Residents of Toledo, Ohio, were given a stark warning in August of 2014: “Do not drink the water, do not brush your teeth or prepare food with it, and do not give it to your pets.”[1] This warning came after a particularly dangerous harmful algal bloom (HAB) in the western basin of Lake Erie; just offshore from Toledo.[2] Lake Erie has a history of HABs dating back to the 1960s.[3] HABs died down in the decade before and after the turn of the 21st century, but steadily increased since then.[4] Sensing an abdication of their government’s environmental responsibility—that directly endangered their health and well-being—the people of Toledo worked to enact a Rights of Nature (RoN) ordinance.[5]
The United States is facing a critical moment in human history and the choices we make will determine the future we will collectively inhabit. Societally, we are still grappling with whether the science of climate change is real and whether humans are the cause of it.[1] In the meantime, species are dying off in all ecosystems at alarming levels.[2] The increase in overall extinction has drastically accelerated since the dawn of the Industrial Revolution and the increase of human-produced greenhouse gases.[3] While we are making steps in the right direction to reduce greenhouse gas production, it is not quickly enough to prevent a warming planet and the ensuing effects on all species.[4] Currently, the way we conserve species focuses on populations that are already threatened, whose numbers are dangerously close to extinction. [5]We should be taking more proactive steps to assist species that are still abundant, so they are capable of adapting through the Anthropocene.[6]
Imagine that you and your friends took a vacation to a five-star resort. Your phone vibrates with an alert that a foreign country has just launched a nuclear missile, and it is undoubtedly on its way to your location. The resort can assist you in departing before the missile arrives. Meanwhile, while cognizant of the danger, the resort’s staff disregards the severity of the crisis.
You and others are stunned when you hear the resort’s response to the many grievances that are circulating amongst the group. Despite knowledge of the danger and the resources to assist you and others, the resort ignores your plea and adds ‘you’ll survive, don’t worry.” However, one staff member disagrees and offers you and others a way out of this travesty. And when the group makes its way to the exit, the head of security for the resort halts you in your path. And to add to this preposterous response, you overhear a command on the head security guard’s radio stating, “this is the owner of the resort; those individuals are prohibited from leaving the resort grounds.” The resort’s security begins to detain you and the group and jokingly says “you were supposed to fill out a request, subject to the review of our board of directors who will be in next week.”
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.
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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.
