean,[1] were found in human placentas, breast milk, and blood for the first time between 2020 and 2022.[2] The year 2023 was the hottest in recorded history.[3] In June of 2023, the East Coast of the United States was suffocated by a thick fog of wildfire smoke.[4] In August, residents of Lahaina, Hawaii fled into the ocean to escape the deadliest wildfire in recent American history.[5] The nation’s largest insurance companies no longer cover homes in Florida,[6] or California.[7]

The Intergovernmental Panel on Climate Change (“IPCC”) found in its latest report that humans have indisputably caused climate change—mainly through greenhouse gas emissions.[8] The report stressed that these emissions threaten “human well-being and planetary health.”[9] The IPCC emphasized that humanity currently has a “rapidly closing window of opportunity to secure a livable and sustainable future for all.”[10]

Despite the unequivocal evidence of global warming described above, climate denialism remains rampant. Climate change denial exists where individuals reject the facts of climate change;[11] such as whether climate change is caused by human activity, whether the projected impacts of climate change are a significant concern, and whether climate change even exists at all.[12]

Former President Donald Trump called climate change “nonexistent” and “mythical,”[13] and significantly rolled back environmental policy while in office.[14] Although Trump has made some statements acknowledging the climate crisis,[15] he ultimately withdrew the U.S. from the Paris Climate Agreement,[16] which is an international climate treaty adopted by United Nations member-states.[17]

Senate Minority Leader Mitch McConnell, who once admitted to believing in human-caused climate change,[18] more recently described environmentalist policies as “climate nonsense.”[19] Unfortunately, for many like McConnell, climate activism has been discretely associated with “woke initiatives.”[20]

This harsh political rhetoric is both driven by, and fuels, rising misinformation about climate on social media in a vicious feedback loop.[21] One study found that almost fifteen percent of Americans deny the existence of climate change.[22] The same study noted how powerful and influential figures, such as Former President Trump, have utilized social media to spread climate misinformation.[23]

Contrary to within the political arena and on social media, it seems, however, that the higher standard of evidence found in the courtroom is an effective deterrent to this climate denialism. Litigants under oath can be subject to perjury for any factual statements they make during trial.[24] Furthermore, attorneys risk Rule 11 sanctions if they make factually unsupported claims.[25]

Recently, Held v. State of Montana made history as the first climate case ever to proceed to trial.[26] In Held, sixteen youth plaintiffs sued Montana over a state law which they believed was contributing to climate change,[27] in violation of their rights under the state’s constitution.[28]

Prior to trial, the state engaged in some climate denialism of its own. In their complaint, the plaintiffs alleged that “the threats posed by fossil fuels and the climate crisis are existential. Science is unequivocal that dangerous climate change is upon us and is occurring due to human activities primarily from the extraction and burning of fossil fuels.”[29] The state of Montana denied this allegation in its answer to the complaint.[30] But, shortly before trial—once it was clear the case would actually proceed to a courtroom—the state had a change of heart and stipulated to many of the plaintiffs’ climate-related factual claims.[31] Montana’s counsel then avoided discussing the facts of climate change at trial; objecting to testimony from climate experts as moot due to the stipulation.[32]

Not only did the plaintiffs in Held overcome this denialism by proceeding to trial, but they also factually proved their claims, and won.[33] Held will remain relevant not only as the first climate trial,[34] but also as a demonstration of the power of evidentiary standards in combatting climate denialism. When Montana realized it would be proceeding to trial, rather than producing evidence to support its climate denial, the state elected to shut up rather than put up.

[1] What are Microplastics?, NOAA, https://oceanservice.noaa.gov/facts/microplastics.html (last updated Dec. 14, 2023).

[2] Damian Carrington, Microplastics Found in Human Breast Milk for the First Time, Guardian, https://www.theguardian.com/environment/2022/oct/07/microplastics-human-breast-milk-first-time (Oct. 7, 2022).

[3] 2023 Was the World’s Warmest Year on Record, By Far, NOAA, https://www.noaa.gov/news/2023-was-worlds-warmest-year-on-record-by-far (Jan. 12, 2024).

[4] Tyler Clifford, US East Coast Blanketed in Veil of Smoke from Canadian Fires, Reuters, https://www.reuters.com/business/environment/us-states-under-air-quality-alerts-canadian-smoke-drifts-south-2023-06-07/ (Jun. 8, 2023).

[5] Melissa Chan, They Fled the Maui Wildfires by Jumping into the Ocean. Then They Needed to Survive the Sea., NBC NEWS, https://www.nbcnews.com/news/us-news/fled-maui-wildfires-jumping-ocean-needed-survive-sea-rcna100226 (Aug. 18, 2023).

