The right to own property, legally enshrined in the Fifth Amendment to the United States Constitution, is a fundamental American right.[1] The Fifth Amendment provides that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”[2] Property rights cover an individual’s rights to something in relation to other persons,[3] including the rights to: possess, use, exclude, dispose of, transfer, and remain free from government seizure without just compensation.[4]
Courts have for decades treated human gametes as legal property when cryogenically preserved outside of the human body, explicitly referring to preserved gametes as a “unique type of ‘property.’”[5] The property rights to those gametes only become relevant, however, once the gametes have left the body and “been transferred to a commercial middleman.”[6] Gametes should be treated as legal property while they are still “live”—meaning inside of the body rather than extracted and/or preserved. The rights to “live” gametes would (as with cryogenically preserved gametes) become relevant when the gametes transfer from one party to another with the potential to make new matter, such as an embryo. During heterosexual intercourse, therefore, the property rights to the live sperm would transfer to the person able to become pregnant. Assuring property rights to live gametes would provide a stronger constitutional basis for reproductive autonomy than the implied “right to privacy” in the Fourteenth Amendment that the Supreme Court relied on in Roe v. Wade,[7] which has been constantly challenged since the ruling.[8]
By Nicholas Barry Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics
July 21, 2021
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The Supreme Court decision in Brnovich v. Democratic National Committee regarding Arizona election laws immediately and predictably drew considerable criticism from numerous voting rights advocates.[1] The two laws challenged in this instance allowed election officials to discard provisional ballots cast if a voter showed up at the wrong precinct and barred third-party groups from collecting and delivering absentee ballots, also known as ballot harvesting.[2] Those challenging the laws contended that they violated § 2 of the Voting Rights Act or even possibly the 15th Amendment given the disparate impact these laws would have on voters of color.[3] However, the Court held that neither law was enacted with discriminatory intent, nor did they present any hindrances beyond what are the “usual burdens of voting”[4]. Therefore, these two laws were deemed permissible acts by the state as it oversaw its elections.[5]
As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them. I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not. It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry. Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.
However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it. I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me. My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]
As a primer as to why this is the case, it helps to note that CRT is a diverse field of academic thought but a common thread throughout is that even racially neutral laws can have negatively disparate impacts on racial minorities.[7] In essence, being color blind can still lead to results that leave minorities systematically worse off than whites.[8]
It’s important to note here that I am not a CRT scholar, nor have I ever made an overt decision to try and teach this concept to my students. Even so, I have at least a basic understanding of it such that I at least know it when I see it.
To that end, in reading the majority opinion of this case, I saw what is unmistakably a reference to CRT.[9] While I genuinely doubt this was an intentional reference, their intentions do not affect this determination. Specifically, in siding with the state of Arizona to uphold these new voting laws, the opinion mentioned that, because of their lower levels of “employment, wealth, and education,’’ neutral and color-blind policies will impede minority voting rates.[10] In other words, the Supreme Court is concluding that the institutional realities of voting lead to disparate outcomes and a neutral (color blind) policy will “predictably” lead us to this result. This is, as discussed above, the exact sort of observation that almost any CRT scholar will contend as central to their field of study.
Teaching students this majority opinion is therefore inexorably tied to teaching them a core concept of CRT, regardless of my intention to do so or not. My options are to either not teach the case or to expose my students to a core tenet of this controversial philosophy. So now I sit contemplating the terrifying reality that banning CRT would functionally prevent me, a law professor, from teaching a Supreme Court decision to my students. There is perhaps no better illustration of absurdity than this, yet it is the reality I and countless other law professors face.
Were this a mere hypothetical hindrance, I’d almost find it amusingly ironic. Instead, it’s a very real prohibition that has been enthusiastically embraced by the Republican Party. These bans will stifle educators who face the loss of their livelihood should they even accidentally discuss a theory even most law professors like myself are only vaguely familiar with.
The result among educators will be a general fear and therefore aversion to ever discussing race in the classroom. That is what lies at the root of my despondency. In reading this case and seeing these bans spread, I’ve come to the realization that educators everywhere, even where these bans are not in effect, will be pruning their curriculum to stave off attack.