[6] Ed Leefeldt, Why Is Homeowners Insurance In Florida Such A Disaster?, Forbes: ADVISOR, https://www.forbes.com/advisor/homeowners-insurance/why-is-homeowners-insurance-in-florida-such-a-disaster/ (last updated Aug. 28, 2023).

[7] Michael R. Blood, California Insurance Market Rattled by Withdrawal of Major Companies, AP, https://apnews.com/article/california-wildfire-insurance-e31bef0ed7eeddcde096a5b8f2c1768f (Jun. 5, 2023).

[8] IPCC, Climate Change 2023 Synthesis Report Summary for Policymakers 4 (Hoesung Lee et al. eds., 2023).

[9] Id. at 24.

[10] Id.

[11] Jeremiah Bohr, The Structure and Culture of Climate Change Denial, Footnotes: Mag. Am. Sociological Ass., Summer 2021, https://www.asanet.org/footnotes-article/structure-and-culture-climate-change-denial/.

[12] Id.

[13] Helier Cheung, What Does Trump Actually Believe on Climate Change?, BBC, https://www.bbc.com/news/world-us-canada-51213003 (Jan. 23, 2020).

[14] Id.

[15] Id.

[16] President Trump Announces U.S. Withdrawal From the Paris Climate Accord, The White House: Archives, https://trumpwhitehouse.archives.gov/articles/president-trump-announces-u-s-withdrawal-paris-climate-accord/ (Jun. 1, 2017).

[17] The Paris Agreement, UNFCCC, https://unfccc.int/process-and-meetings/the-paris-agreement.

[18] Jordain Carney, McConnell: ‘I do’ Believe in Human-Caused Climate Change, HILL, https://thehill.com/homenews/senate/435904-mcconnell-i-do-believe-in-human-caused-climate-change/ (Mar. 26, 2019)

[19] Julia Mueller, Buttigieg Pushes Back on McConnell Criticism of ‘Woke Initiatives’, HILL, https://thehill.com/homenews/administration/3877254-buttigieg-pushes-back-on-mcconnell-criticism-of-woke-initiatives/ (Feb. 28, 2023).

[20] Id.

[21] Rachel Ramirez, What is ‘New Denial?’ An Alarming Wave of Climate Misinformation is Spreading on YouTube, Watchdog Says, CNN, https://www.cnn.com/2024/01/16/climate/climate-denial-misinformation-youtube/index.html (last updated Jan. 17, 2024).

[22] Nayiri Mullinix, Nearly 15% of Americans Deny Climate Change is Real, AI Study Finds, U. Mich.: MICHIGAN NEWS, https://news.umich.edu/nearly-15-of-americans-deny-climate-change-is-real-ai-study-finds/ (Feb. 14, 2024).

[23] Id.

[24] 18 U.S.C. § 1621.

[25] Fed. R. Civ. P. 11(c).

[26] Matthew Grabianski, What Held v. Montana Immediately Offers for Constitutional Environmental Rights, Geo. Env’t L. Rev.: Blog (Nov. 16, 2023), https://www.law.georgetown.edu/environmental-law-review/blog/what-held-v-montana-immediately-offers-for-constitutional-environmental-rights/

[27] See generally Complaint, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont. Mar. 13, 2020) (hereinafter “Complaint”).

[28] Mont. Const. art. II, § 3

[29] Complaint, supra note 27, at 3.

[30] Trial Tr. vol. II at 118–19, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont. 2023).

[31] Id.

[32] Id.

[33] Held v. Montana, No. CDV-2020-307 at 102 (1st Dist. Ct. Mont. 2023).

[34] Grabianski, supra note 24.

The Devil Made Me Do It: The Viability of Demonic Possession as a Murder Defense

By Gabriella Miller | Staff Editor

March 27, 2024

In 1981, Arne Cheyenne Johnson stabbed his landlord to death and pleaded guilty by reason of demonic possession.[1] Prior to this, Johnson witnessed his future brother-in-law levitating, listing the names of forty-two demons in Latin, and possessing unusual strength.[2] After Johnson told the alleged demon to enter into his body instead, he began behaving strangely, committing acts such as putting his fist through a chest of drawers with no explanation and falling 100 feet without injury.[3]

Martin Minnella, Johnson’s lawyer, argued that demonic possession caused Johnson to kill his landlord, a defense that showed Johnson’s lack of intent.[4] Indeed, Johnson claimed that he completely blacked out and did not remember stabbing his landlord at all.[5]