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[1] Reid Wilson, Supreme Court ruling shocks voting rights activists, academics, The Hill (July 1, 2021), https://thehill.com/regulation/court-battles/561190-supreme-court-ruling-shocks-voting-rights-activists-academics.
[2] Brnovich v. Democratic Nat’l Comm., No 19-1257, 594 U.S. ___ at 1 (July 1, 2021).
[6] Jack Dutton, Critical Race Theory Is Banned in These States, Newsweek (June 11, 2021), https://www.newsweek.com/critical-race-theory-banned-these-states-1599712.
[7]See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 Colum. L. Rev. 1060, 1060–67 (1991) (“[W]e are not currently a colorblind society . . . race has a deep social significance that continues to disadvantage blacks and other Americans of color. While the legal strategy of colorblindness achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.”).
[8]See generally Critical Race Theory: The Key Writings That Formed the Movement passim (Kimberlé Crenshaw et al., eds. The New Press 2010); accord Gary Peller, I’ve Been a Critical Race Theorist for 30 Years. Our Opponents Are Just Proving Our Point For Us., POLITICO (June 30, 2021), https://www.politico.com/news/magazine/2021/06/30/critical-race-theory-lightning-rod-opinion-497046.
[9]See Brnovich, No 19-1257, 594 U.S. at 18 (“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.”).
Nicholas Creel is an Assistant Professor of Business Law and Ethics at Georgia College and State University with a Ph.D. in Political Science from Texas Tech University, a JD from the University of Dayton School of Law, and an LL.M. from St. Mary’s University School of Law.
Nicholas B. Creel | Georgia College and State University, Assistant Professor of Business Law and Ethics
July 21, 2021
As a law professor, it’s my job to read these decisions so that I may teach the points of law that come from them. I take pride in doing just that regardless of my personal views as to whether any case was decided “correctly” or not. It’s on me as an instructor to teach students the points of law from Supreme Court cases, not to impart any political biases I carry. Setting one’s emotions aside in this process can be difficult, but after years of practice, I’d like to think I’ve become adept at just that.
However, in reading this latest case, I’ve found myself falling increasingly into despondency the more that I think about it. I am, in all honesty, disappointed in the Court’s decision, but that isn’t what has been eating away at me. My melancholy is instead fed by the realization that I may be legally barred from even discussing the case should the spate of recent bans on critical race theory (CRT) make their way to Georgia’s universities.[6]
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.
Since 1910, Black farmland owners have lost approximately 14 million acres of land in the U.S.[1] This considerable loss results from heirs’ property legal challenges, such as partition actions, foreclosure sales, and adverse possession issues.[2] Heirs’ property occurs when someone dies without a will, and their land passes to their children, spouse, parents, or other family members.[3] Heirs’ property owners hold the land as tenants-in-common, sharing an undivided, fractional interest in the land.[4] Tenancy-in-common is the “most widespread form of common ownership in the United States” because about half of Americans do not make wills.[5]
Heirs’ property challenges substantially burden Black landowners who have difficulty paying for an attorney to solve their property issues. Consequently, forced partition sales continue to disproportionately impact Black landowners.[6] Heirs’ property owners cannot secure “traditional mortgage financing or business loans” because they do not have a clear title to their land.[7] Without a title or deed, heirs’ property farmland owners have difficulty securing loans or aid from the United States Department of Agriculture (USDA).[8] In many cases, state USDA offices do not approve these owners for loans or disaster relief funding because landowners fail to prove ownership since tenants-in-common landowners cannot produce a deed.[9]
The United States has a long history of mistreating its minority population. Since the founding of this country, from the 3/5 rule to modern voter-dilution practices, the U.S. has subjected minorities, and particularly African Americans, to state-mandated second-class citizenry. Of which, minority populations continue to struggle for fair apportionment and representation within our state and federal governments. After Abraham Lincoln gave his Emancipation Proclamation in 1863,[1] Congress took over seven years to draft, pass, and ratify the 15th amendment granting African American men the right to vote.[2]
By: Ryan Clemens | JD/MEM at Vermont Law School and Yale School of the Environment
June 13, 2021
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Joe Davies, Photograph of Harbor Seal Balancing on the Peak of a Rock, in Joe’s Retirement Blog, Blogger (Jan 29, 2006), https://joesretirementblog.blogspot.com/2016/01/more-harbor-seals-manomet-plymouth.html
Massachusetts fishers and residents currently feel that the state’s seal populations must be cut down. However, neither the Marine Mammal Protection Act (MMPA) nor its many exceptions would permit this overly simplistic solution, and rightfully so.