A local news article covering Johnson’s trial cited the Connecticut Supreme Court Judge, Robert Callahan, as denying the defense of demonic possession because “[e]vidence of demonic possession is simply not relevant.”[6] Minnella hoped to call Catholic priests to the stand because, according to Catholic doctrine, demonic possession is a real occurrence.[7] Judge Callahan, however, considered this “incompetent evidence.”[8] If Judge Callahan had allowed this evidence, “legal observers predicted it would have set a precedent for others to use and would hamstring law enforcement.”[9]

Johnson was convicted of manslaughter and served five years of a ten- to twenty-year sentence.[10]

There are no provisions in U.S. law that cover demonic possession as a defense for any crime; in fact, such claims are often used to prove insanity.[11] However, the “Satan defense” often comes up in Texas courts—though it typically results in the defendant being found guilty or insane.[12] This defense is considered impractical because there is an inherent implication that someone blaming the devil for their crimes is not taking responsibility for their own actions.[13]

Even so, Johnson was not the first person to reference demonic possession during his murder trial. In England in 1974, Michael Taylor attacked a friend who claimed that Taylor was speaking in tongues and had a “bestial” look about him.[14] Like Johnson, Taylor claimed that he did not remember the attack—only that “he felt an evil force taking over.”[15] Taylor’s behavior transformed after that from a warm, gentle man to a violent person.[16] He was easily annoyed and destroyed all religious items in the house.[17]

The Catholic church performed a long and arduous exorcism on Taylor, allegedly casting out forty demons from his body.[18] However, the following day, Taylor violently murdered his wife, believing that she was possessed by Satan.[19] While Taylor did not claim personal demonic possession as a defense, a clinical psychologist testified that the trauma inflicted by the exorcism in combination with Taylor’s pre-existing mental health conditions pushed him to insanity.[20] No motive was established for the murder and Taylor was found not guilty by reason of insanity.[21]

David R. Berkowitz, also known as the “Son of Sam,” was charged with six counts of second degree murder in 1978, committed during a “yearlong shooting rampage” in New York City.[22] Berkowitz’s actions left six people dead and seven wounded.[23] Initially, at his trial, Berkowitz cited demons as the cause of his actions, claiming that they motivated him to kill and injure people throughout New York City.[24] Additionally, Berkowitz pointed to Sam Carr and Carr’s black Labrador retriever, claiming that they were the leaders of the demons and gave him the nickname “Son of Sam.”[25]

Prior to the trial, Berkowitz was examined by multiple psychiatrists to ensure that he was mentally fit to stand trial—which he was.[26] Instead of pleading insanity as he originally intended, Berkowitz pled guilty to the murders.[27] He was given six twenty-five-years-to-life sentences.[28]

A recent demonic defense claim occurred in England in 2011.[29] Nineteen-year-old Lorraine Mbulawa claimed possession by evil spirits to escape an attempted murder conviction.[30] Mbulawa stabbed her sleeping mother and claimed that she acted according to instructions from her deceased grandmother.[31] She “told police she had planned to kill herself after killing her mother.”[32] Mbulawa’s family believed in witchcraft and spirits, and accepted Mbulawa’s story, welcoming her with open arms after her hearing.[33]

A psychiatrist found that Mbulawa was of sound mind and, instead of being convicted for attempted murder, she was given the less severe sentence of unlawful wounding.[34] Mbulawa received a 12-month custodial sentence with an 18-month suspension and 120 hours of unpaid labor.[35] Justice Keith, who oversaw Mbulawa’s case, thought that Mbulawa’s conviction that she was obeying the spirits “reduced her culpability significantly.”[36] This, coupled with Mbulawa’s family’s support, likely aided the efficacy of her spiritual possession defense.[37]

In general, “the devil made me do it” does not appear to be a valid murder defense in a court of law. Certainly, it is not one that many people attempt, even if they are genuinely convinced that they are obeying an evil spiritual entity. Allowing such a claim would set a precedent for courts to allow lesser sentences for those who can convince the court that they were possessed. Without solid proof that spirits exist and can, in fact, possess people, the defense of demonic possession in court cases will likely remain ineffective.

[1] Arne Cheyenne Johnson, UVA Law Special Collections (2022), https://archives.law.virginia.edu/dengrove/writeup/arne-cheyenne-johnson.

[2] Chris Eberhart, Real-Life ‘Devil Made Me Do It’ Case of Arne Cheyenne Johnson ‘Scared Us S—less’: Lawyer, Fox News (2023), https://www.foxnews.com/us/real-life-devil-made-me-do-it-case-arne-cheyenne-johnson-scared-us-lawyer.

[3] Id.

[4] Id.

[5] Id.

[6] James V. Healion, A Judge Wednesday Threw Out the ‘Demonic Defense’ of…, UPI Archives (1981), https://www.upi.com/Archives/1981/10/28/A-judge-Wednesday-threw-out-the-demon-defense-of/2826373093200/.

[7] Id.

[8] Id.

[9] Id.

[10] Charles Bramesco, ‘Something Went On in That House’: Did the Devil Drive a Teen to Murder?, The Guardian (2023), https://www.theguardian.com/film/2023/oct/18/netflix-documentary-devil-on-trial-murder-demon-possessed.

[11] L. Joe Dunman, The Devil in Recent American Law, 39 Pace L. Rev. 929, 965 (Sep. 2019).

[12] William Axford, Texas Crimes That Have Been Blamed on Satan and Satanic Rituals, CHRON (Dec. 12, 2017), https://www.chron.com/news/houston-texas/texas/article/Texas-crimes-blamed-on-Satan-devil-evil-12345521.php.

[13] Herb Silverman, A Few Kind Words for Satan, HUFFPOST (May 12, 2014), https://www.huffpost.com/entry/a-few-kind-words-for-sata_b_4941371.

[14] The Ossett Exorcism Murder (The Devil Made Me Do It) | England, Evidence Locker (2022), https://www.evidencelockerpodcast.com/transcripts/transcript-198-the-ossett-exorcism-murder-the-devil-made-me-do-it-england, (last visited Mar. 10, 2024).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Anna Quindlen, Berkowitz Pleads Guilty to Six ‘Son of Sam’ Killings, The N.Y. Times (1978), https://www.nytimes.com/1978/05/09/archives/berkowitz-pleads-guilty-to-six-son-of-sam-killings-reference-to.html.

[23] Id.

[24] Id.

[25] Anna Quindlen, Berkowitz Pleads Guilty to Six ‘Son of Sam’ Killings, The N.Y. Times (1978), https://www.nytimes.com/1978/05/09/archives/berkowitz-pleads-guilty-to-six-son-of-sam-killings-reference-to.html; Son of Sam Serial Killer is Arrested, HISTORY (2010), https://www.history.com/this-day-in-history/son-of-sam-arrested.

[26] People v. Berkowitz, 93 Misc. 2d 873, 880 (1978).

[27] Son of Sam Serial Killer is Arrested, HISTORY (2010), https://www.history.com/this-day-in-history/son-of-sam-arrested.

[28] Id.

[29] Mercy for Witchcraft Girl ‘Told to Stab Mother,’ The Telegraph (2011), https://www.telegraph.co.uk/news/uknews/law-and-order/8532833/Mercy-for-witchcraft-girl-told-to-stab-mother.html.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

Double Standard: How Vermont Courts Work Against the “Best Interest of the Child”

By Melissa Rickenbaker | Staff Editor

March 25, 2024

Vermont, like all states, uses the “best interest of the child” standard in child welfare cases.[1] Vermont’s “best interest of the child” statute also mandates that child welfare cases be heard in court.[2] However, in many child welfare cases, the adversarial nature of the court system works against the best interest of the child.[3] The court system pits parents and children against each other[4] and fails to offer holistic solutions.[5] Therefore, Vermont’s “best interest of the child” statute works against itself, and Vermont children, by requiring all child welfare cases proceed in court. To truly meet the best interests of its children, Vermont should look to restorative solutions.

Court processes are inherently adversarial, with each party presenting its case to win.[6] In child welfare cases, an adversarial setting may not be conducive to fostering cooperation and finding collaborative solutions centered on the well-being of the child.[7] Courts traditionally focus on determining guilt or innocence and administering punishment if necessary.[8] However, child welfare cases often require a more rehabilitative and restorative approach that addresses the underlying issues rather than simply punishing wrongdoing.[9] Additionally, courts often lack family-centered approaches.[10] Proceedings may not adequately prioritize the involvement of the child’s family and support networks. Family-centered approaches, emphasizing collaboration and the child’s connections to their community, are often more effective in addressing the problems underlying child welfare cases.[11] Furthermore, in a courtroom setting, individuals may feel stigmatized, and there is a risk of labeling that can have long-lasting consequences.[12] A more rehabilitative approach outside the court system may focus on support and addressing challenges without attaching negative labels to children or families.[13]

Restorative Justice is an alternative to the judicial system.[14] Rather than punishing the offender, it focuses on “restoring” the victim through offender accountability.[15] There is no definitive mechanism for determining guilt; to participate in a restorative process, offenders must first take accountability for the harm they have caused.[16] Any offender unwilling to take full accountability is not an appropriate restorative justice candidate.[17] Offenders choose to take part in restorative processes because it allows them to avoid costly, time-consuming litigation.[18] RJ also allows offenders and victims to decide together on appropriate consequences. Such consequences are generally less severe than those imposed by the court system, despite its inclusion of criminal penalties.[19]