Several Massachusetts Cape and Islands fishers, business owners, and residents feel that the state’s coastline harbors too many seals.[1] Miriam Wasser reported that Cape Cod communities blame harbor seals (Phoca vitulina) and gray seals (Halichoerus grypus) for polluting water, preventing the Atlantic cod from recovering, and limiting tourism by enticing sharks to beaches.[2] In response, the communities proposed a seal cull to directly remove their perceived threat.
This proposed cull would not be the first for these seal communities. Up until the 1970s, New England systematically depleted seal populations: Massachusetts from 1888 to 1962 and Maine from 1891 to 1905 and 1937 to 1945 held bounties for seal noses, effectively crashing their populations.[3] Neither seal species is threatened or endangered any longer[4]; in fact, Wasser’s article cites a 2017 study placing Cape and Islands seal populations between 30,000 and 50,000.[5] Contextualized with recent history, an overabundance of seals is a misperception. Additionally, a restored, back-to-regular seal population is not only a good thing for the animals themselves, but also for Massachusetts’ larger ecosystem.
Top-down or predatory control is an important ecosystem balancer. Removing top-level predators through seal bounties[6] or, ironically, cod overfishing, causes “significant ecological change” as lower trophic levels grow unchecked and place disproportionate strain on the remaining ecological communities.[7] Restoring top-level predators and their facilitated “biological and functional diversity” is an important step “as a stabilizing force in ecosystems,” ultimately bolstering economically valuable fisheries like cod.[8] Beyond the scientific argument against seal culls, the MMPA flatly prohibits any such unnecessary and cruel action.
Since 1972, the MMPA is one of, if not the, most powerful legal protections for animals. The Act broadly prohibits the take and import of marine mammals.[9] Per the Act, “take” means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill,” and “marine mammal” partly means mammals that are “morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia, Pinnipedia and Cetacea).”[10] As gray seals and harbor are both pinnipeds and morphologically adapted to the marine environment,[11] and culling seals plainly includes hunting, capturing, and killing them, or at least attempting to, the MMPA applies to and flatly prohibits a seal cull. None of the MMPA’s potentially relevant exceptions actually apply here, either.
First, fishers argue that seals deplete Atlantic cod stocks and inhibit their recovery.[12] The MMPA’s first exception permits takes to enhance the survival or recovery of a species or stock, after review and approval by the Marine Mammal Commission (MMC).[13] The take must be “likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock.”[14] This exception likely does not allow a seal cull, not only because “species or stock” likely refers to the marine mammal itself,[15] but also because a cull would not contribute significantly to increasing cod populations.
Even if the recovery of a species or stock refers to non-marine mammals, reducing Massachusetts’ seals would not restore cod. Preliminarily, a thousand or several thousand-seal cull would barely make a significant dent in their now several tens of thousands-large population.[16] Primarily, seals’ predation on and impact to cod are small: cod comprise 6% of their diet, compared to sand lance at 53%.[17] Instead, seals eat cod’s ecologically-similar groundfish and gadid competitors, flounders and hake, respectively 21% and 4%, yet do not prey upon lobster.[18] Seals’ top-down forcing[19] thus limits cod’s competitors while avoiding its crustacean prey, aiding the stock’s recovery. Cod also faces separate challenges to recovery, distinct from seal predation. Species like Atlantic herring preying on cod juveniles[20] and climate change increasing sea-surface temperatures[21] more likely cause Atlantic cod hysteresis, or the inability of a species to regain prior population levels. Again, seals consume a near-equal amount of herring to cod, limiting their predation and in small part benefitting the stock.[22] Overall, science indicates that seals do not limit cod’s chance at recovery, failing to fit within the MMPA’s first exception’s alternative interpretation.