Restorative Justice is a valuable alternative to courts in child welfare determinations for several reasons. Perhaps most importantly, it offers a more holistic and collaborative method compared to traditional punitive measures.[20] Restorative Justice emphasizes the well-being of the child and focuses on repairing harm rather than punitive measures.[21] This approach seeks to understand the root causes of the issues and address them to promote healing and rehabilitation.  Restorative Justice involves the community in the resolution process.[22] In child welfare cases, this should mean engaging not only the child and their family but also relevant community members, social workers, and support networks.[23] This broader involvement helps create a sense of shared responsibility. Restorative justice empowers all parties involved, including the child, their family, and the community, to actively participate in finding solutions.[24] By taking responsibility for their actions and understanding the impact on others, children can develop a sense of accountability and empathy.[25]

Focusing on restoration rather than punishment can be more effective than punishment in preventing repeat offenses.[26] This is particularly important in the context of child welfare, where the goal is not only to address immediate concerns but also to support the child’s long-term well-being.[27] Traditional punitive measures can be traumatic for children and families.[28] Restorative Justice seeks to minimize additional trauma by providing a more supportive and collaborative environment.[29] This approach is particularly significant in cases where children have experienced trauma and need a more sensitive and understanding process.[30] Restorative Justice encourages open communication and dialogue between all parties involved.[31] This can lead to a better understanding of each other’s perspectives and foster empathy, contributing to more effective and sustainable solutions for children and families.

[1] Stephanie Tang, Best Interests of the Child and the Expanding Family, 14 U.C. Irvine L. Rev. (2024).

[2] 33 V.S.A. § 5114 (2009).

[3] Lauren van Schilfgaarde, Brett Lee Shelton, Using Peacemaking Circles to Indigenize Tribal Child Welfare, 11 Colum. J. Race & L. 681, 699 (2021).

[4] Randy Balko, Is an adversarial justice system compatible with good science?, Washington Post (Aug. 7, 2019, 10:00 AM), https://www.washingtonpost.com/opinions/2019/08/07/is-an-adversarial-justice-system-compatible-with-good-science/. /

[5] Tali Gal, Child Victims and Restorative Justice: A Needs-Rights Model 27 (Oxford University Press ed., 2001).

[6] Balko, supra note 4.

[7] Apoorva Mandhani, Family courts aren’t safe for children. They need waiting rooms, counsellors & Mickey Mouse, Print (Oct. 6, 2023, 1:15 PM) https://theprint.in/ground-reports/family-courts-arent-safe-for-children-they-need-waiting-rooms-counsellors-mickey-mouse/1792516/.

[8] Janet Weinstein, And Never the Twain Shall Meet: The Best Interest of Children and the Adversary System, 52 U. Miami L. Rev. 79, 89 (1997).

[9] Id.

[10] Id.

[11] Mandhani, supra note 7.

[12] Miguel Clemente & Dolores Padillo-Racero, The effects of the justice system on mental health, Nat’l Libr. Of Med. (May 5, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8009114/.

[13] Id.

[14] Lindsay Pointer, What is “Restorative Justice” and How Does it Impact Individuals Involved in Crime?, Bureau of Justice Assistance U.S. Dept. of Justice (Aug. 5, 2021), https://bjatta.bja.ojp.gov/media/blog/what-restorative-justice-and-how-does-it-impact-individuals-involved-crime.

[15] Id.

[16] Id.

[17] Kristin M. Blankley, Expanding Options for Restorative Justice, Dispute Resolution Magazine (March 31, 2020) https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resolution_magazine/2020/dr-magazine-criminal-justice-reform/expanding-options-for-restorative-justice/.

[18] Id.

[19] Pointer, supra note 14.  

[20] Gal, supra note 5.

[21] Restorative Justice for Juveniles, Office of Juvenile J. and Delinquency Prevention (Aug. 2021),

 https://ojjdp.ojp.gov/model-programs-guide/literature-reviews/restorative-justice-for-juveniles#0-0.

[22] Id.

[23] Id.

[24] Id.

[25] Marieke van Wowekom, Building Community with Restorative Circles, edutopia: Restorative Practices, (Mar 12, 2018), https://www.edutopia.org/article/building-community-restorative-circles/; Dr. James Whithead, Restorative Practices: Seven Steps for Facilitators and Mediators.