The MMPA’s second exception permits takes during fishing activity. However, these takes during normal fishing activity must be incidental, authorized by a formal rulemaking proceeding, “meet the requirements of the MMPA[,] and be consistent with the primary goal of protecting marine mammals.”[23] Here, a cull is both an intentional killing and plainly inconsistent with the goal of protecting marine mammals, excluding this exception. NOAA should nevertheless keep a keener eye out to avoid preexisting permit or permit application abuse, possibly for intentional “unintentional” seal kills if fishers’ resentment grows.
The third potentially applicable MMPA exception is broad but still does not allow a seal cull. The MMPA offers a general waiver “to determine when, to what extent, if at all, and by what means, it is compatible with this chapter to waive the requirements of this section so as to allow taking” consistent with “sound principles of resource protection and conservation” and based on “the best scientific evidence available and in consultation with [MMC].”[24] Again this exception does not apply to culls because wanton killing is plainly inconsistent with the seals’ protection and conservation. Moreover, even if restoring fish stocks is compatible, the best scientific evidence available does not support that reducing seal populations is actually a means to recover fisheries stocks.[25] The third exception fails too.
The final potentially applicable exception would not permit a seal cull either. The MMPA allows incidental taking by “citizens . . . other than commercial fish[ers]” if a full public comment period shows that a five or fewer year-span of takings will have a negligible impact.[26] This negligible impact exception does not extend to “incidental takings [that] are not merely a remote possibility but a certainty,” however.[27] Thus, a cull that guarantees fatal takings fails the negligible impact exception. And, as a final, minor note, the MMPA does allow a wide range of individuals to deter marine mammals, but all determent measures must not result in death or serious injury, explicitly contrary to a seal cull.[28]
In total, the MMPA most likely prohibits a seal cull or any form of harassment. Killing any seal in Massachusetts is thus illegal, ineffective, and unnecessarily cruel. Seals are innocent and environmentally important actors for their top-down ecosystem controls. The “seal-enticed,” increasing shark presence provides top-down ecological balancing too, even including naturally balancing the seal “nuisance.” Additionally, not only is there no evidence that sharks deter tourism,[29] but to editorialize, the Cape and Islands likely do not need much more traffic this year.[30]
Applying the MMPA to seals shows that the Act is one of the few yet likely most powerful de facto protection for animals, and thus an equally powerful tool in restoring the already stressed and ecologically depleted Atlantic Ocean. NOAA and the MMC however should expand stakeholder outreach efforts by engaging fishers and Cape residents in open, two-way dialogue to bolster faith in science, foster respect within and among our human community for seals, and ultimately to preempt any illegal seal culls. Before then, to aid and maintain the ocean’s health and natural resources, simply please leave the seals alone.
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[1] Miriam Wasser, Seals on Cape Cod are More than Just Shark Bait, wbur (Aug. 2, 2019), https://www.wbur.org/earthwhile/2019/08/02/seal-culling-sharks-cape-cod.
[4] Nat’l Oceanic and Atmospheric Admin., Species Directory, https://www.fisheries.noaa.gov/species-directory/threatened-endangered (last visited May 19, 2021).
[6]See id. (reporting that between 72,000 and 135,000 seals were killed for bounty in Massachusetts and Maine for bounty by the mid-20th century).
[7] Stephanie A. Boudreau & Boris Worm, Top-Down Control of Lobster in the Gulf of Maine: Insights from Local Ecological Knowledge and Research Surveys, 403 Marine Ecology Prog. Ser. 181, 182 (2010) (citing first HK Lotze & I. Milewski, Two Centuries of Multiple Human Impacts and Successive Changes in a North Atlantic Food Web, 14 Ecology App. 1428 (2004); and then RS Steneck et al., Accelerating Trophic-Level Dysfunction in Kelp Forest Ecosystems of the Western North Atlantic, 7 Ecosystems 323 (2004)).
[8] Kenenth T. Frank et al., Trophic Cascades in a Formerly Cod-Dominated Ecosystem, 308 Sci. 1621, 1622 (2005).
[11] Analisa Berta & Morgan Churchill, Pinniped Taxonomy: Review of Currently Recognized Species and Subspecies, and Evidence Used for their Description, 42 Mammal Rev. 207, 222–24 (2012).
[15]Id. § 1362(11) (“The term “population stock” or “stock” means a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature.”).