[26] The Benefits of Restorative Justice for Victims and Offenders, Restorative Solutions,

https://www.restorativesolutions.org.uk/news/the-benefits-of-restorative-justice-for-victims-and-offenders (last visited Feb. 9, 2023).

[27] Restorative Justice for Juveniles, supra note 21.

[28] Weinstein, supra note 8.

[29] Id.

[30] Mandhani, supra note 7.

[31] Restorative Justice for Juveniles, supra note 21.

Holding on to Hope in a Hopeless Landscape of Anti-Transgender Laws

By Hadley Chance | Staff Editor

March 22, 2024

To be transgender, non-binary, two-spirit, or any gender outside of the binary in the United States can be lonely and scary. It often feels like the other shoe will drop, and suddenly, our rights will be gone. There is an expectation that all will be lost; sometimes, there is nothing to hold on to. While this article will talk about what is gloom and doom-worthy, there are glimmers and sprinkles of light that we can hold on to within the law and outside of it.

The law often feels like it is not on the side of Trans folx, especially when it comes to our healthcare. 2023 brought a massive burst of anti-trans healthcare bills, with a whopping 185 bills, a jump from 35 bills in 2022.[1] As of March 2024, 132 bills have been proposed (and several passed) since the start of this year.[2] These health care bills sway from criminalizing parents of minors seeking gender-affirming care to restricting adults from getting the gender-affirming care they depend on.[3]

Take Florida’s 2023 healthcare bill, titled Treatment for Sex Reassignment, which restricts and overburdens trans adults seeking health care. The law requires transgender people seeking to get new prescriptions or to continue their gender-affirming care to meet with only doctors.[4] This excludes other health practitioners, including far more accessible nurse practitioners and physician’s assistants.[5] Clinics have stopped serving transgender patients seeking gender-affirming care due to these restrictions and the confusion that comes with them.[6]

Florida, luckily for those seeking to protect the right to healthcare for transgender people, has written itself into a corner, creating a potential dunk for a discriminatory challenge on the basis of sex, particularly for the prescription of Hormone Replacement Therapy (HRT) in transgender patients. Another Florida statute states that a nurse practitioner or physician assistant can prescribe any drug so long as they have submitted proof of license and operate under a physician.[7]

HRT is a common treatment used by transgender patients to replace the hormones of their gender assigned at birth with hormones of their actual gender, but trans people aren’t the only people who use HRT.[8] Cisgender women and men use HRT for common health ailments like menopause or hypogonadism.[9] There is no interference in the prescription of HRT to cisgender patients in the Florida Statute. That same statute puts a significant burden on trans folx seeking HRT.[10] Nurse practitioners and physician assistants can still prescribe HRT for cis patients.

With hope and logic, this cannot fly under a Court’s review. In Bostock v. Clayton County, the Supreme Court held that discrimination against transgender people falls under Title VII sex discrimination, which is subject to intermediate scrutiny.[11] Further, the Court defined discrimination as “treating that individual worse than someone similarly situated.”[12] Here, indeed, transgender folks are being treated far worse than their cisgender counterparts, who do not have to jump through hoops to get HRT. Applying Bostock to this context, there is distinct, disparate treatment set out specifically for transgender people.

To pass muster under intermediate scrutiny, Florida’s law must serve important governmental objectives, and the discriminatory means employed must be substantially related to achieving those objectives.[13] As the Florida legislation states no reason for the discriminatory nature of the law or any explanation for why the Florida Legislature specifically decided to change how transgender people (specifically transgender adults) can get prescribed HRT, it is likely to fail when held under intermediate scrutiny.[14]

There are small glimmers where, when challenged in court, this discrimination can be overturned. There is hope that this horrific trend of criminalizing our gender-nonconforming bodies will come to an end. When I look around at my trans friends, I still see hope: two are slated to get top surgery this spring, and I can’t wait to see the queer joy this brings them. I have hope for the future. As more queer lawyers come of age, I know we will give the judiciary hell for trying to erase our bodies. Above all, we will dance, sing, and bring lawsuits to protect each other.

[1] Tracking the Rise of Anti-Trans Bills in the U.S., Trans Legislation Tracker, https://translegislation.com/learn (last visited Mar. 15, 2024).  

[2] Id.

[3] Minami Funakoshi and Disha Raychaudhuri, The Rise of Anti-Trans Bills in the U.S., REUTERS (Aug. 19, 2023), https://www.reuters.com/graphics/USA-HEALTHCARE/TRANS-BILLS/zgvorreyapd/.

[4] Treatment for Sex Reassignment, ch. 2023-90, 2023 Fla. Laws 254.