[17] Kristin Ampela, The Diet and Foraging of Gray Seals (Halichoerus Grypus) in United States Waters 56 (2009) (Ph.D. dissertation, New York University), https://d279m997dpfwgl.cloudfront.net/wp/2019/08/B2C6Waring-diet-and-foraging.pdf.
[23] 16 U.S.C. § 1371(a)(2); Kokechik Fishermen’s Ass’n v. Secretary of Commerce, 839 F.2d 795, 800 (D.C. App. Cir. 1988).
[24] 16 U.S.C. § 1371(a)(3)(A). The frequent references to principles of resource protection and conservation mean that the “[marine mammal] species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.” Id. § 1361(2).
[30] Katie Johnston, On Cape Cod, Business Owners are Getting Ready for a Season of Record Crowds and Worker Shortages, Boston Globe (Apr. 6, 2021), https://www.msn.com/en-us/news/us/on-cape-cod-business-owners-are-getting-ready-for-a-season-of-record-crowds-and-worker-shortages/ar-BB1fmELG; Rick Sobey, Cape Traffic Ahead of the Summer Influx: Sagamore Bridge Lane Closures for Weeks, Boston Herald (Apr. 12, 2021), https://www.bostonherald.com/2021/04/12/cape-traffic-ahead-of-the-summer-influx-sagamore-bridge-lane-closures-for-weeks/.
About the Author
Ryan Clemens is a JD/MEM student at Vermont Law School and Yale School of the Environment from Massachusetts. He plans to first advocate for both conservation and stakeholder engagement and equity in the co-management of marine and coastal natural resources, and second to litigate for environmental quality, climate resiliency, and conservation within coastal development.
Millions of U.S. citizens living in unincorporated territories, like the U.S. Virgin Islands, have an inferior political and legal status. Congress passed legislation organizing the territory’s government under the Revised Organic Act of 1954, extending the Bill of Rights except the Ninth Amendment and other key constitutional amendments.[1]
While Congress extends U.S. citizenship to persons in these territories, they have no right to vote in presidential elections because unincorporated territories are not states.[2] They have a delegate to Congress, but this delegate has no voting rights.[3] This is an inequitable application of constitutional rights. Restorative principles insist the Court and Congress must create equity by dismantling the laws and policies that have denied these political rights to Virgin Islanders since its acquisition by the United States.
In 1999, the Food and Drug Administration (FDA) approved a beta-agonist drug commonly known as ractopamine.[1] Meat producers use ractopamine to accelerate weight gain and promote leanness in pigs, cattle, and turkeys.[2] Today, over 160 countries either restrict or completely ban the use of ractopamine.[3] However, the United States (U.S.) and 25 other countries still permit its use.[4] Most countries have banned or restricted ractopamine due to animal or human health concerns.[5] Many of these countries took a precautionary approach in reviewing the drug because studies have insufficiently demonstrated the drug’s safety.[6] Yet, the FDA fails to adopt a precautionary approach in approving animal drugs, which is highly problematic and concerning for meat consumers, animal welfare advocates, environmentalists, and others alike.[7] Even more concerning is that ractopamine is not the only non-essential, beta-agonist drug on the market. The FDA recently approved a drug known as Experior, which purports to reduce ammonia in cows.[8] Although this may sound like a good, environmentally conscious idea, its known and unknown risks substantially outweigh any benefits.[9] Overall, the U.S. must proceed with caution when approving drugs that are non-essential, non-therapeutic, and only serve some other—likely economic—purpose.
By: Tyler Yeargain | Associate Director, Yale Center for Environmental Law and Policy
February 15, 2021
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What if things had gone differently in 2020? There are countless ways to present the hypothetical—what if Pete Buttigieg had won Iowa outright, and walked away from the caucus with momentum?[1] What if Joe Biden hadn’t been endorsed by Congressman Jim Clyburn just before the South Carolina primary, preventing him from securing a landslide win in the state?[2] What if Elizabeth Warren hadn’t delivered a knockout blow to Mike Bloomberg on the debate stage, allowing his campaign to finish strong?[3] What if any of these things happened, resulting in Vermont’s own Bernie Sanders as the Democratic nominee for President in 2020? And what’s more—what if he won? Instead of the mittens memes from Inauguration Day,[4] we would’ve instead been gifted with countless meme-able moments from Bernie’s inauguration speech.
We also would’ve been confronted with a particularly sticky problem: how to replace Bernie in the Senate. Because the current Governor of Vermont, Phil Scott, is a Republican, he could’ve appointed a Republican as Bernie’s replacement. (He promised not to,[5] but he would’ve been under no obligation to keep that promise.) That could’ve shifted a 50–50 Democratic Senate to a 51–49 Republican Senate, at least until a special election could be held.
But wait. Some states—namely, Arizona, Hawaiʻi, Maryland, North Carolina, and Wyoming[6]—require that a Senate vacancy be filled with a same-party appointment. Surely the same sort of requirement could’ve been imposed by the Vermont General Assembly, requiring Governor Scott to pick a Democrat to replace Bernie.
Yes and no. Yes, such a requirement could’ve been imposed. No, it likely wouldn’t have helped. There are a couple main problems with how this requirement likely would’ve utterly failed, or would’ve needed to be a tangled web of exceptions and asterisks, but it’s easy enough to unpack.
First, we need to understand how most same-party replacement systems work. While they’ve only been sparingly adopted at the federal level—and thus we don’t have much of a track record for how they play out—they’ve existed at the state level in some form or another for over a century.[7] These systems come in many different forms. As I’ve explained elsewhere, sometimes they give the appointing power to the governor, sometimes to a county commission, sometimes to the state legislature, and sometimes even to the state party directly.[8] But the Seventeenth Amendment to the Constitution makes this an easy question for U.S. Senate vacancies—the Governor is required to fill the vacancy.[9] So a same-party requirement could loosely require the Governor to simply appoint a member of the same party, or it could require the state party to give the Governor a list of potential candidates, a list from which they must pick one.
But that’s only half the battle. What does “same-party” mean? In many states, “party” is (implicitly) defined as the party that nominated the candidate at the most recent election; in many others, it’s defined as the party with which the candidate was associated or affiliated most recently.[10] (This distinction matters a lot for state legislators who switched parties.)
And so we immediately come to a problem in Vermont. In 2018, the most recent election for the Class I Senate seat that Bernie holds, he was nominated as a Democrat—but declined the nomination.[11] Moreover, Vermont is one of the few states that still allows fusion-ticket voting, which enables more than one party to nominate the same candidate.[12] In 2020, for example, Lieutenant Governor David Zuckerman was nominated for Governor by both the Democratic Party and the Progressive Party.[13] So building out a same-party requirement that focuses on nomination would suffer some serious problems.
But if the same-party requirement was imposed with respect to affiliation, we’d run into a similar problem. Because voters don’t register to vote in Vermont with a party,[14] the “same party” couldn’t be based on registration. It would have to instead be based on a candidate’s informal association or affiliation with a party. In Bernie’s case, there would be a pretty strong case that he is associated or affiliated with the Democratic Party—he ran for President twice as a Democrat, was nominated by the Democratic Party in 2018, and caucuses with the Democratic Party in the Senate.
Alternatively, a same-party requirement could include a special exception for “independent” or “unaffiliated” state legislators, a practice adopted by many states.[15] In states with these processes, there is a rainbow of varying options. In some cases, the Governor can appoint whomever they want; in others, they (or the appointing official) are required to appoint another independent; in others still, there is either no explicit procedure or the seat is explicitly left vacant.[16] Colorado employs the most unusual (and, in my view, the best) option: each independent candidate for the state legislature designates a “vacancy committee” that is tasked with picking their replacement should they be elected to office and then vacate their seat.[17]
Vermont could’ve adopted such a requirement, but retroactively requiring a successful independent candidate for office to name a “vacancy committee” is suspect—and could easily run afoul of the Seventeenth Amendment, which requires the Governor to make the appointment. It’s possible that the “vacancy committee” could act as a sort-of, makeshift political party and present the Governor with several different options.