[5] See Id. (showing that Florida’s law only allows physicians to prescribe gender-affirming care); see also Jake Miller, A Fourth of U.S. Health Visits Now Delivered by Non-Physicians, HARVARD MEDICAL SCHOOL (Sept. 14, 2023), https://hms.harvard.edu/news/fourth-us-health-visits-now-delivered-non-physicians.

[6] Thalia Beaty et al., Transgender Adults in Florida Are Blindsided That A New Law Also Limits Their Access To Health Care, AP (Jun. 4, 2023), https://apnews.com/article/florida-transgender-health-care-adults-e7ae55eec634923e6593a4c0685969b2.

[7] Fla. Stat. § 464.012 (3(a)) (2023).

[8] Cécile A. Unger, Hormone Therapy for Transgender Patients, Translational Andrology & Urology (Dec. 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5182227/. 

[9] Mayo Clinic Staff, Hormone Therapy: Is It Right For You?, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/menopause/in-depth/hormone-therapy/art-20046372 (last visited Oct. 25, 2023); Mayo Clinic Staff, Testosterone Therapy: Potential Benefits And Risks As You Age, Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/sexual-health/in-depth/testosterone-therapy/art-20045728 (last visited Oct. 25, 2023).

[10]See Treatment for Sex Reassignment, ch. 2023-90, 2023 Fla. Laws 254 (showing there is no mention of cisgender patient’s access to HRT).

[11] Bostock v. Clayton Cty. 140 S. Ct. 1731, 1745 (2020).

[12] Id. at 1740 (2020).

[13] Adams v. Sch. Bd. Of St. Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022) (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).

[14] Treatment for Sex Reassignment ch. 2023-90, 2023 Fla. Laws 254.

How Schedule A Litigants Abuse Rule 65 To Seize Fortunes

By John-Charles Hewitt | Staff Editor

March 20, 2024

When Nicol Harness returned home from a hospital in Florida after treatment for congestive heart failure, she was surprised by a $250,000 bill. It wasn’t for surgery: it was a judgment for trademark infringement.[1] Along with dozens of other defendants, Harness now owed a fortune to Luke Combs, the country music superstar known for his recent cover of “Fast Car” and other songs like “Beautiful Crazy.” Harness, a mom, designer, and small online merchant, had no idea that her online store could expose her to massive liability.[2] Prior to her unrelated hospitalization, she had designed and sold 18 drink tumblers themed around Combs’s trademarked name and likeness. The lawsuit filed by Combs resulted in a default judgment against each merchant for $250,000 in statutory damages each under 15 U.S.C. § 1117, finding that each product sold was a willful counterfeit.[3]

After a beautifully crazy social media fracas, Combs personally apologized to Harness, promised to stop pursuing the debt, and cut her a check for $11,000.[4] The hundreds of other defendants sued by Combs in similar lawsuits since 2021 presumably still owe him money.[5] Nor is Combs alone in pursuing this type of bulk intellectual property litigation: since 2021, approximately 600,000 merchants may have been sued in similar lawsuits.[6] This is usually called a “Schedule A” case after the exhibit that this type of plaintiff typically attaches listing the sealed names of each defendant.[7] These mass lawsuits typically follow three stages. First, the plaintiff sues a mass of dozens or hundreds of defendants joined together in the same case under seal under Rule 20.[8] Second, the plaintiffs freeze the assets with a temporary restraining order under Rule 65 before they are served with a complaint.[9] Third, because most of the defendants are small merchants or individuals who may struggle to react with the dispatch that federal courts expect, the plaintiff extracts default judgments against any defendants who haven’t settled yet.[10] From the perspective of small merchants like Harness, their assets will be frozen before they have even been served, and they may not come to grips with what has happened until they miss the deadline to file an answer and default.[11]

These abuses of Rule 65 injunctions go against precedent set by Judge Richard Posner, who created a balancing test for the application of this Rule. [12] The test requires a comparison of likely harms to both parties to the plaintiff’s ikelihood of winning at trial.[13] Typical Schedule A practices may also run afoul of the concern expressed by Judge Frank Easterbrook that motions for Rule 65 injunctions in trademark cases must be accompanied by strong showings of success on the merits.[14] Easterbrook’s concerns that trademark plaintiffs could use Rule 65 injunctions under the Lanham Act for abusive, unfair, and anticompetitive practices is relevant to Schedule A cases.[15] Although courts have frequently elided these standards in Schedule A cases, some judges are beginning to demand more detailed showings from plaintiffs.[16] In Schedule A cases involving trademark issues, this means that to properly satisfy the standard set by the statute, plaintiffs need to provide a strong showing of likelihood to succeed on the merits not just with respect to one defendant, but to each defendant.[17] When some defendants challenged these injunctions in Schedule A cases, some courts noticed the flimsiness of some of the arguments supporting injunctions.[18]