Of course, it’s possible that all of these options are unconstitutional under the Seventeenth Amendment. That’s what Vikram Amar has repeatedly argued, for example.[18] Under Professor Amar’s view of the Seventeenth Amendment, the Governor’s power to appoint is virtually unlimited, and the only thing that the legislature can do is either grant them the power or deny them the power; it cannot condition the exercise of the power.[19] I personally disagree with this view,[20] but in any event, there’s no guidance from any federal court as to whether this is constitutional. No challenge to a same-party appointment system as applied to a U.S. Senate vacancy has ever been adjudicated,[21] and given the (relative) rarity of Senate vacancies,[22] it may never be adjudicated.
In any event, the fact that Bernie wasn’t elected President in 2020, or that he didn’t end up as President Biden’s Secretary of Labor,[23] shouldn’t obviate the need for Vermont to adopt a same-party replacement system for U.S. Senate vacancies. As recent news surrounding Senator Patrick Leahy’s health has demonstrated,[24] the unthinkable is always possible. And it’s incumbent on the Vermont General Assembly to plan for the unthinkable—and to avoid an outcome in which an untimely vacancy flips a Senate seat, and with it, control of the federal government.
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[1] Domenico Montanaro, 3 Big Questions After the Iowa Results Meltdown, NPR (Feb. 4, 2020, 2:00 PM ET), https://www.npr.org/2020/02/04/802681380/what-the-iowa-meltdown-means-and-where-we-go-from-here (“[I]magine, for example, if on caucus night, it was known in prime time that Sanders and Buttigieg were the top two. And imagine what that would mean for Biden’s candidacy — and fundraising.”).
[2] Donna M. Owens, Jim Clyburn Changed Everything for Joe Biden’s Campaign. He’s Been a Political Force for a Long Time., Wash. Post (Apr. 1, 2020, 6:00 AM EDT), https://www.washingtonpost.com/lifestyle/style/jim-clyburn-changed-everything-for-joe-bidens-campaign-hes-been-a-political-force-for-a-long-time/2020/03/30/7d054e98-6d33-11ea-aa80-c2470c6b2034_story.html.
[3] Christopher Cadelago & Sally Goldenberg, Bloomberg Tumbles Heading into Super Tuesday, Politico (Feb. 27, 2020, 4:30 AM EST), https://www.politico.com/news/2020/02/27/bloomberg-super-tuesday-polls-117796.
[4]E.g., Lisa Rathke, Bernie Sanders’ Mittens, Memes Help Raise $1.8M for Charity, Associated Press (Jan. 27, 2020), https://apnews.com/article/bernie-sanders-mittens-memes-charity-3f8afd8e8a5a0b8b9709dd6d4d30ec13.
[5] Paul Heintz, Scott Says He Would Replace Sanders with Democrat-Affiliated Independent, Seven Days (Burlington, Vt.) (Oct. 23, 2020, 4:26 PM), https://www.sevendaysvt.com/OffMessage/archives/2020/10/23/scott-says-he-would-replace-sanders-with-democrat-affiliated-independent.
[6] Tyler Yeargain, Same-Party Legislative Appointments and the Problem of Party Switching, 8 Tex. A&M L. Rev. 163, 196 n.219 (2020), https://scholarship.law.tamu.edu/lawreview/vol8/iss1/6/.
[7] Tyler Yeargain, The Legal History of State Legislative Vacancies and Temporary Appointments, 28 J.L. & Pol’y 564, 587–601 (2020), https://brooklynworks.brooklaw.edu/jlp/vol28/iss2/4/.
[9] U.S. Const. amend. XVII (amended 1913) (“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”).
[11] Sean Sullivan, Bernie Sanders Wins the Democratic Nomination. Just Don’t Expect Him to Run with It., Wash. Post (Aug. 14, 2018, 8:23 PM EST), https://www.washingtonpost.com/politics/2018/live-updates/midterms/live-primary-election-results/bernie-sanders-wins-the-democratic-nomination-just-dont-expect-him-to-run-with-it/?arc404=true/.
[12] Adam Morse & J.J. Gass, Brennan Ctr. for Justice, More Choices, More Voices: A Primer on Fusion 1–2 (Oct. 2006), https://www.brennancenter.org/sites/default/files/2019-08/Report_More-Choices-More-Voices.pdf.
[13] Jane Lindholm & Emily Aiken, Candidate Conversations: David Zuckerman Runs for Governor, VPR (Oct. 13, 2020), https://www.vpr.org/post/candidate-conversations-david-zuckerman-runs-governor#stream/0.
[14] Taylor Dobbs, How Will Bernie Sanders (Officially) Become a Democrat?, VPR (May 1, 2015), https://www.vpr.org/post/how-will-bernie-sanders-officially-become-democrat#stream/0.
[15] Tyler Yeargain, Third Wheeling in the Two-Party System: How Same-Party Replacement Systems Impede the Replacement of Independent and Third-Party Legislators, 123 W. Va. L. Rev. 393, 403–409 (2021).
[18]See generally Vikram David Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hastings Const. L.Q. 727 (2008) (arguing that the Seventeenth Amendment precludes such requirements).
[20] As does Professor Sanford Levinson, see generally Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 Hastings L.Q. 713 (2008).
[21] The closest that a court got to reaching the issue was the Ninth Circuit in Hamamoto v. Ige, but the panel declined to reach the constitutional argument, concluding that the issue was moot. 881 F.3d 719, 723 (9th Cir. 2018) (per curiam).
[23] Dan D’Ambrosio, President-elect Biden Explains Why He Passed on Sanders for Labor Secretary, Burlington Free Press (Jan. 8, 2021, 5:04 PM ET), https://www.burlingtonfreepress.com/story/news/2021/01/08/biden-decides-not-tap-sanders-labor-secretary/6601923002/ (“Biden said Sanders agreed that after the Georgia run-off, having a special election in Vermont to replace Sanders should he join Biden’s Cabinet was too risky.”).
[24] Burgess Everett, Leahy’s Hospitalization Shows Dems’ Majority Hangs by a Thread, Politico (Jan. 27, 2021, 11:26 AM EST), https://www.politico.com/news/2021/01/27/patrick-leahy-health-463080.
About the Author
Tyler Q. Yeargain is the Associate Director of the Yale Center for Environmental Law and Policy at Yale Law School. He graduated from the Emory University School of Law with High Honors in 2019 and subsequently clerked on the United States Court of Appeals for the Eleventh Circuit for Judge Lanier Anderson. His research focuses on the relationship between the formation of state government institutions and policy outcomes in a variety of areas—especially in criminal, election, and environmental law.
By: Christian D. Petrangelo | Attorney, Regulatory Compliance Specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc.
January 14, 2021
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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.[1]
A Patchwork Approach to Addressing COVID-19 in the Workplace
In the absence of federal regulation, some states—including California,[2] Virginia,[3] and Oregon[4]—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.[5] A separate section of Virginia’s ETS contains requirements for hazards or job tasks considered “medium,” “high,” or “very high” exposure risks.[6]
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 . . . .”[7] 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.[8]
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.[9]
So what constitutes a “recognized hazard”?[10] 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.”[11] The OSHA Field Operations Manual elaborates that a hazard may be recognized on the basis of employer, industry, or “common-sense” recognition.[12] Of these, employer recognition is the most likely to impact the question at hand.[13]
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.[14] The Fifth Circuit held that employer recognition may be found “absent direct evidence of subjective belief” where the hazard is “obvious and glaring.”[15] Perhaps most importantly, the Sixth Circuit found that evidence of employer safety efforts is relevant to the question of hazard recognition.[16] However, the OSHRC “has been reluctant to rely solely on an employer’s safety precautions to find hazard recognition absent other ‘independent evidence.’”[17]
On employer safety efforts, OSHA may reference the following documents as evidence of employer recognition of a particular hazard: work rules,[18] company safety programs/policies,[19] 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.[20] 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.[21]
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.
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[1] 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.
[5] 16 Va. Admin. Code § 25-220-40 (2020) (using Virginia as an example).
[6] 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.
[12] Field Operations Manual, supra note 8, at 4-12.
[13] 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.
[14] Magma Copper Co. v. Marshall, 608 F.2d 373, 376 (9th Cir. 1979).
[15] 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)).
[21] Field Operations Manual, supra note 8, at 4-12.
About the Author
Christian is an attorney and regulatory compliance specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc. Christian proudly served as Senior Managing Editor of the Vermont Law Review for Volume 36 (2011–2012). He holds a J.D. from VLS (2012) and a Master’s in Environmental Policy & Regulation from the London School of Economics (2009).
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