Preliminary injunctions are supposed to be an extraordinary form of relief only warranted when permanent harm is highly probable, but they have become a nearly automatic remedy in Schedule A cases.[19] Applying the careful analytical formulae designed by the courts for litigation between a handful of parties would probably be unworkable in Schedule A cases involving dozens or hundreds of defendants.[20] Some districts and many judges have local rules that require that the parties meet and confer before filing for either a temporary restraining order or a preliminary injunction.[21] Notwithstanding the other legal arguments that can be brought to bear against Rule 65 injunctions, courts should also be solicitous to pro se defendants who appear at preliminary injunction hearings.

[1] Shannon Behnken, Pinellas woman who sold Luke Combs- themed tumblers owes country star $250,000, judge rules, WFLA.com (Dec. 12, 2023, 05:50 pm ET), https://www.wfla.com/8-on-your-side/better-call-behnken/pinellas-woman-who-sold-luke-combs-themed-tumblers-owes-country-star-250000-judge-rules/.

[2] Chris Willman, How Does a Mom Get Slapped With a $250,000 Judgment Over $380 of Homemade Luke Combs Merch? Experts Cite ‘Cottage Industry’ of Mass Counterfeit Suits in Illinois, Variety (Dec. 15, 2023, 3:47 pm PT) https://variety.com/2023/music/news/mass-lawsuits-luke-combs-tumblers-legal-experts-counterfeit-illinois-cottage-industry-1235841650/.

[3] See Default Judgment Order, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule “A”, No. 23-cv-14485 (N. D. Ill. Nov. 15, 2023); 15 U.S.C. § 1117(c)(2).

[4] See Chris Willman, Luke Combs ‘Sick to My Stomach’ to Learn He Won $250K Judgment Against Convalescing Fan Who Made Tumblers; Says He Will Raise Funds for Her, Variety (Dec. 13, 2023, 11:30 am PT) https://variety.com/2023/music/news/luke-combs-dismayed-250k-judgment-lawsuit-fan-homemade-tumblers-1235836617/.

[5] See e.g. Complaint, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 21-cv-02007 (N.D. Ill. Apr. 14, 2021); See e.g. Complaint, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 21-cv-02246 (N.D. Ill. Apr. 27, 2021); See e.g. Complaint, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 21-cv-02373 (N.D. Ill. May. 3, 2021)

[6] Eric Goldman, A SAD New Category of Abusive Intellectual Property Litigation, 123 Colum. L. Rev. Forum 183, 196 (2023).

[7] Id. at 184.

[8] Id.; See Fed. R. Civ. P. 20.

[9] See Goldman supra note 6 at 189; See Fed. R. Civ. P. 65.

[10] See Goldman supra note 6 at 192.

[11] See Fed. R. Civ. P. 8.

[12] Am. Hosp. Supply Corp. v. Hosp. Prod. Ltd., 780 F.2d 589, 593 (7th Cir. 1986) (comparing this formula directly to the formula proposed by J. Learned Hand for negligence cases.).

[13] Id.

[14] See Aug. Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 618–19 (7th Cir. 1995).

[15] See id.

[16] See e.g. Notification of Docket Entry, Hexin Holding Limited v. Parties Identified on Schedule A, No. 24-cv-01460 (N. D. Ill. Feb. 27, 2024) (denying the plaintiff’s TRO motion because it contains no detailed description of how each copyright was allegedly infringed by each defendant along with information about the copyrights underlying the action).

[17] See Aug. Storck K.G. 59 F.3d 616, 618–19 (7th Cir. 1995).

[18] See e.g. Order Responsive to Motion to Dissolve the Preliminary Injunction, Emoji Co. GmbH v. Schedule A, No. 22-cv-2378 (N.D. Ill., Sept. 29, 2023) Judge Tharp stated:

The Court is therefore satisfied that [defendant] has shown that Emoji Company is unlikely to overcome its fair use defense or to prove likelihood of confusion. As a result, Emoji Copmany has not established a strong likelihood of success on the merits of its infringement claim. The order issuing a preliminary injunction and asset restraint against [defendant] is therefore vacated.

[19] See Aug. Storck K.G., 59 F.3d 616, 618–19 (7th Cir. 1995).

[20] See id.

[21] See e.g. C.D. Cal. Loc. R. 7-3 (“[C]ounsel contemplating filing the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution . . . seven days prior the filing of the motion.”).

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